David Stevens v. Stephen Berger
District Court, New York
428 F.Supp. 896 (1977)
Plaintiffs Virginia and David
Stevens, acting for themselves and on behalf of their four minor children,
seek a permanent injunction prohibiting the State of New York Department
of Social Services, the Suffolk County Department of Social Services, and
the United States Department of Health, Education and Welfare from
withdrawing their welfare benefits. Insistence that the children obtain
social security numbers as a condition of continued public assistance
allegedly violates their right of free exercise of religion under the
First Amendment of the United States Constitution and their right
to privacy. While the social security number requirement is designed to
reduce fraud by welfare recipients, in the particular circumstances of
this case it does violate plaintiffs' rights.
Factual and Statutory Background
The Stevens family was
receiving Home Relief aid from the state, supplementing their
below-subsistence private income. New York Social Services Law Section 157
etc. In January 1976, they received notice from the Suffolk County
Department of Social Services that they were to supply a photostatic copy
of each child's social security card, as required by New York's Welfare
Regulations. 18 N.Y.C.R.R. Section 351.2(c).
The Stevenses replied
that the children had no social security numbers and that, because of
their religious convictions, the parents would not obtain such numbers for
them. They explained that, in their view, the use of social security
numbers was a device of the Antichrist, and that they feared the children,
if numbered in this way, might be barred from entering Heaven. (The adult
Stevenses had obtained social security numbers years earlier, before
developing their current convictions, and those numbers had been duly
supplied to the Department of Social Services.)
Hoping to find some
compromise solution, the Stevenses sought to cooperate with the department
to develop an alternative way to identify their children for the welfare
system's record-keeping needs. The offer was rejected.
unsuccessfully challenged the decision to cease aid at a hearing before
the county. In August, the Commissioner of the New York State Department
of Social Services affirmed the county's decision, and payments to the
Stevenses under the Home Relief program were discontinued. The plaintiffs
then instituted this action seeking injunctive and declaratory relief. A
temporary injunction restored the plaintiffs to the relief rolls.
Before the trial, Mr.
Stevens lost his job. The family, for this reason, was no longer entitled
to Home Relief but was within the ambit of a federally-funded welfare
program. Plaintiffs were permitted to file an amended complaint, naming
the Department of Health, Education and Welfare as an additional
defendant, since each member of a family receiving monies under national
welfare programs must also supply a social security number as
The Social Service
Amendments of 1975 mandated that the numbers be provided to obtain
assistance under Aid to Families with Dependent Children. P.L. 93-647. The
applicable federal statute now reads: "(A) that, as a condition of
eligibility under the plan, each applicant for or recipient of aid shall
furnish to the State agency his social security account number (or
numbers, if he has more than one such number), and (B) that such State
agency shall utilize such account numbers, in addition to any other means
of identification it may determine to employ in the administration of such
plan." 42 U.S.C. Section 602(a)(25), P.L. 93-647, 88 Stat. 2337. It
was approved on January 4, 1975, four days after a seemingly contradictory
segment of the Federal Privacy Act, P.L. 93-579, was passed. The Privacy
Act provides that: "It shall be unlawful for any Federal, State
or local government agency to deny to any individual any right, benefit,
or privilege provided by law because of such individual's refusal to
disclose his social security account number." P.L. 93-579, Section
7(a)(1), 88 Stat. 1896, reprinted in 5 U.S.C.A. Section 552a, note at 98
(Cum.Supp.1976). There is no need to deal with this apparent conflict,
however, since section 7 of the Privacy Act then goes on
specifically to exempt from its provisions "any disclosure which is
required by Federal statute." P.L. 93-579, Section 7(a)(2)(A), 88
Stat. 1896, reprinted in 5 U.S.C.A. Section 552a, note at 98
(Cum.Supp.1976). Moreover, section 1211(b) of the Tax Reform Act of
1976, P.L. 94-455, 90 Stat. 1711, amending 42 U.S.C. Section 405,
explicitly provides that, notwithstanding prior law, social welfare
agencies may require applicants for aid to supply their social security
numbers as a prerequisite for qualifying for aid. The pertinent portion of
section 1211 reads as follows:
It is the policy of the United States that any State (or political
subdivision thereof) may, in the administration of any tax, general public
assistance, driver's license, or motor vehicle registration law within its
jurisdiction, utilize the social security account numbers issued by the
Secretary for the purpose of establishing the identification of
individuals affected by such law, and may require any individual who is or
appears to be so affected to furnish to such State (or political
subdivision thereof) or any agency thereof having administrative
responsibility for the law involved, the social security account number
(or numbers, if he has more than one such number) issued to him by the
(ii) If and to the extent
that any provision of Federal law heretofore enacted is inconsistent with
the policy set forth in clause (i) of this subparagraph, such provision
shall, on and after the date of the enactment of this subparagraph, be
null, void, and of no effect.
(iii) For purposes of
clause (i) of this subparagraph, an agency of a State (or political
subdivision thereof) charged with an administration of any general public
assistance, driver's license, or motor vehicle registration law which did
not use the social security account number for identification under a law
or regulation adopted before January 1, 1975, may require an individual to
disclose his or her social security number to such agency solely for the
purpose of administering the laws referred to in clause (i) above and for
the purpose of responding to requests for information from an agency
operating pursuant to the provisions of part A or D of title IV of the Social
Security Act. P.L. 94-455 Section 1211(b). See also,
H.Conf.Rep.No.94-1515 at 490-91, 94th Cong. 2d Sess. (1976).
this case so clearly presents a dispositive First Amendment issue, there
is no need to reach the question posed by plaintiffs of whether some
constitutional right to privacy under the First, Third, Fourth, Fifth,
Ninth and Fourteenth Amendments has been violated by the social security
number requirement. We turn, therefore, to the issue of religious
Requirement that Belief be Religious and Sincere
every belief put forward as "religious" is elevated to
constitutional status. As a threshold requirement, there must be some
reasonable possibility 1) that the conviction is sincerely held and 2)
that it is based upon what can be characterized as theological, rather
than secular -- e.g., purely social, political or moral views. Wisconsin
v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (Amish
Mennonite Church members' religiously-grounded desire -- as contrasted to
Thoreau-like rejection of current secular values -- to keep children out
of high school outweighed state interest in compulsory attendance law); United
States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965)
(religious belief, as compared to personal moral code or political,
sociological or economic considerations, outweighs government's need for
compulsory military training); Teterud v. Burns, 522 F.2d 357 (8th
Cir. 1975) (wearing of long, braided hair by Indian matter of religion,
not esthetics); Theriault v. Carlson, 495 F.2d 390 (5th Cir.), cert.
denied, 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279 (1974) (issue of
whether Eclatarian movement is religious or political
anti-authoritarianism); Founding Church of Scientology of Washington v.
United States, 133 U.S.App.D.C. 229, 409 F.2d 1146 (1969), cert.
denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969) (issue of
whether Scientology and "auditing" are religious, or are false
labeling of medical devices); United States v. Kahane, 396 F.Supp.
687 (E.D.N.Y.1975) (issue of whether special diet was religious need). See
also, Greenawalt, Book Review (Konvitz, Religious Liberty and
Conscience: A Constitutional Inquiry), 70 Colum.L.Rev. 1133, 1135-36
(1970); Note, Free Exercise of Religion in Prisons -- The Right to
Observe Dietary Laws, 45 Ford.L.Rev. 92 (1976).
The court, in undertaking
this difficult and sensitive factfinding task, recognizes stringent
limitations on its right of inquiry. Under the United States Constitution,
an individual's right to believe in anything he or she chooses is
unquestioned. Religious beliefs are not required to be consistent, or
logical, or acceptable to others. Governmental questioning of the truth or
falsity of the beliefs themselves is proscribed by the First Amendment. Cantwell
v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84
L.Ed. 1213 (1940); United States v. Ballard, 322 U.S. 78, 86, 64
S.Ct. 882, 886, 88 L.Ed. 1148 (1944). A religious belief can appear to
every other member of the human race preposterous, yet merit the
protections of the Bill of Rights. Popularity, as well as verity, are
of thought, which includes freedom of religious belief, is basic in a
society of free men.... It embraces the right to maintain theories of life
and of death and of the hereafter which are rank heresy to followers of
the orthodox faiths. Heresy trials are foreign to our Constitution.
Men may believe what they cannot prove. They may not be put to the proof
of their religious doctrines or beliefs. Religious experiences which are
as real as life to some may be incomprehensible to others.... The Founding
Fathers of the Constitution were not unaware of the varied and
extreme views of religious sects, of the violence of disagreement among
them, and of the lack of any one religious creed on which all men would
agree. They fashioned a charter of government which envisaged the widest
possible toleration of conflicting views. Man's relation to his God was
made no concern of the state. He was granted the right to worship as he
pleased and to answer to no man for the verity of his religious views. United
States v. Ballard, 322 U.S. 78, 86-87, 64 S.Ct. 882, 886-87, 88 L.Ed.
however, an individual seeks to act on a belief, and that action poses a
threat or inconvenience to other citizens, or to some important aspect of
public law and policy, the requirements of an ordered society may demand
that the courts make limited inquiry into bona fides. Cantwell
v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903, 84 L.Ed. 1213
(1940); Founding Church of Scientology v. United States, 133
U.S.App.D.C. 229, 409 F.2d 1146, 1154-55 (1969). The difficulty of the
investigation is compounded where the relevant belief does not, on its
face, fit into any generally recognizable religious framework. As one
court recently observed:
order to determine if First Amendment rights of free exercise of religion
have been or are being infringed upon, the Court must initially determine
whether or not a religion or religious beliefs are actually involved. The
task is, of course, greatly simplified where an historically established
and recognized religion such as Islam, Judaism, or Catholicism is
involved. But where, as in the instant case, a newly established allegedly
legitimate religion is involved the Court is necessarily put to the
difficult task of determining whether a religion or religious activity is
in fact involved. Theriault v. Silber, 391 F.Supp. 578, 580
in probing and sensitivity to permissible diversity is required, lest
established creeds and dogmas be given an advantage over new and changing
modes of religious belief. Neither the trappings of robes, nor temples of
stone, nor a fixed liturgy, nor an extensive literature or history is
required to meet the test of beliefs cognizable under the Constitution as
religious. So far as our law is concerned, one person's religious beliefs
held for one day are presumably entitled to the same protection as the
beliefs of millions which have been shared for thousands of years.
Nevertheless, it is -- as a matter of evidence and probative force -- far
easier to satisfy triers that beliefs are religious if they are
widely-held and clothed with substantial historical antecedents and
traditional concepts of a deity than it is where such factors are absent.
Judges recognize intellectually the existence of new religious harmonies,
but they respond more readily and feelingly to the tones the founding
fathers recognized as spiritual.
For example, in People
v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964), the
court decided that the use of the hallucinogen peyote by Indians in the
ceremonies of the Native American Church was a valid expression of
religious beliefs and not an unprivileged violation of the drug laws. But
the court, in reaching this decision, relied in part upon evidence of a
long history and a large membership. In United States v. Seeger,
380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), the court distinguished
a new class of religious objectors who did not believe in a Supreme Being
in a traditional sense from those whose objections to the draft were
personal and moral in nature. In doing so, however, the Court cited an
extensive supporting literature from the pens of those generally
acknowledged to be leaders of traditional religious institutions.
Although support from
tradition, history or authority is not required, without it a plaintiff
may be unable to produce enough other evidence of religiosity to satisfy
this preliminary burden. A prisoners' religious sect, calling itself the
Church of the New Song of Universal Life, demanded a series of special
privileges, including the right to hold services in secret. Three cases
involving the sect were considered in Theriault v. Carlson, 495
F.2d 390 (5th Cir.), cert. denied, 419 U.S. 1003, 95 S.Ct. 323, 42
L.Ed.2d 279 (1974). Two were remanded for full evidentiary hearings on the
issue of whether the movement was political or genuinely religious. As an
evidentiary matter, a district court in Texas concluded that the doctrine
was "a relatively non-structured, free-form, do-as-you-please
philosophy, the sole purpose of which is to cause or encourage disruption
of established prison discipline for the sake of disruption. Disruption of
and/or problems for prison authorities is not the result of this so-called
religion; it is rather the underlying purpose of it." Theriault v.
Silber, 391 F.Supp. 578, 582 (W.D.Tex.1975). Consequently, no First
Amendment issue had been raised. The case before us is, on the evidence,
far different from Theriault.
Sincerity of Plaintiffs' Beliefs
the Supreme Court declared in United States v. Seeger, 380 U.S.
163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965), the "significant
question" is whether a belief is "truly held." "This
is the threshold question of sincerity which must be resolved in every
David and Virginia
Stevens are members of the St. John's Lutheran Church in Massapequa, New
York. They characterize their religion not as Lutheranism, but as
"Messianic Judaism." They profess a belief in both the Old and
the New Testaments, and view Christ not as the founder of a new faith but
as the Messiah of the Jews. Among their religious traditions are the
keeping of Shabbot as well as other Jewish holy days and festivals.
plaintiffs during the trial, after hearing their testimony and that of
their minister, Pastor Jack Hickman, and after considering all the other
evidence, the court is left with no doubt of the sincerity of their belief
regarding social security numbers. Plaintiffs do believe that, were their
children to obtain these numbers, their spiritual well-being and chance to
enter Heaven would be seriously jeopardized; since the children would not
be able to shed these numbers when they reach adulthood, a decision by the
parents to comply would effectively foreclose the children from deciding
the question anew for themselves in the future. The testimony of Pastor
Hickman sums up the matter. "I believe their beliefs are
sincere," he said, "and I don't believe they would have gone
through all this if they were not."
Religious Foundations of Plaintiffs' Beliefs
the question of sincerity is resolved, the next question is whether the
belief is rooted in what may loosely be characterized as theological
conviction, or whether it is the expression of some political or social
ideology. The evidence is overwhelming that the belief is one which would
meet any reasonable test of what is "religious."
A trier of fact faced
with a First Amendment claim must necessarily come to terms with this
distinction. History is replete with examples of persons who gave up, not
just public benefits, but family, country and even life itself for their
dedication to such sectarian ideals as political freedom or social
egalitarianism. What the Supreme Court had to say about the belief of the
Amish that their children should not attend public schools beyond the
eighth grade is equally applicable to this case:
a determination of what is a "religious" belief or practice
entitled to constitutional protection may present a most delicate
question, the very concept of ordered liberty precludes allowing every
person to make his own standards on matters of conduct in which society as
a whole has important interests. Thus, if the Amish asserted their
claims because of their subjective evaluation and rejection of the
contemporary secular values accepted by the majority, much as Thoreau
rejected the social values of his time and isolated himself at Walden
Pond, their claims would not rest on a religious basis. Thoreau's
choice was philosophical and personal rather than religious, and such
belief does not rise to the demands of the Religion Clauses. Wisconsin
v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15
91972)(footnote omitted)(emphasis supplied).
Thoreau's counsel might have convinced the Court that it was wrong to
place that author's beliefs beyond the pale of constitutional religious
protection, the Court's view that the Amish were safely within the
boundaries was highly favorable to these plaintiffs.
It is clear from the
evidence that plaintiffs' views have their roots, not in secular
civil-libertarianism, but in religion. Others may have political
objections to the increasing use of social security numbers. See e.g.
American Civil Liberties Union Foundation, The Privacy Report,
Volume III, No. 1 (Aug. 1975); Privacy Protection Study Commission, The
Use of the Social Security Number in the Private Sector (Memorandum,
Oct. 22, 1975); S.Rep.No.93-1183, in U.S.Code Cong. & Admin.News No.
14 at 8066 (Jan. 30, 1975). But plaintiffs do not reach their conclusion
by political reasoning; theirs is the world of the spirit, not the flesh.
They express a fear that the social security number is fast becoming what
they describe as a "universal number" and that, as such, it is
an instrument of the Antichrist. Mrs. Stevens declared with obvious
believe that an Antichrist... will establish a system of numbers and will
cause all people to have these numbers.... [I]f they do not have them they
will not be able to pay or sell or function... in society.
Q. What is it about the
social security number that makes it unique according to your belief?...
A. The fact that, unlike
other numbers, you must use it to work, you must have it to cash checks
which would then lead to buying things -- bank accounts. It is used for
identification and without it you would have a pretty hard time
functioning in society.... I think that is a pretty good description of
the numbers the Antichrist will use.
Q. Because of the power
behind it, are you saying?
A. Yes, the power behind
it; the power it holds over you... to control human life.
primary source to which the plaintiffs point in support of their beliefs
is biblical: the thirteenth chapter of the New Testament Book of
Revelation. The American Lutheran Church, the denomination to which
the Stevenses belong, apparently does not have a doctrinal interpretation
of Chapter 13, or any doctrine generally concerning the Antichrist.
Instead, as testimony credited by the court indicated, individual members
are encouraged to study the Bible and develop for themselves a personal
understanding of its teachings. Constitution of the American Lutheran
Church, reprinted in Handbook of the American Lutheran Church
45 (1975). Thus, it is not surprising to find that the Stevenses hold
highly individualized beliefs as part of their general adherence to an
orthodox religious tradition. To borrow a phrase from the Supreme Court in
Wisconsin v. Yoder, the plaintiffs' belief is simply a
"response to their literal interpretation of [a] Biblical
injunction...." 406 U.S. at 216, 92 S.Ct. at 1533.
The reference to a
scriptural source for the belief, plus the testimony by plaintiffs and
their pastor about the study and reflection that led to its birth might
well by themselves lead the court to conclude that the Stevenses' aversion
to the use of social security numbers has no secular component. There is
additional evidence in this case, however, which supports the plaintiffs'
position. No finding as to the historical accuracy and theological
soundness of these plaintiffs' contentions are made since such judgments
should be avoided by the courts. It also bears reiteration that "The
validity of what he [or she] believes cannot be questioned." United
States v. Seeger, 380 U.S. 163, 184, 85 S.Ct. 850, 863, 13 L.Ed.2d 733
(1965). "The religious views espoused by [plaintiffs] might seem
incredible, if not preposterous, to most people. But... those doctrines
are [not] subject to trial...." United States v. Ballard, 322
U.S. 78, 87, 64 S.Ct. 882, 887, 88 L.Ed. 1148 (1944). The evidence does
support plaintiffs' contention that there is some arguable theological
basis for their beliefs.
Both the trial testimony
and the literature relied upon by plaintiffs indicated that, in western
theology, a long and deepseated tradition exists of conflict between God
and state -- more specifically, a belief that an omnipowerful state will
usurp the place of God on earth, and destroy those who will not make
obeisance to the state. Out of this tradition comes, according to
plaintiffs, the scriptural reference to what plaintiffs' witnesses refer
to as the "mark of the Beast" -- in the Stevenses' view, social
The plaintiffs' expert,
Dr. Willis E. Elliott, is an ordained minister of the United Church of
Christ well versed in scriptural interpretation, with doctorates from the
University of Chicago and from the Northern Baptist Theological Seminary.
He explained that the Book of Revelation was written about 96 A.D.,
a particularly bleak time for early Christians who faced genocide under
the edicts of the Roman emperor Domitian. Yet the imagery, apocalyptic
tone, and the central concern with the figure of an Antichrist, he said,
is adapted from earlier sources.
In the Old Testament, the
seventh chapter of the Book of Daniel tells of Daniel's dream in
which he saw "four great beasts... from the sea, diverse one from
another," who ruled the earth until that kingdom was finally
recaptured by "one like the Son of man" who would rule on
for eternity. Daniel 7:3,13. In Daniel, according to
plaintiffs' interpretation, the beasts are explicitly political powers who
prevail for a time against the forces of God. Daniel 7:24-27. The
"Son of man" who will ultimately conquer these forces is,
according to plaintiffs' contention, the predicted Messiah of the Jews.
Daniel, like Revelation
some two-and-a-half centuries later, grew, according to the testimony,
out of an historical context threatening destruction of a religious group.
The original model for the Antichrist, Antioches Epiphanes, was king of
Syria from 175 to 163 B.C. During his reign, Antioches attempted to
Hellenize his domain, and part of his program for accomplishing cultural
homogenization was the destruction of the Jewish religion. See C. M.
Laymon, The Interpreter's One-Volume Commentary on the Bible 13-14
(1971); The Columbia Encyclopedia 84 (2d. ed. W. Bridgewater &
S. Kurtz 1963). Instead, he inspired the revolt of the Maccabees.
Dr. Elliott described
quite fully in his testimony his analysis of the perception Jews and
Christians had of overweening secular authority:
Antichrist is merely the reverse Christ and since Christ is a [Greek
translation of a] Jewish word, the whole Messianic expectation of the Jews
is involved in the Antichrist....
The reason Jews no longer
use the term "Antichrist" is because the word
"Christ"... has gotten hooked narrowly into Christianity. But it
has always [meant] the threat and destruction to human liberty and life.
threat of annihilation for the early Christians, plaintiffs explain, began
with Emperor Nero who fixed the blame for the great fire that destroyed
Rome in 64 A.D. on that fledgling religious community. The Columbia
Encyclopedia 1478 (2d ed. W. Bridgewater & S. Kurtz 1963). The
persecution was continued under Domitian. Once more, secular authority
came into direct conflict with religious authority. The imagery of the
Antichrist was particularly apt as applied to Roman emperors who elevated
themselves above the temporal by claiming deification and the right to be
worshipped as well as obeyed. This was the ultimate forging together of
church and state, and the vision drawn upon by John of Patmos in composing
the Book of Revelation.
The fear expressed by the
Stevenses of rendering too much to Caesar is not, according to the
uncontradicted testimony, too different from the fear expressed by St.
John, although the historical context is radically different. John was
urging Christians not to compromise their faith by paying lip service to
the cult of the emperor -- that is to say, worship of the state. The
Interpreter's Dictionary of the Bible 745 (Supp.1976).
In the thirteenth chapter
of the Book of Revelation -- the passage on which the Stevenses
contend their belief is primarily based -- John writes of two great
beasts, one coming up from the sea and the other from the land. Evidence
presented by plaintiffs suggest agreement among scholars that the beast
from the sea symbolizes the Emperor, while the beast from the land
represents his priests who "exerciseth all the power of the first
beast... and causeth the earth and them which dwell therein to worship the
first beast...." Revelation 13:12; A.E. Harvey, The New
English Bible: Companion to the New Testament 820 (1970).
According to St. John,
the second beast had power to kill those who would not worship the first.
[H]e causeth all, both small and great, rich and poor, free and bond, to
receive a mark in their right hand, or in their foreheads.
17. And that no man might buy or sell, save he that had the mark, or the
name of the beast, or the number of his name.
18. Here is wisdom. Let him that hath understanding count the number of
the beast: for it is the number of a man; and his number is Six hundred
threescore and six. Revelation 13:16-18.
"mark of the Beast" is what, according to plaintiffs' expert,
sorts out those who are in favor with the temporal powers from those who
will not survive the regime. This is the passage that the Stevenses say
was the origin of their opposition to accepting the "mark" of
the social security number. What the "mark," as referred to by
John, was cannot be identified with certainty. A.E. Harvey, The New
English Bible: Companion to the New Testament 820-21 (1970), suggests
the mark was the coinage of Rome, bearing the image and titles of the
Emperor, which was handled in every commercial transaction in the Empire.
Another commentator suggests that the mark was a brand, similar to that
used to mark slaves. A. Farrer, The Revelation of St. John the Divine
157 (1964). Dr. Elliott, in his expert testimony at the trial, offered an
emperor's priests] were functioning, not as we would think religious
priests would, but rather as police to bring in the Christians and they
had to have some way of identifying these Christians and they would ask
them for their pass.
Their pass was called a
libellus, made of papyrus and it said on it -- ...we have some of these
from way back in the first century -- and it said: I have sacrificed to
the Emperor and then it had the signature.
All you had to do to
sacrifice was to place a pinch of incense on the altar of... the Emperor,
and that was it.
You signed, the priest
signed and every time you got nailed by the police you could show your
If you didn't have it,
the libellus, you could be dragged into court and executed the same day.
This was instant death.
That was the mark of the
these highly scholarly explanations of the meaning of the mark are all
plausible, the interpretation of the Stevenses that it is a number is also
straightforward. The Scripture speaks of the number of the Beast, and says
that it is 666. Revelation 13:18. Modern scholars, the testimony
indicated, assume that 666 is an example of gematria, a device by which
letters are translated into their numerical equivalent. It may stand for
the Emperor Domitian. G.B. Caird, A Commentary on the Revelation of St.
John the Divine 174-75 (1966). Or it may refer to Nero. Id. at
175; R.H. Charles, A Critical and Exegetical Commentary on the
Revelation of St. John 367 (1920). In either case, the number
represented ruthless power backed by the forces of the Roman Empire and
pitted against a discrete sect of religious nonconformists.
The meaning of the mark
to theologians -- whatever they believe the mark to have been -- is
strikingly similar to the meaning for the Stevenses, who see a potential
for abuse of the spiritual side of humanity in a number which could act as
a universal identifier. R.H. Charles in his commentary says:
object of enforcing the wearing of the mark is not the minor one of
cutting off the recusants from buying and selling.... [T]he penalty of
such recusancy is immediate death. The necessaries of life are to be
withheld from such as have not the mark of the beast in order to bring
them under the notice of the imperial authorities.... A ruthless economic
warfare is here proclaimed with a view to the absolute supremacy of the
State. This is not represented as a fact of the present but as the future
in store for the inhabitants of the earth. R.H. Charles, A Critical and
Exegetical Commentary on the Revelation of St. John 363 (1920).
having a social security number in this society has become a prerequisite
for so many of the society's benefits (both from the public and private
sectors), no great leap of imagination is necessary to travel from the
exegesis of Revelation to the plaintiffs' belief that such numbers
could function, if the state were to become too powerful, like the mark of
the Antichrist spoken of in the biblical text. With the history and
literature marshalled by plaintiffs to support their contention, their
belief must be characterized as religious for purposes of this case.
Balancing State Against First Amendment Interests
law has long acknowledged the profound respect which is due the judgment
of parents as to the activities of their children. See Meyer v.
Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). This has
been particularly true in the area of religious training, a subject which
first received special attention in Pierce v. Society of Sisters,
268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). As the Supreme Court
noted many years later in Wisconsin v. Yoder, "[T]he...
holding in Pierce stands as a charter of the rights of parents to
direct the religious upbringing of their children." 406 U.S. 205,
233, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 (1972). See also West Virginia
State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87
L.Ed. 1628 (1943); Prince v. Commonwealth of Massachusetts, 321
U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944).
the interests of parenthood are combined with a free exercise claim of the
nature revealed by this record, more than merely a "reasonable
relation to some purpose within the competency of the State" is
required to sustain the validity of the State's requirement under the
First Amendment.... [T]he power of the parent, even when linked to a free
exercise claim, may be subject to limitation... if it appears that
parental decisions will jeopardize the health or safety of the child, or
have a potential for significant social burdens. 406 U.S. at 233-34, 92
S.Ct. at 1542. See Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct.
438, 88 L.Ed. 645 (1944).
is, in essence, involved is a balancing of the interests of the plaintiffs
in the free exercise of their religion against the governmental interest
in the challenged policy or statute. "The gain to the subordinating
interest provided by the [challenged governmental] means must outweigh the
incurred loss of protected rights," Elrod v. Burns, 427 U.S.
347, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976), before an infringement of
those protected rights will be countenanced.
Once a bone fide
First Amendment issue is joined, the burden that must be shouldered by the
government to defend a regulation with impact on religious actions is a
heavy one. The basic standard was set out for freedom of religion cases by
the Supreme Court in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct.
1790, 10 L.Ed.2d 965 (1963). There the Court said that a "compelling
state interest" must be demonstrated: "It is basic that no
showing merely of a rational relationship to some colorable state interest
would suffice; in this highly sensitive constitutional area, '[o]nly the
gravest abuses, endangering paramount interests, give occasion for
permissible limitation.'" Thomas v. Collins, 323 U.S. 516,
530, 65 S.Ct. 315, 323, 89 L.Ed. 430. The Court has recently emphasized
is firmly established that a significant impairment of First Amendment
rights must survive exacting scrutiny.... [E]ncroachment "cannot be
justified upon a mere showing of some legitimate state interest"....
The interest advanced must be paramount, one of vital importance, and the
burden is on the Government to show the existence of such an interest. Elrod
v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547
(1976). But cf. Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6
L.Ed.2d 563 (1961) (Sunday closing laws upheld against Saturday Sabbath
is no case law determining whether the state and federal governments can
meet the compelling state interest so far as the use of social security
numbers is concerned. Analogous cases indicate that they cannot. In Sherbert
v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), for
example, the Supreme Court held that religious needs outweighed the
state's ordinary constitutional power to regulate in the area of
unemployment benefits. Plaintiff was a Seventh-Day Adventist whose
religion prohibited Saturday work. She had lost her job because she would
not work on that day. The state found her unavailable for work
"without good cause" and barred her from unemployment
compensation. The Court found the state's purposes -- prevention of fraud
against the benefit fund, and inconvenience to employers -- far from
compelling, and reversed. In language which could apply with equal force
to Mr. and Mrs. Stevens, the Court noted, "The ruling forces her to
choose between following the precepts of her religion and forfeiting
benefits, on the one hand, and abandoning one of the precepts of her
religion in order to accept work, on the other hand." 374 U.S. at
404, 83 S.Ct. at 1794. But cf. Yott v. North American Rockwell Corp.,
428 F.Supp. 763 (C.D.Cal.1977) (government may not require employer to
accommodate to employee's religious beliefs).
Congress itself in
several instances has recognized a potential conflict between the use of
social security numbers and the rights of individuals to freedom of
religious belief. Where it has considered the issue, it has resolved it in
favor of religious scruples. For example, although all taxpayers
ordinarily must acquire social security numbers to work, the Secretary of
Health, Education and Welfare is permitted to exempt such religious groups
as the Amish from the obligation to pay social security taxes "if
they are, by reason of the tenets of their sect, opposed to receipt of
such benefits and agree to waive them." Wisconsin v. Yoder,
406 U.S. 205, 223, 92 S.Ct. 1526, 1537; n.11, 32 L.Ed.2d 15 (1972); 26
U.S.C. Section 1402(h); S.Rep. No. 404, 89th Cong., 1st Sess., in U.S.Code
Cong. & Adm.News at 1959 (1965). Similarly, the Social Security
Amendments of 1954, P.L. 83-761, 42 U.S.C Section 410(a)(8)(A), allowed
clergy the option of joining the social security system or staying out as
their consciences dictated. See Sen.Rep. No. 1987, 83d Cong., 2d Sess., in
U.S.Code Cong. & Adm.News at 3717-18 (1954). See also 26 U.S.C.
Section 1402(e). It would, of course, be inappropriate to deny necessary
aid to the children because of their parents' religious beliefs.
Only one witness
testified that the need for the Stevens children to have social security
numbers was substantial. The Assistant Commissioner of the New York State
Department of Social Services in charge of Field Operations, testified
that because the number of welfare recipients has increased at the same
time that the number of programs through which aid is filtered has
proliferated, the problems of fraud are great. In some instances, employed
persons supplement their incomes illegally by continuing to collect
unemployment benefits. In others, applicants have overstated the number of
children and other dependents making up their household to increase the
amount of their aid.
There can be little doubt
that the use of social security numbers, combined with computers, is an
important tool in efforts to combat such instances of welfare fraud.
Admittedly, however, the number is not a perfect device, since millions of
people are estimated to hold more than one number or to share a number.
Privacy Protection Study Commission, The Use of the Social Security
Number in the Private Sector 7 (Memorandum, Oct. 22, 1975). But the
evidence produced by the state was entirely unconvincing. It did not prove
that the Stevenses, or those few others who might share their beliefs,
pose insurmountable problems if their social security numbers cannot be
fed into the maws of welfare computers.
There is no suggestion of
a threat sufficient in size to compromise the orderly administration of
the state or national welfare program, or to render the statutory and
regulatory scheme unworkable. This case does not "present an
administrative problem of such magnitude, or... afford the exempted class
so great a competitive advantage, that such a requirement would have
rendered the entire statutory [and regulatory] scheme unworkable." Sherbert
v. Verner, 374 U.S. 398, 408-09, 83 S.Ct. 1790, 1796, 10 L.Ed.2d 965
The feasibility of
devising some alternative to deal with persons like the Stevenses is
suggested by the model of the federal Internal Revenue Service, which has
developed other ways to identify members of the clergy who have opted out
of the social security system. First Amendment principles demand that such
an effort be made. That is the intent of the least drastic means doctrine
which is applied regularly in cases dealing with rights protected by the
First Amendment. In United States v. Robel, 389 U.S. 258, 88 S.Ct.
419, 19 L.Ed.2d 508 (1967), the Supreme Court clearly articulated this
decision today simply recognizes that, when legitimate legislative
concerns are expressed in a statute which imposes a substantial burden on
protected First Amendment activities, Congress must achieve its goal by
means which have a "less drastic" impact on the continued
vitality of First Amendment freedoms.... The Constitution and the
basic position of First Amendment rights in our democratic fabric demand
nothing less. 389 U.S. at 267-68, 88 S.Ct. at 425-26 (footnote and
the willingness of the plaintiffs to co-operate is a matter of record,
some method of satisfying both the demands of the temporal and of the
Divine can be found.
Undoubtedly, the effort
required to accommodate our political and legal system to the
extraordinarily diverse and individualistic exercise of rights preserved
for us by the Bill of Rights creates strains and inconveniences to the
bureaucracy. "It would be more convenient for authorities if all
people were the same in religion and outlook." United States v.
Kahane, 396 F.Supp. 687, 703 (E.D.N.Y.1975). Our Constitution,
however, prevents forcing individuals into a single religious mold. As Mr.
Justice Jackson observed, "If there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion, or
other matters of opinion or force citizens to confess by word or act their
faith therein." West Virginia State Board of Education v. Barnette,
319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943).
When an individual seeks
to act on beliefs arguably grounded in religious faith, and such actions
will affect others adversely, some limits must be recognized. Because one
believes it is God's command to kill, homicide is not justified (although
the belief may be the predicate for a claim of delusion and insanity). People
v. Schmidt, 216 N.Y. 324, 340, 110 N.E. 945, 949 (1916). Nor can
religion serve as a cover for mail fraud. United States v. Ballard,
322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944). Closer to the dividing
line, it is improper to have two spouses simultaneously, even when
religious tenets approve, Reynolds v. United States, 98 U.S. 145,
25 L.Ed. 244 (1878), but it is not improper, under the freedom of religion
clause, for the religiously-inspired Amish to keep their children out of
high school, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32
L.Ed.2d 15 (1972).
In the case before us,
plaintiffs seem to fall well within the realm of permissible religious
activity. Their refusal to supply social security numbers does no
physical, psychic, or other harm to the individuals most affected -- their
children. No concept of parens patriae warrants protective
intervention by the state. And the deleterious effects of their action on
the welfare system is minuscule.
New York State Department of Social Services, the Suffolk County
Department of Social Services, and the United States Department of Health,
Education and Welfare are enjoined from denying to Virginia and David
Stevens and to their children public assistance benefits for which they
otherwise qualify solely because they refuse, for religious reasons, to
obtain social security numbers for the children.
This memorandum contains
findings of fact and law and is a final judgment.