Appellee, who had been exempted from military service as a Class I-O conscientious objector but who performed required alternative civilian service, after being denied educational benefits under the Veterans' Readjustment Benefits Act of 1966, brought this class action for a declaratory judgment that the provisions of the Act making him and his class ineligible for such benefits violated the First Amendment's guarantee of religious freedom and the Fifth Amendment's guarantee of equal protection of the laws. After denying appellants' motion to dismiss for lack of jurisdiction because of 38 U.S.C. § 211(a), which prohibits judicial review of decisions of the Administrator of Veterans' Affairs on any question of law or fact under laws administered by the Veterans' Administration providing for veterans' benefits, the District Court rejected appellee's First Amendment claim but sustained the Fifth Amendment claim.
2. The challenged sections of the Act do not create an arbitrary classification in violation of appellee's right to equal protection of the laws. Pp. 374-383.
(a) The quantitative and qualitative distinctions between the disruption caused by military service and that caused by alternative civilian service -- military service involving a six-year commitment and far greater loss of personal freedom, and alternative civilian service involving only a two-year obligation and no requirement to leave civilian life -- form a rational basis for Congress' classification limiting educational benefits to military service veterans [p362] as a means of helping them to readjust to civilian life. Pp. 378-382.
3. The Act does not violate appellee's right of free exercise of religion. Gillette v. United States, 401 U.S. 437. Pp. 383-386.
(b) Appellee and his class were not included as beneficiaries not because of any legislative design to interfere with their free exercise of religion, but because to include them would not rationally promote the Act's purposes. P. 385.
(c) The Government's substantial interest in raising and supporting armies, Art. I, § 8, is of "a kind and weight" clearly sufficient to sustain the challenged legislation. Pp. 385-386.
BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, .MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 386.
that 38 U.S.C. §§ 1652(a)(1) and 1661(a), defining "eligible veteran" and providing for entitlement to educational assistance are unconstitutional and that 38 U.S.C. 101(21), defining "active duty" is unconstitutional with respect to chapter 34 of Title 38, United States Code, 38 U.S.C. § 1651-1697, conferring Veterans' Educational Assistance, for the reason that said sections deny plaintiff and members of his class due process of law in violation of the Fifth Amendment to the Constitution of the United States. . . .
352 F.Supp. 848, 862 (1973). [n6] We postponed [p366] consideration of the question of jurisdiction in light of § 211(a) to the hearing on the merits, and set the case for oral argument with No. 72-700, Hernandez v. Veterans' Administration, post, p. 391. 411 U.S. 981 (1973). [n7] We hold, in agreement with the District Court, that § 211(a) is inapplicable to this action, and therefore that appellants' motion to dismiss for lack of jurisdiction of the subject matter was properly denied. On the merits, we agree that appellee's First Amendment claim is without merit, but disagree that §§ 1652(a)(1), 1661(a), and 101(21) violate the Fifth Amendment, and therefore reverse the judgment of the District Court.
it is a [p367] cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question[s] may be avoided.
United States v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971).
the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans . . . shall be final and conclusive and no . . . court of the United States shall have power or jurisdiction to review any such decision. . . .
(Emphasis added.) The prohibitions would appear to be aimed at review only of those decisions of law or fact that arise in the administration by the Veterans' Administration of a statute providing benefits for veterans. A decision of law or fact "under" a statute is made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts. Appellee's constitutional challenge is not to any such decision of the Administrator, but rather to a decision of Congress to create a statutory class entitled to benefits that does not include I-O conscientious objectors who performed alternative civilian service. Thus, as the District Court stated: "The questions of law presented in these proceedings arise under the Constitution, not under the statute whose validity is challenged." 352 F.Supp. at 853.
This construction is also supported by the administrative practice of the Veterans' Administration.
When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the [p368] statute by the officers or agency charged with its administration.
[a]djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies. See Public Utilities Comm'n v. United States, 355 U.S. 534, 539 (1958); Engineers Public Service Co. v. SEC, 78 U.S.App.D.C.199, 215-216, 138 F.2d 936, 952-953 (1943), dismissed as moot, 332 U.S. 788.
Oestereich v. Selective Service Board, 393 U.S. 233, 242 (1968) (Harlan, J., concurring in result); see Jaffe, Judicial Review: Question of Law, 69 Harv.L.Rev. 239, 271-275 (1955).
[s]ince the decision in the Tracy case -- and as the result of that decision and the Wellman and Thompson decisions -- suits in constantly increasing numbers have been filed in the U.S. District Court for the District of Columbia by plaintiffs seeking a resumption of terminated benefits.
The Wellman, Thompson, and Tracy decisions have not been followed in any of the other 10 Federal judicial circuits throughout the country. [p372] Nevertheless, soon after the Tracy decision, suits in the nature of mandamus or for declaratory judgment commenced to be filed in the U.S. District Court for the District of Columbia in constantly increasing numbers by plaintiffs seeking resumption of terminated benefits. As of March 8, 1970, 353 suits of this type had been filed in the District of Columbia circuit.
The scope of the Tracy decision and the decisions upon which it is based is so broad that it could well afford a basis for judicial review of millions of decisions terminating or reducing many types of benefits provided under laws administered by the Veterans' Administration. Such review might even extend to the decisions of predecessor agencies made many years ago.
involve a large variety of matters -- a 1930's termination of a widow's pension payments under a statute then extant, because of her open and notorious adulterous cohabitation; invalid marriage to a veteran; severance of a veteran's service connection for disability compensation; reduction of such compensation because of lessened disability . . . [and] suits . . . brought by [Filipino] widows of World War II servicemen seeking restoration of death compensation or pension benefits terminated after the Administrator raised a presumption of their remarriage on the basis of evidence gathered through [p373] field examination. Notwithstanding the 1962 endorsement by the Congress of the Veterans' Administrations [sic] administrative presumption of remarriage rule, most of [the suits brought by Filipino widows] have resulted in judgments adverse to the Government.
it seems obvious that suits similar to the several hundred already filed can -- and undoubtedly will -- subject nearly every aspect of our benefit determinations to judicial review, including rating decisions, related Veterans' Administration regulations, Administrator's decisions, and various adjudication procedures.
Letter to the Committee on Veterans' Affairs 23-24.
Thus, the 1970 amendment was enacted to overrule the interpretation of the Court of Appeals for the District of Columbia Circuit, and thereby restore vitality to the two primary purposes to be served by the no-review clause. Nothing whatever in the legislative history of the 1970 amendment, or predecessor no-review clauses, suggests any congressional intent to preclude judicial cognizance of constitutional challenges to veterans' benefits legislation. Such challenges obviously do not contravene the purposes of the no-review clause, for they cannot be expected to burden the courts by their volume, nor do they involve technical considerations of Veterans' Administration policy. We therefore conclude, in agreement with the District Court, that a construction of § 211(a) that does not extend the prohibitions of that section to actions challenging the constitutionality of laws providing benefits for veterans is not only "fairly possible," but is the most reasonable construction, for neither the text nor the scant legislative history of § 211(a) provides the "clear and convincing" evidence of congressional intent required by this Court before a [p374] statute will be construed to restrict access to judicial review. See Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967).
must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly [p375] circumstanced shall be treated alike.
Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).
The Congress of the United States hereby declares that the education program created by this chapter is for the purpose of (1) enhancing and making more attractive service in the Armed Forces of the United States, (2) extending the benefits of a higher education to qualified and deserving young persons who might not otherwise be able to afford such an education, (3) providing vocational readjustment and restoring lost educational opportunities to those service men and women whose careers have been interrupted or impeded by reason of active duty after January 31, 1955, and (4) aiding such persons in attaining the vocational and educational status which they might normally have aspired to and obtained had they not served their country.
Legislation to further these objectives is plainly within Congress' Art. I, § 8, power "to raise and support Armies." Our task is therefore narrowed to the determination of whether there is some ground of difference having a fair and substantial relation to at least one of the stated purposes justifying the different treatment accorded veterans who served on active duty in the Armed Forces, and conscientious objectors who performed alternative civilian service.
[t]he exclusion from eligibility of [appellee] and his class would be justified if they do not suffer the same disruption in educational careers as do military veterans, and thus are not similarly situated with respect to the statute's purpose. We believe . . . that the disruption is equal as between the two groups. Like military veterans, alternate servicemen have been exposed to the uncertainties caused by the draft law. They too were burdened at one time by an unsatisfied military obligation that adversely affected their employment potential; were forced, because of the draft law, to [forgo] immediately entering into vocational training or higher education; and were deprived, during the time they performed alternate service, of the opportunity to obtain educational objectives or pursue more rewarding civilian goals.
the very name of the statute -- the Veterans' Readjustment Benefits Act -- emphasizes congressional concern with the veteran's need for assistance in readjusting to civilian life.
Of course, merely labeling the class of beneficiaries under the Act as those having served on active duty in [p378] the Armed Services cannot rationalize a statutory discrimination against conscientious objectors who have performed alternative civilian service, if, in fact, the lives of the latter were equally disrupted and equally in need of readjustment. See Richardson v. Belcher, 404 U.S. 78, 83 (1971). The District Court found that military veterans and alternative service performers share the characteristic during their respective service careers of "inability to pursue the educational and economic objectives that persons not subject to the draft law could pursue." 352 F.Supp. at 859. But this finding of similarity ignores that a common characteristic shared by beneficiaries and nonbeneficiaries alike is not sufficient to invalidate a statute when other characteristics peculiar to only one group rationally explain the statute's different treatment of the two groups. Congress expressly recognized that significant differences exist between military service veterans and alternative service performers, particularly in respect of the Act's purpose to provide benefits to assist in readjusting to civilian life. These differences "afford the basis for a different treatment within a constitutional framework," McGinnis v. Royster, 410 U.S. 263, 271 (1973).
The hardships of cold war service are still further aggravated by the compulsory military Reserve obligation which the Government has imposed on all men who entered service after August 9, 1955. This obligation is, of course, in sharp contrast with the traditional military obligation which ends immediately upon discharge from active duty. More importantly, however, the Active Reserve obligation impedes the cold war veterans' full participation in civil life, which, in turn, again exposes them to unfair competition from their civilian contemporaries. The fact that veterans must discharge a post-Korean Reserve obligation involving drills and other military activities quite obviously enables their civilian contemporaries, by comparison, to make still more gains toward enjoyment of the fruits of our free enterprise society. . . . [F]or those men who wish to devote full time to their civil goals, the Reserve obligation constitutes a substantial supplementary burden.
S.Rep. No. 269, 89th Cong., 1st Sess., 10 (1965).
Compulsory military service, because of its incompatibility with our traditions and national temperament, is not lightly imposed upon our [p380] citizenry. Only war, or the imminent threat of war from unfriendly powers, creates the conditions, which, by the values of our society, justify this extraordinary deviation from our free enterprise, individualistic way of life. When, as now, the need for large but limited forces conflicts with our sense of equity which expects equal national service from all, we are concerned to find that less than half of our young men will ever be compelled to serve a substantial period in the Military Establishment.
Action to redress the inequities of this situation is long overdue. Our post-Korean veterans are beset with problems almost identical with those to which the two previous GI bills were addressed. Like their fathers and elder brothers, post-Korean veterans lose time from their competitive civil lives directly because of military service. As a consequence, they lose valuable opportunities ranging from educational advantages to worthwhile job possibilities and potentially profitable business ventures. In addition, after completion of their military service they confront serious difficulties during the transition to civil life.
The major part of the burden caused by these cold war conditions quite obviously falls upon those of our youths who are called to extended tours of active military service. It is they who must serve in the Armed Forces throughout troubled parts of the world, thereby subjecting themselves to the mental and physical hazards as well as the economic and family detriments which are peculiar to military service and which do not exist in normal civil life. It is they who, upon separation from [p381] service, find themselves far, far behind those in their age group whose lives have not been disrupted by military service.
These quantitative and qualitative distinctions, expressly recognized by Congress, form a rational basis for [p382] Congress' classification limiting educational benefits to military service veterans as a means of helping them readjust to civilian life; alternative service performers are not required to leave civilian life to perform their services.
enhancing and making more attractive service in the Armed Forces and making more attractive service in the Armed Forces of the United States.
By providing educational benefits to all military veterans who serve on active duty, Congress expressed its judgment that such benefits would make military service more attractive to enlistees and draftees alike. Appellee concedes, Brief for Appellee 28, that this objective is rationally promoted by providing educational benefits to those who enlist. But, appellee argues, there is no rational basis for extending educational benefits to draftees who serve in the military and not to draftees who perform civilian alternative service, since neither group is induced by educational benefits to enlist. Therefore, appellee concludes, the Act's classification scheme does not afford equal protection, because it fails to treat equally persons similarly circumstanced.
Finally, appellee argues that the District Court erred in holding that "the challenged exclusion does not abridge [appellee's] free exercise of his religion." 352 F.Supp. at 860. He contends that the Act's denial of benefits to alternative service conscientious objectors interferes with his free exercise of religion by increasing the price he must pay for adherence to his religious beliefs. That contention must be rejected in light of our decision in Gillette v. United States, 401 U.S. 437 (1971).
to impede the observance of one or all religions or . . . to discriminate invidiously between religions, . . . even though the burden may be characterized as being only indirect.
Braunfeld v. Brown, 366 U.S. at 607 (opinion of Warren, C.J.). And even as to neutral prohibitory or regulatory laws having secular aims, the Free Exercise Clause may condemn certain applications clashing with imperatives of religion and conscience, when the burden on First Amendment values is not justifiable in terms of the Government's valid aims.
[o]ur cases do not, at their farthest reach, support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government.
id. at 462, 461, we held that § 6(j) did not violate the Free Exercise Clause.
The challenged legislation in the present case does not require appellee and his class to make any choice comparable to that required of the petitioners in Gillette. The withholding of educational benefits involves only an incidental burden upon appellee's free exercise of religion -- if, indeed, any burden exists at all. [n19] As Part II, supra, demonstrates, the Act was enacted pursuant to Congress' Art. I, § 8, powers to advance the neutral, secular governmental interests of enhancing military service and aiding the readjustment of military personnel to civilian life. Appellee and his class were not included in this class of beneficiaries, not because of any legislative design to interfere with their free exercise of religion, but because to do so would not rationally promote the Act's purposes. Thus, in light of Gillette, the Government's substantial interest in raising and supporting armies, Art. I, § 8, is of "a kind and weight" clearly sufficient to sustain the challenged legislation, for the burden upon appellee's free exercise of religion -- the denial of the economic value of veterans' educational benefits under the Act -- is not nearly of the same order [p386] or magnitude as the infringement upon free exercise of religion suffered by petitioners in Gillette. See also Wisconsin v. Yoder, 406 U.S. 205, 213 (1972).
1. Title 50 U.S.C.App. § 456(j) exempts from military service persons "who, by reason of religious training and belief," are opposed to participation in "war in any form."
[i]n Class I-O shall be placed every registrant who would have been classified in Class I-A but for the fact that he has been found, by reason of religious training and belief, to be conscientiously opposed to participation in war in any form and to be conscientiously opposed to participation in both combatant and noncombatant training and service in the armed forces.
Further, § 456(j) and 32 CFR §§ 1660.1-.12 (1972) authorized local Selective Service Boards to order I-O conscientious objectors to perform alternative civilian service contributing to the maintenance of the national health, safety, or interest.
(A) full-time duty in the Armed Forces, other than active duty for training.
The term "eligible veteran" means any veteran who (A) served on active duty for a period of more than 180 days any part of which occurred after January 31, 1955, and who was discharged or released therefrom under conditions other than dishonorable or (b) was discharged or released from active duty after such date for a service-connected disability.
Except as provided in subsection (c) and in the second sentence of this subsection, each eligible veteran shall be entitled to educational assistance under this chapter for a period of one and one-half months (or the equivalent thereof in part-time educational assistance) for each month or fraction thereof of his service on active duty after January 31, 1955. If an eligible veteran has served a period of 18 months or more on active duty after January 31, 1955, and has been released from such service under conditions that would satisfy his active duty obligations, he shall be entitled to educational assistance under this chapter for a period of 36 months (or the equivalent thereof in part-time educational assistance).
The court also rules that certification of a class, pursuant to Fed.Rule Civ.Proc. 23, is warranted, the class to include all those selective service registrants who have completed 180 days of "alternate service" pursuant to 50 U.S.C.App. § 456(j), and who have either (1) satisfactorily completed two years of such service or (2) been released therefrom for medical or other reason after 180 days of such service.
the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is "so unjustifiable as to be violative of due process."
Schneider v. Rusk, 377 U.S. 163, 168 (1964); see Frontiero v. Richardson, 411 U.S. 677, 680 n. 5 (1973); Shapiro v. Thompson, 394 U.S. 618, 641-642 (1969); Bolling v. Sharpe, 347 U.S. 497 (1954). Thus, if a classification would be invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment. See Richardson v. Belcher, 404 U.S. 78, 81 (1971).
(a) On and after October 17, 1940, except as provided in sections 775, 784, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.
6. A second paragraph of the judgment declares that appellee and members of his class, who have satisfactorily completed two years of alternative civilian service, or who, after completing 180 days of such service, have been released therefrom, are to be considered "eligible" within § 1652(a)(1) to receive benefits to the same degree and extent as veterans of "active duty"; and alternative service shall be considered "active duty" within § 101 (21) as applied only to c. 34 of Title 38. 352 F.Supp. at 862. In view of our result, this paragraph of the judgment is also reversed.
Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.
8. Compare Ex parte McCardle, 7 Wall. 506 (1869); Sheldon v. Sill, 8 How. 441 (1850), with Martin v. Hunter's Lessee, 1 Wheat. 304 (1816); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936) (Brandeis, J., concurring). See Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953).
All decisions rendered by the Administrator of Veterans' Affairs under the provisions of this title . . . shall be final and conclusive on all questions of law and fact, and no other official or court of the United States shall have jurisdiction to review by mandamus or otherwise any such decision.
Notwithstanding any other provisions of law . . . the decisions of the Administrator of Veterans' Affairs on any question of law or fact concerning a claim for benefits or payments under this or any other Act administered by the Veterans' Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decisions.
[D]ecisions of the Administrator on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans' Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision.
10. The only discussion of § 5 of the Economy Act of 1933 was in the Senate, where it was stated that § 5 "gives to the Veterans' Administration only such authority as the Administration now has." 77 Cong Rec. 254 (1933).
[T]he bill only confirms what has been the accepted belief and conviction, that, with respect to any pension, [or] gratuity, . . . there is no right of action in the courts. . . . It is not so much a limitation as a restatement of what is believed to be the law upon the question.
is desirable for the purpose of uniformity and to make clear what is believed to be the intention of Congress that the various laws shall be uniformly administered in accordance with the liberal policies governing the Veterans' Administration.
The legislative history attending the 1957 amendment to the no review clause is similarly uninstructive, indicating only that the change was one of consolidation. See H.R.Rep. No. 279, 85th Cong., 1st Sess., 1 (1957); S.Rep. No. 332, 85th Cong., 1st Sess., 1 (1957). See Davis, Veterans' Benefits, Judicial Review, and the Constitutional Problems of "Positive" Government, 39 Ind.L.J. 181, 188-189 (1964); Comment, Judicial Review and the Governmental Recovery of Veterans' Benefits, 118 U.Pa.L.Rev. 288, 291-292 (1969).
There is for consideration the added expense to the Government not only with respect to the added burden upon the courts, but the administrative expense of defending the suits.
In the adjudication of compensation and pension claims, a wide variety of medical, legal, and other technical questions constantly arise which require the study of expert examiners of considerable training and experience, and which are not readily susceptible of judicial standardization. Among other questions to be determined in the adjudication of such claims are those involving length and character of service, origin of disabilities, complex rating schedules, a multiplicity of medical and physical phenomena for consideration intercurrently with such schedules, and the application of established norms to the peculiarities of the particular case. These matters have not been considered by the Congress or the courts appropriate for judicial determination, but have been regarded as apt subjects for the purely administrative procedure. Due to the nature and complexity of the determinations to be made, it is inevitable that the decisions of the courts in such matters would lack uniformity. It cannot be expected that the decisions of the many courts would be based on the uniform application of principles as is now done by the Veterans' Administration through its system of coordination by the central office and by its centralized Board of Veterans' Appeals.
Hearing, supra, n. 11, at 1962-1963.
13. In an effort to enhance the attractiveness of service in the Public Health Service and the National Oceanic and Atmospheric Administration, the Act also makes educational benefits available to commissioned officers in those services. 38 U.S.C. §§ 101(21), 1652(a)(3). Officers in those services are usually specialists in various fields of science, and possess a high degree of technical expertise. See 42 CFR §§ 21.11, 21.25-.31, 21.41-.42 (1972); 33 U.S.C. §§ 883a-883b. Appellee does not argue that he and his class, and the officers of those services, are so similarly circumstanced that the different treatment the Act accords the two groups constitutes a denial of equal protection.
Congress, which is under no obligation to carve out the conscientious objector exemption for military training, see United States v. Macintosh, 1931, 283 U.S. 605, 624; Gillette v. United States, 1971, 401 U.S. 437, 457, 461 n. 23, has nevertheless done so. Perhaps this exemption from military training reflects a congressional judgment that conscientious objectors simply could not be trained for duty; but it is equally plausible that the exemption reflects a congressional determination to respect individual conscience. See United States v. Macintosh, supra, 283 U.S. at 633 ([Hughes,] C.J., dissenting). Given the solicitous regard that Congress has manifested for conscientious objectors, it would seem presumptuous of a court to subject the educational benefits legislation to strict scrutiny on the basis of the "suspect classification" theory, whose underlying rationale is that, where legislation affects discrete and insular minorities, the presumption of constitutionality fades because traditional political processes may have broken down.
[t]he bill I have introduced provides an opportunity to demonstrate that we, as a nation, do recognize the extreme unique personal sacrifices extracted from our cold war veterans by their military service.
Their need is not based on the type of military duty they performed, but on the lack of opportunity to readjust back to civilian life after having been removed for 2 to 4 years.
[t]he previous GI bills were not designed to reward veterans for the battle risks they ran, but were designed to assist them in readjusting to civilian life and in catching up to those whose lives were not disrupted by military service. And that is what the cold war GI bill is intended to do.
16. Title 50 U.S.C.App. § 456(j) provides that I-A-O conscientious objectors may be inducted into the Armed Forces and assigned to noncombatant service. Thus, I-A-O conscientious objectors perform "active duty" as defined in 38 U.S.C. § 101(21), and are therefore eligible under 38 U.S.C. §§ 1652(a)(1), 1661(a) to receive veterans' educational benefits.
17. The lower classifications are listed and defined in 32 CFR §§ 1622.1-1623.2 (1973).
[f]or if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.
U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). However, we have not been cited to, nor has our own research discovered, a single reference in the legislative history of the Act to support appellee's claim. We therefore find appellee's claim wholly lacking in merit.
19. By enacting legislation exempting conscientious objectors from the well recognized and peculiar rigors of military service, Congress has bestowed relative benefits upon conscientious objectors by permitting them to perform their alternative service obligation as civilians. Thus, Congress' decision to grant educational benefits to military servicemen might arguably be viewed as an attempt to equalize the burdens of military service and alternative civilian service, rather than an effort by Congress to place a relative burden upon a conscientious objector's free exercise of religion. See Clark, Guidelines for the Free Exercise Clause, 83 Harv.L.Rev. 327, 349 (1969).


Richmond M. FLOWERS et al. BOARD OF SUPERVISORS OF SUFFOLK COUNTY, NEW YORK et al., Appellants, v. I. William BIANCHI, Jr., et al.
Argued April 17 and 18, 1967.
Charles S. Rhyne, Washington, D.C., for appellants.
Truman Hobbs, Montgomery, Ala., for appellees.
Stanley S. Corwin, Greenport, N.Y., for appellants.
Frederick Block, Port Jefferson Station, N.Y., and Richard C. Cahn, Huntington, N.Y., for appellees.
Francis X. Beytagh, Jr., Cleveland, Ohio, for the United States, as amicus curiae, pro hac vice, by special leave of Court.
The threshold question in these cases is whether this Court has jurisdiction under 28 U.S.C. § 1253 on direct appeals from the decisions of the respective District Courts purportedly convened pursuant to 28 U.S.C. § 2281. The answer to that question in turn depends upon whether the three-judge courts in these cases were properly convened.
In No. 624, appellants attack the validity of an Alabama statute (Ala.Laws 1957, Act No. 9 p. 30) prescribing the apportionment and districting scheme for electing members of the Houston County Board of Revenue and Control. Under the statute, the Board consists of five members, each elected by the qualified electors of the district of which he is a resident. The challenged statute prescribes the areas constituting the various districts. The action is brought against the appellees, including some state officials, seeking a declaration that the statute is invalid and an injunction prohibiting its enforcement, and requesting that the court order at-large elections until the State Legislature redistricts and reapportions the Board on a population basis. The theory is that the apportionment and districting scheme results in the over representation of certain areas and the under-representation of others. The complaint also requested the convening of a three-judge court. A three-judge court was convened and the complaint was dismissed. D.C., 256 F.Supp. 195. We noted probable jurisdiction, 385 U.S. 966, 87 S.Ct. 499, 17 L.Ed.2d 431.
In No. 491, appellees brought an action against appellants, members of the Suffolk County Board of Supevi sors, seeking a declaration that so much of § 203 of the Suffolk County Charter (N.Y. Laws 1958, c. 278) as provides that each supervisor shall have one vote as a member of the Suffolk County Board of Supervisors violates the Fourteenth Amendment and an injunction prohibiting the appellants from acting as a Board of Supervisors unless and until a change in their voting strength is made, and requesting the convening of a three-judge court. The 10 towns of Suffolk County, New York, elect, by popular vote, a supervisor every two years. The supervisor is the town's representative on the Suffolk County Board of Supervisors. Suffolk County Charter § 201. And, each supervisor is entitled to one vote on the County Board of Supervisors. Suffolk County Charter § 203. Pursuant to Art. 9, §§ 1 and 2, of the New York Constitution, the State Legislature approved a charter for the county containing, inter alia, the above provisions. N.Y. Laws 1958, c. 278.
Appellees claim that granting each supervisor one vote regardless of the population of the town which elected him results in an over representation of the towns with small populations and underrepresentation of towns with large populations.
A three-judge court was convened and it declared § 203 of the Suffolk County Charter invalid because in conflict with the Equal Protection Clause of the Fourteenth Amendment, and ordered the Board to submit to the county electorate a plan for reconstruction of the Board so as to insure voter equality. D.C., 256 F.Supp. 617. We noted probable jurisdiction. Sailors v. Board of Education of County of Kent, 385 U.S. 966, 87 S.Ct. 499, 17 L.Ed.2d 431.
This Court has jurisdiction of these direct appeals under 28 U.S.C. § 1253 only if the respective actions were 'required * * * to be heard and determined by a district court of three judges.' Section 2281 of 28 U.S.C. requires that a three-judge court be convened in any case in which a preliminary or permanent injunction is sought to restrain 'the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute * * *.' The purpose of § 2281 is 'to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme * * * by issuance of a broad injunctive order' (Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S.Ct. 554, 560, 9 L.Ed.2d 644) and to provide 'procedural protection against an improvident state-wide doom by a federal court of a state's legislative policy.' Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800. In order for § 2281 to come into play the plaintiffs must seek to enjoin state statutes 'by whatever method they may be adopted, to which a State gives her sanction * * *.' American Federation of Labor v. Watson, 327 U.S. 582, 592—593, 66 S.Ct. 761, 766, 90 L.Ed.2d 873.
The Court has consistently construed the section as authorizing a three-judge court not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined. See, e.g., Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990; Ex parte Public National Bank, of New York, 278 U.S. 101, 49 S.Ct. 43, 73 L.Ed. 202; Rorick v. Board of Commissioners, of Everglades Drainage Dist., 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242; City of Cleveland v. United States, 323 U.S. 329, 332, 65 S.Ct. 280, 281, 89 L.Ed. 274; Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 227—228, 84 S.Ct. 1226, 1231—1232, 12 L.Ed.2d 256. The term 'statute' in § 2281 does not encompass local ordinances or resolutions. The officer sought to be enjoined must be a state officer; a three-judge court need not be convened where the action seeks to enjoin a local officer (Ex parte Collins, supra; Rorick v. Board of Commissioners, supra) unless he is functioning pursuant to a statewide policy and performing a state function. Spielman Motor Sales Co. v. Dodge, 295 .S . 89, 55 S.Ct. 678, 79 L.Ed. 1322. Nor does the section come into operation where an action is brought against state officers performing matters of purely local concern. Rorick v. Board of Commissioners, supra. And, the requirement that the action seek to enjoin a state officer cannot be circumvented 'by joining, as nominal parties defendant, state officers whose action is not the effective means of the enforcement or execution of the challenged statute.' Wilentz v. Sovereign Camp, WOW, 306 U.S. 573, 579—580, 59 S.Ct. 709, 713, 83 L.Ed. 994.
In No. 624, the constitutional attack was directed to a state statute dealing with matters of local concern—the apportionment and districting for one county's governing board. The statute is not a statute of statewide application, but relates solely to the affairs of one county in the State. The fact that state officers were named as defendants cannot change the result.
It is said that there is enough similarity between this law and the laws governing other Alabama counties as to give this case a statewide interest. It is said that 29 counties having a city of consequence located within their borders have the same 'crazy quilt' of malapportionment to insure rural voters' control. It is said that 32 other counties provide for election of county board members at large but with a local residence requirement which insures rural control. It is said that six rural counties elect their governing bodies on an at-large basis with no local residence requirement. We indicate no views on the merits. But we suggest that even a variety of different devices, working perhaps to the same end, still leaves any one device local rather than statewide for purposes of the statutory three-judge court.
In No. 491, the constitutional attack is directed at provisions of a county charter providing that the county governing board shall be composed of the supervisors of the several towns and that each supervisor shall have one vote. The county charter is similar to a local ordinance, a challenge to which cannot support a three-judge court. The fact that the charter was enacted into state law does not change the result. The charter provisions plainly relate only to one county and the statute enacting the charter is similarly limited. It does not remotely resemble a state statute of general, statewide application. It is a statute dealing solely with matters of local concern. Nor was the action brought against 'state officers' within the meaning of the statute; it was brought to enjoin local officers acting solely with reference to local matters.
We therefore do not accept the invitation to get into the niceties of the relationship between the provisions of the charter and the New York County Law, but take the complaint as we find it for purposes of the jurisdictional question, and conclude on the face of the complaint that we have only an alleged malapportionment under a county charter.
Since the 'statute' in each of these cases is one of limited application, concerning only a particular county involved in the litigation, a three-judge court was improperly convened. Appeals should, therefore, have been taken to the respective Courts of Appeals, not to this Court. Since the time for perfecting those appeals may have passed, we vacate the judgments and remand the causes to the court which heard each case so that they may enter a fresh decree from which appellants may, if they wish, perfect timely appeals to the respective Courts of Appeals. Phillips v. United States, supra, 312 at 254, 61 S.Ct. 480.
And see Bianchi v. Griffing, D.C., 238 F.Supp. 997, where the three-judge court in this case denied the motion to dismiss and denied the motion for an injunction against the continued operation of the Board, pending legislative or other political action to correct the alleged malapportionment.