source: Caselaw Access Project

author: Mr. Justice Rehnquist DOUGLAS, J.,

license: Public Domain

text:
    SOCIALIST LABOR PARTY et al. v. GILLIGAN, GOVERNOR OF OHIO, et al.
    No. 70-21.
    Argued March 23, 1972
    Decided May 30, 1972
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Powell, JJ., joined. Douglas, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 589.

      Sanford Jay Rosen argued the cause for appellants. With him on the brief were Melvin L. Wulf, Benjamin Sheerer, and Jerry Gordon.

      Donald J. Ouittar, Assistant Attorney General of Ohio, argued the cause for appellees. With him on the brief were William J. Brown, Attorney General, and Harold C. Heiss.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

Appellant Socialist Labor Party has engaged in a prolonged legal battle to invalidate various Ohio laws restricting minority party access to the ballot. Concluding that “the totality of the Ohio restrictive laws taken as a whole” violated the Equal Protection Clause of the Fourteenth Amendment, this Court struck down those laws in Socialist Labor Party v. Rhodes, 393 U. S. 23, 34 (1968) , Following that decision the Ohio Legislature revised the state election code, but the Party was dissatisfied with the revisions and instituted the present suit in 1970.

The Socialist Labor Party, its officers, and members joined as plaintiffs in requesting a three-judge District Court to invalidate on constitutional grounds various sections of the revised election laws of Ohio. The plaintiffs specifically challenged provisions of the Ohio election laws requiring that a party either receive a certain percentage of the vote cast in the last preceding election or else file petitions of qualified electors corresponding to the same percentage; provisions relating to the organizational structure of a party; provisions requiring that a political party elect a specified number of delegates and alternates to a state convention; and provisions requiring a party to be part of a national political party that holds national conventions at which delegates elected in state primaries nominate presidential and vice-presidential candidates. In addition, they challenged that part of the Ohio election code requiring a political party to file an affidavit under oath stating in substance that the party is not engaged in an attempt to overthrow the government by force or violence, is not associated with a group making such an attempt, and does not carry on a program of sedition or treason as defined by the criminal law.

The case was decided on cross-motions for summary judgment, the three-judge District Court having before it the complaint and answer of the respective parties, and affidavits filed pursuant to Fed. Rule Civ. Proc. 56. The court ruled on the merits in favor of all of appellants’ constitutional challenges to the Ohio election laws except that involving the oath requirement, with respect to which it ruled in favor of the appellees. Both sides appealed to this Court, and we noted probable jurisdiction. 401 U. S. 991 (1971).

Since then, the posture of this litigation has undergone a significant change. On December 23, 1971, the Ohio Legislature enacted Senate Bill No. 460, which embodied an extensive revision of the state election code. Both sides now agree that the passage of this Act renders moot all but one of the issues decided below. The one challenged provision that remains unamended is the State’s requirement that a political party execute the above-described affidavit under oath in order to obtain a position on the ballot.

Appellants’ 1970 complaint represented a broadside attack against interrelated and allegedly overly restrictive provisions of the Ohio election laws. The three-judge District Court, in its ruling for the appellants on the issues that have now become moot, stated:

“The 1969 amendments to the election laws merely perpetuate the restrictive laws enacted between 1948 and 1952. The overall effect of these laws is still to deny to plaintiffs their constitutional right of political association.” 318 F. Supp. 1262, 1269-1270 (footnote omitted).

Thus appellants, at the time they filed their 1970 action, were fenced out of the political process by a series of restrictive provisions that prevented them from making any progress toward a position on the ballot as a designated political party. Their challenge was necessarily of a somewhat abstract character, since under their allegations they were able to comply with very few of the provisions regulating access to the ballot. Now, however, with the enactment of a revised election code, the abstract character of the single remaining challenge to the Ohio election procedures stands out all the more.

Appellants did not in their action that came here in 1968 challenge the loyalty oath. Their 1970 complaint respecting the loyalty oath is singularly sparse in its factual allegations. There is no suggestion in it that the Socialist Labor Party has ever refused in the past, or will now refuse, to sign the required oath. There is no allegation of injury that the party has suffered or will suffer because of the existence of the oath requirement.

It is fairly inferable that the absence of such allegations is not merely an oversight in the drafting of a pleading. The requirement of the affidavit under oath was enacted in 1941, 119 Ohio Laws 586, and has remained continuously in force since that date. The Socialist Labor Party has appeared on the state ballot since the law’s passage, and, unless the state officials have ignored what appear to be mandatory oath provisions, it is reasonable to conclude that the party has in the past executed the required affidavit.

It is axiomatic that the federal courts do not decide abstract questions posed by parties who lack “a personal stake in the outcome of the controversy.” Baker v. Carr, 369 U. S. 186, 204 (1962); Flast v. Cohen, 392 U. S. 83, 101 (1968). Appellants argue that the affidavit requirement violates the First and Fourteenth Amendments, but their pleadings fail to allege that the requirement has in any way affected their speech or conduct, or that executing the oath would impair the exercise of any right that they have as a political party or as members of a political party. They contend that to require it of them but not of the two major political parties denies them equal protection, but they do not allege any particulars that make the requirement other than a hypothetical burden. Finally, they claim that the required affidavit is impermissibly vague and that its enforcement procedures do not comport with due process. But the record before the three-judge District Court, and now before this Court, is extraordinarily skimpy in the sort of proved or admitted facts that would enable us to adjudicate this claim. Since appellants have previously secured a position on the ballot with no untoward consequences, the gravamen of their claim that it injures them remains quite unclear.

In the usual case in which this Court has passed on the validity of similar oath provisions, the party challenging constitutionality was either unable or unwilling to execute the required oath and, in the circumstances of the particular case, sustained, or faced the immediate prospect of sustaining, some direct injury as a result of the penalty provisions associated with the oath. See, e. g., Cole v. Richardson, 405 U. S. 676 (1972); Keyishian v. Board of Regents, 385 U. S. 589 (1967); Wieman v. Updegraff, 344 U. S. 183 (1952).

In Cramp v. Board of Public Instruction, 368 U. S. 278, 283-285 (1961), the appellants were public school teachers who had been threatened with discharge for their refusal to execute the required oath. The Court held that even though appellants might be able to sign the required oath in good conscience, the record there indicated that they would still be subject to possible hazards of a perjury conviction by reason of the vagueness of the oath’s language. In the present case, however, appellants have apparently signed the oath at previous times, and so far as this record shows they have suffered no injury as a result. The State has never questioned the truth of the affidavit, and appellants’ conduct and associations have not been constricted as a result of their having executed the affidavit.

The long and the short of the matter is that we know very little more about the operation of the Ohio affidavit procedure as a result of this lawsuit than we would if a prospective plaintiff who had never set foot in Ohio had simply picked this section of the Ohio election laws out of the statute books and filed a complaint in the District Court setting forth the allegedly offending provisions and requesting an injunction against their enforcement. These plaintiffs may well meet the technical requirement of standing, and they may be parties to a case or controversy, but their case has not given any particularity to the effect on them of Ohio’s affidavit requirement.

This Court has recognized in the past that even when jurisdiction exists it should not be exercised unless the case “tenders the underlying constitutional issues in clean-cut and concrete form.” Rescue Army v. Municipal Court, 331 U. S. 549, 584 (1947). Problems of prematurity and abstractness may well present “insuperable obstacles” to the exercise of the Court’s jurisdiction, even though that jurisdiction is technically present. Id., at 574.

We find that the present posture of this case raises just such an obstacle. All issues litigated below have become moot except for one that received scant attention in appellants’ complaint and was treated not at all in the affidavits filed in support of the cross-motions for summary judgment. Nothing in the record shows that appellants have suffered any injury thus far, and the law’s future effect remains wholly speculative. Notwithstanding the indications that appellants have in the past executed the required affidavit without injury, it is, of course, possible that at some future time they may be able to demonstrate some injury as a result of the application of the provision challenged here. Our adjudication of the merits of such a challenge will await that time. This appeal must be dismissed. Rescue Army v. Municipal Court, supra, at 585.

It is so ordered.

Mr. Justice Douglas, with whom Mr. Justice Brennan and Mr. Justice Marshall concur, dissenting.

The oath required of appellants for political recognition in Ohio is plainly unconstitutional as a denial of equal protection. Because I believe this a proper case for declaratory relief, I would therefore reverse the judgment below.

In order to “be recognized or be given a place on the ballot in any primary or general election,” Ohio requires that members of political parties file a loyalty oath with the Secretary of State. Ohio Rev. Code Ann. § 3517.07 (1960) (see appendix to this opinion). I need not consider the vagueness or overbreadth of the Ohio oath, for my views on that subject have been stated over and over again. For the present case, it is sufficient for my decision that Ohio requires the oath based upon the invidious classification of political allegiance.

An exception from the oath requirement is made for “any political party or group which has had a place on the ballot in each national and gubernatorial election since the year 1900.” Ibid. It is conceded that this exemption applies only to the Democratic and Republican Parties (see Plaintiffs’ Motion for Summary Judgment), and we may properly treat it as if it were written in precisely those terms. See Lane v. Wilson, 307 U. S. 268 (1939); Guinn v. United States, 238 U. S. 347 (1915). This exception is thus part of the broader pattern of Ohio’s discriminatory preference for the two established political parties. We considered this discrimination before in Williams v. Rhodes, 393 U. S. 23, 31 (1968), and said:

“No extended discussion is required to establish that the Ohio laws before us give the two old, established parties a decided advantage over any new parties struggling for existence and thus place substantially unequal burdens on both the right to vote and the right to associate. The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot. In determining whether the State has power to place such unequal burdens on minority groups where rights of this kind are at stake, the decisions of this Court have consistently held that ‘only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms.’ ”

In a separate opinion, I noted, “The Equal Protection Clause of the Fourteenth Amendment permits the States to make classifications and does not require them to treat different groups uniformly. Nevertheless, it bans any ‘invidious discrimination.’ ” Id., at 39. Classifications based upon political or religious associations, beliefs, or philosophy are such “invidious” classifications. As Mr. Justice Black said in Cox v. Louisiana, 379 U. S. 559, 581:

“[B]y specifically permitting picketing for the publication of labor union views, Louisiana is attempting to pick and choose among the views it is willing to have discussed on its streets. It thus is trying to prescribe by law what matters of public interest people whom it allows to assemble on its streets may and may not discuss. This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellant and his group use of the streets because of their views against racial discrimination, while allowing other groups to use the streets to voice opinions on other subjects, also amounts, I think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment.”

"While I doubt that any state interest can be so compelling as to justify an impairment of associational freedoms in the area of philosophy — political or otherwise,” Lippitt v. Cipollone, 404 U. S. 1032, 1033-1034 (Douglas, J., dissenting); see also Williams v. Rhodes, supra, at 39-40 (separate opinion of Douglas, J.), the ap-pellees have not even offered a colorable explanation for the disparate treatment of the separate political parties. I conclude, therefore, that the unequal burden placed upon appellants is unconstitutional.

The Court does not reach appellants’ challenge to the loyalty oath, however, because it concludes that “they do not allege any particulars that make the [oath] requirement other than a hypothetical burden.” Ante, at 587. In sharp contrast to the decision in Rescue Army v. Municipal Court, 331 U. S. 549 (1947), the only case upon which it relies, the Court does not explain what additional facts it feels are necessary to reach the merits. In basing its decision on this ground, I fear that the Court has taken an unduly narrow view of declaratory relief.

Appellants argue that the oath is facially invalid for the invidious classification it creates, for its overbreadth and its vagueness. Certainly such challenges to the facial validity of a statute are ideally suited for declaratory judgment. Moore v. Ogilvie, 394 U. S. 814. There can be no question of appellants’ stake in the controversy, for if they refuse to subscribe to the oath they will be denied political recognition, cf. Law Students Research Council v. Wadmond, 401 U. S. 154 (1971); Baird v. State Bar of Arizona, 401 U. S. 1 (1971); while, in order to obtain such recognition, they must subscribe to an unconstitutional oath or subject themselves to an invidious classification. Cf. Keyishian v. Board of Regents, 385 U. S. 589 (1967); Cramp v. Board of Public Instruction, 368 U. S. 278 (1961). Under either alternative, appellants have “such a personal stake in the outcome ... as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends.” Baker v. Carr, 369 U. S. 186, 204 (1962). Nor is this a case where appellants’ injury is only speculative, cf. Golden v. Zwickler, 394 U. S. 103 (1969), for they allege that they “will continue to nominate candidates for political office in Ohio in the future.”

Evers v. Dwyer, 358 U. S. 202 (1958), is relevant here. The appellant in that case was a black who sought a declaratory judgment that a state statute requiring the segregation of the races on municipal buses was unconstitutional. In dismissing the complaint, the District Court took the approach this Court takes today and reasoned that appellant “ha[d] not been injured at all” because “he was not a regular or even an occasional user of bus transportation.” We summarily reversed that decision, saying that an individual “subjected by statute to special disabilities necessarily has, we think, a substantial, immediate, and real interest in the validity of the statute which imposes the disability.” 358 U. S., at 204. And see Gooding v. Wilson, 405 U. S. 518.

In Evers, we did not base our decision on any consideration of whether the seats blacks were required to take were better or worse than those available to whites. Rather, we held that members of a disfavored minority could challenge unconstitutional statutory classifications which set them apart. That was the “disability” to which we referred. Appellants are members of an unfavored political minority in Ohio and they too should be able to challenge invidious classifications which set them apart from the favored majority.

Since 1946, appellants and other minority political parties in Ohio have been repressed by legislation enacted by the two dominant parties. In the last four years, they have sought relief from these shackles so that their voices could be heard in the political arena But Ohio has erected innumerable roadblocks to their participation. Under the majority’s decision, each obstacle will require a separate lawsuit because it will only be after they have been frustrated at a particular turn that they will be able to satisfy this new test for declaratory relief.

The modern remedy of declaratory judgments should be used to simplify, not multiply, litigation.

I would reverse the judgment below.

APPENDIX TO OPINION OF

DOUGLAS, J.,

DISSENTING

Ohio Rev. Code Ann. § 3517.07 (1960):

“No political party or group which advocates, either directly or indirectly, the overthrow, by force or violence, of our local, state, or national government or which carries on a program of sedition or treason by radio, speech, or press or which has in any manner any connection with any foreign government or power or which in any manner has any connection with any group or organization so connected or so advocating the overthrow, by force or violence, of our local, state, or national government or so carrying on a program of sedition or treason by radio, speech, or press shall be recognized or be given a place on the ballot in any primary or general election held in the state or in any political subdivision thereof.
“Any party or group desiring to have a place on the ballot shall file with the secretary of state and with the board of elections in each county in which it desires to have a place on the ballot an affidavit made by not less than ten members of such party, not less than three of whom shall be executive officers thereof, under oath stating that it does not' advocate, either directly or indirectly, the overthrow, by force or violence, of our local, state, or national government; that it does not carry on any program of sedition or treason by radio, speech, or press; that it has no connection with any foreign government or power; that it has no connection with any group or organization so connected or so advocating, either directly or indirectly, the overthrow, by force or violence, of our local, state, or national government or so carrying on a program of sedition or treason by radio, speech, or press.
“Said affidavit shall be filed not less than six nor more than nine months prior to the primary ór general election in which the party or group desires to have a place on the ballot. The secretary of state shall investigate the facts appearing in the affidavit and shall within sixty days after the filing thereof find and certify whether or not this party or group is entitled under this section to have a place on the ballot.
“Any qualified member of such party or group or any elector of this state may appeal from the finding of the secretary of state to the supreme court of Ohio.
“This section does not apply to any political party or group which has had a place on the ballot in each national and gubernatorial election since the year 1900.”

      That case was decided together with Williams v. Rhodes, 393 U. S. 23 (1968).

       Despite the contrary implication in the dissent, see post, at 592-593, n. 3, the holding of Rescue Army has been applied by this Court to numerous appeals in which no statutory or constitutional impediment to jurisdiction was present. See, e. g., Cowgill v. California, 396 U. S. 371 (1970) (Harlan, J., concurring); Atlanta Newspapers, Inc. v. Grimes, 364 U. S. 290 (1960); Teamsters v. Denver Milk Pro

        ducers, Inc., 334 U. S. 809 (1948). Nor has there ever been any suggestion that Rescue Army should apply only to appeals from state, rather than federal, courts. See United States v. Fruehauf, 365 U. S. 146, 157 (1961); United States v. CIO, 335 U. S. 106, 125-126 (1948) (Frankfurter, J., concurring). See also Albertson v. Millard, 345 U. S. 242, 245 (1953). Despite this lack of case support, the dissent argues that the Rescue Army doctrine should not apply to the present case, since it is an appeal from a federal court judgment pursuant to 28 U. S. C. § 1253, whereas Rescue Army was an appeal from a state court judgment pursuant to 28 U. S. C. § 1257. This distinction is evanescent. Under both grants of jurisdiction this Court is obligated to rule upon those properly presented questions that are necessary for decision of the case. But when the issues are not presented with the clarity needed for effective adjudication, appellate review of a federal court judgment is every bit as inappropriate as was review of a state court judgment in Rescue Army.

         E. g., Cole v. Richardson, 405 U. S. 676, 687 (1972) (dissenting opinion); W. E. B. DuBois Clubs v. Clark, 389 U. S. 309, 313 (1967) (dissenting opinion); Elfbrandt v. Russell, 384 U. S. 11 (1966); Nostrand v. Little, 362 U. S. 474, 476 (1960) (dissenting opinion) ; First Unitarian Church v. Los Angeles, 357 U. S. 545, 547 (1958) (concurring opinion); Speiser v. Randall, 357 U. S. 513, 532 (1958) (concurring opinion).

       While the District Court acknowledged that one of appellants’ challenges to the oath was that it “violates the Equal Protection Clause by excepting the Democratic and Republican Parties from its ambit,” 318 F. Supp. 1262, 1270, the court inexplicably did not address this argument.

        Rescue Army came on appeal from the Supreme Court of California and involved a complex state statutory scheme.
      The present case, by contrast, comes from a United States District Court where our appellate jurisdiction is founded upon 28 U. S. C. § 1253. It is, I think, an undue extension of Rescue Army to apply it to an appeal from a federal court which properly heard and considered a federal constitutional question. See H. Hart & H. Wechsler, The Federal Courts and the Federal System 149 (1953). Our differing treatment of appeals from federal and state courts relates to the difference between the courts from which the appeals are taken. If an appeal from a state court does not fall within Art. Ill, it would in nowise affect the jurisdiction of the court from which the appeal was taken. Doremus v. Board of Education, 342 U. S. 429, 434 (1952). The same cannot be said, however, of appeals from federal courts, e. g., Muskrat v. United States, 219 U. S. 346. Thus, “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment' below and remand with a direction to dismiss.” United States v. Munsingwear, 340 U. S. 36, 39 (1950); see R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court §273, p. 501 (1951). “If the proceeding is one to review the decision of a state court,” however, our practice is to “remand the cause to the state court in order that that court may take such further proceedings as may be deemed appropriate.”
      The cases cited by the majority, ante, at 588-589, n. 2, do not support today’s treatment of an appeal from an Art. Ill court. In United States v. Fruehauf, 365 U. S. 146 (1961), the District Court dismissed an indictment and we reversed and remanded holding that the provable facts might bring the case within the statute. In United States v. CIO, 335 U. S. 106 (1948), we affirmed the judgment of the District Court which had dismissed an indictment, because the facts alleged did not state an offense; and we did not therefore reach the constitutional issue relied upon by the District Court. Finally, Albertson v. Millard, 345 U. S. 242 (1953), was an abstention case in which we vacated the judgment of the District Court and remanded with directions to hold the case until the state law questions had been resolved. None of these cases, therefore, stands for the proposition that we may dismiss a perfected appeal from a properly entered judgment of an Art. Ill court.

       The suggestion that “appellants have apparently signed the oath at previous times,” ante, at 588, and thus somehow have waived their right to object to the oath, is unsupported by the record. Appellants include not only the Socialist Labor Party but also its named officers and members who would be required to execute the oath. Whatever relevance there may be to the fact that the Socialist Labor Party was on the ballot in Ohio in 1946, that fact has no bearing with regard to the individual appellants.

       As to Cramp, it is suggested that “the record there indicated that [Cramp] would still be subject to possible hazards of a perjury conviction by reason of the vagueness of the oath’s language.” Ante, at 588. In our opinion in Cramp, however, we noted that Cramp alleged in his complaint “that he ‘is a loyal American and does not decline to execute or subscribe to the aforesaid oath for fear of the penalties provided by law for a false oath,’ ” 368 U. S., at 281. In any event, Ohio also subjects oath takers to the “possible hazards of a perjury conviction,” see Ohio Rev. Code Ann. §§ 3599.36, 2917.25 (1960), so Cramp is not distinguishable.

       See, e. g., Liypitt v. Cipollone, 404 U. S. 1032 (1972), aff’g 337 P. Supp. 1405 (ND Ohio 1971); Brockington v. Rhodes, 396 U. S. 41 (1969); Williams v. Rhodes, 393 U. S. 23 (1968), aff’g sub nom.

        Socialist Labor Party v. Rhodes, 290 P. Supp. 983 (Ohio 1968) ; State ex rel. Bible v. Board of Elections, 22 Ohio St. 2d 57, 258 N. E. 2d 227; see also State ex rel. Beck v. Hummel, 150 Ohio St. 127, 80 N. E. 2d 899.


author: Mr. Justice Douglas delivered the opinion of the Court. Mr. Chief Justice Burger,

text:
    CARLESON, DIRECTOR, DEPARTMENT OF SOCIAL WELFARE, et al. v. REMILLARD et al.
    No. 70-250.
    Argued April 10, 1972
    Decided June 7, 1972
    Douglas, J., delivered the opinion for a unanimous Court. Burger, C. J., filed a concurring opinion, post, p. 604.

      Jay S. Linderman, Deputy Attorney General of California, argued the cause for appellants. With him on the brief was Evelle J. Younger, Attorney General.

      Carmen L. Massey, by appointment of the Court, 405 U. S. 951, argued the cause and filed a brief for appellees pro hac vice.

      Solicitor General Griswold and Richard B. Stone filed a brief for the United States as amicus curiae urging reversal.
   Mr. Justice Douglas delivered the opinion of the Court.

Appellees are mother and child. The husband enlisted in the United States Army and served in Vietnam. The mother applied for Aid to Families With Dependent Children (AFDC) benefits at a time when the amount of the monthly allotment she received by virtue of her husband's military service was less than her “need” as computed by the California agency and less than the monthly AFDC grant an adult with one child receives in California. She was denied relief. Although the Social Security Act, 42 U. S. C. §§ 301-1394, grants aid to families with “dependent children,” and includes in the term “dependent child” one “who has been deprived of parental support or care by reason of . . . continued absence from the home,” 42 U. S. C. § 606 (a), California construed “continued absence” as not including military absence. It is unquestioned that her child is in fact “needy.”

When the husband's allotment check was stopped, ap-pellee again applied for AFDC benefits. She again was denied the benefits, this time because California had adopted a regulation which specifically prohibited the payment of AFDC benefits to needy families where the absence of a parent was due to military service.

This action is a class action seeking a declaration of the invalidity of the regulation and an injunction restraining its enforcement on the ground that it conflicts with the Social Security Act and denies appellees the Fourteenth Amendment rights of due process and equal protection.

“When one parent is physically absent from the home on a temporary basis. Examples are visits, trips made in connection with current or prospective employment, active duty in the Armed Services.”

A three-judge District Court was convened and by a divided vote granted the relief sought. 325 F. Supp. 1272. The case is here by appeal. 28 U. S. C. §§ 1253, 2101 (b). We noted probable jurisdiction, 404 U. S. 1013.

Section 402 (a) (10) of the Social Security Act, 42 U. S. C. § 602 (a) (10), places on each State participating in the AFDC program the requirement that “aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.” “Eligibility,” so defined, must be measured by federal standards. King v. Smith, 392 U. S. 309. There, we were faced with an Alabama regulation which defined a mother’s paramour as a “parent” for § 606 (a)(1) purposes, thus permitting the State to deny AFDC benefits to needy dependent children on the theory that there was no parent who was continually absent from the home. We held that Congress had defined “parent” as a breadwinner who was legally obligated to support his children, and that Alabama was precluded from altering that federal standard. The importance of our holding was stressed in Townsend v. Swank, 404 U. S. 282, 286:

“King v. Smith establishes that, at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.” (Emphasis supplied.)

In Townsend, we also expressly disapproved the Department of Health, Education, and Welfare (HEW) policy which permitted States to vary eligibility requirements from the federal standards without express or clearly implied congressional authorization. Ibid.

Townsend involved § 406 (a) (2) (B) of the Act, 42 U. S. C. §606 (a)(2)(B), which includes in the definition of “dependent children” those “under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary [of HEW]) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment.” Illinois had defined AFDC eligible dependent children to include 18-20-year-old high school or vocational school children but not children of the same age group attending college. We held that § 606 (a) (2) (B) precluded that classification because it varied from the federal standard for needy dependent children. Involved in the present controversy is another eligibility criterion for federal matching funds set forth in the Act, namely the “continued absence” of a parent from the home. If California’s definition conflicts with the federal criterion then it, too, is invalid under the Supremacy Clause.

HEW’s regulations for federal matching funds provide that:

“Continued absence of the parent from the home constitutes the reason for deprivation of parental support or care when the parent is out of the home, the nature of the absence is such as either to interrupt or to terminate the parent’s functioning as a provider of maintenance, physical care, or guidance for the child, and the known or indefinite duration of the absence precludes counting on the parent’s performance of his function in planning for the present support or care of the child. If these conditions exist, the parent may be absent for any reason, and he may have left only recently or some time previously.”

The Solicitor General advises us that although HEW reads the term “continued absence” to permit the payment of federal matching funds to families where the parental absence is due to military service, it has approved state plans under which families in this category are not eligible for AFDC benefits. HEW has included “service in the armed forces or other military service” as an example of a situation falling under the above definition of “continued absence.” HEW Handbook of Public Assistance Administration, pt. IV, § 3422.2.

Our difficulty with that position is that “continued absence from the home” accurately describes a parent on active military duty. The House Report speaks of children “in families lacking a father’s support,” H. R. Rep. No. 615, 74th Cong., 1st Sess., 10, and the Senate Report refers to “children in families which have been deprived of a father’s support.” S. Rep. No. 628, 74th Cong., 1st Sess., 17. While the Senate Report noted that “[t]hese are principally families with female heads who are widowed, divorced, or deserted,” ibid., it was not stated or implied that eligibility by virtue of a parent’s “continued absence” was limited to cases of divorce or desertion.

We agree that “continued absence” connotes, as HEW says, that “the parent may be absent for any reason.” We search the Act in vain, moreover, for any authority to make “continued absence” into an accordion-like concept, applicable to some parents because of “continued absence” but not to others.

The presence in the home of the parent who has the legal obligation to support is the key to the AFDC program, King v. Smith, 392 U. S., at 327; Lewis v. Martin, 397 U. S. 552, 559. Congress looked to “work relief” programs and “the revival of private industry” to help the parent find the work needed to support the family. S. Rep. No. 628, supra, at 17, and the AFDC program was designed to meet a need unmet by depression-era programs aimed at providing work for breadwinners. King v. Smith, supra, at 328. That need was the protection of children in homes without such a breadwinner. Ibid. It is clear that “military orphans” are in this category, for, as stated by the Supreme Court of Washington, a man in the military service

“has little control over his family's economic destiny. He has no labor union or other agency to look to as a means of persuading his employer to pay him a living wage. He is without access to collective bargaining or any negotiating forum or other means of economic persuasion, or even the informal but concerted support of his fellow employees. He cannot quit his job and seek a better paying one. . . . [TJhere is no action he could lawfully take to make his earnings adequate while putting in full time on his job. His was a kind of involuntary employment where legally he could do virtually nothing to improve the economic welfare of his family.” Kennedy v. Dept. of Public Assistance, 79 Wash. 2d 728, 732-733, 489 P. 2d 154, 157.

Stoddard v. Fisher, 330 F. Supp. 566, held a Maine regulation invalid under the Supremacy Clause which denied AFDC aid where the father was continually absent because of his military service. Judge Coffin said:

“We cannot help but note the irony of a result which would deny assistance to the family of a man who finds that family disqualified from receiving AFDC on the ground that he has removed himself from the possibility of receiving public work relief by voluntarily undertaking, for inadequate compensation, the defense of his country.” Id., at 571 n. 8.

We cannot assume here, anymore than we could in King v. Smith, supra, that while Congress “intended to provide programs for the economic security and protection of all children,” it also “intended arbitrarily to leave one class of destitute children entirely without meaningful protection.” 392 U. S., at 330. We are especially confident Congress could not have designed an Act leaving uncared for an entire class who became “needy children” because their fathers were in the Armed Services defending their country.

We hold that there is no congressional authorization for States to exclude these so-called military orphans from AFDC benefits. Accordingly we affirm the judgment of the three-judge court.

Affirmed.

Mr. Chief Justice Burger,

concurring.

I join in the opinion and judgment of the Court, but on the assumption, not expressly articulated in the opinion, that a State may administratively deduct from its total “need payment” such amount as is being paid to the dependents under the military allotment system. It would be curious, indeed, if two “pockets” of the same government would be required to make duplicating payments for welfare.

The administrative procedures to give effect to this process may be cumbersome, but the right of the State to avoid overlapping benefits for support should be clearly understood.

       Calif. Dept. Soc. Welfare Reg. EAS § 42-350.11 provides that “continued absence” does not exist:

       45 CFR §233.90 (c)(1) (iii).

       The present record reveals that 22 States and the District of Columbia do furnish AFDC benefits to needy families of servicemen, while 19 States and Puerto Rico do not.


text:
    BROOKS v. TENNESSEE
    No. 71-5313.
    Argued March 21-22, 1972
    Decided June 7, 1972
    Brennan, J., delivered the opinion of the Court, in which Douglas, White, Marshall, and Powell, JJ., joined. Stewart, J., filed a statement concurring in the judgment and in Part II of the Court’s opinion, post, p. 613. Burger, C. J., filed a dissenting opinion, in which BlackmuN and Rehnquist, JJ., joined, post, p. 613. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Blackmun, J., joined, post, p. 617.

      Jerry H. Summers argued the cause and filed a brief for petitioner.

      Robert E. Kendrick, Deputy Attorney General of Tennessee, argued the cause and filed a brief for respondent.
   Mr. Justice Brennan delivered the opinion of the Court.

Petitioner was tried and convicted in the Circuit Court of Hamilton County, Tennessee, on charges of armed robbery and unlawful possession of a pistol. During the trial, at the close of the State’s case, defense counsel moved to delay petitioner’s testimony until after other defense witnesses had testified. The trial court denied this motion on the basis of Tenn. Code Ann. § 40-2403 (1955), which requires that a criminal defendant “desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case.” Although the prosecutor agreed to waive the statute, the trial court refused, stating that “the law is, as you know it to be, that if a defendant testifies he has to testify first.” The defense called two witnesses, but petitioner himself did not take the stand.

Following the denial of his motion for new trial, petitioner appealed his conviction to the Tennessee Court of Criminal Appeals, which overruled his assignments of error, including his claim that § 40-2403 violated the State and Federal Constitutions. The Supreme Court of Tennessee denied review, and we granted certiorari to consider whether the requirement that a defendant testify first violates the Federal Constitution. 404 U. S. 955 (1971). We reverse.

I

The rule that a defendant must testify first is related to the ancient practice of sequestering prospective witnesses in order to prevent their being influenced by other testimony in the case. See 6 J. Wigmore, Evidence § 1837 (3d ed. 1940). Because the criminal defendant is entitled to be present during trial, and thus cannot be sequestered, the requirement that he precede other defense witnesses was developed by court decision and statute as an alternative means of minimizing this influence as to him. According to Professor Wigmore, “[t]he reason for this rule is the occasional readiness of the interested person to adapt his testimony, when offered later, to victory rather than to veracity, so as to meet the necessities as laid open by prior witnesses . . . .” Id., at § 1869.

Despite this traditional justification, the validity of the requirement has been questioned in a number of jurisdictions as a limitation upon the defendant’s freedom to decide whether to take the stand. Two federal courts have rejected the contention, holding that a trial court does not abuse its discretion by requiring the defendant to testify first. United States v. Shipp, 359 F. 2d 185, 189-190 (CA6 1966); Spaulding v. United States, 279 F. 2d 65, 66-67 (CA9 1960). In Shipp, however, the dissenting judge strongly objected to the rule, stating:

“If the man charged with crime takes the witness stand in his own behalf, any and every arrest and conviction, even for lesser felonies, can be brought before the jury by the prosecutor, and such evidence may have devastating and deadly effect, although unrelated to the offense charged. The decision as to whether the defendant in a criminal case shall take the stand is, therefore, often of utmost importance, and counsel must, in many cases, meticulously balance the advantages and disadvantages of the prisoner’s becoming a witness in his own behalf. Why, then, should a court insist that the accused must testify before any other evidence is introduced in his behalf, or be completely foreclosed from testifying thereafter? . . . This savors of judicial whim, even though sanctioned by some authorities; and the cause of justice and a fair trial cannot be subjected to such a whimsicality of criminal procedure.” 359 F. 2d, at 190-191.

Other courts have followed this line of reasoning in striking down the rule as an impermissible restriction on the defendant’s freedom of choice. In the leading case of Bell v. State, 66 Miss. 192, 5 So. 389 (1889), the court held the requirement to be reversible error, saying:

“It must often be a very serious question with the accused and his counsel whether he shall be placed upon the stand as a witness, and subjected to the hazard of cross-examination, a question that he is not required to decide until, upon a proper survey of all the case as developed by the state, and met by witnesses on his own behalf, he may intelligently weigh the advantages and disadvantages of his situation, and, thus advised, determine how to act. Whether he shall testify or not; if so, at what stage in the progress of his defense, are equally submitted to the free and unrestricted choice of one accused of crime, and are in the very nature of things beyond the control or direction of the presiding judge. Control as to either is coercion, and coercion is denial of freedom of action.” Id., at 194, 5 So., at 389.

In Nassif v. District of Columbia, 201 A. 2d 519 (DC Ct. App. 1964), the court adopted the language and reasoning of Bell in concluding that the trial court had erred in applying the rule.

Although Bell, Nassif, and the Shipp dissent were not based on constitutional grounds, we are persuaded that the rule embodied in § 40-2403 is an impermissible restriction on the defendant’s right against self-incrimination, “to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.” Malloy v. Hogan, 378 U. S. 1, 8 (1964). As these opinions demonstrate, a defendant’s choice to take the stand carries with it serious risks of impeachment and cross-examination; it “may open the door to otherwise inadmissible evidence which is damaging to his case,” McGautha v. California, 402 U. S. 183, 213 (1971), including, now, the use of some confessions for impeachment purposes that would be excluded from the State’s case in chief because of constitutional defects. Harris v. New York, 401 U. S. 222 (1971). Although “it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify,” McGautha v. California, supra, at 215, none would deny that the choice itself may pose serious dangers to the success of an accused’s defense.

Although a defendant will usually have some idea of the strength of his evidence, he cannot be absolutely certain that his witnesses will testify as expected or that they will be effective on the stand. They may collapse under skillful and persistent cross-examination, and through no fault of their own they may fail to impress the jury as honest and reliable witnesses. In addition, a defendant is sometimes compelled to call a hostile prosecution witness as his own. Unless the State provides for discovery depositions of prosecution witnesses, which Tennessee apparently does not, the defendant is unlikely to know whether this testimony will prove entirely favorable.

Because of these uncertainties, a defendant may not know at the close of the State's case whether his own testimony will be necessary or even helpful to his cause. Rather than risk the dangers of taking the stand, he might prefer to remain silent at that point, putting off his testimony until its value can be realistically assessed. Yet, under the Tennessee rule, he cannot make that choice “in the unfettered exercise of his own will.” Section 40-2403 exacts a price for his silence by keeping him off the stand entirely unless he chooses to testify first. This, we think, casts a heavy burden on a defendant’s otherwise unconditional right not to take the stand. The rule, in other words, “cuts down on the privilege [to remain silent] by making its assertion costly.” Griffin v. California, 380 U. S. 609, 614 (1965).

Although the Tennessee statute does reflect a state interest in preventing testimonial influence, we do not regard that interest as sufficient to override the defendant’s right to remain silent at trial. This is not to imply that there may be no risk of a defendant’s coloring his testimony to conform to what has gone before. But our adversary system reposes judgment of the credibility of all witnesses in the jury. Pressuring the defendant to take the stand, by foreclosing later testimony if he refuses, is not a constitutionally permissible means of ensuring his honesty. It fails to take into account the very real and legitimate concerns that might motivate a defendant to exercise his right of silence. And it may compel even a wholly truthful defendant, who might otherwise decline to testify for legitimate reasons, to subject himself to impeachment and cross-examination at a time when the strength of his other evidence is not yet clear. For these reasons we hold that § 40-2403 violates an accused’s constitutional right to remain silent insofar as it requires him to testify first for the defense or not at all.

II

For closely related reasons we also regard the Tennessee rule as an infringement on the defendant’s right of due process as defined in Ferguson v. Georgia, 365 U. S. 570 (1961). There the Court reviewed a Georgia statute providing that a criminal defendant, though not competent to testify under oath, could make an unsworn statement at trial. The statute did not permit defense counsel to aid the accused by eliciting his statement through questions. The Court held that this limitation deprived the accused of “ The guiding hand of counsel at every step in the proceedings against him,’ Powell v. Alabama, 287 U. S. 45, 69, within the requirement of due process in that regard as imposed upon the States by the Fourteenth Amendment.” Id., at 572. The same may be said of § 40-2403. Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right. By requiring the accused and his lawyer to make that choice without an opportunity to evaluate the actual worth of their evidence, the statute restricts the defense — particularly counsel — in the planning of its case. Furthermore, the penalty for not testifying first is to keep the defendant off the stand entirely, even though as a matter of professional judgment his lawyer might want to call him later in the trial. The accused is thereby deprived of the “guiding hand of counsel” in the timing of this critical element of his defense. While nothing we say here otherwise curtails in any way the ordinary power of a trial judge to set the order of proof, the accused and his counsel may not be restricted in deciding whether, and when in the course of presenting his defense, the accused should take the stand.

Petitioner, then, was deprived of his constitutional rights when the trial court excluded him from the stand for failing to testify first. The State makes no claim that this was harmless error, Chapman v. California, 386 U. S. 18 (1967), and petitioner is entitled to a new trial.

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Stewart joins Part II of the opinion, and concurs in the judgment of the Court.

Mr. Chief Justice Burger, with whom Mr. Justice Blackmun and Mr. Justice Rehnquist join, dissenting.

This case is an example of the Court's confusing what it does not approve with the demands of the Constitution. As a matter of choice and policy — if I were a legislator, for example — I would not vote for a statute like that the Court strikes down today. But I cannot accept the idea that the Constitution forbids the States to have such a statute.

Of course, it is more convenient for a lawyer to defer the decision to have the accused take the stand until he knows how his other witnesses fare. By the same token, it is helpful for an accused to be able to adjust his testimony to what his witnesses have had to say on the matter. No one has seriously challenged the absolute discretion of a trial judge to exclude witnesses, other than the accused, from the courtroom until they are called to the stand. The obvious purpose is to get honest testimony and minimize the prospect that a witness will adjust and “tailor” his version to fit what others have said; it seems somewhat odd to say the Constitution forbids all States to require the accused to give his version before his other witnesses speak, since it is not possible to exclude him from the courtroom, as is the common rule for witnesses who are not parties.

The Court’s holding under the Fifth Amendment is admittedly unsupported by any authority and cannot withstand analysis. The Constitution provides only that no person shall “be compelled in any criminal case to be a witness against himself.” It is undisputed that petitioner was not in fact compelled to be a witness against himself, as he did not take the stand. Nor was the jury authorized or encouraged to draw perhaps unwarranted inferences from his silence, as in Griffin v. California, 380 U. S. 609 (1965). Petitioner was clearly not subjected to the obvious compulsion of being held in contempt for his silence, as in Malloy v. Hogan, 378 U. S. 1 (1964), nor did the Tennessee procedure subject him to any other significant compulsion to testify other than the compulsion faced by every defendant who chooses not to take the stand — the knowledge that in the absence of his testimony the force of the State’s evidence may lead the jury to convict. Cases such as Spevack v. Klein, 385 U. S. 511 (1967), and Gardner v. Broderick, 392 U. S. 273 (1968), involving loss of employment or disbarment are therefore clearly inapposite. That should end the matter.

However, the Court distorts both the context and content of Malloy v. Hogan, supra, at 8, by intimating that the Fifth Amendment may be violated if the defendant is forced to make a difficult choice as to whether to take the stand at some point in time prior to the con-elusion of a criminal trial. But, as the Court pointed out only last Term in McGautha v. California, 402 U. S. 183 (1971), “[although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.” Id., at 213. Indeed, the “choice” we sustained in McGautha was far more difficult than that here, as the procedure there clearly exerted considerable force to compel the defendant to waive the privilege and take the stand in order to avoid the possible imposition of the death penalty. See also Williams v. Florida, 399 U. S. 78 (1970). There is no such pressure here. The majority’s rationale would lead to the absurd result that the State could not even require the defendant to finally decide whether he wishes to take the stand prior to the time the jury retires for deliberations, for, even at that point, he “may not know . . . whether his own testimony will be necessary or even helpful to his cause.” Even then, he might “prefer to remain silent . . . putting off his testimony until its value can be realistically assessed.” In short, even at the close of the defense case, his decision to take the stand is not unfettered by the difficulty to make the hard choice to waive the privilege. Perhaps the defendant’s decision will be easier at the close of all the evidence. Perhaps not. The only “burden” cast on the defendant’s choice to take the stand by the Tennessee procedure is the burden to make the choice at a given point in time. That the choice might in some cases be easier if made later is hardly a matter of constitutional dimension.

The Court’s holding that the Tennessee rule deprives the defendant of the “guiding hand of counsel” at every stage of the proceedings fares no better, as Mb. Justice Rehnquist clearly demonstrates. It amounts to nothing more than the assertion that counsel may not be restricted by ordinary rules of evidence and procedure in presenting an accused's defense if it might be more advantageous to present it in some other way. A rule forbidding defense counsel to ask leading questions of the defendant when he takes the stand may restrict defense counsel in his options and may in many cases bear only remote relationship to the goal of truthful testimony. Yet no one would seriously contend that such a universal rule of procedure is prohibited by the Constitution. The rule that the defendant waives the Fifth Amendment privilege as to any and all relevant matters when he decides to take the stand certainly inhibits the choices and options of counsel, yet this Court has never questioned such a rule and reaffirmed its validity only last Term. See McGautha v. California, 402 U. S., at 215. Countless other rules of evidence and procedure of every State may interfere with the “guiding hand of counsel.” The Court does not explain why the rule here differs from those other rules.

Perhaps this reflects what is the true, if unspoken, basis for the Court’s decision; that is, that in the majority’s view the Tennessee rule is invalid because it is followed presently by only two States in our federal system. But differences in criminal procedures among our States do not provide an occasion for judicial condemnation by this Court.

This is not a case or an issue of great importance, except as it erodes the important policy of allowing diversity of method and procedure to the States to the end that they can experiment and innovate, and retreat if they find they have taken a wrong path. Long ago, Justice Brandéis spoke of the need to let “a single courageous State” try what others have not tried or will not try. New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting opinion); see Fay v. New York, 332 U. S. 261, 296 (1947) (Jackson, J.). In the faltering condition of our machinery of justice this is a singularly inappropriate time to throttle the diversity so essential in the search for improvement.

Mr. Justice Rehnquist, with whom The Chief Justice and Mr. Justice Blackmun join, dissenting.

The Court’s invalidation of the Tennessee statute challenged here is based upon both its stated repugnance to the privilege against self-incrimination and its infringement of counsel’s right to plan the presentation of his case.

While it is possible that this statute regulating the order of proof in criminal trials might in another case raise issues bearing on the privilege against self-incrimination, its application in this case certainly has not done so. Petitioner Brooks never took the stand, and it is therefore difficult to see how his right to remain silent was in any way infringed by the State. Whatever may be the operation of the statute in other situations, petitioner cannot assert that it infringed his privilege against self-incrimination — a privilege which he retained inviolate throughout the- trial.

The Court’s alternative holding that the Tennessee statute infringes the right of petitioner’s counsel to plan the presentation of his case creates a far more dominant role for defense counsel than that indicated by the language of the Constitution. While cases such as Gideon v. Wainwright, 372 U. S. 335 (1963), establish the fundamental nature of the constitutional right to the assistance of counsel, no case previously decided by this Court elevates defense counsel to the role of impresario with respect to decisions as to the order in which witnesses shall testify at the trial.

This Court and other courts have repeatedly held that the control of the order of proof at trial is a matter primarily entrusted to the discretion of the trial court. See, e. g., Thiede v. Utah Territory, 159 U. S. 510, 519 (1895); Nelson v. United States, 415 F. 2d 483, 487 (CA5 1969), cert. denied, 396 U. S. 1060 (1970); Horowitz v. Bokron, 337 Mass. 739, 151 N. E. 2d 480 (1958); Small v. State, 165 Neb. 381, 85 N. W. 2d 712 (1957). The notion that the Sixth Amendment allows defense counsel to overrule the trial judge as to the order in which witnesses shall be called stands on its head the traditional understanding of the defendant’s right to counsel. Defense counsel sits at the side of the accused, not to take over the conduct of the trial, but to advise the accused as to various choices available to him within the limits of existing state practice and procedure.

I could understand, though I would not agree with, a holding that under these circumstances the Fourteenth Amendment conferred a right upon the defendant, counseled or not, to decide at what point during the presentation of his case to take the stand. But to cast the constitutional issue in terms of violation of the defendant’s right to counsel suggests that defense counsel has an authority of constitutional dimension to determine the order of proof at trial. It is inconceivable to me that the Court would permit every preference of defense counsel as to the order in which defense witnesses were to be called to prevail over a contrary ruling of the trial judge in the exercise of his traditional discretion to control the order of proof at trial. The crucial fact here is not that counsel wishes to have a witness take the stand at a particular time, but that the defendant— whether advised by counsel or otherwise — wishes to determine at what point during the presentation of his case he desires to take the stand. Logically the benefit of today’s ruling should be available to a defendant conducting his own defense who has waived the right of counsel, but since the Court insists on putting the issue in terms of the advice of counsel, rather than in terms of defense control over the timing of defendant’s appearance, the application of today’s holding to that situation is by no means clear.

The Tennessee statute in question is, as the Court notes in its opinion, based upon an accommodation between the traditional policy of sequestering prospective witnesses before they testify and the right of the criminal defendant to be present during his trial. Since the defendant may not be sequestered against his will while other witnesses are testifying, the State has placed a more limited restriction on the presentation of his testimony. The defendant is required to testify, if he chooses to do so, as the first witness for the defense. The State applies the same rule evenhandedly to the prosecuting witness, if there be one; he, too, must testify first. While it is perfectly true that the prosecution is given no constitutional right to remain silent, this fact does not detract from the evident fairness of Tennessee’s effort to accommodate the two conflicting policies.

The state rule responds to the fear that interested parties, if allowed to present their own testimony after other disinterested witnesses have testified, may well shape their version of events in a way inconsistent with their oath as witnesses. This fear is not groundless, nor is its importance denigrated by vague generalities such as the statement that “our adversary system reposes judgment of the credibility of all witnesses in the jury.” Ante, at 611. Assuredly the traditional common-law charge to the jury confides to that body the determination as to the truth or falsity of the testimony of each witness. But the fact that the jury is instructed to make such a determination in reaching its verdict has never been thought to militate against the desirability, to say nothing of the constitutionality, of additional inhibitions against perjury during the course of a trial. The traditional policy of sequestering nonparty witnesses, the requirement of an oath on the part of all witnesses, and the opportunity afforded for cross-examination of witnesses are but examples of such inhibitions. As a matter of constitutional judgment it may be said that the effectuation of this interest has been accomplished by Tennessee at too high a price, but the importance of the interest itself cannot rationally be dispelled by loose assertions about the role of the jury.

In view of the strong sanction in history and precedent for control of the order of proof by the trial court, I think that Tennessee’s effort here to restrict the choice of the defendant as to when he shall testify, in the interest of minimizing the temptation to perjury, does not violate the Fourteenth Amendment. I would therefore affirm the judgment below.

       Section 40-2403 was first enacted in 1887 as part of a Tennessee statute that provided that criminal defendants were competent to testify on their own behalf. That statute appears in the Tennessee Code Annotated as follows:
      “§40-2402. Competency of defendant. In the trial of all indictments, presentments, and other criminal proceedings, the party defendant thereto may, at his own request, but not otherwise, be a competent witness to testify therein.
      “§40-2403. Failure of defendant to testify — Order of testimony. The failure of the party defendant to make such request and to testify in his own behalf, shall not create any presumption against him. But the defendant desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case.”

       The instant ease is an apt illustration. After the State had rested, defense counsel requested permission to call the local chief of police as a hostile witness, and to cross-examine him about the circumstances surrounding petitioner’s lineup. Because the police chief had not testified, though he was subpoenaed by the State, the trial court denied the motion, ruling that the chief will “be your witness if you call him.”

       Tenn. Code Ann. §40-2428 provides:
      “The accused may, by order of the court, have the depositions of witnesses taken in the manner prescribed for taking depositions in civil cases, on notice to the district attorney.”
      However, a recent decision by the Tennessee Court of Criminal Appeals holds that this statute does not give the defendant in a criminal case the right to take a discovery deposition. Craig v. State, -Tenn. App.-, 455 S. W. 2d 190 (1970).

       The failure to testify first not only precludes any later testimony by defendant concerning new matters, but may also preclude testimony offered in rebuttal of State’s witnesses. Arnold v. State, 139 Tenn. 674, 202 S. W. 935 (1918), holds that a defendant may testify in rebuttal if he has testified first on direct. According to the parties, there is no Tennessee case holding that a defendant who does not testify first may later take the stand in rebuttal.

       That burden is not lightened by the fact that Tennessee courts also require the chief prosecuting witness to testify first for the State if he chooses to remain in the courtroom after other witnesses are sequestered. Smartt v. State, 112 Tenn. 539, 80 S. W. 586 (1904). Despite its apparent attempt at symmetry, this rule does not restrict the prosecution in the same way as the defense, for the State has a certain latitude in designating its prosecuting witness, choosing for example between the victim of the crime and the investigating officer. A more fundamental distinction, of course, is that the State, through its prosecuting witness, does not share the defendant’s constitutional right not to take the stand. Thus, the choice to present the prosecuting witness first or not at all does not raise a constitutional claim secured to the State, as it does in the situation of the defendant.

       The dissenting opinions suggest that there can be no violation of the right against self-incrimination in this case because Brooks never took the stand. But the Tennessee rule imposed a penalty for petitioner’s initial silence, and that penalty constitutes the infringement of the right.

       It is not altogether clear that the State itself regards the interest as more than minimally important. It has long been the rule in Tennessee that the statute may be waived, see Martin v. State, 157 Tenn. 383, 8 S. W. 2d 479 (1928), and an offer of waiver was made by the prosecutor in this case, though not accepted by the trial court.