Opinion

JUSTICE O'CONNOR, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part.

I join Parts I and II of THE CHIEF JUSTICE's opinion, and I would vacate only a portion of the injunction issued by the District Court.

I

I believe that appellees cannot pursue their free exercise claim based solely on the actions of the Government with respect to the use of a Social Security number already in its possession, or with respect to any other identification number the Government may wish to assign and use in connection with its administration of its welfare assistance program. Accordingly, I join Parts 476 U. S. S. 699|>II of THE CHIEF JUSTICE's opinion, and I would vacate that portion of the District Court's judgment that enjoins the Government from using or disseminating the Social Security number already assigned to Little Bird of the Snow.

In all, eight Members of the Court believe that the District Court's injunction was overbroad in preventing the Government from using information already in its possession. See ante at 476 U. S. 699 -701 (opinion of BURGER, C.J., joined by POWELL and REHNQUIST, JJ.); ante at 476 U. S. 716 -717 (STEVENS, J., concurring in part and concurring in the result); ante at 476 U. S. 713 (BLACKMUN, J., concurring in part); supra, this page.

A logical next step on the facts of this case is to consider whether the case is moot. Only two Members of the Court believe that the case is, or may be, moot. See ante at 476 U. S. 720 -723 (STEVENS, J., concurring in part and concurring in result) (stating that the case is moot or not ripe); ante at 476 U. S. 714 -716 (BLACKMUN, J., concurring in part) (District Court should consider whether the case is moot). I agree with THE CHIEF JUSTICE, ante at 476 U. S. 701 -702, n. 7, that the case is not moot.

The District Court enjoined the Government not only from disseminating or using the Social Security number already in its possession, but "from denying Plaintiff Roy cash assistance and medical assistance benefits for Little Bird of the Snow for the Plaintiffs' failure to provide a social security number for her." App. to Juris. Statement 24a. Because of this portion of the District Court's injunction, we continue to have before us a live case or controversy. Mr. Roy sought in part an injunction that

restrai[ns the Government] from denying cash assistance and medical assistance to Little Bird of the Snow for failure to provide a Social Security Number.

Record, Doc. No. 65, Proposed Orders Submitted by Plaintiff 1-2. The District Court granted that relief. App. to Juris. Statement 24a. The Government still refuses to concede that it should now provide welfare benefits to Little Bird of the Snow, even though it now claims to possess Little Bird of the Snow's Social Security number, and even though the Solicitor General has been

advised by the Social Security Administration that the agency itself assigns [Social Security numbers] to persons who are required by federal law to have one, but decline to complete an application.

Brief for Appellants 46, n.19. Because the Government contests the District Court's decision that the Government may not deny welfare benefits to Little Bird of the Snow despite its acknowledgment of appellees' sincere religious objections, Mr. Roy may properly press his suit. Although the Government properly challenges part of the District Court's injunction as overbroad, it seeks to overturn the rest of the injunction only on the grounds that the District Court improperly applied the substantive standards of the First Amendment.

II

Given that a majority of the Court believes that the Government may use and disseminate information already in its possession, and given that the case is not moot, there is probably less remaining in this case than meets the eye. The interest asserted by the Government before the District Court could be wholly served after accommodating appellees' sincere religious beliefs, and the interests remaining after vacating the overbroad portion of the injunction are certainly no more difficult to pursue.

The Government has identified its goal as preventing fraud and abuse in the welfare system, a goal that is both laudable and compelling. The District Court, however, soundly rejected the Government's assertion that provision of the Social Security number was necessary to prevent such fraud and abuse. Among the means for which the Social Security number is used to reduce such fraud is "cross-matching," in which various computerized lists are compared with the welfare rolls to detect unreported income, individuals claimed as part of more than one household, and other fraudulent practices. Roy v. Cohen, 590 F.Supp. 600, 606-607 (MD Pa.1984). As now appears, the Government not only has the Social Security number it wants for Little Bird of the Snow, but it can also use it. But even under the erroneous assumption of the District Court that no such number was available for use, that court found as a fact that, while cross-matching is "more difficult" without Social Security numbers,

[t]he file on a particular benefit recipient can be identified and cross-matching performed, if the recipient's full name, date of birth, and parents' names are entered into the computerized systems.

Id. at 607. The District Court's generalized evaluation of the asserted indispensability of the Social Security number similarly undermines the Government's claim here:

The government's interest in preventing Little Bird of the Snow from fraudulently receiving welfare benefits can be satisfied without requiring a social security number for Little Bird of the Snow.

Ibid. (emphasis added).

Faced with these facts, however, THE CHIEF JUSTICE not only believes appellees themselves must provide a Social Security number to the Government before receiving benefits, but he also finds it necessary to invoke a new standard to be applied to test the validity of Government regulations under the Free Exercise Clause. Ante at 476 U. S. 707 -708. He would uphold any facially neutral and uniformly applicable governmental requirement if the Government shows its rule to be "a reasonable means of promoting a legitimate public interest." Ante at 476 U. S. 708. Such a test has no basis in precedent, and relegates a serious First Amendment value to the barest level of minimal scrutiny that the Equal Protection Clause already provides. I would apply our long line of precedents to hold that the Government must accommodate a legitimate free exercise claim unless pursuing an especially important interest by narrowly tailored means.

This Court has stated:

Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.

Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 450 U. S. 717 -718 (1981). Indeed, THE CHIEF JUSTICE appears to acknowledge at least that the law at issue here involves governmental compulsion. See ante at 476 U. S. 704 ("[W]e do not believe that no government compulsion is involved"). The Free Exercise Clause is therefore clearly implicated in this case. See Thomas v. Review Bd., supra, at 450 U. S. 717 -718; Sherbert v. Verner, 374 U. S. 398, 374 U. S. 403 -406 (1963).

Once it has been shown that a governmental regulation burdens the free exercise of religion,

only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.

Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 215 (1972). This Court has consistently asked the Government to demonstrate that unbending application of its regulation to the religious objector "is essential to accomplish an overriding governmental interest," United States v. Lee, 455 U. S. 252, 455 U. S. 257 -258 (1982), or represents "the least restrictive means of achieving some compelling state interest," Thomas v. Review Bd., supra, at 450 U. S. 718. See also Braunfeld v. Brawn, 366 U. S. 599, 366 U. S. 607 (1961); Sherbert v. Verner, supra, at 374 U. S. 406. Only an especially important governmental interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms a§ the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens.

Granting an exemption to Little Bird of the Snow, and to the handful of others who can be expected to make a similar religious objection to providing the Social Security number in conjunction with the receipt of welfare benefits, will not demonstrably diminish the Government's ability to combat welfare fraud. The District Court found that the governmental appellants had hardly shown that a significant number of other individuals were likely to make a claim similar to that at issue here:

There have been four reported cases involving challenges to the social security number requirement for welfare benefits based upon the contention that the number violates sincerely held religious beliefs of the welfare recipient.

590 F.Supp. at 607. Cf. United States v. Lee, supra, (refusing request for exemption from mandatory taxation); Gillette v. United States, 401 U. S. 437 (1971) (refusing request for exemption from involuntary military service). The danger that a religious exemption would invite or encourage fraudulent applications seeking to avoid cross-matching performed with the use of Social Security numbers is remote on the facts as found by the District Court: few would-be lawbreakers would risk arousing suspicion by requesting an exemption granted only to a very few. And the sincerity of appellees' religious beliefs is here undisputed. There is therefore no reason to believe that our previous standard for determining whether the Government must accommodate a free exercise claim does not apply.

Bob Jones University v. United States, 461 U. S. 574 (1983), does not support THE CHIEF JUSTICE's analysis. The Court stated in that case:

The governmental interest at stake here is compelling.... [T]he Government has a fundamental, overriding interest in eradicating racial discrimination in education -discrimination that prevailed, with official approval, for the first 165 years of this Nation's constitutional history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs. The interests asserted by petitioners cannot be accommodated with that compelling governmental interest, see United States v. Lee, supra, at 455 U. S. 259 -260; and no 'less restrictive means,' see Thomas v. Review Board of Indiana Employment Security Div., supra, at 450 U. S. 718, are available to achieve the governmental interest.

Id. at 461 U. S. 604 (footnotes omitted). See also id. at 461 U. S. 603 ("'The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest'") (emphasis added) (quoting United States v. Lee, supra, at 455 U. S. 257 -258). It is clear that the Court in Bob Jones University did not adopt anything like the legitimate interest/rational means test propounded by THE CHIEF JUSTICE, but rather continued to require the Government to show pursuit of an especially important interest by narrowly tailored means. In addition, the interest that the Court in Bob Jones University balanced against asserted religious interests was not merely a compelling governmental interest, but a constitutional interest. Here, although prevention of welfare fraud is concededly a compelling interest, the Government asserts only administrative efficiency as its reason for refusing to exempt appellees from furnishing the Social Security number. The District Court found that assertion sorely wanting, and our conclusion that part of the resulting injunction was overbroad only makes the Government's assertion less plausible. Surely the fact that the Court was willing in Bob Jones University to give overriding weight to the Government's interest in eradicating the scourge of racial discrimination does not mean that the Court must also give overriding weight to the unanchored anxieties of the welfare bureaucracy.

Hamilton v. Regents of University of California, 293 U. S. 245 (1934), also fails to support THE CHIEF JUSTICE'S construction of a new test. When the Court decided Hamilton, it had not yet applied, and did not in Hamilton apply, the Free Exercise Clause to actions of the States. Cf. Cantwell v. Connecticut, 310 U. S. 296 (1940). The Court's discussion in Hamilton of the state university's decision to require military training is therefore limited to a generalized analysis under the Fourteenth Amendment of whether the State's policy deprived the would-be students of "life, liberty, or property." See 293 U.S. at 293 U. S. 261 -262. The Court concluded that no such deprivation was involved when the State "ha[d] not drafted or called [the individuals] to [war]." Id. at 293 U. S. 262.

This Court's opinions have never turned on so slender a reed as whether the challenged requirement is merely a "reasonable means of promoting a legitimate public interest." Ante at 476 U. S. 708 (opinion of BURGER, C.J.). THE CHIEF JUSTICE appears to believe that the added inconvenience to the State of administering a selective exemption overbalances any burden on individual religious exercise. But this Court has held that administrative inconvenience is not alone sufficient to justify a burden on free exercise unless it creates problems of substantial magnitude. See Sherbert v. Verner, 374 U.S. at 374 U. S. 408 -409. And as 476 U. S. there is essentially no administrative burden imposed on the Government in this case.

Appellants have rested their case on vague allegations of administrative inconvenience and harm to the public fisc that are wholly unsubstantiated by the record and the findings of the District Court. The Court simply cannot, consistent with its precedents, distinguish this case from the wide variety of factual situations in which the Free Exercise Clause indisputably imposes significant constraints upon government. Indeed, five Members of the Court agree that Sherbert and Thomas, in which the government was required to accommodate sincere religious beliefs, control the outcome of this case to the extent it is not moot. See ante at 476 U. S. 716 (BLACKMUN, J., concurring in part); post at 476 U. S. 733 (WHITE, J., dissenting); supra at 476 U. S. 728 -730.

THE CHIEF JUSTICE's distinction between this case and the Court's previous decisions on free exercise claims -that here

it is appellees who seek benefits from the Government and who assert that... they should be excused from compliance with a condition that is binding on all other persons who seek the same benefits from the Government,

ante at 476 U. S. 703 -has been directly rejected. The fact that the underlying dispute involves an award of benefits, rather than an exaction of penalties, does not grant the Government license to apply a different version of the Constitution:

"[Welfare] benefits are a matter of statutory entitlement for persons qualified to receive them. Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are "a privilege,' and not a `right.'" Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 627 n. 6 (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U. S. 398 (1963)...."

Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 262 (1970) (footnote omitted). See also Sherbert v. Verner, supra, at 374 U. S. 404 ("It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege"). The fact that appellees seek exemption from a precondition that the Government attaches to an award of benefits does not, therefore, generate a meaningful distinction between this case and one where appellees seek an exemption from the Government's imposition of penalties upon them. Even if the Founding Fathers did not live in a society with the "broad range of benefits" and "complex programs" that the Federal Government administers today, ante at 476 U. S. 707 (opinion of BURGER, C.J.), they constructed a society in which the Constitution placed express limits upon governmental actions limiting the freedoms of that society's members. The rise of the welfare state was not the fall of the Free Exercise Clause.

Our precedents have long required the Government to show that a compelling state interest is served by its refusal to grant a religious exemption. The Government here has clearly and easily met its burden of showing that the prevention of welfare fraud is a compelling governmental goal. If the Government could meet its compelling needs only by refusing to grant a religious exemption, and chose a narrowly tailored means to do so, then the Government would prevail. But the Government has failed to show that granting a religious exemption to those who legitimately object to providing a Social Security number will do any harm to its compelling interest in preventing welfare fraud.

I would merely vacate that portion of the injunction issued by the District Court that enjoins the Government from using or disseminating the Social Security number already in its possession.