In The

Supreme Court of the United States




Decided June 17, 1986

Justice O’Connor, Dissenting

Topic: Civil Rights*Court vote: 6–3
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Joining O'Connor opinion: Justice REHNQUIST Justice REHNQUIST Justice STEVENS Justice STEVENS
Citation: 476 U.S. 898 Docket: 84–1803Audio: Listen to this case's oral arguments at Oyez

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The Court today holds unconstitutional the preference in public employment opportunities New York offers to resident wartime veterans who resided in New York when they entered military service. Because I believe that New York's veterans' preference scheme is not constitutionally offensive under the Equal Protection Clause, does not penalize some free-floating "right to migrate," and does not violate the Privileges and Immunities Clause of Art. IV, § 2, of the Constitution, I dissent.


The plurality's constitutional analysis runs generally as follows: because the classification imposed by New York's limited, one-time veterans' civil service preference "penalizes" appellees' constitutional "right to migrate," the preference program must be subjected to heightened scrutiny, which it does not survive because it is insufficiently narrowly tailored to serve its asserted purposes. On the strength of this reasoning, the plurality concludes that the preference program violates both appellees' constitutional "right to migrate" and their right to equal protection of the law, see ante at 476 U. S. 911, although it does not make clear how much of its analysis is necessary or sufficient to find a violation of the "right to migrate" independently of an Equal Protection Clause violation.

In pursuing this new dual analysis, the plurality simply rejects the equal protection approach the Court has previously employed in similar cases, see, e.g., Hooper v. Bernalillo County Assessor, 472 U. S. 612 (1985), without bothering to explain why its novel use of both "right to migrate" analysis and strict equal protection scrutiny is more appropriate, necessary or doctrinally coherent. Cf. Jones v. Helms, 452 U. S. 412, 452 U. S. 426 -427 (1981) (WHITE, J., concurring). Indeed, the plurality does not even feel "impelled to locate [ the right to migrate'] definitively in any particular constitutional provision," despite the fact that its ruling rests in major part on its determination that the preference scheme penalizes that right. See ante at 476 U. S. 902, 476 U. S. 907 -911, and n. 4. The plurality's refusal to amplify its opinion further is even more remarkable given that the Court is overturning the very provisions of New York's Constitution and its Civil Service Law which it upheld against the same challenges just 12 years ago. See August v. Bronstein, 369 F.Supp.190 (SDNY), summarily aff'd, 417 U.S. 901 (1974).

THE CHIEF JUSTICE finds it unnecessary to address the proper analytical role of the "right to travel" in this case because he believes that the New York scheme cannot survive rational basis scrutiny purely as a matter of equal protection law. See ante at 476 U. S. 913, 476 U. S. 916. Yet THE CHIEF JUSTICE's position depends in part on the assumption that New York's desire "to reward citizens for past contributions... is not a legitimate state purpose," Zobel v. Williams, 457 U. S. 55, 457 U. S. 63 (1982). See ante at 476 U. S. 914. This assumption is not required by anything in the Equal Protection Clause; rather,

a full reading of Shapiro v. Thompson, 394 U. S. 618 (1969), and Vlandis v. Kline, 412 U. S. 441 (1973), reveals [that] the Court has rejected this objective only when its implementation would abridge an interest in interstate travel or migration.

Zobel v. Williams, supra, at 457 U. S. 72 (O'CONNOR, J., concurring in judgment).

It is unfortunate that the Court has once again failed to articulate and justify by reference to textual sources a single constitutional principle or analysis upon which it can rely in deciding cases such as this. I adhere to my belief that the Privileges and Immunities Clause of Art. IV, § 2, of the Constitution supplies the relevant basis for analysis in evaluating claims like appellees', where the principal allegation is that the state scheme impermissibly distinguishes between state residents, allegedly imposing a relative burden on those who have more recently exercised their right to establish residence in the State. See Zobel v. Williams, 457 U.S. at 457 U. S. 74 -75 (O'CONNOR, J., concurring in judgment). I also continue to believe that a State's desire to compensate its citizens for their prior contributions is "neither inherently invidious nor irrational," either under the Court's "right to migrate" or under some undefined, substantive component of the Equal Protection Clause. Id. at 457 U. S. 72. This case presents one of those instances in which the recognition of state citizens' past sacrifices constitutes a valid state interest that does not infringe any constitutionally protected interest, including the fundamental right to settle in another State which is protected by the Privileges and Immunities Clause of Art. IV, § 2. See id. at 457 U. S. 72, n. 1.

In my view, the New York veterans' preference scheme weathers constitutional scrutiny under any of the theories propounded by the Court. The plurality acknowledges that heightened scrutiny is appropriate only if the statutory classification "penalize[s]," "actually deters," or is primarily intended to "imped[e]" the exercise of the right to travel. See ante at 476 U. S. 903. In finding that the New York preference program imposes a "penalty" on appellees' right to migrate, the plurality likens the New York scheme to the permanent state property tax exemption for veterans struck down in Hooper v. Bernalillo County Assessor, supra, and the durational residency requirements for essential governmental services invalidated in Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974), and Shapiro v. Thompson, supra.

This Court, in Memorial Hospital, acknowledged that Shapiro left unclear the amount of impact on the right to travel which is necessary to give rise to application of heightened scrutiny. See Memorial Hospital v. Maricopa County, supra, at 415 U. S. 256 -259. As the plurality implicitly recognizes, see ante at 476 U. S. 907 -909, it is fair to infer that something more than a negligible or minimal impact on the right to travel is required before strict scrutiny is applied. I believe that, as the three-judge panel in August v. Bronstein put it, "the limited preference granted under the... New York law can[not] realistically be held to infringe or penalize the right to travel." 369 F.Supp. at 194.

The New York law certainly does not directly restrict or burden appellees' freedom to move to New York and to establish residence there by imposing discriminatory fees, taxes, or other direct restraints. Cf. 48 U. S. 7 How. 283 (1849). The New York preference program does not permanently deprive appellees of the right to participate in some fundamental or even "significant" activity, for "public employment is not a constitutional right... and the States have wide discretion in framing employee qualifications." Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256, 442 U. S. 273 (1979). See also Sosna v. Iowa, 419 U. S. 393, 419 U. S. 406 (1975). Cf. Dunn v. Blumstein, 405 U. S. 330, 405 U. S. 336 -337, 405 U. S. 341 (1972). Nor does the program indirectly penalize migration by depriving the newcomers of fundamental rights or essential governmental services until they have resided in the State for a set period of time. Cf. Memorial Hospital v. Maricopa County, supra; Dunn v. Blumstein, supra; Shapiro v. Thompson, supra.

Finally, the New York scheme does not effectively penalize those who exercise their fundamental right to settle in the State of their choice by requiring newcomers to accept a status inferior to that of all old-time residents of New York upon their arrival. Cf. Zobel v. Williams, supra, at 457 U. S. 74 (O'CONNOR, J., concurring in judgment). Those veterans who were not New York residents when they joined the United States Armed Forces, who subsequently move to New York, and who endeavor to secure civil service employment are treated exactly the same as the vast majority of New York citizens; they are in no sense regarded as "second-class citizens" when compared with the vast majority of New Yorkers, or even the majority of the candidates against whom they must compete in obtaining civil employment. Cf. Hicklin v. Orbeck, 437 U. S. 518 (1978). To the extent that persons such as appellees labor under any practical disability, it is a disability that they share in equal measure with countless other New York residents, including New York residents who joined the Armed Forces from New York but are ineligible for the veterans' preference for other reasons.

The only persons who arguably have an advantage based on their prior residency in New York in relation to persons in appellees' position are a discrete group of veterans who joined the Armed Forces while New York residents, who served during wartime, who returned to New York, and who elected to seek public employment. Even that group does not enjoy an unqualified advantage over appellees based on their prior residence. New York's veterans' preference scheme requires that veterans satisfy a number of preconditions, of which prior residency is only one, before they qualify for the preference. Moreover, the preference only increases the possibility of securing a civil service appointment; it does not guarantee it. Those newly arrived veterans who achieve a sufficiently high score on the exam may not be disadvantaged at all by the preference program; conversely, the chances of those who receive a very low score may not be affected by the fact that their competitors received bonus points. Finally, the bonus program is a one-time benefit. Veterans who join the service in New York, who satisfy the other statutory requirements, and who achieve a sufficiently high score on the exam to bring them within range of securing employment may only use the bonus points on one examination for appointment, and in one job for promotion. Thus, persons such as appellees are not forced to labor under a "continuous disability" by comparison even to this discrete group of New York citizens. Zobel v. Williams, 457 U.S. at 457 U. S. 75 (O'CONNOR, J., concurring in judgment).

Certainly the New York veterans' preference program imposes a less direct burden on a less "significant" interest than many resident-preference programs that this Court has upheld without difficulty. For example, this Court has summarily affirmed certain state residency requirements for state college tuition rates, Sturgis v. Washington, 414 U.S. 1057 (1973), and a limitedeligibility statute in New York for scholarship assistance, Spatt v. New York, 414 U.S. 1058 (1973), even though those requirements constituted a potentially prohibitive burden on access to "important" educational opportunities. San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 411 U. S. 31 -32 (1973). The Court has also upheld a l-year durational residence requirement for eligibility to obtain a divorce in state courts, Sosna v. Iowa, supra, even though the right to terminate a marriage has been deemed in some sense "fundamental." See Boddie v. Connecticut, 401 U. S. 371 (1971).

In sum, finding that this scheme in theory or practical effect constitutes a "penalty" on appellees' fundamental right to settle in New York or on their "right to migrate" seems to me ephemeral, and completely unnecessary to safeguard the constitutional purpose of "maintaining a Union rather than a mere league of States.'" Zobel v. Williams, supra, at 457 U. S. 73 (O'CONNOR, J., concurring in judgment). See also ante at 476 U. S. 902 ("right to migrate" plays role of "transforming many States into a single Nation"). Thus, heightened scrutiny, either under the "right to migrate" or the Equal Protection Clause, see ante at 476 U. S. 904 -905, n. 4, is inappropriate.

Under rational basis review, New York's program plainly passes constitutional muster. New York contends that its veterans' employment preference serves as an expression of gratitude to veterans who entered the service as New York residents. Even the plurality acknowledges the legitimacy of this state purpose. See ante at 476 U. S. 910. Indeed, it is difficult to impeach this interest, for

[o]ur country has a longstanding policy of compensating veterans for their past contributions by providing them with numerous advantages.

Regan v. Taxation with Representation of Washington, 461 U. S. 540, 461 U. S. 551 (1983). See also Personnel Administrator of Massachusetts v. Feeney, 442 U.S. at 442 U. S. 261. As JUSTICE STEVENS has explained,

the simple interest in expressing the majority's gratitude for services that often entail hardship, hazard, and separation from family and friends, and that may be vital to the continued security of our Nation, is itself an adequate justification for providing veterans with a tangible token of appreciation.

Hooper v. Bernalillo County Assessor, 472 U.S. at 427 U. S. 626 (dissenting). In sum, this state interest could hardly be deemed inherently invidious or irrational. Nor, as demonstrated by the above discussion, could it be said to be constitutionally offensive because its implementation has burdened a fundamental right to travel.

I have difficulty believing that the veterans' preference scheme employed by New York does not rationally relate to this legitimate state interest. I had certainly thought a State could award a medal to all New York veterans of designated wars, or that it could erect memorials in honor of certain residents returning from particular armed conflicts; it is hardly irrational to employ a means which gives certain returning wartime veterans a more tangible and useful expression of gratitude by way of employment preferences. I also find it hard to credit the idea that the Equal Protection Clause requires New York to reward the sacrifices of all those who joined the Armed Forces from other States and came to reside in New York if it wishes to reward the service of those who represented New York in the Armed Forces. Certainly those veterans who represented other States in the military aided New York by aiding the Nation, and suffered in equal measure with New York veterans, but that is not the issue. New York is not expressing gratitude for the prior resident's service to, and sacrifice for, the Nation as much as it is attempting to say "thank you" to those who personified New York's sacrifice and effort to "do its part" in supporting this Nation's war efforts. The prior residence of the individual seeking the statutory benefit clearly is a "relevant characteristic" to this legitimate and longstanding state interest, and is one which has a manifest relation to the furtherance of that interest.

Whether this issue is tested under the "right to migrate," the Equal Protection Clause, or the Privileges and Immunities Clause of Art. IV, § 2, something more than the minimal effect on the right to travel or migrate that exists in this case must be required to trigger heightened scrutiny, or the plurality's right to travel analysis will swallow all the traditional deference shown to state economic and social regulation. The modest scheme at issue here does not penalize in a constitutional sense veterans who joined the Armed Forces in other States for choosing to eventually settle in New York, and does not deny them equal protection. I would reverse the judgment of the Court of Appeals for the Second Circuit.

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