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STEVENS v. BERGER

March 3, 1977.

David STEVENS et al., Plaintiffs,
v.
Stephen BERGER, Individually and as Commissioner of New York State Department of Social Services, et al., Defendants.



The opinion of the court was delivered by: WEINSTEIN

WEINSTEIN, District Judge.

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.

 I. 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 §§ 157 et seq. 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. § 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.

 The Stevenses 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 identification.

 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. § 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, § 7(a)(1), 88 Stat. 1896, reprinted in 5 U.S.C.A. § 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, § 7(a)(2)(A), 88 Stat. 1896, reprinted in 5 U.S.C.A. § 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. § 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:

 (C)(i) 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 Secretary.

 (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 the 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 § 1211(b). See also, H.Conf.Rep.No.94-1515 at 490-91, 94th Cong., 2d Sess. (1976).

 Because 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 belief.

 II. Requirement that Belief be Religious and Sincere

 Not 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 fact-finding 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 inappropriate criteria.

 Freedom 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 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. 1148 (1944).

 When, 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:

 In 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 (W.D.Tex.1975).

 Delicacy 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 presumptively 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.

 A. Sincerity of Plaintiffs' Beliefs

 As 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 ...


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