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