Bowen v. Roy

Justice Blackmun,

concurring in part.

I join only Parts I and II of the opinion written by The Chief Justice.

In August 1983, appellees Stephen J. Roy and Karen Miller sued to prevent the Government from requiring them to provide a social security number for their 2-year-old daughter, Little Bird of the Snow, as a condition for obtaining food stamps and welfare benefits for the child. They object to the social security number requirement because of their sincere religious conviction that the Government’s widespread use of a unique numerical identifier for their daughter will deprive her of spiritual power. After it developed at trial that the Government already had a social secu*713rity number for Little Bird of the Snow, the District Court enjoined the Government not only from denying benefits to her based on her parents’ failure to provide a social security number, but also from using or disseminating the number already in the Government’s possession until the child’s 16th birthday. App. to Juris. Statement 25a.

I agree with the Court that the District Court erred in enjoining the Government’s internal use of Little Bird of the Snow’s social security number. It is easy to understand the rationale for that part of the District Court’s injunction: appellees argue plausibly that the Government’s threat to put the social security number into active use if they apply for benefits for their daughter requires them to choose between the child’s physical sustenance and the dictates of their faith, the same dilemma created by the Government’s initial requirement that appellees themselves supply a social security number for Little Bird of the Snow. Cf. Sherbert v. Verner, 374 U. S. 398, 404 (1963). They claim that, absent some compelling state interest, the Government should refrain from acting in ways that appellees believe on religious grounds will harm their daughter’s spiritual development.

Although this argument has some facial appeal, I conclude, for the reasons stated in Part II of the Court’s opinion, that it stretches the Free Exercise Clause too far. Consequently, I agree that the 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 must be vacated. I would also vacate the remainder of the judgment and remand the case for further proceedings, 'because once the injunction against use or dissemination is set aside, it is unclear on the record presently before us whether a justiciable controversy remains with respect to the rest of the relief ordered by the District Court. Roy and Miller evidently objected to the social security number requirement primarily because they did not want the Govern-*714merit to be able to use a unique numerical identifier for Little Bird of the Snow, and that injury cannot be redressed if, as the Court today holds, the Government cannot be enjoined from using the pre-existing number. It is possible, however, that appellees still would have an independent religious objection to their being forced to cooperate actively with the Government by themselves providing their daughter’s social security number on benefit applications. Cf. United States v. Lee, 455 U. S. 252, 257 (1982); Thomas v. Review Board of Indiana Employment Security Div., 450 U. S. 707, 711 (1981).

In my view, the record is ambiguous on this score. In rejecting the Government’s argument that the existence of the number rendered the case moot, the District Court found that Roy “feels compelled by his religious belief to avoid any use of that number and, to that end, has refused to provide the number to the Defendants in order to receive welfare benefits for Little Bird of the Snow.” Roy v. Cohen, 590 F. Supp. 600, 608 (MD Pa. 1984). It is unclear whether the “use” to which the District Court referred included use by Roy and Miller, or just the more extensive use of the number by the Government. And even if the court meant to refer only to use by the Government, it is not clear that appellees do not also have an independent religious objection to the requirement that they provide a social security number for their daughter.

On the other hand, even if appellees do have such an objection, vacating the District Court’s injunction against governmental use or dissemination of the number may moot this case in other ways. Regardless of whether Roy and Miller are required to provide their daughter’s social security number on applications for benefits, they may simply be unwilling to apply for benefits without an assurance that the application will not trigger the use of the number. Conversely, it is possible that the Government, in a welcome display of rea*715sonableness, will decide that since it already has a social security number for Little Bird of the Snow, it will not insist that appellees resupply it.1

Since the proceedings on remand might well render unnecessary any discussion of whether appellees constitutionally may be required to provide a social security number for Little Bird of the Snow in order to obtain Government assistance on her behalf, that question could be said not to be properly before us. I nonetheless address it, partly because the rest of the Court has seen fit to do so, and partly because I think it is not the kind of difficult constitutional question that we should refrain from deciding except when absolutely necessary. Indeed, for the reasons expressed by Justice O’Connor, see post, at 726-732, I think the question requires nothing more than a straightforward application of *716Sherbert, Thomas, and Wisconsin v. Yoder, 406 U. S. 205 (1972).2 If it proves necessary to reach the issue on remand, I agree with Justice O’Connor that, on the facts as determined by the District Court, the Government may not deny assistance to Little Bird of the Snow solely because her parents’ religious convictions prevent them from supplying the Government with a social security number for their daughter.

Unfortunately, I cannot agree that such flexibility on the Government’s part is assured either by the Government’s earlier argument to the District Court that the case should be dismissed as moot, or by regulations providing special assistance to handicapped applicants and applicants who cannot read and write English. Cf. ante, at 701-702, n. 7 (opinion of Burger, C. J.); post, at 720 (Stevens, J., concurring in part and concurring in result). Before this Court, the Government concedes only that “it would not be an unreasonable construction of the statutes [at issue in this case] to conclude that they are satisfied by the government’s ability to use [social security numbers] already in its possession, as is the case with Little Bird of the Snow, or by the government’s ability to assign (and then use) [a number] for a person who refuses to apply for one.” Brief for Appellants 46, n. 19 (emphasis added). What the Government does not say is that it in fact will adopt this construction, which it does not appear to have followed in the past. It is worth recalling that the Government’s response to. appellees’ refusal to supply a social security number for their daughter was not to assign her a number unilaterally, or to offer to do so, but rather to cut off benefits for the child.

Given The Chief Justice’s contrary view that the Government “undoubtedly” will not insist that appellees themselves provide a social security number for Little Bird of the Snow, see ante, at 702, n. 7, I am at a loss to understand why The Chief Justice believes there is still a live controversy.

1 do not share Justice Stevens’ narrow view of Sherbert and Thomas. Compare post, at 722, n. 17, with Goldman v. Weinberger, 475 U. S. 503, 524 (1986) (Blackmun, J., dissenting). Consequently, I have no occasion to consider separately, as he does, the “hypothetical questions,” post, at 723, that would arise if the Government refused to grant religious objectors an exemption from the social security number requirement, while simultaneously offering comparable exemptions and special assistance to applicants who are prevented in other ways from completing the required application forms. See post, at 720-722.