The New York Constitution and Civil Service Law grant a civil
service employment preference, in the form of points added to
examination scores, to New York residents who are honorably
discharged veterans of the Armed Forces, served during time of war,
and were New York residents when they entered military service.
Appellee Army veterans, long-time New York residents, passed the
New York City civil service examinations, but were denied the
veterans' preference because they were not New York residents when
they joined the Army. They then brought an action in Federal
District Court, alleging that the requirement that they have been
New York residents when they joined the military violated the Equal
Protection Clause of the Fourteenth Amendment and their
constitutional right to travel. The District Court dismissed the
complaint. The Court of Appeals reversed.
Held: The judgment is affirmed.
755 F.2d 266, affirmed.
JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE POWELL, concluded that the prior resident requirement
of the New York civil service veterans' preference laws violates
appellees' constitutionally protected right to travel and to equal
protection of the law. Pp.
476 U. S. 901-912.
(a) The right to travel includes the freedom to enter and reside
in any State, and a state law implicates that right when it
actually deters such travel, when impeding travel is its primary
objective, or when, as here, it uses a classification that
penalizes the exercise of that right. When the latter is involved,
heightened scrutiny of the law is required to determine its
constitutionality, and the State must come forward with a
compelling justification. Pp.
476 U. S.
901-906.
(b) New York has not met its burden of proving that it has
selected a means of pursuing a compelling state interest that does
not impinge unnecessarily on constitutionally protected interests.
The justifications offered in support of the prior residence
requirement -- encouraging New York residents to join the Armed
Forces, helping war veterans reestablish themselves, inducing
veterans to return to New York, and employing a "uniquely valuable
class of public servants" who possess
Page 476 U. S. 899
useful experience acquired through military service -- fail to
withstand heightened scrutiny. New York could accomplish these
purposes without penalizing the right to travel by awarding special
credits to all qualified veterans. Pp. 907-911.
CHIEF JUSTICE BURGER concluded that the New York prior residence
requirement is invalid because it fails to meet the rational basis
test under the Equal Protection Clause.
Zobel v. Williams,
457 U. S. 55;
Hooper v. Bernalillo County Assessor, 472 U.
S. 612. Pp.
476 U. S.
912-916.
JUSTICE WHITE concluded that the New York prior residence
requirement denies equal protection of the laws because the
classification it employs is irrational.
476 U.
S. 916.
BRENNAN, J., announced the judgment of the Court and delivered
an opinion, in which MARSHALL, BLACKMUN, and POWELL, JJ., joined.
BURGER, C.J.,
post, p.
476 U. S. 912,
and WHITE, J.,
post, p.
476 U. S. 916,
filed opinions concurring in the judgment. STEVENS, J., filed a
dissenting opinion,
post p.
476 U. S. 916.
O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST and
STEVENS, JJ., joined,
post, p.
476 U. S.
918.
JUSTICE BRENNAN announced the judgment of the Court and
delivered an opinion, in which JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE POWELL join.
The question presented by this appeal is whether a preference in
civil service employment opportunities offered by the State of New
York solely to resident veterans who lived in the State at the time
they entered military service violates the constitutional rights of
resident veterans who lived outside the State when they entered
military service.
Page 476 U. S. 900
I
The State of New York, through its Constitution, N.Y. Const.,
Art. V, § 6, and its Civil Service Law, N.Y. Civ. Serv. Law § 85
(McKinney 1983 and Supp.1986), grants a civil service employment
preference, in the form of points added to examination scores, to
New York residents who are honorably discharged veterans of the
United States Armed Forces, who served during time of war, and who
were residents of New York when they entered military service.
[
Footnote 1] This preference
may be exercised only once, either for original hiring or for one
promotion. N.Y. Const., Art. V, § 6.
Appellees, Eduardo Soto-Lopez and Eliezer Baez-Hernandez, are
veterans of the United States Army and long-time residents of New
York. Both men claim to have met all the eligibility criteria for
the New York State civil service preference except New York
residence when they entered the Army. Both Soto-Lopez and
Baez-Hernandez
Page 476 U. S. 901
passed New York City civil service examinations, but were denied
the veterans' preference by the New York City Civil Service
Commission because they were residents of Puerto Rico at the time
they joined the military. Appellees sued the city in Federal
District Court, alleging that the requirement of residence when
they joined the military violated the Equal Protection Clause of
the Fourteenth Amendment and the constitutionally protected right
to travel. The Attorney General of the State of New York intervened
as a defendant.
The District Court dismissed appellees' complaint, holding that
this Court's summary affirmance in
August v. Bronstein,
417 U.S. 901 (1974),
aff'g 369 F.
Supp. 190 (SDNY), a case in which a three-judge panel upheld
against equal protection and right-to-travel challenges the same
sections of the New York State Constitution and Civil Service Law
at issue in the instant action, compelled that result. The Court of
Appeals for the Second Circuit reversed.
Soto-Lopez v. New York
City Civil Service Comm'n, 755 F.2d 266 (1985). It concluded
that
August, supra, had implicitly been overruled by our
more recent decision in
Zobel v. Williams, 457 U. S.
55 (1982), and held that the prior residence requirement
of the New York civil service preference offends both the Equal
Protection Clause and the-right to travel. The Court of Appeals
remanded with various instructions, including the direction that
the District Court permanently enjoin the defendants from denying
bonus points to otherwise qualified veterans who were not residents
of New York at the time they entered the military service. We noted
probable jurisdiction of this appeal of the Attorney General of New
York. 473 U.S. 903 (1985). We affirm.
II
"
[F]reedom to travel throughout the United States has long
been recognized as a basic right under the Constitution.'" Dunn
v. Blumstein, 405 U. S. 330,
405 U. S. 338
(1972) (quoting United States v. Guest, 383 U.
S. 745, 383 U. S. 758
(1966)). See, e.g.,
Page 476 U. S.
902
48 U. S. 7
How. 283,
48 U. S. 492
(1849) (Taney, C.J., dissenting);
Crandall v.
Nevada, 6 Wall. 35,
73 U. S. 43-44
(1868);
Paul v.
Virginia, 8 Wall. 168,
75 U. S. 180
(1869);
Edwards v. California, 314 U.
S. 160 (1941);
Kent v. Dulles, 357 U.
S. 116,
357 U. S. 126
(1968);
Shapiro v. Thompson, 394 U.
S. 618,
394 U. S.
629-631,
394 U. S. 634
(1969);
Oregon v. Mitchell, 400 U.
S. 112,
400 U. S. 237
(1970) (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.);
id. at
400 U. S.
285-286 (Stewart, J., concurring in part and dissenting
in part, with whom BURGER, C.J., and BLACKMUN, J., joined);
Memorial Hospital v. Maricopa County, 415 U.
S. 250,
415 U. S. 254
(1974). And it is clear that the freedom to travel includes the
"`freedom to enter and abide in any State in the Union.'"
Dunn,
supra at
405 U. S. 338
(quoting
Mitchell, supra at
400 U. S.
285).
The textual source of the constitutional right to travel, or,
more precisely, the right of free interstate migration, though, has
proved elusive. It has been variously assigned to the Privileges
and Immunities Clause of Art. IV,
see, e.g., Zobel, supra,
at
457 U. S. 71
(O'CONNOR, J., concurring in judgment), to the Commerce Clause,
see Edwards v. California, 314 U.S. at
314 U. S.
173-174, and to the Privileges and Immunities Clause of
the Fourteenth Amendment,
see, e.g., id. at
314 U. S.
177-178 (Douglas, J., concurring). The right has also
been inferred from the federal structure of government adopted by
our Constitution.
Zobel, supra, at
457 U. S. 67
(BRENNAN, J., concurring);
Shapiro, supra, at
394 U. S. 631;
United States v. Guest, supra, at
383 U. S.
757-758. However, in light of the unquestioned historic
acceptance of the principle of free interstate migration, and of
the important role that principle has played in transforming many
States into a single Nation, we have not felt impelled to locate
this right definitively in any particular constitutional provision.
[
Footnote 2]
Shapiro,
supra, at
394 U. S.
630.
Page 476 U. S. 903
Whatever its origin, the right to migrate is firmly established,
and has been repeatedly recognized by our cases.
See, e.g.,
Hooper v. Bernalillo County Assessor, 472 U.
S. 612,
472 U. S. 618,
n. 6 (1985);
Zobel, supra, at
457 U. S. 60, n.
6;
Jones v. Helms, 452 U. S. 412,
452 U. S. 418
(1981);
Memorial Hospital v. Maricopa County, supra; Dunn,
supra; Shapiro, supra; United States v. Guest, supra, at
383 U. S.
757-759.
A state law implicates the right to travel when it actually
deters such travel,
see, e.g., Crandall v. Nevada, supra,
at
73 U. S. 46;
see also Shapiro, supra, at
394 U. S. 629,
when impeding travel is its primary objective,
see Zobel,
supra, at
457 U. S. 62, n.
9;
Shapiro, supra, at
394 U. S.
628-631, or when it uses "
any classification which
serves to penalize the exercise of that right.'" Dunn,
supra, at 405 U. S. 340
(quoting Shapiro, supra, at 394 U. S.
634). Our right-to-migrate cases have principally
involved the latter, indirect manner of burdening the right. More
particularly, our recent cases have dealt with state laws that, by
classifying residents according to the time they established
residence, resulted in the unequal distribution of rights and
benefits among otherwise qualified bona fide residents. [Footnote 3] Hooper,
supra;
Page 476 U. S.
904
Zobel v. Williams, 457 U. S. 55
(1982);
Sosna v. Iowa, 419 U. S. 393
(1975);
Memorial Hospital, supra; Dunn v. Blumstein,
405 U. S. 330
(1972);
Shapiro, supra.
Because the creation of different classes of residents raises
equal protection concerns, we have also relied upon the Equal
Protection Clause in these cases. Whenever a state law infringes a
constitutionally protected right, we undertake intensified equal
protection scrutiny of that law.
See, e.g., Cleburne v.
Cleburne Living Center, Inc., 473 U.
S. 432,
473 U. S. 440
(1985);
Martinez v. Bynum, 461 U.
S. 321,
461 U. S. 328,
n. 7 (1983);
Plyler v. Doe, 457 U.
S. 202,
457 U. S.
216-217, and n. 15 (1982);
Memorial Hospital,
supra, at
415 U. S. 258,
262;
San Antonio Independent School District v. Rodriguez,
411 U. S. 1,
411 U. S. 16, and
n. 39,
411 U. S. 30-32,
411 U. S. 40
(1973);
Police Dept. of Chicago v. Mosley, 408 U. S.
92,
408 U. S. 101
(1972);
Dunn, supra, at
405 U. S. 335,
405 U. S. 342;
Shapiro, supra, at
394 U. S. 634.
Thus, in several cases, we asked expressly whether the distinction
drawn by the State between older and newer residents burdens the
right to migrate. Where we found such a burden, we required the
State to come forward with a compelling justification.
See,
e.g., Shapiro v. Thompson, supra; Dunn, supra; Memorial Hospital v.
Maricopa County, 415 U. S. 250
(1974). In other cases, where we concluded that the contested
classifications did not survive even rational basis scrutiny, we
had no occasion to inquire whether enhanced scrutiny was
appropriate.
Hooper, supra; Zobel, supra. The analysis in
all of these cases, however, is informed by the same guiding
principle -- the right to migrate protects residents of a State
from being disadvantaged, or from being treated differently, simply
because of the timing of their migration, from other similarly
situated residents. [
Footnote
4]
Hooper, supra,
Page 476 U. S. 905
at
472 U. S. 618,
n. 6;
Zobel, supra, at
457 U. S. 60, n.
6;
Memorial Hospital, supra, at
451 U. S. 261;
Shapiro, supra, at
394 U. S.
629-631.
New York's eligibility requirements for its civil service
preference conditions a benefit on New York residence at a
particular past time in an individual's life. It favors those
veterans who were New York residents at a past fixed point over
those who were not New York residents at the same point in their
lives. Our cases have established that similar methods of favoring
"prior" residents over "newer" ones, such as limiting a benefit to
those who resided in the State by a fixed past date,
Hooper,
supra; granting incrementally greater benefits for each year
of residence,
Zobel, supra; and conditioning eligibility
for certain benefits on completion of a fixed period of residence,
see, e.g., Memorial Hospital, supra; Dunn v. Blumstein, supra;
Shapiro, supra, warrant careful judicial review. [
Footnote 5] But our cases have also
established that only where a State's law "
operates to penalize
those persons . . . who have exercised their constitutional right
of interstate migration'" is heightened scrutiny triggered.
Memorial Hospital, supra, at 415 U. S. 258,
quoting Oregon v. Mitchell,
Page 476 U. S. 906
400 U.S. at
400 U. S. 238
(separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.).
Our task in this case, then, is first to determine whether New
York's restriction of its civil service preference to veterans who
entered the Armed Forces while residing in New York operates to
penalize those persons who have exercised their right to migrate.
If we find that it does, appellees must prevail unless New York can
demonstrate that its classification is necessary to accomplish a
compelling state interest.
Memorial Hospital, supra, at
415 U. S. 262;
Dunn, supra, at
405 U. S. 342;
Shapiro, 394 U.S. at
394 U. S. 634.
[
Footnote 6]
Page 476 U. S. 907
III
A
In previous cases, we have held that even temporary deprivations
of very important benefits and rights can operate to penalize
migration. For example, in
Shapiro and in
Memorial
Hospital, we found that recently arrived indigent residents
were deprived of life's necessities by durational residence
requirements for welfare assistance and for free, nonemergency
medical care, respectively, which were available to other poor
residents. In
Dunn, we held that new residents were denied
a basic right by a durational residence requirement for
establishing eligibility to vote. The fact that these deprivations
were temporary did not offset the Court's conclusions that they
were so severe, and worked such serious inequities among otherwise
qualified residents, that they effectively penalized new residents
for the exercise of their rights to migrate.
More recently, in
Hooper v. Bernalillo, 472 U.
S. 612 (1985), and
Zobel v. Williams,
457 U. S. 55
(1982), we struck down state laws that created permanent
distinctions among residents based on the length or timing of their
residence in the State. At issue in
Hooper was a New
Mexico statute that granted a tax exemption to Vietnam veterans who
resided in the State before May 8, 1976.
Zobel concerned
an Alaska statute granting residents one state mineral income
dividend unit for each year of residence subsequent to 1959.
Because we employed rational basis equal protection analysis in
those cases, we did not face directly the question whether
Page 476 U. S. 908
the contested laws operated to penalize interstate migration.
Nonetheless, the conclusion that they did penalize migration may be
inferred from our determination that
"the Constitution will not tolerate a state benefit program that
'creates fixed, permanent distinctions . . . between . . . classes
of concededly bona fide residents, based on how long they have been
in the State.'"
Hooper, supra, at
472 U. S. 623
(quoting
Zobel, supra, at
457 U. S. 59).
See also Zobel, supra, at
457 U. S.
64.
Soto-Lopez and Baez-Hernandez have been denied a significant
benefit that is granted to all veterans similarly situated except
for State of residence at the time of their entry into the
military. While the benefit sought here may not rise to the same
level of importance as the necessities of life and the right to
vote, it is unquestionably substantial. The award of bonus points
can mean the difference between winning or losing civil service
employment, with its attendant job security, decent pay, and good
benefits. [
Footnote 7] Brief
for Appellees 27-28.
See also Guardians Assn. of New York City
Police
Page 476 U. S.
909
Dept., Inc. v. Civil Service Comm'n, 630 F.2d 79, 85
(CA2 1980),
cert. denied, 452 U.S. 940 (1981);
Andrade
v. Nadel, 477 F.
Supp. 1275,
1279
(SDNY 1979). Furthermore, appellees have been
permanently
deprived of the veterans' credits that they seek. As the Court of
Appeals observed:
"The veteran's ability to satisfy the New York residence
requirement is . . . fixed. He either was a New York resident at
the time of his initial induction or he was not; he cannot earn a
change in status."
755 F.2d at 275. Such a permanent deprivation of a significant
benefit, based only on the fact of nonresidence at a past point in
time, clearly operates to penalize appellees for exercising their
rights to migrate.
B
New York offers four interests in justification of its fixed
point residence requirement: (1) the encouragement of New York
residents to join the Armed Services; (2) the compensation of
residents for service in time of war by helping these veterans
reestablish themselves upon coming home; (3) the inducement of
veterans to return to New York after wartime service; and (4) the
employment of a "uniquely valuable class of public servants" who
possess useful experience acquired through their military service.
Brief for Appellant 15. All four justifications fail to withstand
heightened scrutiny on a common ground -- each of the State's
asserted interests could be promoted fully by granting bonus points
to
all otherwise qualified veterans. New York residents
would still be encouraged to join the services. Veterans who served
in time of war would be compensated. And, both former New Yorkers
and prior residents of other States would be drawn to New York
after serving the Nation, thus providing the State with an even
larger pool of potentially valuable public servants.
As we held in
Dunn:
"[I]f there are other, reasonable ways to achieve [a compelling
state purpose] with a lesser burden on constitutionally protected
activity, a State may not choose
Page 476 U. S. 910
the way of greater interference. If it acts at all, it must
choose 'less drastic means.'"
405 U.S. at
405 U. S. 343
(quoting
Shelton v. Tucker, 364 U.
S. 479,
364 U. S. 488
(1960)).
See also Memorial Hospital, 415 U.S. at
415 U. S. 263.
Because New York could accomplish its purposes without penalizing
the right to migrate by awarding special credits to all qualified
veterans, the State is not free to promote its interests through a
preference system that incorporates a prior residence
requirement.
Two of New York's asserted interests have additional weaknesses.
First, the availability of the preference to
inductees as
well as
enlistees undercuts the State's contention that
one of the most important purposes of the veterans' credit is to
encourage residents to
enlist in the services. Second, the
fact that eligibility for bonus points is not limited to the period
immediately following a veteran's return from war casts doubt on
New York's asserted purpose of easing the transition from wartime
military conditions to civilian life, [
Footnote 8] for, presumably, a veteran of the Korean War
could take a civil service examination and receive the bonus points
tomorrow, 30 years after his homecoming.
Cf. Hooper, 472
U.S. at
472 U. S. 621.
The State's failure to limit the credit to enlistees recently
returned to New York from war strongly suggests that the State's
principal interest is simply in rewarding its residents for service
to their country.
Compensating veterans for their past sacrifices by providing
them with advantages over nonveteran citizens is a longstanding
policy of our Federal and State Governments.
See, e.g., Hooper,
supra; Regan v. Taxation With Representation of Washington,
461 U. S. 540,
461 U. S. 551
(1983);
Personnel Administrator of Massachusetts v.
Feeney, 442 U. S. 256,
442 U. S. 279,
n. 25
Page 476 U. S. 911
(1979). Nonetheless, this policy, even if deemed compelling,
does not support a distinction between resident veterans based on
their residence when they joined the military. Members of the Armed
Forces serve the Nation as a whole. While a serviceperson's home
State doubtlessly derives indirect benefit from his or her service,
the State benefits equally from the contributions to our national
security made by other service personnel. "Permissible
discriminations between persons" must be correlated to "their
relevant characteristics."
Zobel, 457 U.S. at
457 U. S. 70
(BRENNAN, J., concurring). Because prior residence has only a
tenuous relation, if any, to the benefit New York receives from all
Armed Forces personnel, the goal of rewarding military service
offers no support for New York's fixed point residence
requirement.
IV
In sum, the provisions of New York's Constitution, Art. V, § 6,
and Civil Service Law § 85, which limit the award of a civil
service employment preference to resident veterans who lived in New
York at the time they entered the Armed Forces, effectively
penalize otherwise qualified resident veterans who do not meet the
prior residence requirement for their exercise of the right to
migrate. The State has not met its heavy burden of proving that it
has selected a means of pursuing a compelling state interest which
does not impinge unnecessarily on constitutionally protected
interests. Consequently, we conclude that New York's veterans'
preference violates appellees' constitutionally protected rights to
migrate and to equal protection of the law.
Once veterans establish bona fide residence in a State, they
"become the State's
own,' and may not be discriminated against
solely on the basis of [the date of] their arrival in the State."
Hooper, supra, at
472 U. S. 623. See also Vlandis v. Kline,
412 U. S. 441,
412 U. S.
449-450, and n. 6 (1973); Shapiro, 394 U.S. at
394 U. S.
632-633; Passenger Cases, 7 How. at
48 U. S. 492
(Taney, C.J., dissenting). For as long as New York chooses to offer
its
Page 476 U. S. 912
resident veterans a civil service employment preference, the
Constitution requires that it do so without regard to residence at
the time of entry into the services. [
Footnote 9] Accordingly, the judgment of the Court of
Appeals is
Affirmed.
[
Footnote 1]
New York Constitution, Art. V, § 6, provides:
"Appointments and promotions in the civil service of the state
and of all the civil divisions thereof, including cities and
villages, shall be made according to merit and fitness to be
ascertained, as far as practicable, by examination, which, as far
as practicable, shall be competitive; provided, however, that any
member of the armed forces of the United States who served therein
in time of war, who is a citizen and resident of this state and was
a resident at the time of his entrance into the armed forces of the
United States and was honorably discharged or released under
honorable circumstances from such service, shall be entitled to
receive five points additional credit in a competitive examination
for original appointment and two and one-half points additional
credit in an examination for promotion or, if such member was
disabled in the actual performance of duty in any war . . . he
shall be entitled to receive ten points additional credit in a
competitive examination for original appointment and five points
additional credit in an examination for promotion. . . . No such
member shall receive the additional credit granted by this section
after he has received one appointment, either original entrance or
promotion, from an eligible list on which he was allowed the
additional credit granted by this section."
New York Civ. Serv. Law § 85 essentially restates the substance
of the constitutional provision and defines the relevant terms.
[
Footnote 2]
As was observed in
Zobel v. Williams, 457 U. S.
55, 67 (1982) (BRENNAN, J., concurring):
"[It] is clear from our cases [that] the right to travel
achieves its most forceful expression in the context of equal
protection analysis. But if, finding no citable passage in the
Constitution to assign as its source, some might be led to question
the independent vitality of the principle of free interstate
migration, I find its unmistakable essence in that document that
transformed a loose confederation of States into one Nation."
[
Footnote 3]
We have always carefully distinguished between bona fide
residence requirements, which seek to differentiate between
residents and nonresidents, and residence requirements, such as
durational, fixed date, and fixed-point residence requirements,
which treat established residents differently based on the time
they migrated into the State.
See, e.g., Martinez v.
Bynum, 461 U. S. 321,
461 U. S.
325-330 (1983);
Memorial Hospital v. Maricopa
County, 415 U. S. 250,
415 U. S. 255,
415 U. S. 267
(1974);
Dunn v. Blumstein, 405 U.
S. 330,
405 U. S. 343
(1972);
Shapiro v. Thompson, 394 U.
S. 618,
394 U. S. 636,
394 U. S. 638,
n. 21 (1969). As we explained in
Martinez:
"A bona fide residence requirement ,appropriately defined and
uniformly applied, furthers the substantial state interest in
assuring that services provided for its residents are enjoyed only
by residents. Such a requirement. . .[generally] does not burden or
penalize the constitutional right of interstate travel, for any
person is free to move to a State, and to establish residence
there. A bona fide residence requirement simply requires that the
person
does establish residence before demanding the
services that are restricted to residents."
461 U.S. at
461 U. S.
328-329.
[
Footnote 4]
Of course, regardless of the label we place on our analysis --
right to migrate or equal protection -- once we find a burden on
the right to migrate, the standard of review is the same. Laws
which burden that right must be necessary to further a compelling
state interest.
See, e.g., Memorial Hospital, supra; Dunn,
supra; Shapiro, supra.
[
Footnote 5]
We have cautioned, however, that not all waiting periods are
impermissible.
See, e.g., Memorial Hospital, supra, at
415 U. S.
258-259;
Shapiro, supra, at
394 U. S. 638,
n. 21. Indeed, in
Sosna v. Iowa, 419 U.
S. 393 (1975), we upheld a 1-year residency condition
for maintaining an action for divorce. We noted the State's strong,
traditional interest in setting the terms of and procedures for
marriage and divorce. Weighing the fact that appellant's access to
the desired state procedure was only temporarily delayed, against
the State's important interest, we concluded that her right to
migrate was not violated.
We have also sustained domicile requirements, which incorporated
1-year waiting periods, for resident tuition at state universities.
Starns v. Malkerson, 401 U.S. 985 (1971),
summarily
aff'g 326 F.
Supp. 234 (Minn.1970) (three-judge court);
Sturgis v.
Washington, 414 U.S. 1057 (1973),
summarily
aff'g 368 F. Supp.
38 (WD Wash.) (three-judge court).
See also Vlandis v.
Kline, 412 U. S. 441,
412 U. S.
452-454 (1973).
[
Footnote 6]
In his concurrence, THE CHIEF JUSTICE takes us to task for
asking in the first instance what is the appropriate standard of
review to employ in evaluating New York's laws. THE CHIEF JUSTICE
argues that we should initially run the laws through a rational
basis analysis and then, if they survive that level of scrutiny,
ask whether a higher level is appropriate.
We disagree. The logical first question to ask when presented
with an equal protection claim, and the one we usually ask first,
is what level of review is appropriate.
See, e.g., Dunn,
405 U.S. at
405 U. S. 335
("In considering laws challenged under the Equal Protection Clause
. . . [f]irst . . . we must determine what standard of review is
appropriate").
See also Cleburne v. Cleburne Living Center,
Inc., 473 U. S. 432
(1986);
Mississippi University for Women v. Hogan,
458 U. S. 718
(1982);
Plyler v. Doe, 457 U. S. 202
(1982);
Memorial Hospital v. Maricopa County, 415 U.
S. 250 (1974);
San Antonio Independent School
District v. Rodriguez, 411 U. S. 1 (1973);
Police Dept. of Chicago v. Mosley, 408 U. S.
92 (1972);
Shapiro v. Thompson, 394 U.
S. 618 (1969). It is well established that, where a law
classifies by race, alienage, or national origin, and where a law
classifies in such a way as to infringe constitutionally protected
fundamental rights, heightened scrutiny under the Equal Protection
Clause is required.
See, e.g, Cleburne, supra, at
473 U. S. 440;
Martinez, 461 U.S. at
461 U. S. 328,
n. 7;
Plyler v. Doe, supra, at
457 U. S.
216-217, and n. 15;
Memorial Hospital, supra,
at
415 U. S. 258,
262;
San Antonio Independent School District, supra, at
411 U. S. 16, and
nn. 39, 30-32, 40;
Mosley, supra, at
408 U. S. 101;
Dunn, supra, at
405 U. S. 335,
405 U. S. 342;
Shapiro, supra, at
394 U. S. 634.
In the instant case, appellees contend not only that the laws in
question treat them differently from another class of state
residents, they also maintain that, by treating them differently,
the laws burden their constitutionally protected right to travel.
Therefore, in order to ascertain the appropriate level of scrutiny,
we must, as an initial matter, determine whether or not the State's
laws actually burden appellees' right to travel.
It is true, as THE CHIEF JUSTICE suggests, that, in
Hooper
v. Bernalillo County Assessor, 472 U.
S. 612 (1985), and
Zobel v. Williams,
457 U. S. 55
(1982), the Court did not follow this same logical sequence of
analysis. We think that the better approach is that which the Court
has employed in other equal protection cases -- to inquire first as
to the proper level of scrutiny, and then to apply it.
[
Footnote 7]
In
Andrade v. Nodel, 477 F.
Supp. 1275,
1279
(SDNY 1979), the Deputy Director of the New York City Department of
Personnel testified:
"[O]n most civil service examinations, there is a pronounced
'bunching' (
i.e., a large percentage of the test takers
obtain very similar scores). [I]t can be assumed that rescission of
the five or 10 point veterans' preference in the case of most of
1,300 employee [veterans receiving probationary appointments in New
York City in a specific year would] result in their receiving a
list number that has not yet been reached for appointment, and . .
. consequently [in their losing] their jobs."
Appellees contend that this "bunching" phenomenon adversely
affected their employment opportunities with the City of New York.
For example, after passing a New York City civil service
examination, Baez-Hernandez was preliminarily awarded 10 veterans'
bonus points -- 5 for veteran status, and 5 for his service-related
disability, bringing his total score to 87.3. Based on this
adjusted score, he received an appointment with the city in June,
1981. The award of the 10 bonus points was rescinded two days
later, however, and the appointment withdrawn, when it was
discovered that Baez-Hernandez was not a New York resident at the
time of his entry into the Army.
Soto-Lopez v. New York City
City Service Comm'n, 755 F.2d 266, 268-269 (CA2 1985).
[
Footnote 8]
Moreover, it is difficult to understand why veterans who joined
the military as New York residents would have so much more trouble
effecting this transition than other veterans that New York is
justified in reserving "the benefits [it] bestows for national
military service" for only one class of resident veterans.
Hooper v. Bernalillo County Assessor, 472 U.S. at
472 U. S.
621.
[
Footnote 9]
Our summary affirmance in
August v. Bronstein, 417 U.S.
901 (1974), is hereby overruled.
CHIEF JUSTICE BURGER, concurring in the judgment.
In this case, the Court of Appeals held that New York's civil
service veterans' preference violated both equal protection and the
right to travel, relying on
Zobel v. Williams,
457 U. S. 55
(1982). Shortly after the Court of Appeals' decision was issued, we
struck down New Mexico's property tax veterans' preference in
Hooper v. Bernalillo County Assessor, 472 U.
S. 612 (1985). Both
Zobel and
Hooper
held that the classifications used by the States to award
preferences to certain citizens failed to pass a rational basis
test
under the Equal Protection Clause. As a result, we
had no occasion to reach the issues whether the classifications
would survive heightened scrutiny or whether the right to travel
was violated.
See Hooper, supra, at
472 U. S. 618,
and n. 6;
Zobel, supra, at
457 U. S. 60-61,
and n. 6.
The classification held invalid on equal protection grounds in
Hooper was remarkably similar to the one at issue here;
Hooper, therefore, would appear to be controlling. The
plurality opinion, however, instead
begins the analysis by
addressing the "right to migrate."
Ante at
476 U. S.
901-905. Moreover, heightened scrutiny is employed
without first determining whether the challenged New York
classification would survive even rational basis analysis.
Ante at
476 U. S.
907-909. But as we observed in
Zobel, supra, at
457 U. S. 60, n.
6, and reiterated only last Term in
Hooper, supra, at
472 U. S. 618,
n. 6, "[r]ight to travel cases have examined, in equal protection
terms, state distinctions between newcomers and longer term
residents." This follows because, "[i]n reality, right to
Page 476 U. S. 913
travel analysis refers to little more than a particular
application of equal protection analysis."
Zobel, supra,
at
457 U. S. 60, n.
6.
I believe the appropriate framework for reviewing New York's
preference scheme is the one dictated by
Zobel and
followed in
Hooper -- both very recent cases. Because
"[t]his case involves a distinction between residents based on when
they first established residence in the State," just as in
Hooper, "we [must] subject this case to equal protection
analysis."
Hooper, 472 U.S. at
472 U. S. 618,
n. 6. The first question is whether the law survives rational basis
analysis under the Equal Protection Clause. "[I]f the statutory
scheme cannot pass even the minimum rationality test, our inquiry
ends."
Id. at
472 U. S. 618.
Under
Hooper, it seems clear that New York's provision is
invalid on equal protection grounds.
The State proffers four justifications for the challenged
classification. First, it claims that the preference system
encourages New York residents to enlist during times of war. This
justification rests entirely on the State's characterization of the
preference as being
prospective and self-executing in
nature. But plainly the preference is granted only
retrospectively following definitive action by the
legislature; legislative action is necessary to fix both the period
when "war" is deemed to have commenced and when that war has
ended.
In many cases a New York resident entering military service will
have no idea whether he or she will be entitled to the preference
following a successful tour of duty and honorable discharge. For
example, the beginning of the Vietnam era was established by
legislation as a "time of war" some three years
after
hostilities commenced. The legislature in 1973 later declared the
"end" of that "war" (which was never declared a "war" by Congress)
for purposes of the preference as March 29, 1973, but in 1983, it
amended that finding to expand coverage retroactively again until
May 7, 1975.
See Brief for Appellant 9-10. The same
happened in the Korean Conflict,
Page 476 U. S. 914
and indeed, the provision at issue was adopted after the end of
World War II with the clear intent to grant the benefit
retroactively to veterans of that war.
Id. at 7-8.
Moreover, the preference applies to
all servicemen
entering the military during the legislatively defined period,
regardless of whether they enlisted voluntarily or were inducted as
a result of the draft. Providing a "bonus" to draftees is hardly a
boon intended or necessary to "encourage" them to enlist. Hence,
this "encouragement to enlist" sharply "differs from the local
bounty' laws enacted during the Civil War era, through which
States paid residents cash bonuses for enlisting." Hooper,
472 U.S. at 472 U. S. 622,
n. 12.
Second, the State argues that the preference provides partial
compensation to residents for service during time of war. But our
holding in
Hooper clearly rejected any such retroactive
rewards targeting only past residents. While we acknowledged that a
"State may award certain benefits to all its bona fide veterans,"
id. at
472 U. S. 620,
just as in that case, "it is difficult to grasp how [New York]
residents serving in the military suffered more than residents of
other States who served, so that the latter would not deserve the
benefits a State bestows for national military service."
Id. at
472 U. S.
621.
Third, the State contends that it is permissible to encourage
past-resident veterans to settle in New York after their military
service ends. While such a preference might indeed encourage such
veterans to return, it simultaneously has the effect of
discouraging other veterans from settling in New York who
are aware that civil service appointments will be hard to obtain.
As we observed in
Zobel and reiterated in
Hooper,
supra, at
472 U. S.
619-620,
"[t]he separation of residents into classes hardly seems a
likely way to persuade new [residents] that the State welcomes them
and wants them to stay."
Zobel, supra, at
457 U. S. 62, n.
9. Moreover,
Hooper made it clear that a "selective
incentive" such as New York provides here
"would encounter the same constitutional barrier faced
Page 476 U. S. 915
by the [New Mexico] statute's distinction between past and newly
arrived residents."
Hooper, supra, at
472 U. S. 619,
n. 8.
Finally, the State asserts that the preference is targeted at a
very special group of veterans who have both knowledge of local
affairs and valuable skills learned in the military, and who
therefore would make exceptional civil servants. But these "special
attributes" are undeniably possessed by
all veterans who
are currently residents of New York.
Indeed, the irrationality of the New York scheme is highlighted
by appellee Baez-Hernandez' experiences. The current provision
would grant a civil service hiring preference to a serviceman
entering the military while a resident of New York even if he was a
resident only for a day. But Baez-Hernandez, who was a resident of
New York for over 10 years before applying for a civil service
position -- and who therefore has considerably more "local
knowledge" than many returning veterans -- can never receive the
preference. Moreover, Baez-Hernandez was a resident of New York for
two years when he was called from reserve status to active duty,
where he remained until he was discharged as partially disabled. He
therefore served "in time of war"
after obtaining New York
residency. Yet he still cannot qualify, despite his being endowed
with all the desired "special attributes."
Just as in
Hooper, "[s]tripped of its asserted
justifications, the [New York] statute suffers from the same
constitutional flaw as the Alaska statute in
Zobel." 472
U.S. at
472 U. S. 622.
Given our reasons for granting review, our admonition in
Hooper need only be reiterated briefly to demonstrate the
invalidity of the New York scheme under equal protection, rational
basis analysis:
"The State may not favor established residents over new
residents based on the view that the State may take care of 'its
own,' if such is defined by prior residence. Newcomers, by
establishing bona fide residence in the State, become the State's
'own,' and may not be discriminated
Page 476 U. S. 916
against solely on the basis of their arrival in the State after
[a fixed date]."
Id. at
472 U. S.
623.
Appellees Soto-Lopez and Baez-Hernandez, by establishing bona
fide residence in New York, have become the State's "own," and must
be treated accordingly with regard to any veterans' preference.
"Neither the Equal Protection Clause, nor this Court's
precedents, permit the State to prefer established resident
veterans over newcomers in the retroactive apportionment of an
economic benefit."
Ibid.
I would affirm the judgment of the Court of Appeals based on our
reasoning and holdings in
Hooper and
Zobel,
rather than adding dicta concerning the right to travel.
JUSTICE WHITE, concurring in the judgment.
I agree with JUSTICE O'CONNOR that the right to travel is not
sufficiently implicated in this case to require heightened
scrutiny. Hence, I differ with JUSTICE BRENNAN in this respect. But
I agree with THE CHIEF JUSTICE that the New York statute at issue
denies equal protection of the laws because the classification it
employs is irrational. I therefore concur in the judgment.
JUSTICE STEVENS, dissenting.
JUSTICE O'CONNOR has explained why the Court's decision is
erroneous. I add these comments to explain why I do not feel
constrained by the decision in
Hooper v. Bernalillo County
Assessor, 472 U. S. 612
(1985), to join the Court's judgment.
A governmental decision to grant a special privilege to a
minority group is less objectionable than a decision to impose a
special burden on a minority. [
Footnote
2/1] In a democracy, the majority will seldom treat itself
unfairly. In equal protection analysis,
Page 476 U. S. 917
it is therefore appropriate to give some attention to the
relative dimensions of favored and disfavored classes. [
Footnote 2/2]
The New Mexico statute that the Court held invalid in
Hooper gave a tax exemption to any Vietnam veteran who
resided in New Mexico prior to May 8, 1976. The New York statute
challenged in this case grants a preference only to those Vietnam
veterans who were residents of the State when they joined the Armed
Forces. The favored class in this case is therefore drawn more
narrowly than the class that excluded Mr. Hooper. Despite the fact
that the reasoning of the
Hooper opinion might seem to
cover this case as well, this distinction allows me to conclude
otherwise for two reasons.
First, in its
Hooper opinion the Court itself was
careful to reserve the question of the constitutionality of the New
York statute in particular, and of the class of statutes that
condition eligibility for a veteran's preference on residence at
the time of enlistment in general. [
Footnote 2/3] If the Court believed the reasoning of
Hooper to be controlling in this case, it had only to omit
its footnote in
Hooper and to affirm, rather than note
jurisdiction in this case, as it subsequently did. The Court cannot
both leave a question open in order to make its
Hooper
Page 476 U. S. 918
decision acceptable to a majority of its Members and at the same
time claim that the
Hooper holding has resolved the open
question.
Second, and of greater importance, each additional condition of
eligibility that further narrows the size of the preferred class
places greater stress on the logic that undergirds the Court's
holding. If a State should grant a special bonus to fighter pilots
who are residents at the time of enlistment, to those who fought in
the Battle of Midway, or perhaps just to the few who received the
Congressional Medal of Honor -- would it violate the Equal
Protection Clause to deny bonuses to comparable veterans who moved
into the State after the end of the war? I think not, even though
the reasoning in the opinions supporting the judgment would apply
to each of those cases as well as it does to
Hooper and to
this case. As the class narrows, a judge is surely not bound to
apply that flawed reasoning in each successive case, instead of
using each new extension to explain why the Court is marching in
the wrong direction.
I respectfully dissent.
[
Footnote 2/1]
Cf. Wygant v. Jackson Board of Education, ante at
476 U. S.
316-317 (STEVENS, J., dissenting).
[
Footnote 2/2]
See Hooper v. Bernalillo County Assessor, 472 U.
S. 612,
472 U. S.
629-630 (1985) (STEVENS, J., dissenting);
Personnel
Administrator of Massachusetts v. Feeney, 442 U.
S. 256,
442 U. S. 281
(1979) (STEVENS, J., concurring).
Cf. Craig v. Boren,
429 U. S. 190,
429 U. S.
213-214 (1976) (STEVENS, J., concurring).
[
Footnote 2/3]
"Veterans' benefit statutes, which condition eligibility on
state residence at the time of induction into the military, have
survived challenges under the Equal Protection Clause before
Zobel was decided.
See, e.g., . . .
August v.
Bronstein, 369 F.
Supp. 190 (SDNY),
summarily aff'd, 417 U.S. 901
(1974). . . . "
". . . [We note that] the Second Circuit recently has ruled that
such a statute could not pass muster under the Equal Protection
Clause in light of the Court's holding in
Zobel [v.
Williams, 457 U. S. 55 (1982)].
Soto-Lopez v. New York City Civil Service Comm'n, 755 F.2d
266 (1985),
appeal docketed, No. 84-1803. Given the
circumstances presented in this case, we need not consider here the
constitutionality of these statutes."
Hooper v. Bernalillo County Assessor, 472 U.S. at
472 U. S.
621-622, n. 11.
JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST and JUSTICE
STEVENS join, dissenting.
The Court today holds unconstitutional the preference in public
employment opportunities New York offers to resident wartime
veterans who resided in New York when they entered military
service. Because I believe that New York's veterans' preference
scheme is not constitutionally offensive under the Equal Protection
Clause, does not penalize some free-floating "right to migrate,"
and does not violate the Privileges and Immunities Clause of Art.
IV, § 2, of the Constitution, I dissent.
I
The plurality's constitutional analysis runs generally as
follows: because the classification imposed by New York's limited,
one-time veterans' civil service preference "penalizes" appellees'
constitutional "right to migrate," the preference
Page 476 U. S. 919
program must be subjected to heightened scrutiny, which it does
not survive because it is insufficiently narrowly tailored to serve
its asserted purposes. On the strength of this reasoning, the
plurality concludes that the preference program violates both
appellees' constitutional "right to migrate" and their right to
equal protection of the law,
see ante at
476 U. S. 911,
although it does not make clear how much of its analysis is
necessary or sufficient to find a violation of the "right to
migrate" independently of an Equal Protection Clause violation.
In pursuing this new dual analysis, the plurality simply rejects
the equal protection approach the Court has previously employed in
similar cases,
see, e.g., Hooper v. Bernalillo County
Assessor, 472 U. S. 612
(1985), without bothering to explain why its novel use of both
"right to migrate" analysis and strict equal protection scrutiny is
more appropriate, necessary or doctrinally coherent.
Cf. Jones
v. Helms, 452 U. S. 412,
452 U. S.
426-427 (1981) (WHITE, J., concurring). Indeed, the
plurality does not even feel "impelled to locate [
the right to
migrate'] definitively in any particular constitutional provision,"
despite the fact that its ruling rests in major part on its
determination that the preference scheme penalizes that right.
See ante at 476 U. S. 902,
476 U. S.
907-911, and n. 4. The plurality's refusal to amplify
its opinion further is even more remarkable given that the Court is
overturning the very provisions of New York's Constitution and its
Civil Service Law which it upheld against the same challenges just
12 years ago. See August v. Bronstein, 369 F.
Supp. 190 (SDNY), summarily aff'd, 417 U.S. 901
(1974).
THE CHIEF JUSTICE finds it unnecessary to address the proper
analytical role of the "right to travel" in this case because he
believes that the New York scheme cannot survive rational basis
scrutiny purely as a matter of equal protection law.
See
ante at
476 U. S. 913,
476 U. S. 916.
Yet THE CHIEF JUSTICE's position depends in part on the assumption
that New York's desire "to reward citizens for past contributions .
. . is not a legitimate state purpose,"
Zobel v. Williams,
457 U. S. 55,
457 U. S. 63
(1982).
See ante at
476 U. S. 914.
This assumption is not required
Page 476 U. S. 920
by anything in the Equal Protection Clause; rather,
"a full reading of
Shapiro v. Thompson, 394 U. S.
618 (1969), and
Vlandis v. Kline, 412 U. S.
441 (1973), reveals [that] the Court has rejected this
objective only when its implementation would abridge an interest in
interstate travel or migration."
Zobel v. Williams, supra, at
457 U. S. 72
(O'CONNOR, J., concurring in judgment).
It is unfortunate that the Court has once again failed to
articulate and justify by reference to textual sources a single
constitutional principle or analysis upon which it can rely in
deciding cases such as this. I adhere to my belief that the
Privileges and Immunities Clause of Art. IV, § 2, of the
Constitution supplies the relevant basis for analysis in evaluating
claims like appellees', where the principal allegation is that the
state scheme impermissibly distinguishes between state residents,
allegedly imposing a relative burden on those who have more
recently exercised their right to establish residence in the State.
See Zobel v. Williams, 457 U.S. at
457 U. S. 74-75
(O'CONNOR, J., concurring in judgment). I also continue to believe
that a State's desire to compensate its citizens for their prior
contributions is "neither inherently invidious nor irrational,"
either under the Court's "right to migrate" or under some
undefined, substantive component of the Equal Protection Clause.
Id. at
457 U. S. 72.
This case presents one of those instances in which the recognition
of state citizens' past sacrifices constitutes a valid state
interest that does not infringe any constitutionally protected
interest, including the fundamental right to settle in another
State which is protected by the Privileges and Immunities Clause of
Art. IV, § 2.
See id. at
457 U. S. 72, n.
1.
In my view, the New York veterans' preference scheme weathers
constitutional scrutiny under any of the theories propounded by the
Court. The plurality acknowledges that heightened scrutiny is
appropriate only if the statutory classification "penalize[s],"
"actually deters," or is primarily
Page 476 U. S. 921
intended to "imped[e]" the exercise of the right to travel.
See ante at
476 U. S. 903.
In finding that the New York preference program imposes a "penalty"
on appellees' right to migrate, the plurality likens the New York
scheme to the permanent state property tax exemption for veterans
struck down in
Hooper v. Bernalillo County Assessor,
supra, and the durational residency requirements for essential
governmental services invalidated in
Memorial Hospital v.
Maricopa County, 415 U. S. 250
(1974), and
Shapiro v. Thompson, supra.
This Court, in
Memorial Hospital, acknowledged that
Shapiro left unclear the amount of impact on the right to
travel which is necessary to give rise to application of heightened
scrutiny.
See Memorial Hospital v. Maricopa County, supra,
at
415 U. S.
256-259. As the plurality implicitly recognizes,
see
ante at
476 U. S.
907-909, it is fair to infer that something more than a
negligible or minimal impact on the right to travel is required
before strict scrutiny is applied. I believe that, as the
three-judge panel in
August v. Bronstein put it, "the
limited preference granted under the . . . New York law can[not]
realistically be held to infringe or penalize the right to travel."
369 F. Supp. at 194.
The New York law certainly does not directly restrict or burden
appellees' freedom to move to New York and to establish residence
there by imposing discriminatory fees, taxes, or other direct
restraints.
Cf. 48 U. S. 7
How. 283 (1849). The New York preference program does not
permanently deprive appellees of the right to participate in some
fundamental or even "significant" activity, for "public employment
is not a constitutional right . . . and the States have wide
discretion in framing employee qualifications."
Personnel
Administrator of Massachusetts v. Feeney, 442 U.
S. 256,
442 U. S. 273
(1979).
See also Sosna v. Iowa, 419 U.
S. 393,
419 U. S. 406
(1975).
Cf. Dunn v. Blumstein, 405 U.
S. 330,
405 U. S.
336-337,
405 U. S. 341
(1972). Nor does the program indirectly penalize migration by
depriving the newcomers of fundamental rights or essential
governmental services until they have resided
Page 476 U. S. 922
in the State for a set period of time.
Cf. Memorial Hospital
v. Maricopa County, supra; Dunn v. Blumstein, supra; Shapiro v.
Thompson, supra.
Finally, the New York scheme does not effectively penalize those
who exercise their fundamental right to settle in the State of
their choice by requiring newcomers to accept a status inferior to
that of all old-time residents of New York upon their arrival.
Cf. Zobel v. Williams, supra, at
457 U. S. 74
(O'CONNOR, J., concurring in judgment). Those veterans who were not
New York residents when they joined the United States Armed Forces,
who subsequently move to New York, and who endeavor to secure civil
service employment are treated exactly the same as the vast
majority of New York citizens; they are in no sense regarded as
"second-class citizens" when compared with the vast majority of New
Yorkers, or even the majority of the candidates against whom they
must compete in obtaining civil employment.
Cf. Hicklin v.
Orbeck, 437 U. S. 518
(1978). To the extent that persons such as appellees labor under
any practical disability, it is a disability that they share in
equal measure with countless other New York residents, including
New York residents who joined the Armed Forces from New York but
are ineligible for the veterans' preference for other reasons.
The only persons who arguably have an advantage based on their
prior residency in New York in relation to persons in appellees'
position are a discrete group of veterans who joined the Armed
Forces while New York residents, who served during wartime, who
returned to New York, and who elected to seek public employment.
Even that group does not enjoy an unqualified advantage over
appellees based on their prior residence. New York's veterans'
preference scheme requires that veterans satisfy a number of
preconditions, of which prior residency is only one, before they
qualify for the preference. Moreover, the preference only increases
the possibility of securing a civil service appointment; it does
not guarantee it. Those newly arrived veterans who
Page 476 U. S. 923
achieve a sufficiently high score on the exam may not be
disadvantaged at all by the preference program; conversely, the
chances of those who receive a very low score may not be affected
by the fact that their competitors received bonus points. Finally,
the bonus program is a one-time benefit. Veterans who join the
service in New York, who satisfy the other statutory requirements,
and who achieve a sufficiently high score on the exam to bring them
within range of securing employment may only use the bonus points
on one examination for appointment, and in one job for promotion.
Thus, persons such as appellees are not forced to labor under a
"continuous disability" by comparison even to this discrete group
of New York citizens.
Zobel v. Williams, 457 U.S. at
457 U. S. 75
(O'CONNOR, J., concurring in judgment).
Certainly the New York veterans' preference program imposes a
less direct burden on a less "significant" interest than many
resident-preference programs that this Court has upheld without
difficulty. For example, this Court has summarily affirmed certain
state residency requirements for state college tuition rates,
Sturgis v. Washington, 414 U.S. 1057 (1973), and a
limited- eligibility statute in New York for scholarship
assistance,
Spatt v. New York, 414 U.S. 1058 (1973), even
though those requirements constituted a potentially prohibitive
burden on access to "important" educational opportunities.
San
Antonio Independent School District v. Rodriguez, 411 U. S.
1,
411 U. S. 31-32
(1973). The Court has also upheld a l-year durational residence
requirement for eligibility to obtain a divorce in state courts,
Sosna v. Iowa, supra, even though the right to terminate a
marriage has been deemed in some sense "fundamental."
See
Boddie v. Connecticut, 401 U. S. 371
(1971).
In sum, finding that this scheme in theory or practical effect
constitutes a "penalty" on appellees' fundamental right to settle
in New York or on their "right to migrate" seems to me ephemeral,
and completely unnecessary to safeguard the constitutional purpose
of "maintaining a Union rather than a
Page 476 U. S. 924
mere
league of States.'" Zobel v. Williams, supra,
at 457 U. S. 73
(O'CONNOR, J., concurring in judgment). See also ante at
476 U. S. 902
("right to migrate" plays role of "transforming many States into a
single Nation"). Thus, heightened scrutiny, either under the "right
to migrate" or the Equal Protection Clause, see ante at
476 U. S.
904-905, n. 4, is inappropriate.
Under rational basis review, New York's program plainly passes
constitutional muster. New York contends that its veterans'
employment preference serves as an expression of gratitude to
veterans who entered the service as New York residents. Even the
plurality acknowledges the legitimacy of this state purpose.
See ante at
476 U. S. 910.
Indeed, it is difficult to impeach this interest, for
"[o]ur country has a longstanding policy of compensating
veterans for their past contributions by providing them with
numerous advantages."
Regan v. Taxation with Representation of Washington,
461 U. S. 540,
461 U. S. 551
(1983).
See also Personnel Administrator of Massachusetts v.
Feeney, 442 U.S. at
442 U. S. 261.
As JUSTICE STEVENS has explained,
"the simple interest in expressing the majority's gratitude for
services that often entail hardship, hazard, and separation from
family and friends, and that may be vital to the continued security
of our Nation, is itself an adequate justification for providing
veterans with a tangible token of appreciation."
Hooper v. Bernalillo County Assessor, 472 U.S. at
427 U. S. 626
(dissenting). In sum, this state interest could hardly be deemed
inherently invidious or irrational. Nor, as demonstrated by the
above discussion, could it be said to be constitutionally offensive
because its implementation has burdened a fundamental right to
travel.
I have difficulty believing that the veterans' preference scheme
employed by New York does not rationally relate to this legitimate
state interest. I had certainly thought a State could award a medal
to all New York veterans of designated wars, or that it could erect
memorials in honor of certain residents returning from particular
armed conflicts; it is
Page 476 U. S. 925
hardly irrational to employ a means which gives certain
returning wartime veterans a more tangible and useful expression of
gratitude by way of employment preferences. I also find it hard to
credit the idea that the Equal Protection Clause requires New York
to reward the sacrifices of all those who joined the Armed Forces
from other States and came to reside in New York if it wishes to
reward the service of those who represented New York in the Armed
Forces. Certainly those veterans who represented other States in
the military aided New York by aiding the Nation, and suffered in
equal measure with New York veterans, but that is not the issue.
New York is not expressing gratitude for the prior resident's
service to, and sacrifice for, the Nation as much as it is
attempting to say "thank you" to those who personified New York's
sacrifice and effort to "do its part" in supporting this Nation's
war efforts. The prior residence of the individual seeking the
statutory benefit clearly is a "relevant characteristic" to this
legitimate and longstanding state interest, and is one which has a
manifest relation to the furtherance of that interest.
Whether this issue is tested under the "right to migrate," the
Equal Protection Clause, or the Privileges and Immunities Clause of
Art. IV, § 2, something more than the minimal effect on the right
to travel or migrate that exists in this case must be required to
trigger heightened scrutiny, or the plurality's right to travel
analysis will swallow all the traditional deference shown to state
economic and social regulation. The modest scheme at issue here
does not penalize in a constitutional sense veterans who joined the
Armed Forces in other States for choosing to eventually settle in
New York, and does not deny them equal protection. I would reverse
the judgment of the Court of Appeals for the Second Circuit.