Bowen v. Roy, 476 U.S. 693 (1986)

Pursuant to federal regulations requiring social security numbers for all dependent children, Pennsylvania authorities had stopped Aid to Dependent Families and Children benefits to Stephen Roy and Karen Miller and were also taking steps to reduce food stamps. Other than failing to provide a Social Security number for their child, Little Bird of the Snow, Roy and Miller had met all other requirements. Roy based his refusal to provide a number on his Native American belief that doing so would ‘‘‘rob the spirit’ of his daughter and prevent her from attaining greater spiritual power.’’ On the last day of the trial, however, it was shown that Roy had earlier obtained a Social Security number. In the face of this, Roy then claimed that since the number had not been ‘‘used,’’ there had been no damage to her spirit.

The District Court, despite this last-minute revelation, found for Roy, holding ‘‘that the public ‘interest in maintaining an efficient and fraud resistant system can be met without requiring use of a social security number . . . .’’’ It enjoined government from both using the existing Social Security number and denying any appropriate governmental benefits.

The Supreme Court, in an opinion by Chief Justice Warren Burger, reversed. Burger, who in Wisconsin v. Yoder, had surprised free exercise advocates by appearing to continue in the Warren Court’s tradition by following Sherbert v. Verner, saw Roy’s claim as involving something quite different, an effort by a free exercise claimant to dictate to government how government should conduct its own affairs. No justice explicitly disagreed with Burger on this point. Burger’s refusal, however, to apply either ‘‘the least restrictive means of achieving some Compelling State Interest’’ (test of Thomas v. Review Board), or the test of being ‘‘essential to accomplish an overriding governmental interest’’ (United State v. Lee), led Justice Sandra Day O’Connor to issue a partial dissent, joined by Justices William Brennan and Thurgood Marshall. Justice Harry Blackmun, although not joining O’Connor’s opinion—Blackmun and Justice John Paul Stevens concluded that the existing Social Security number mooted the case—agreed with O’Connor that Burger should have applied either the Lee or Thomas standards of review to the present case.

Burger, for his part, argued that when the government’s burden on religion was indirect and incidental as in this situation, ‘‘The Government meets its burden when it demonstrates that a challenged requirement for government benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest.’’ If accommodations to such neutral regulations are to be made, Burger continued, that was the responsibility of the legislature. An effort to waive the Social Security number requirement was mounted in 1999, but was unsuccessful.

Four years after Roy, a different Court—Antonin Scalia replacing Burger and Anthony Kennedy succeeding Justice Lewis Powell—adopted a free exercise standard in Employment Division v. Smith that clearly owed much to Burger’s opinion.

FRANCIS GRAHAM LEE

References and Further Reading

• Cole, Jamie Alan, A New Category of Free Exercise Claims: Protection for Individuals Objecting to Government Actions that Impede Their Religion, University of Pennsylvania Law Review 135 (1987): 1557–90
• Fisher, Louis. ‘‘Statutory Exemptions for Religious Freedom.’’ Journal of Church and State 44 (2002): 291–316

Cases and Statutes Cited

• Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) 
• Sherbert v. Verner, 374 U.S. 398 (1963) 
• Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981) 
• United States v. Lee, 455 U.S. 252 (1982) 
• Wisconsin v. Yoder, 406 U.S. 205 (1972)