United States v. O'Brien
O’Brien argued to the jury
Case Summary and Outcome
The Supreme Court upheld a conviction for burning a military draft registration
certificate on the steps of a courthouse. The case was brought by David Paul
O’Brien who was criminally convicted for burning his military draft certificate on
the steps of the South Boston Courthouse. His actions violated Section 462 of the
Universal Military Training and Service Act of 1948, which made it illegal to forge,
alter, change, destroy, or mutilate registration certificates. The Court reasoned, by
means of a test, that government regulation was justified because it was within
the constitutional power of the Government, furthered an important or substantial
governmental interest, and was unrelated to the suppression of free expression.
Facts
David Paul O’Brien (O’Brien) and three other people burned their registration
certificates for the Selective Service in front of the South Boston Courthouse on
March 31, 1966. A sizable crowd that witnessed the card-burning demonstration
“began attacking O’Brien and his companions.” (at 369.) O’Brien told an FBI agent
that “he had burned his registration certificate because of his beliefs.” The United
States was involved in the Vietnam War at the time of O’Brien’s demonstration,
and the burning of Selective Service registration certificates (or “draft cards”) was
a common form of protest.
The Selective Service is a United States government agency that registers and
maintains information on people (mostly men) eligible for conscription into the
armed forces, such as via a military draft. Men are required to register with their
local draft board upon reaching the age of 18. Two important documents related
to the administration of the Selective Service are the registration certificate and
the classification certificate. The registration certificate is issued soon
upon registration, and contains the individual’s Selective Service identification
number. The classification certificate denotes eligibility for conscription or the
draft. Both certificates have information important to the administration and
management of the Selective Service.
Section 462 of the Universal Military Training and Service Act of 1948 made it
illegal to forge, alter, or change Selective Service registration certificates. In 1965,
Congress amended this section to further forbid knowingly destroying or mutilating
registration certificates (“Section 462” or the “card-destruction statute”). There was
also a regulation subject to criminal felony penalties which required Selective
Service registrants to have both certificates “in their personal possession at all
times.”
For burning his registration certificate, O’Brien faced criminal penalties. The
United States District Court for the District of Massachusetts indicted, tried,
convicted, and sentenced O’Brien under Section 462.
that he had publicly burned his registration certificate to “influence others to adopt
his antiwar beliefs … so that other people would reevaluate their positions with
Selective Service, with the armed forces, and reevaluate their place in the culture
of today, to hopefully consider my position.” (at 370.) O’Brien further argued that
the law was unconstitutional “because it was enacted to abridge free speech, and
because it served no legitimate legislative purpose.” (at 370.)
The district court sentenced O’Brien “to the custody of the Attorney General for a
maximum period of six years for supervision and treatment.” (at 369-70 n.2.) On
appeal, the First Circuit Court of Appeals held the card-destruction statute
unconstitutional for abridging free speech in violation of the First Amendment of
the United States Constitution. There was also a secondary dispute concerning
conviction under the regulation requiring personal possession of registration
certificates at all times. The U.S. government petitioned for certiorari, which the
Supreme Court granted.
Decision Overview
Chief Justice Warren delivered the opinion of the United States Supreme Court.
O’Brien argued that the card-destruction statute was unconstitutional as applied
to him as restricting protected “symbolic speech,” and alternatively that the
purpose or motivation of Congress’s prohibition on destroying cards was an
unlawful suppression of speech.
First, the Court considered whether the card-destruction statute was an
unconstitutional restriction on symbolic speech. On its face, the statute does not
restrict speech itself. The statute bans forging, altering, destroying, and mutilating
Selective Service registration certificates, making no mention of any manner of
speaking. Enforcement of the statute is also unaffected by any potentially
expressive content in the destruction of registration cards; it is applied
indiscriminately. O’Brien argued that symbolic speech, the “communication of
ideas by conduct,” is protected, and that he was communicating his objections to
the military draft by his public burning of his registration certificate.
Although the Court conceded that symbolic speech is protected to an extent, it
could not “accept the view that an apparently limitless variety of conduct can be
labeled ‘speech’ whenever the person engaging in the conduct intends thereby to
express an idea.” (at 376.) Supreme Court jurisprudence demonstrated that “that
when ‘speech’ and ‘nonspeech’ elements are combined in the same course of
conduct, a sufficiently important governmental interest in regulating the
nonspeech element can justify incidental limitations on First Amendment
freedoms.” (at 376.) Although the Court’s characterization of the interest the
government must demonstrate has varied from “compelling,” to “substantial,”
“paramount,” and “cogent,” the Court found “it clear that a government regulation
is sufficiently justified if:
1. It is within the constitutional power of the Government;
2. It furthers an important or substantial governmental interest;
3. The governmental interest is unrelated to the suppression of free expression;
and
4. The incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest.” (at 376-77.)
According to the Court, the creation of Selective Service was clearly within
Congress’s power to raise and support armies, which it found “broad and
sweeping.” (at 377.) Further, the second factor was met because the “issuance of
certificates indicating the registration and eligibility classification of individuals is a
legitimate and substantial administrative aid in the functioning of this [registration]
system. And legislation to insure the continuing availability of issued certificates
serves a legitimate and substantial purpose in the system’s administration.” (at
377-78.) Summarily, the Court characterized the government’s interest as
“substantial.” (at 381.)
To satisfy the third requirement, the government’s interest in the smooth
functioning of the Selective Service had nothing to do with suppressing speech.
Again, the enforcement of the card-destruction statute was not inherently related
to speech, but strictly related to non-communicative conduct. Finally, the law was
sufficiently narrowly drawn to preserve the availability and integrity of the
certificates maintaining the Selective Service system. The destruction or mutilation
of certificates would frustrate or defeat the purpose of the registration system
implemented by the Selective Service. Furthermore, requirements that registrants
have the certificates in their possession at all times were insufficient to preserve
these important documents: “the essential elements of nonpossession are not
identical with those of mutilation or destruction,” “they protect overlapping but not
identical governmental interests, and … they reach somewhat different classes of
wrongdoers.” (at 380-81.)
Basically, the ban on conduct regulated by the card-destruction statute
was necessary to ensure a smooth functioning of the registration system. In
conclusion, the law was an appropriately narrow tool to protect the government’s
sufficient and “substantial interest in assuring the continuing availability of issued
Selective Service certificates.” Because it met all four requirements, the law was
a permissible regulation on symbolic speech and did not overly burden O’Brien’s
expressive conduct.
O’Brien’s second argument was that the card-destruction statute was
unconstitutional because the purpose was to suppress the freedom of
speech. However, the Court held that it is “a familiar principle of constitutional law
that [the U.S. Supreme] Court will not strike down an otherwise constitutional
statute on the basis of an alleged illicit legislative motive.” (at 383.) The courts may
look to legislative history and intent when interpretation of the law is at issue. But
in O’Brien’s case, the interpretation of the card-destruction statute was straight-
forward. For this reason, the purpose of the 1965 amendment was irrelevant,
though the Court indicated there was scant evidence supporting O’Brien’s
argument that the motivation of the statute was to suppress speech.
Because the card-destruction statute met all four requirements for laws that
indirectly impact symbolic speech, and because the motivation for the statute
is largely irrelevant under U.S. principles of judicial review, the Court upheld
O’Brien’s conviction. The Court vacated the judgment of the Court of Appeals, and
reinstated the district court’s conviction of O’Brien under the card-destruction
statute. Because of its ruling, the Court did not consider the secondary argument
regarding the possession regulation.
Justice Marshall took no part in the consideration of the case.
Justice Harlan wrote a concurring opinion to clarify that the four-prong O’Brien test
does not prevent review in cases in which a speaker is effectively prevented from
reaching a significant audience.
Justice Douglas wrote a dissenting opinion. He did not dispute the validity of
the O’Brien test, or most of the Court’s application of that test. Justice Douglas
primarily argued that the Court should request reargument from the government
and O’Brien to discuss the constitutionality of a peacetime draft when there has
been no declaration of war from Congress (as there had not been in the ongoing
Vietnam War). The Court’s decision on that issue would impact the breadth of
Congress’s powers to raise and support armies, and thus the
Court’s interpretation of the first prong of the O’Brien test.
Lemon v. Kurtzman
Case Summary and Outcome
The U.S. Supreme Court held that Rhode Island and Pennsylvania statutes which
provided state funding for the teaching of secular subjects, as well as the
associated teacher’s salaries, in parochial schools were unconstitutional. The
Court found that the statutes were an excessive entanglement of church and state
thereby violating the Establishment and Free Exercise Clauses of the First
Amendment. The Court affirmed the decision in the Rhode Island case which had
held that the state aid in support of secular instruction to teachers in Roman
Catholic schools violated the Establishment Clause. Meanwhile, the Court
reversed and remanded the decision of the Eastern District Court of Pennsylvania
which had held that state reimbursements to non-public schools for expenditure
on secular educational services did not violate the Establishment nor Free
Exercise Clause. The Court reasoned that state funding for secular activities at
non-public schools, as well as the required monitoring of the programs and the
potential for political divisiveness this would entail, went beyond the acceptable
degree of entanglement between church and state. It said that programs like the
ones created in the Pennsylvania and Rhode Island statutes “too greatly blur the
separation of church and state. Such entanglement is extremely dangerous and
violates the First Amendment”.
This case is significant because the Court outlined what has become known as
the “Lemon Test,” which was recently cited by the Hawaii and Maryland district
courts in support of their issuing of temporary restraining orders against President
Trump’s travel ban. According to the test: “First, the statute must have a secular
legislative purpose; second, its principal or primary effect must be one that neither
advances nor inhibits religion; finally, the statute must not foster “an excessive
government entanglement with religion.”
Facts
In the late 1960s, the states of Rhode Island and Pennsylvania enacted statutes
that provided non-secular religious private schools with financial support for the
teaching of secular subjects. Secular subjects are nonreligious and are not limited
by teachings of a religious order. The Rhode Island and Pennsylvania cases were
brought separately but decided in a joint decision upon reaching the Supreme
Court.
1. Rhode Island – Earley et al. v. DiCenso
Plaintiffs, citizens and taxpayers of Rhode Island, brought suit against the State
of Rhode Island to have the 1969 Salary Supplement Act declared
unconstitutional. Rhode Island’s 1969 Salary Supplement Act provided that the
State could supplement 15% of teacher’s salaries who taught secular subjects at
religious schools. Eligible teachers must have agreed to not teach courses in
religion and only teach courses, using the same materials, as those offered in
public schools. Appellees argued that the statute violated the Establishment
Clause of the First Amendment. The District Court agreed, finding the statute
unconstitutional under the Establishment Clause of the First Amendment and
holding that the statute “fostered ‘excessive entanglement’ between government
and religion… the Act had the impermissible effect of giving ‘significant aid to a
religious enterprise.” The State appealed and the case was granted certiorari by
the Supreme Court.
2. Pennsylvania – Lemon v. Kurtzman
Plaintiffs, citizens and taxpayers of Pennsylvania, brought suit against the
Commonwealth of Pennsylvania to have Pennsylvania’s Nonpublic Elementary
and Secondary Education Act of 1968 declared unconstitutional. The Act
reimbursed religious schools for teachers’ salaries, textbooks, and materials
related to secular subjects. The Act provided that all textbooks and materials must
be pre-approved by the Superintendent and no payment could be made towards
any course that expressed religious teachings. The Act was originally funded by
a new tax on horse racing. One of the Plaintiffs, Alton J. Lemon, was the father of
a child who attended Pennsylvania Public Schools. Lemon claimed to have paid
the specific tax to support non-secular schools under the Act. The District Court
found that the Act did not violate the Establishment or Free Exercise Clauses of
the First Amendment. The Plaintiffs appealed and the case was brought before
the Supreme Court.
Decision Overview
Chief J. Burger delivered the opinion of the Court. The Court found that both the
Rhode Island and Pennsylvania statutes were unconstitutional. The Court held
that the statutes violated the Establishment and Free Exercise Clause of the First
Amendment as well as the Due Process Clause of Fourteenth Amendment.
The Court firstly highlighted the “three main evils” which the Establishment Clause
was intended to prevent: “sponsorship, financial support and involvement of the
sovereign in religious activity.” The Court then specified the three tests that had
been used previously by the Court to determine whether a State is guilty of one of
the”three main evils”. First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither advances nor
inhibits religion; finally, the statute must not foster “an excessive government
entanglement with religion”. The Court found that both the Rhode Island and
Pennsylvania statutes passed the first test and that, in fact, the statutes clearly
stated an intention to enhance the quality of secular education.
The Court then considered the conclusion reached by the State legislators
that secular and religious education are identifiable and separable with which, it
said, it had no quarrel in the abstract. However the Court said that the States’
recognition that church-related elementary and secondary schools have a
significant religious mission and that a substantial portion of their activities is
religiously oriented, had led them to create statutory restrictions designed to
guarantee the separation between secular and religious educational functions and
to ensure that State financial aid supports only the former. The Court said that
these provisions were precautions taken in candid recognition that the programs
approached, even if they did not intrude upon, the forbidden areas under the
Religion Clauses. In these circumstances, the Court said it didn’t need to decide
whether the legislative precautions restricted the principal or primary effect of the
programs to the point where they did not offend the Religion Clauses because it
concluded “that the cumulative impact of the entire relationship arising under the
statutes in each State involve[d] excessive entanglement between government
and religion.”
The Court explained that the aim of the Establishment Clause is not absolute
separation and that it was not possible for such an absolute to exist. It said that
there are situations in which the state must have a relationship with religious
institutions, for example, ensuring churches follow building regulations and
requiring religious schools to comply with compulsory school attendance laws.
However, the objective of the Establishment Clause is to prevent, as much as
possible, the encroachment of religion onto the state and vice versa. An excessive
entanglement of government and religion is determined by “the character and
purposes of the institutions that are benefited, the nature of the aid that the State
provides, and the resulting relationship between the government and the religious
authority”.
1. Rhode Island –Earley et al.v. DiCenso
With respect to the Rhode Island statute, the Court stated the following: Roman
Catholic elementary schools are the sole beneficiaries of the 1969 Salary
Supplement Act. The environment in such schools is entrenched with the values
of the church, so far as catholic schools are considered to be “integral to the
religious mission of the Catholic Church.” Approximately 75% of teachers at these
elementary schools are nuns where nuns are taught to enhance the religious
atmosphere while non-secular individuals are appointed to positions of authority
and the schools in question had policies that aimed to keep a one-to-one ratio
between nuns and secular teachers.
The pre-approval of the textbooks used is not enough to ensure secular teachings
are actually occurring since teachers can have substantially different ideologies
than textbooks. More importantly, there is nothing to say that a teacher under the
authority of a religious institution will not teach religion or insert religion into an
otherwise secular subject. The schools are supervised by their local parish and all
teaching contracts are signed by the parish priest which has some discretion over
salaries. The implication is not an assumption that these teachers would act in
bad faith, but a frank realization that it would be extremely difficult for these
teachers to remain secular in such an environment.
While the District Court stated the teaching of religious values did not necessarily
infringe on secular teaching, the requirements as set forth in the Act would include
heightened state surveillance of these schools to ensure that state aid was only
going towards secular education. This surveillance would consequently be
discriminatory against religious schools.
Finally, in order to receive funding, the government must have access to the
school’s records to determine how much is spent on secular versus non-secular
activities. The state’s observation of the religious activity is further proof of the
entanglement the Constitution forbids. It places the government in a position to
unduly influence religious schools and, thereby, religious institutions. The
government’s interference here would violate the First Amendment.
The Court affirmed.
2. Pennsylvania –Lemon v. Kurtzman
With respect to the Pennsylvania statute, the Court expressed similar concerns
that non-secular elementary and secondary schools have an ingrained interest in
promoting religious faith. The Court noted that direct funds to non-secular
institutions vary by level of state control and surveillance. The Pennsylvania
statute in no way indicated to the Court what level of surveillance the state would
adopt, therefore, the Court could not determine how great the relationship
between the government and religious schools would be in this instance.
However, entanglement is still present through the potential for these state
programs to be politically divisive. As tuition rises or any number of scenarios
occur, supporters of the religious schools (parents, teachers, churches) could
politically align themselves solely based on faith. While democracies usually favor
increased political discourse, the Court stressed that political division based on
religious faith was “one of the evils” the First Amendment aimed to prevent. The
Court noted that while the lower courts did not per se discuss this issue, the Court
feared that political discourse would pressure Pennsylvania into expanding
funding. The Court noted that the pressure to expand aid had caused the
Pennsylvania state legislature to include a portion of state revenue cigarette taxes
to fund the program.
The Court reversed and remanded the Pennsylvania case (Lemon) to be decided
in compliance with this decision.
In conclusion, the Court emphasized that religion must be a private matter for the
individual, the family, and the institutions of private choice, and that, while some
involvement and entanglement are inevitable, lines must be drawn. It said that
programs like the ones created in the Pennsylvania and Rhode Island statutes
“too greatly blur the separation of church and state. Such entanglement is
extremely dangerous and violates the First Amendment”.