Bowen v. Roy

PETITIONER:Otis R. Bowen, Secretary of Health and Human Services; John R. Block, Secretary of Agriculture; Walter Cohen, Secretary of the Pennsylvania Department of Public Welfare
RESPONDENT:Stephen J. Roy and Karen Miller
LOCATION:Pennsylvania Department of Public Welfare

DOCKET NO.: 84-780
DECIDED BY: Burger Court (1981-1986)

CITATION: 476 US 693 (1986)
ARGUED: Jan 14, 1986
DECIDED: Jun 11, 1986

Gary S. Gildin – on behalf of the appellees
Kenneth Steven Geller – on behalf of the appellants.,

Facts of the case

Stephen J. Roy and Karen Miller, along with their daughter Little Bird of Snow, were residents of Pennsylvania receiving benefits under the Aid to Families with Dependent Children (AFDC) and Food Stamps programs. Roy and Miller refused to comply with the federal requirement that participants in these programs provide the social security numbers of all family members receiving benefits. They argued that obtaining a social security number for Little Bird would violate their Native American religious beliefs. The Pennsylvania Department of Public Welfare terminated AFDC benefits paid for Little Bird and the parents sued, arguing that the free excessive clause of the First Amendment provided an exemption to the social security number requirement. At trial, Roy disclosed the Little Bird already had a social security number, and the court suggested the case was moot. Roy then argued that widespread use of the social security number would “rob the spirit” of Little Bird, violating their religious beliefs. The court restrained the government from denying benefits for Little Bird until she was 16 years old, but denied Roy’s request for damages.


Does the free exercise clause of the First Amendment provide an exception to the social security number requirement to receive state and federal welfare benefits?

Warren E. Burger:

We will hear arguments first this morning in Bowen, the Secretary of Health and Human Services, against Roy.

Mr. Geller, you may proceed whenever you are ready.

Kenneth Steven Geller:

Thank you, Mr. Chief Justice, and may it please the Court, this case involves a challenge to the constitutionality of two federal statutes that require applicants for welfare benefits to provide the government with their social security numbers as a condition on receiving those benefits.

Appellees claim that it would violate their rights under the free exercise clause of the First Amendment if they had to provide the Social Security number of their daughter, Little Bird of the Snow.

The District Court agreed with this claim and declare the statute unconstitutional and ordered the government to provide the welfare benefits without insisting that the appellees comply with the Social Security Number requirement.

We have taken a direct appeal to this Court.

Before turning to the facts of this case, I would like to mention very briefly an important aspect of the two federal programs that are involved here.

Both the aid to families with dependent children program and the food stamp program are obviously based on financial need, and the amount of the government grant is a function of family size and family income.

As a result, all earned and unearned income of each family member has to be counted in determining eligibility and the amount of benefits.

Therefore, under both programs, it is essential that benefit applicants furnish income and eligibility data for each member of the family, including children, and that we be able to verify that information for each member of the family.

Now, when appellee Stephen Roy applied for AFDC and food stamp benefits, he agreed to give the government his own Social Security Number and the Social Security Numbers of his wife and elder daughter, but he refused to give the Social Security Number of his younger daughter, Little Bird of the Snow.

Roy claimed that as a result of his religious beliefs, he considers Social Security Numbers to be part of the so-called Great Evil, because the numbers are used by computers, and therefore rob people’s spirits.

Now, Roy testified that the evil of Social Security Numbers is related to their function as unique personal identifiers, and that if he had to obtain a Social Security Number for Little Bird of the Snow and provide it to the government, it would rob her spirit and deprive her of the ability to achieve greater power.

Sandra Day O’Connor:

Mr. Geller, the Court below found that the claim was based on a sincere religious belief.

Your comments suggest that you think that that might not be the case.

Do you concede that it was the product of a sincere religious belief?

Kenneth Steven Geller:

My comment was simply to explain Roy’s testimony.

We have not challenged in this Court.

We did challenge in the District Court.

We have not challenged in this Court that it is the product of a sincere religious belief, but I am sure it is sincere.

We have some doubts whether it is the product of a religious belief.

I think many people in our society have these sorts of concerns.

Sandra Day O’Connor:

Well, do you challenge in this Court the finding of the District Court:

Kenneth Steven Geller:

No, we have not.

It is a futile exercise, we think, to challenge those sorts of findings.

William J. Brennan, Jr.:

–Mr. Geller, I gather in fact the number of Little Bird of the Snow had been at some stage given to the government.

Kenneth Steven Geller:

Well, yes.

I was about to come to that, Justice Brennan.

William J. Brennan, Jr.:


Kenneth Steven Geller:

I am sure as this Court is aware from reading the briefs, there are a number of peculiar aspects to this case.

Kenneth Steven Geller:

The most peculiar, I think, is that the case had been tried on the assumption that Little Bird of the Snow did not have a Social Security Number, and that it would violate Roy’s First Amendment rights if he had to obtain one for her and provide it to the government, but it came out on the last day of trial that she in fact did have a Social Security Number because her mother had applied for one right after she was born.

I think it is fair to say that when this revelation was made Roy changed somewhat the nature of his constitutional objections.

This case had been brought on the theory and the complaint charged that Roy’s First Amendment rights would be violated by having to obtain and provide a Social Security Number to the government in order to get welfare benefits.

But after the surprise revelation that despite what Roy had led the District Court and the government to believe, Little Bird in fact had a Social Security Number.

Roy claimed at that point that he was instead concerned more with the use and dissemination of the number rather than having to provide it to the government.

In any event, the District Court held at the conclusion of the trial that the Social Security Number requirement was unconstitutional as applied to Roy, and the court enjoined the government from denying welfare benefits based on Roy’s failure to provide that number to the government.

Now, in reaching its constitutional holding, the District Court found as–

William H. Rehnquist:

How could the District Court have enjoined the government from failing to provide Social Security based on the failure to have furnished the number if the number had already been applied for?

Kenneth Steven Geller:

–The District Court enjoyed the government from using or disseminating the number that we already had.

Of course, we have made a separate objection to the injunction on the ground that our use of the number, which doesn’t require any action or belief on the part of the appellee, wouldn’t violate the First Amendment.

William H. Rehnquist:

What was the District Court’s response to that?

Kenneth Steven Geller:

The District Court’s response was not much of a response.

It held that this was the only way to protect the perceived First Amendment rights of Roy.

Now, as I said, the District Court did find that Roy had a sincere religious objection, and we are not objecting to that here, but by the same token, the District Court also found that the government had a compelling interest in using Social Security Numbers in order to effectively manage programs of this size to verify eligibility and the amount of benefits and to ferret out and deter fraud.

And despite Roy’s attempts to argue otherwise in this Court, I don’t think there can be any serious objection to that finding by the District Court.

There really can’t be any doubt that the government has a compelling interest in seeing that $20 billion a year in welfare benefits are targeted to the people that Congress meant to receive them, and it is undisputed that the use of Social Security Numbers is instrumental in accomplishing that important objective.

Now, the District Court failed to have found that there was a compelling government interest in using Social Security Numbers, and the question under the free exercise clause therefore became whether the government had any less restrictive means available to it to accomplish that objective in a way that wouldn’t interfere with Roy’s religious beliefs.

We believe that the District Court was plainly wrong in the way it went about answering that question.

I think the District Court first of all failed to appreciate that under this Court’s free exercise cases any less restrictive alternative imposed on the government must be… must actually be capable of achieving the governmental… the compelling governmental interest, at least to the same extent that the challenged provision would achieve that interest.

And we also think that the–

Sandra Day O’Connor:

Well, Mr. Geller, didn’t the court’s findings below say that exempting Little Bird of the Snow from use of the Social Security requirement could be accomplished in this case without any increased expenditures to the government and could be done effectively?

Kenneth Steven Geller:

–Yes, we think that is the wrong question.

Sandra Day O’Connor:

And you say that is the wrong test.

Kenneth Steven Geller:

The wrong test.

I hope to elaborate on this, but the Court has never asked that question.

When the Court has found that there was a compelling government interest and there was no less restrictive alternative available to the government, the Court has never gone on to ask whether it makes any difference if we just exempt one person.

And a number of this Court’s cases in fact–

Sandra Day O’Connor:

Well, certainly language in Sherbert against Werner and Thomas against the Review Board cut in the direction of making an individual–

Kenneth Steven Geller:

–I think, Justice O’Connor, that case like Sherbert are explainable by the fact that the Court there found and I think quite correctly that there was a less restrictive alternative available to the government in those cases.

In Sherbert, the purported government interest was to prevent fraudulent claims on the unemployment insurance fund.

Kenneth Steven Geller:

The way the state went about avoiding fraudulent claims was to simply wipe out any religious claim to an exemption.

And what the Court said was, there is a less restrictive alternative.

You can engage in an individualized inquiry to see whether a religious claim is in fact fraudulent.

You don’t have to wipe out all religious claims.

Sandra Day O’Connor:

–Well, isn’t that what the court here said?

Kenneth Steven Geller:

No, I believe not, Justice O’Connor.

The court here clearly found, and I hope to read some of the court’s findings in a few moments, that there was no less restrictive alternative that was equally effective as the Social Security requirement.

The Court in Sherbert made the opposite finding.

The Court in Sherbert didn’t find that there was no less restrictive alternative, but it didn’t much matter whether Mrs. Sherbert got her benefits.

That is precisely what the District Court found here.

We think there is absolutely no precedent in this Court’s free exercise cases for that sort of a finding.

Now, I don’t think the Court should need any convincing about the massive nature of the government programs that we are dealing with here.

There are about eleven million people who receive AFDC benefits each month, and there are about 20 million people who receive food stamps.

And eligibility for both programs has to be redetermined periodically.

With AFDC, I think it is every six months, and with the food stamp program, it is once every month or so.

And that means that for 20 or 30 million recipients, there have to be periodic determinations about their eligibility for these benefits, and as I said earlier, the way those programs are run, the income of each family member, including children, has to be taken into account in determining whether a family is eligible for benefits and the amount of benefits.

It seems self-evident that the only way you can run a program like this, the only way you can keep track of eligibility and verify what you are told and deter fraud is through the use of computers.

And computers talk to each other through unique… through standardized data formats that use unique personal identifiers.

And it was Congress’s well-considered judgment based on numerous reports that it received from Inspectors General, the Grace Commission, and others that only the use of Social Security Numbers would allow effective verification of an applicant’s resources and income quickly and reliably.

Now, verification often requires that the records of a number of data bases be checked, Social Security records, and Motor Vehicle Bureaus, Unemployment Bureaus, banks, schools, businesses.

These records are indexed and accessed across the country in a number of different ways, but there is only one common element in all these systems, and that is the Social Security Number, and therefore you have to have the Social Security Number if you are able to check a lot of the things that you are being told by applicants about what their income and resources are.

Warren E. Burger:

How many people in the country have Social Security Numbers but are not involved in the Social Security program?

Is that shown by this record?

Kenneth Steven Geller:

This record doesn’t reflect that, Mr. Chief Justice.

Warren E. Burger:

There are millions of people who–

Kenneth Steven Geller:

There are three… I think the record shows that there are about 383 million active Social Security Numbers.

And these programs, as I said earlier, have about 20 or 30 million people involved in them.

William H. Rehnquist:

–For a population of 240 million, that is quite a number.

0 [Generallaughter.]

There are a lot of dead ones.

Kenneth Steven Geller:

There are some dead people, yes, who… once you get a Social Security Number, Justice Rehnquist, that account never becomes dormant, and that number is never given to anybody else, even if the recipient is deceased.

Thurgood Marshall:

Mr. Geller, if you give your license, driver’s license a number, you give his Social Security Number, don’t you?

Kenneth Steven Geller:

Yes, in most jurisdictions you have to.

Thurgood Marshall:

So if the government asked that anybody asking for this age shall show their driver’s license, you would be in just as much trouble, wouldn’t you?

Kenneth Steven Geller:

Well, the problem if we only have the driver’s license is that we couldn’t access a number of these other record systems that don’t use the driver’s license.

The only element–

Thurgood Marshall:

But the driver’s license gives your Social Security Number.

Kenneth Steven Geller:

–Well, we don’t get the actual driver’s license.

All we would ask on the form is for their driver’s license number, and the only record system that would likely have that number is the Motor Vehicle Bureau, so it wouldn’t help in determining, for example, whether they applied for a bank account.

Thurgood Marshall:

Well, my driver’s license has my Social Security Number–

Kenneth Steven Geller:


Thurgood Marshall:

–written on the license.

Kenneth Steven Geller:

–I understand that, Mr. Justice Marshall.

Thurgood Marshall:

That is what I am talking about.

Kenneth Steven Geller:

What I am saying is–

Thurgood Marshall:

What is the difference between that end–

Kenneth Steven Geller:

–just having their driver’s license number and not their Social Security Number would not allow access to any other data system other than the Motor Vehicle Bureau.

William H. Rehnquist:

–What Justice Marshall is talking about is, in Virginia your driver’s license number is your Social Security Number.

Kenneth Steven Geller:

Well, I think it is the same way in the District of Columbia.

I am not sure it is the same way all across the country, but I assume that the appellees, if that were the case, would object to giving that number just as well.

They object to the Social Security Number.

They object to any unique personal identifier.

Thurgood Marshall:

All you want is the Social Security Number.

Kenneth Steven Geller:


Thurgood Marshall:

Well, you get it off the driver’s license.

Kenneth Steven Geller:

Well, the problem, Justice Marshall, is that I think Mr. Roy would have a First Amendment objection to giving the driver’s license number if it was a unique personal identifier.

William H. Rehnquist:

Well, his daughter wasn’t old enough to drive anyway.

0 [Generallaughter.]

Kenneth Steven Geller:

That is why we couldn’t use a driver’s license number in this case.

Lewis F. Powell, Jr.:

Mr. Geller, as a matter of fact, has Little Bird of the Snow or whatever her name is in receiving AFDC benefits?

Kenneth Steven Geller:

Well, when you first apply–

Lewis F. Powell, Jr.:

Her parents applied for them, and–

Kenneth Steven Geller:

–The parents applied for it and–

Lewis F. Powell, Jr.:

–Have they included her in the application?

Kenneth Steven Geller:

–Yes, they have.

Lewis F. Powell, Jr.:

So she has been receiving benefits.

Kenneth Steven Geller:

She received it for a few months until it was determined that they had not gotten… as soon as you apply you get the benefits, and then there is a verification.

It was determined that they hadn’t gotten the Social Security Number for Little Bird of the Snow.

The benefits were therefore reduced to reflect that fact, and that is when this suit was brought.

Lewis F. Powell, Jr.:

I see.

It is really kind of strange, because I guess they had the number, as we now know, and this number is supposed to prevent precisely the kind of error that occurred in this case even though they had the number.

Kenneth Steven Geller:

No, the application said that she didn’t have the number, and we took their word for that–

Lewis F. Powell, Jr.:

I see.

Kenneth Steven Geller:

–until it was determined at the trial, in fact, when some question was raised.

We went back and checked, and it was quickly determined that she did have a number, but we are now enjoined from using that number.

Now, in addition to the points I also made, it seems clear that we need the Social Security Number to ferret out fraud.

For example, if two families were to apply for AFDC benefits trying to claim the same child, unless we have that child’s Social Security Number, we would never be able to determine that.

So, we think it is clear that in terms of achieving the propelling government interests that are involved here, program integrity, eligibility verification, and ferreting out fraud, there is no alternative to the Social Security requirement that works anywhere near as well as the one mandated by Congress.

And I must say that even the District Court was forced to acknowledge that fact.

I think it is useful in this regard to look at the District Court’s precise fact findings which appear at Pages 7A and 8A of the appendix to the jurisdictional statement.

There, for example, Finding Number 60, the District Court clearly finds that the efficient operation of these welfare programs requires the use of computer systems that utilize unique numerical identifiers such as the Social Security Number, and Finding 62, such systems ensure greater accuracy in providing benefits and in reducing fraud, and aid in the coordination of information in various welfare systems to ensure the recipients are not receiving duplicate benefits.

And on Page 3A, And on Page 8A, the Court finds in Finding 64 that using names instead frequently is not sufficient to ensure the proper payment of benefits, and again, Finding 74, and again, Find 74, the Court finds that without Social Security Numbers you would not be able to do effective cross-match.

So, the Court has found here that there is a compelling government interest in using Social Security Numbers.

The Court has also found in the findings that I just read to the Court that there is no less restrictive alternative such as the use of names that is equally as effective as Social Security Numbers in achieving the government’s compelling interest.

Now, that should have been the end of the inquiry under this Court’s free exercise cases, but instead the Court nonetheless concluded that the government should be required to accept admittedly less effective alternatives simply because, as the Court candidly announced, the benefits that Little Bird sought were only an insignificant fraction of the federal government’s expenditures for the entire AFDC and food stamp program, so what does it matter?

We think this Court… this analysis is completely misguided under this Court’s free exercise decisions.

For example, in Braunfeld against Brown, the Court rejected a free exercise challenge to the Sunday closing laws.

The Court found that the state had a compelling interest there, that there was no less restrictive alternative available to accomplish that interest.

The Court didn’t go on and then ask what would be the harm to allow a few merchants to stay open on Saturday… on Sunday?

That was just not part of the free exercise analysis.

Kenneth Steven Geller:

By the same token, in Prince versus Massachusetts, the Court rejected a free exercise challenge to a state’s child labor laws.

The Court once again found that there was a compelling state interest in protecting the welfare of the state’s children, and that there was no less restrictive alternative available to the state, and that was the end of the court’s analysis.

The court did not go on, as the District Court did in this case, by asking what would be the harm to allow one 12-year-old to distribute a religious tract under the supervision of her parent?

William H. Rehnquist:

In the days when Prince was decided, was the Court speaking then in terms of less restrictive alternatives?

Kenneth Steven Geller:

I believe that was the analysis that the Court applied, Justice Rehnquist.

It was enough in those cases, and again in United States against Lee the Court found that there was a compelling government interest in having every employer contribute to the Social Security fund, and that there was no less restrictive alternative.

The Court again did not go on and do what the District Court did in this case, which is to ask, what would be the harm nonetheless in just exempting a few Amish from the Social Security System?

In fact, if the Court had asked that question, if the Court had asked that question, as I think Justice Stevens pointed out in his concurring opinion in Lee, the Court probably would have concluded that the system wouldn’t have been hurt at all, because the Amish are also opposed to receiving Social Security benefits, and the receipt of benefits frequently costs more than you take in in taxes.

But the Court… that was not the question that the Court asked.

By the same token here we think that the District Court should have stopped after determining as it did that the government had a compelling government interest in using the Social Security Numbers, and that there was no less restrictive alternative.

It doesn’t matter, we think, that only a few people might seek an exemption from the Social Security requirement.

It also doesn’t matter that the government’s compelling interest wouldn’t be totally frustrated.

The AFDC program wouldn’t collapse if we had to pay little Bird in the Snow the benefits without being able to verify whether she was entitled to them.

That wasn’t part of the test that this Court has consistently used in the free exercise area, but we can’t subscribe to the principal notion that seems to underlie the District Court’s opinion, which is that a little bit of ineffectiveness or a little bit of fraud really doesn’t matter when you are dealing with a program of this size.

I might add that that is precisely what the appellees argued in the District Court, and I think it is once again instructive to look at the record.

At Page 299 of the joint appendix, this is Mr. Gildin giving his legal argument in this case in the District Court, and he says at the bottom of the page,

“The legal standard, Your Honor, with respect to the case before the Court, is what effect is it going to have with respect to exempting Little Bird of the Snow from the Social Security requirement. “

“We believe we have amply established that they can do this verification inquiry, but even if we cannot. “

the appellees argue,

“even if they cannot, and even if every dollar that goes to her is not proper, you will find that the error is miniscule with respect to what this system accepts as an error rate. “

Sandra Day O’Connor:

Well, Mr. Geller, regardless of that argument, the District Court did find that the government’s interest in preventing Little Bird of the Snow from fraudulently receiving welfare benefits can be satisfied without requiring use of her Social Security Number.

Kenneth Steven Geller:

I think that that conclusion, first of all, doesn’t follow from the fact findings that the District Court just made about how there are no less restrictive alternatives.

I think–

Sandra Day O’Connor:

Well, it was one of its findings in–

Kenneth Steven Geller:

–I think, Justice O’Connor, that it is not one of its findings.

I think that all that the District–

Sandra Day O’Connor:

–Number 77.

Kenneth Steven Geller:

–The District Court found that we could… that there is not going to be any withdrawal here.

That is a different sort of finding than there is a lesser… in fact, Justice–

Sandra Day O’Connor:

Well, I was simply reading from one of its findings.

Kenneth Steven Geller:

–Justice O’Connor, if I could refer the Court on Page 19A of the appendix to the jurisdictional statement, I think this is the District Court’s conclusion.

This is about two-thirds of the way down the page.

The District Court concludes by saying,

“It appears to the Court that the harm that the government might suffer if the plaintiffs prevailed in this case would be at worst that one and perhaps a few individuals could obtain welfare benefits fraudulently. “

That is, I think, how the District Court concluded that even though there was no less restrictive alternative, it really didn’t matter in this case, because you are dealing with one person.

If she doesn’t get the right amount of benefits, the whole system isn’t going to collapse.

But that is not the right analysis, we think, under this Court’s free exercise cases.

The Court has never adopted that analysis.

John Paul Stevens:

May I just ask, Mr. Geller, do you think there is any significant difference between the issue in this case and the issue we had in that driver’s license case where the party didn’t want to have a picture–

Kenneth Steven Geller:

I think the analysis is precisely the same.

I think that we have a much stronger case here because there is a much stronger compelling government interest in using the Social Security Numbers.

I think that is shown by the fact, for example, that a number of states didn’t require pictures on their driver’s licenses.

I think that is some suggestion that you can accomplish whatever the government interest is without requiring every single person to give a photograph.

There are no exemptions.

Congress did not allow any exemptions from the Social Security requirement.

So I think this is… although the analysis is the same… we filed a brief in that case last year… this is a much more compelling case for allowing the government to impose a neutral requirement even if someone may have a religious objection.

John Paul Stevens:

–May I ask you… maybe this is a little bit too theoretical, but suppose computer technology developed to the extent that they could use letters in the name and do all the things you can do with numbers, and so all you had to do was use letters for Little Bird of the Snow, but the statute still required numbers.

Would you think the government would have any basis for prevailing then?

Kenneth Steven Geller:

I think it could be shown that there was a less restrictive alternative such as the use of letters that was equally as good in achieving the government’s interest.

Then, of course, under this Court’s free exercise cases the religious claim would have to prevail.

That is most unlikely, because only numbers can be unique identifiers.

There are only a limited number of letters–

William H. Rehnquist:

Well, Mr. Geller, what if in addition to the fact that Justice Stevens has it could be shown that it would cost the government $10 billion to convert from numbers to letters.

Then what would be the outcome of the claim?

Kenneth Steven Geller:

–Then, of course, we would take the position that only a reasonable less restrictive alternative can be imposed on the government.

But here, you don’t have to wrestle with that question, because the District Court found, and Congress has found, and I think it is self-evident that there is nothing that is as useful as Social Security Numbers for accomplishing the compelling government interest that I identified earlier.

In fact, if there is one point I want to emphasize today, it is this.

There seems to us something very, very wrong about the notion, something fundamentally wrong about the notion that someone can apply for welfare benefits, claim an entitlement to welfare benefits, and yet refuse to give the government the very information that they need to determine whether that person is in fact eligible for those benefits.

Now, if Roy and his family wish to avail themselves of AFDC benefits and food stamp benefits, that is fine, but we can’t believe that the free exercise clause stands as an obstacle to Congress’s decision to ensure as efficiently, as effectively, as reliably as possible that they are entitled to those benefits.

We can’t believe that any–

Sandra Day O’Connor:

Mr. Geller, do you think that administrative efficiency in every case must prevail over a free exercise claim?

Kenneth Steven Geller:

–Absolutely not.

Sandra Day O’Connor:

Your argument certainly sounds as though that is your position.

Kenneth Steven Geller:

No, efficiency, as I said, Justice O’Connor.

I also said effectively and reliably.

That is what is important.

Efficiency I would think would only come into play if in Justice Rehnquist’s hypothetical it might cost $20 million to accomplish something that we could accomplish for 50 cents by using the Social Security Number.

Here, we can’t do it as effectively and reliably without the use of the Social Security Numbers.

I can’t believe that anything in this Court’s free exercise cases could possibly require the government to grant welfare benefits on the basis of incomplete information or whatever information applicant decides to provide to us.

There has to be some independent way of verifying, and if a person applies for benefits, it seems to us only logical that they should be able to… they should be required to give us whatever neutral information we need in order to verify that they are in fact eligible for those benefits.

John Paul Stevens:

Do you think you could require a date of baptism, a baptismal certificate?

Often pension funds do this.

Kenneth Steven Geller:

Yes, I am sure we can and do require–

John Paul Stevens:

Say somebody had an objection to revealing whether or not they were baptized.

Kenneth Steven Geller:

–Well, once again, Justice Stevens, it may well be that if we had the Social Security Number, we could find out everything we needed even without the date of birth or the date of baptism.

But the Social Security Number is central.

It is the only requirement that Congress has imposed on this entire system, and it is the only requirement that allows access to all of the data systems across the country.

It is unlike any other sort of information that Mr. Roy offered to give us.

If there are no further questions, I would like to reserve the balance of my time.

Warren E. Burger:

Mr. Gildin.

Gary S. Gildin:

Mr. Chief Justice, and may it please the Court, before this Court today are the parents of now five-year-old Little Bird of the Snow Roy, whose religion, founded in native American beliefs, tells them that in order to preserve their daughter’s spiritual purity, they may not provide a Social Security Number for her even if it means foregoing necessary welfare benefits.

As this Court has plainly demonstrated in its free exercise decisions, it does not respond to these beliefs by either rejecting them because they may seem to others unorthodox nor replying, well, that since Congress requires generally a Social Security Number, it must be provided here.

Rather, it is the majesty of our Constitution and its profound respect for religion that this Court accepts these beliefs when as here they are undisputably religious and sincere, and ask the question, can the government reasonably accommodate these beliefs in order to preserve the religion of these native Americans.

Are there alternatives to the Social Security Number which can in fact satisfy the government’s interests while at the same time preserving the spirit of Little Bird of the Snow, and this is done not to afford the Roy family any favored treatment on account of its religion, but rather to avoid unequal treatment which the free exercise clause precludes and Congress did not intend.

The District Court in fact held that there is no need in this case to either sacrifice the Roys’ religion nor sacrifice governmental interests.

Because the core of the government’s position seems to be its disagreement with the District Court’s express findings of fact, I would like to begin by examining those findings and briefly why they are not clearly erroneous, but to the contrary are quite obviously correct.

Contrary to Mr. Geller’s representations, the District Court did not find that accommodating a little fraud, rather, allowing a little fraud, is the type of accommodation required.

Rather, it expressly found in both findings of fact 85 that in fact alternatives to the Social Security Number can in fact satisfy the government’s interest in preventing fraud, alternatives as noted in findings 82 and 84 which require no modification to the government’s computer system.

William H. Rehnquist:

Well, Mr. Gildin, what do you say to your opponent’s comment about the opinion of the Court at Page 19A that he quoted from that last paragraph carrying over to Page 20 where the Court says,

“It appears to the Court that the harm that the government might suffer if the plaintiffs prevailed in this case would be at worse that one or perhaps a few individuals could fraudulently obtain welfare benefits. “

Gary S. Gildin:

That was made after discrete findings by the District Court that searches can be done of all federal files that are relevant without the Social Security Number, that searches could be done intrastate of all files without the Social Security Number, that notwithstanding the government’s representations, the District Court was not persuaded that interstate searches, searches of whether an individual is receiving benefits in two states.

William H. Rehnquist:

But certainly that sentence suggests that the District Court says there may be a little problem but we will just have to live with it.

Gary S. Gildin:

I think, Justice Rehnquist, that follows its findings that it was not persuaded by the government’s evidence that such interstate searches would be impossible.

The alleged conflict there was that perhaps the formatting of information in the computers between two states would not be common, that one state may use four letters of the last name and the other would use in fact the full last name, and that we may not be able to in fact do the searches because of the same format by the computer.

However, the District Court also found at worst, I suggest, it would take a little clerical time to conduct such searches.

And indeed, as I stated, the searches can be done without modification as the District Court found can be done without any discrete financial expenditure, as the District Court found.

Indeed, these alternatives are currently in place and being utilized.

Warren E. Burger:

Does the belief of this person on this particular faith have any problem with accepting any benefits out of a system that is tainted by the use of numbers for the other people who are in it?

Gary S. Gildin:

No, it does not, Chief Justice Burger.

Mr. Roy does not object to the fact that numbers of other persons are provided.

It is his belief that for him to provide a number for his daughter, Little Bird of the Snow, would rob her spirit and perhaps deprive her of her ability to become a holy person, and that is a decision that only she can make.

Indeed, he is not suggesting that she must follow that decision.

What he needs to do is to preserve a state of affairs where she will be able to make that choice, which is why the fact this injunction extends only to the time when she is age 16 gives him entirely the relief which he seeks.

John Paul Stevens:

May I ask, Mr. Gildin, on this question, religions sometimes have a way of captivating the interest of large numbers of people very suddenly, and supposing there were to become a large number of people who subscribed to the same view about the harmful effects of numbers, so you had instead of one family, you had maybe 10,000 or 15,000 families with the same objection.

Would the case constitutionally be any different?

Gary S. Gildin:

It may, but based upon particular factual differences here, the District Court considered, I think properly, that that is not likely to occur.

First of all, past history in the eleven years that this number has been required it is undisputed that there have been only four religious objections to the numbers, and no evidence offered by the government that there were in fact other exemptions.

John Paul Stevens:

Well, I understand the improbability, but that really wasn’t my question.

Assuming that it did happen, that the religion suddenly took off, would the analysis really be any different?

Gary S. Gildin:

If in fact the government could show that in fact what would happen as in the Lee case is that we would be besieged by a number of requests for exemptions.

Yes, the analysis would differ.

But this is something that the District Court considered, because unlike the situation with tax exemptions, there is no economic incentive to suddenly convert one’s belief to object to a Social Security Number.

You are not afforded favored treatment.

The government does not relax its eligibility requirements to allow one to receive benefits.

It is the same economic standards required.

Nor does the scrutiny become relaxed for failure to provide the number.

As the District Court found, we do the very same computer searches without the Social Security Number, and indeed I think it may be reasonably inferred that given the rarity of these exemptions, we are likely to see at least equal if not greater scrutiny, given the unusual nature of such claims.

And we think that you may not, as this Court suggested in Sherbert and Thomas, simply deny an individuals’ free exercise of religion based upon the government’s ability to simply hypothesize a situation which results in a flood of exemptions, because that would result in denying free exercise in virtually every case.

What the Court is required to do, and we think sensibly, is to not only take a look at the past, but try to project the future based upon evidence and common sense as to whether there are likely to be a rash of exemptions, and absent the economic incentives here which distinguishes this case significantly from the lead case, it is not likely that this is about to occur.

With respect to the District Court’s findings of fact, it is significant that its findings by all purposes served by the Social Security Number may be accomplished by alternative means of identification was not arrived at by accepting the testimony of the witnesses we called and rejecting the testimony of the government witnesses.

Gary S. Gildin:

Rather, those findings were based upon evidence which issued from the government’s very own witnesses, which conceded that in fact these searches not only can be but have been done without the Social Security Number.

As has been already noted, Little Bird of the Snow received benefits for nine months prior to the time that this lawsuit was commenced without providing a Social Security Number.

And the witnesses, as the District Court noted, presented no evidence that any harm had resulted or would result.

Warren E. Burger:

Wasn’t that simply a result of the fact that in a system dealing with millions and millions of people, they don’t catch up with all of these details the way it would happen with the local corner grocery store if there were something like that happening?

Gary S. Gildin:

The system as described by the government’s own witnesses would be that in fact the computer verification would have been done within that nine-month period of time.

Indeed, the government was well aware at the state level that no number had been provided.

Warren E. Burger:

Do you think they should defer the benefits?

If the papers come in without a number, are you suggesting they should defer the benefits until the applicant had complied with all the legal requirements?

Gary S. Gildin:

No, we are not.

All I am suggesting, Chief Justice Burger, is that the government never said that in this nine-month period of time they did not and could not do these computer searches.

In fact, this wasn’t the first time the government was required to provide benefits without a Social Security Number.

In 1977, Judge Weinstein from the Eastern District of New York ordered the Department of Health, Education, and Welfare to provide benefits to the Stephens children without requiring a Social Security Number because, as here, there were religious objections lodged by the parents.

Each and every one of the government’s witnesses was asked what happened after the Stephens case.

Was there any need to modify your computers?

Was there any problem with conducting the searches.

And as the District Court noted, no witness was aware of any harm.

It is important that at no time did the government contend that these searches could not be done without a Social Security Number.

If one consults the affidavit of Mr. Herrin which was filed in support of the summary judgment motion by the government, Paragraph 9 of that affidavit at Page 23 of the joint appendix explains what the problem is if we don’t have a number.

And that is that without a Social Security Number, were we to search by name only, we would have duplication in the sense that there may be many files which would share a certain name.

And what would be required would be to do additional searches, according to Mr. Herrin, using additional identifiers such as date of birth, county of residence, parents’ names, and the like, and he did not say that those would be unworkable.

Indeed, if we look at the government’s own evidence, which indicated that there were 55,000 persons nationwide with the last name of Roy, and simply adding one identifier, the first name Stephen, reduces it to 32 persons nationwide without regard to adding middle initial, date of birth, county of residence, parents’ names, and the like.

The vice of the absence of a Social Security Number, as that affidavit indicated, that searches might take more time, these additional searches, not that they would be unworkable or unreliable, but would take more time.

We learned at trial that there is no need for additional searches, because given the sophistication of computers, each and every search includes not only name and Social Security Number, but includes date of birth, county of residence, in some instances parents’ names.

And indeed, within the searching system, the Social Security Number is not given the greatest weight amongst the various factors searched.

That is, the factors of name, date of birth, and county of residence cumulatively have three and a half times the weight of a Social Security Number.

Searches can be done without this number reliably.

It is not the infallible identifier, which is why it is given less weight.

As Congress itself has recognized, many people have more than one Social Security Number.

A person attempting to defraud the government could provide only one of those numbers in an application for welfare benefits, and if he was receiving benefits under another number, searching under the number provided alone would not identify that particular attempt to defraud the government.

Warren E. Burger:

Doesn’t that suggest that even at best, with all the modern computer technology, the handling of these matters is quite difficult?

Gary S. Gildin:

The handling of these matters is quite difficult in all circumstances, and we don’t contest that fraud is in fact a significant concern as a general proposition, but as the District Court found, the government’s interest in preventing fraud can in fact be accomplished without requiring the Social Security Number for these religious objectors.

The question was asked as to whether this was a situation where we are just exempting one person, and the trial judge went beyond that.

We expressed the concern, as Justice Stevens has just asked about, what about other potential likely religious objectors?

We considered that issue, and noted, first of all, that the same alternatives would work for persons who unlike a native American Indian like Little Bird of the Snow had a unique name, using these other identifiers but also work for persons whose names were not unique.

He also determined that there are not likely to be a great number of exemptions sought based, as I noted, on past history, which indicated that there had only been four to date.

Sandra Day O’Connor:

Mr. Gildin, on that point, it is a bit anomalous, though, to suggest that if there were many such claims based on broadly held religious views, that the analysis or the result might somehow differ, but if there were only a few such beliefs, then the result you asked for should be accorded more weight.

That is somewhat anomalous, don’t you think?

And how do you respond to that?

Gary S. Gildin:

What the government contends is anomalous we suggest makes constitutional common sense.

First of all, were these widespread religious beliefs?

Sandra Day O’Connor:

You don’t think there is an obligation to accommodate widespread religious beliefs?

Gary S. Gildin:

We think an accommodation ought to be made to the extent possible.

We ask for reasonable accommodation.

First of all, for widely held religious beliefs, there is access to the political or legislative process, and we suggest that had this been a Roman Catholic objection to the Social Security Number, it may not have been enacted in the first place.

When you get down to the fact that individuals with beliefs where they do not have the ability to either inform, much less influence the political process, at some point we agree that even with beliefs that are not mainstream, the numbers may be large enough to present problems for the government.

It is not idiosyncratic.

It is unfortunate that we cannot accommodate all such believers, but certainly we should not adopt a rule that says, since ultimately we are going to have to draw a line here, that we should therefore disregard protection of all religious beliefs because of our need eventually to deny an exemption based upon the number of believers.

As this Court noted in Zorach, constitutional rights are a matter of degree, and certainly at some point when accommodation ceases to be reasonable, we have to draw a line and deny the exemption, even if we regret doing so.

But that certainly does not follow logically that therefore we should deny exemptions where in fact we are able to accommodate it.

So, I don’t believe that the is either idiosyncratic or anomalous.

I don’t believe that that is either idiosyncratic or anomalous.

So, the Court did in fact consider not only the effect of exempting Little Bird of the Snow, but the effect if other likely religious objectors were afforded exemptions and found that there are not likely to be a significant number to present the type of problems that we had in the Lee case.

The government suggests that the District Court erred by looking only at reality, that because in reality there are not likely to be an adverse effect on the system by exempting Little Bird of the Snow and other likely religious objectors, the government posits that through its programmatic interest analysis, that the District Court should have considered the effect of exempting all persons from the requirement, not only religious objectors but persons who have currently provided the Social Security Number and who will continue to do so notwithstanding whether or not religious exemptions are granted.

It is in some all or none test.

You either must exempt all persons or you must exempt none.

John Paul Stevens:

May I ask another question, Mr. Gildin, about the ramifications of your prevailing in the case?

Supposing you do win and there is this right at stake, and the government gets another application from a person who has previously identified himself as having this religion.

Is there any special procedural requirement the government should follow?

Do they have to grant it right away or do they have to set up a hearing for… how do they process these in the future?

Gary S. Gildin:

The parties seeking an exemption must certainly establish that his belief is both religious and sincerely held.

Gary S. Gildin:

No new administrative mechanism need be set up.

It is currently in place, indeed was utilized in this case.

John Paul Stevens:

So that somebody in the department would have the authority to pass on the sincerity of the application?

Gary S. Gildin:

Precisely, and that was done in this case with no special training, interestingly enough.

This case began with a hearing before a hearing examiner employed by the Pennsylvania Department of Public Welfare, who again received no special training for this process.

We brought Mr. Roy to the hearing.

We also presented the testimony of an expert in native American religions, Professor Drinnan.

We submitted briefs about the objective legal standards that this Court has set forth to determine whether a belief is religious and sincerely held.

The government submitted its belief, its briefs, and the hearing examiner concluded based upon her observation as testimony as well as based upon the legal standards that in fact this belief was both religious and sincere.

Should we prevail here, no new administrative mechanism need be set up.

No special–

John Paul Stevens:

At least do we have to assure that there would be a hearing of that magnitude on every application?

Gary S. Gildin:

–Certainly the applicant must establish that his belief is both religious and sincere.

The decisions of this Court have demanded that, and we think properly so.

Harry A. Blackmun:

Professor Gildin, get me on the track.

This injunction was not only against the acquisition of a Social Security Number which the government has now, but also against the government’s use of it.

Am I correct in that?

Gary S. Gildin:

That is correct.

Harry A. Blackmun:

What right does Little Bird of the Snow or her parents who do not object to the use of their own Social Security Numbers have to prevent the government from using information it has?

Gary S. Gildin:

I think in order to answer that question, Justice Blackmun, we have to identify how the government came into the possession of this number, and this was no surprise revelation to Mr. Roy or anyone else at the conclusion of this trial.

The number was obtained for her without anyone’s knowledge in terms of her family.

At the time that Karen Miller, her mother, was being wheeled out of the labor room literally as a welfare recipient she was presented with a sheaf of papers which she signed, and with no knowledge that one of those was an application for the Social Security Number.

William J. Brennan, Jr.:

Oh, it was application?

Gary S. Gildin:


William J. Brennan, Jr.:

What she signed did not include the Social Security Number?

Gary S. Gildin:

No, it did not.

In fact, then suddenly a number came in the mail to them, and when Mr. Roy received it, he asked his wife, you know, where did this come from, did you file an application?

She said, no, I have no awareness of it.

They sent it back.

They received assurance from the Social Security Administration that it would remain dormant so long as they had not used it.

Harry A. Blackmun:

Well, granting all that, there is a number outstanding, and the government has it.

Now, what right do the Roys have to prevent the government from making use of it?

Gary S. Gildin:

The government’s proposed use of the number places the very burden on the Roys’ religion that this Court has found… has condemned in both Sherbert–

Harry A. Blackmun:

That is on the child’s religion, not on the parents’, because apparently they are not concerned about the use of their own Social Security Numbers.

Gary S. Gildin:

–No, they are concerned now as to the use of the child’s, and certainly at age 2 Little Bird of the Snow is not in a position to say, I have articulated my religious beliefs and consequently I don’t think you should use it, nor can she do so at age 5.

Mr. Roy’s religion, consistent with that of native Americans, is that ultimately the children are going to have to make this decision for themselves, and what he has to do is to preserve the state of affairs that is going to enable Little Bird of the Snow to come to her own understanding.

Should he permit the government to use this number now, she is deprived forever of that choice.

Should she ultimately conclude that, yes, the Social Security Number can rob one’s spirit should he permit this number to be used, again, that choice is denied to her.

What he has sought and what he has obtained from the District Court is preservation of a state of affairs which allows Little Bird of the Snow to make that decision for herself.

Harry A. Blackmun:

So that one’s religious belief can dictate what somebody else does with information in his possession.

Gary S. Gildin:

Certainly to that… to the extent that that information when used would affect the individual’s religion, and in this case have the potency to–

Sandra Day O’Connor:

Well, for example, suppose somebody has the view that the use of cocaine or heroin in a religious exercise is important to them, and the government in its effort to prohibit traffic in cocaine is aware of the use of it by this individual.

Now, can a free exercise claim prevail over the government’s right to use the information in criminal proceedings?

Gary S. Gildin:

–No, we do not claim the right to free exercise of religion to be absolute.

The inquiry that this Court has used which we accept is that once the belief is established as religious and sincere, the government may in fact put its interests above those beliefs if those interests are both compelling and there is no less restrictive alternative.

And in a situation as you posit, Justice O’Connor, where the government had in the interest of public welfare or public safety made the determination that use of these drugs was in fact something not to be sanctioned, the exception in that case would undermine the government’s very judgment, and if that interest was found to be compelling, religion would have to give way.

Sandra Day O’Connor:

Well, the interest in preventing fraud in welfare programs is likewise compelling, is it not?

Gary S. Gildin:

If it is–

Sandra Day O’Connor:

You don’t dispute that, do you?

Gary S. Gildin:

–Not if in fact it was demonstrated that there was the risk of fraud presented that would in fact undermine or make the statutory scheme unworkable.

This Court has, however, in some of its opinions, in Sherbert and Thomas, indicated that simply asserting that there is fraud at stake does not in and of itself make it compelling.

We have to find out, are those interests in fact endangered.

More significantly, however, where in fact the exemption, as here, does not in fact undermine the government’s interest in fraud, accommodation is required.

Byron R. White:

Well, if it did undermine it, the court below could not have found that there was a less restrictive alternative.

Gary S. Gildin:

That is certainly correct, and we disagree with the government’s attempt to challenge those findings, first, today, by saying that those findings are not there, and in its brief, we submit, by saying those findings are clearly erroneous when quit obviously–

Thurgood Marshall:

Mr. Gildin, I tried once.

It still don’t understand how the parents can accept all of the benefits from Social Security, including the use of their Social Security Numbers, but the religion says you don’t allow that to happen to your daughter.

Gary S. Gildin:

–The religion says, Justice Marshall, that they would not allow it to happen to themselves.

Unfortunately for Mr. Roy, his spirit has been robbed by virtue of the use before he came to an understanding of these religious beliefs.

Thurgood Marshall:

And does he continue to use it?

Gary S. Gildin:

He does, because under his religion once extensive use has been made, that part of your spirit has been robbed, and there is no way to retrieve it.

Thurgood Marshall:

Well, the daughter’s had been used for nine months.

Gary S. Gildin:

The daughter’s–

Thurgood Marshall:

Why doesn’t that put the daughter in the same place as him?

Gary S. Gildin:

–The evidence is that the daughter’s number has never been used, that the government in that nine-month period of time did not use her number.

It was in their files, and lie dormant.

He did not provide that number.

It was not utilized.

There was never a witness who took the stand and said, the way we did it for those nine months was to use the number.

The evidence–

Thurgood Marshall:

If you leave that number there “dormant”, you have no case.

Gary S. Gildin:

–I am sorry.

Thurgood Marshall:

If the government leaves that number there “dormant”, you have no case.

Gary S. Gildin:

If they are willing to provide the benefits while leaving that number dormant, we would not be here today because there would be no burden–

Thurgood Marshall:

But just to leave it there doesn’t affect you at all, does it?

Gary S. Gildin:

–If that number would remain dormant, that would not undermine his religious beliefs.

Indeed, his objection is not to the existence, but to the extensive use of that number, and that is what that injunction protects under those circumstances.

Warren E. Burger:

Let me go back to the question Justice Blackmun put to you.

Suppose instead of the government putting a number, something is ordered by these people for their little daughter from Sears Roebuck, and Sears Roebuck automatically through the computer puts a number on every account.

Let’s assume that.

Can they get an injunction against Sears Roebuck to tell Sears Roebuck they must identify this girl by a number?

Gary S. Gildin:

Under the free exercise clause of the Constitution, they cannot.

That would be a private use of that number, and there is no constitutional right against the private use of that particular number.

Warren E. Burger:

It isn’t very private when you get it in the mail with a number on it any more than the Social Security benefits with a number on it.

Gary S. Gildin:

I agree–

Warren E. Burger:

What is the public use that you object to?

Gary S. Gildin:

–It is the extensive use by the government.

Indeed, if there is no Social Security Number that is distributed to the private sector as there will not be under this Court’s injunction, Sears Roebuck will not be identifying Little Bird of the Snow with a Social Security Number.

Should Sears Roebuck decide to use some number to identify her that is not going to be common to other governmental uses, Mr. Roy has no religious objection to that.

Warren E. Burger:

Then suppose they take this dormant Social Security Number and use that.

Warren E. Burger:

Do you think you can get an injunction against Sears Roebuck?

Gary S. Gildin:

The injunction we have obtained would preclude Sears Roebuck from getting that Social Security Number.

The District Court enjoined the Secretary of Health and Human Services from disseminating that number to any public of private entity, so Sears Roebuck cannot contact the Social Security Administration and say, can you tell us what a Social Security Number for Little Bird of the Snow is?

That is not available.

Byron R. White:

Well, Mr. Gildin, if you put together the express findings with the opinion, the discussion, do you really think the District Court held that there was an equally effective, less restrictive element in there?

Gary S. Gildin:

What we lose by not–

Byron R. White:

Yes or no?

Gary S. Gildin:


Only with respect to efficiency.

Yes in terms of reliability.

Without the Social Security–

Byron R. White:

I don’t know.

His only answer with respect to the interstate aspect was that, well, the chances of their making a mistake is remote.

He just didn’t think there was much of a chance.

Gary S. Gildin:

–I disagree respectfully, Justice White.

What I believe would happen is that they would have to manually attempt to do the verification.

Because the computer wouldn’t be able to match them up because of different formatting, we would have to spend clerical time to find out last names and these other identifiers, and that is the difference with the Social Security Number.

In such instances, it simply takes more time, an interest which this Court has held and we suggest is not the type of compelling interest.

It is the computer that enhances the reliability.

Having the number gives an incremental increase in efficiency.

Lewis F. Powell, Jr.:

May I ask another hypothetical question?

Assume Little Bird grows up to be 18 years of age and decides she wants to enter the military service, and everyone in the military service has to have a number.

Would her religion then compel her to make the same arguments you are making here today?

Is it use of any number, or just a number that results in her receiving money free from the government rather than money that may come as pay for military service?

Gary S. Gildin:

If she would have the objection, and I can’t speak to that, this case would not preclude the government automatically from requiring the number.

We would have to engage–

Lewis F. Powell, Jr.:

Why not?

Gary S. Gildin:

–Because we would have to engage in the analysis in this different program that was used here.

Is the government’s interest there compelling, and are there less restrictive alternatives under the facts of that circumstance.

Lewis F. Powell, Jr.:

But you are saying that her position is that the use of any number that may result in benefit directly or indirectly to her is forbidden by her religion?

Gary S. Gildin:

No, I believe the objection is the use of the Social Security Number as the unique identifier–

Lewis F. Powell, Jr.:

But not a military identification number?

Gary S. Gildin:

–I can’t speak to that, because the objection… they have not been presented with that situation.

The objection is to a Social Security Number presently because it is unique to her and extensively used.

It is not an objection to all numbers.

It is not objection to all identification, and should that military situation arise where the government’s interests may be different, and in fact the alternatives perhaps unavailable, then certainly the government is entitled to put on that case.

I see my time is up.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Geller?

Kenneth Steven Geller:

Not unless the Court has any questions, Mr. Justice.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.