source: Caselaw Access Project

author:
      Chief Justice Rehnquist
      Justice Scalia, Justice Thomas,

license: Public Domain

text:
    LOCKE, GOVERNOR OF WASHINGTON, et al. v. DAVEY
    No. 02-1315.
    Argued December 2, 2003
    Decided February 25, 2004

      Rehnqtjist, C. J., delivered the opinion of the Court,’ in which Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 726. Thomas, J., filed a dissenting opinion, post, p. 734.

      Narda Pierce, Solicitor General of Washington, argued the cause for petitioners. With her on the briefs were Christine 0. Gregoire, Attorney General, William Berggren Collins,
      Senior Assistant Attorney General, and Michael J. Shinn, Assistant Attorney General.

      Jay Alan Sekulow cause With him on the brief were Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Walter M. Weber, David A. Cort-man, Alan E. Sears, and Benjamin W. Bull.

      Solicitor General Olson argued the cause States as amicus curiae urging affirmance. With him on the brief were Assistant Attorney General Acosta, Deputy Solicitor General Clement, Gregory G. Garre, David K. Flynn, and Eric W. Treene.

      Briefs of amici curiae urging reversal were filed for the State of Vermont et al. by William H. Sorrell, Attorney General of Vermont, and Timothy B. Tomasi, Chief Assistant Attorney General, by Anabelle Rodriguez, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective jurisdictions as follows: Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Hardy Myers of Oregon, Lawrence E. Long of South Dakota, and Clyde Lemons, Jr., of the Northern Mariana Islands; for the American Civil Liberties Union et al. by Aaron H. Caplan, Steven R. Shapiro, Julie E. Sternberg, Ayesha N. Khan, Elliot M. Mincberg, and Susan L. Sommer; for the American Jewish Congress et al. by Marc D. Stern, K. Hollyn Hollman, Jeffrey Sinensky, Kara Stein, and David Strom; for the Anti-Defamation League et al. by David Lash, Steven M. Freeman, Steven C. Sheinberg, Martin E. Karlinsky, Erwin Chemerinsky, and Frederick M. Lawrence; for the National Educa- • tion Association by Robert H. Chanin, Andrew D. Roth, and Laurence Gold; and for the National School Boards Association et al. by David H. Remes and Julie Underwood.

      Briefs of amici curiae urging were Alabama by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and Margaret L. Fleming, Assistant Attorney General; for the State of Florida et al.- by Charles J. Crist, Jr., Attorney General of Florida, Christopher M. Kise, Solicitor General, Raquel A. Rodriguez, and Daniel Woodring; for the State of Texas et al. by Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General, Rafael Edward Cruz, Solicitor General, Joseph D. Hughes and Cassandra Robertson, Assistant Solicitors General, Mike Moore, Attorney General of Mississippi, and Mark L. Shurtleff, Attorney General of Utah; for the Association of Southern Baptist Colleges and Schools et al. by Carter G. Phillips, Gene C. Schaerr, and Nicholas P Miller; for the Becket Fund for Religious Liberty et al. by Kevin J. Hasson, Roman P. Storzer, and Anthony R. Picarello, Jr.; for the Black Alliance for Educational Options by Samuel Estreicher and Brett M. Schuman; for the Council for Christian Colleges & Universities et al. by Gregory S. Baylor and Thomas C. Berg; for the Fairness Foundation by Kenneth W. Starr, Robert R. Gasaway, and Ashley C. Parrish; for the Institute for Justice et al. by Richard D. Komer, Clint Bolick, and William H. Mellor; for the Landmark Legal Foundation by Richard P Hutchison and Michael J. O’Neill; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin, Dennis Rapps, David Zwiebel, Richard B. Stone, and Nathan J. Diament; for the National Legal Foundation by Barry C. Hodge; for the Solidarity Center for Law and Justice, P. C., by James P. Kelly III; and for Teresa M. Becker by Richard Thompson.

      Briefs of amici curiae were filed for the Common Good Legal Defense Fund et al. by John G. Stepanovich and Keith A Fournier; for the United States Conference of Catholic Bishops et al. by Mark E. Chopko and Jeffrey Hunter Moon; and for Robert S. Alley et al. by Steven K. Green.

   Chief Justice Rehnquist

delivered the opinion of the Court.

The State of Washington established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In. accordance with the State Constitution, students may not use the scholarship at an institution where they are pursuing a degree in devotional theology. We hold that such an exclusion from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First Amendment.

The Washington State Legislature found that “[s]tudents who work hard . . . and successfully complete high school with high academic marks may not have the financial ability to attend college because they cannot obtain financial aid or the financial aid is insufficient.” Wash. Rev. Code Ann. §28B.119.005 (West Supp. 2004). In 1999, to assist these high-achieving students, the legislature created the Promise Scholarship Program, which provides a scholarship, renewable for one year, to eligible students for postsecond-ary education expenses. Students may spend their funds on any education-related expense, including room and board. The scholarships are funded through the State’s general fund, and their amount varies each year depending on the annual appropriation, which is evenly prorated among the eligible students. Wash. Admin. Code §250-80-050(2) (2003). The scholarship was worth $1,125 for academic year 1999-2000 and $1,542 for 2000-2001.

To be eligible for the scholarship, a student must meet academic, income, and enrollment requirements. A student must graduate from a Washington public or private high school and either graduate in the top 15% of his graduating class, or attain on the first attempt a cumulative score of 1,200 or better on the Scholastic Assessment Test I or a score, of 27 or better on the American College Test. §§250-80-020(12)(a) to (d). The student’s family income must be less than 135% of the State’s median. §250-80-020(12)(e). Finally, the student must enroll “at least half time in an eligible postsecondary institution in the state of Washington,” and may not pursue a degree in theology at that institution while receiving the scholarship. §§250-80-020(12)(f) to (g); see also Wash. Rev. Code Ann. §28B. 10.814 (West 1997) (“No aid shall be awarded to any student who is pursuing a degree in theology”). Private institutions, including those religiously affiliated, qualify as “ ‘[eligible postsecondary institution[s]’ ” if they are accredited by a nationally recognized accrediting body. See Wash. Admin. Code §250-80-020(13). A “degree in theology” is not defined in the statute, but, as both parties concede, the statute simply codifies the State’s constitutional prohibition on providing funds to students to pursue degrees that are “devotional in nature or designed to induce religious faith.” Brief for Petitioners 6; Brief for Respondent 8; see also Wash. Const., Art. I, § 11.

A student who applies for the scholarship and meets the academic and income requirements is notified that he is eligible for the scholarship if he meets the enrollment requirements. E. g., App. 95. Once the student enrolls at an eligible institution, the institution must certify that the student is enrolled at least half time and that the student is not pursuing a degree in devotional theology. The institution, rather than the State, determines whether the student’s major is devotional. Id., at 126, 131. If the student meets the enrollment requirements, the scholarship funds are sent to the institution for distribution to the student to pay for tuition or other educational expenses. See Wash. Admin. Code §250-80-060.

Respondent, Joshua Davey, was awarded a Promise Scholarship, and chose to attend Northwest College. Northwest is a private, Christian college affiliated with the Assemblies of God denomination, and is an eligible institution under the Promise Scholarship Program. Davey had “planned for many years to attend a Bible college and to prepare [himself] through that college training for a lifetime of ministry, specifically as a church pastor.” App. 40. To that end, when he enrolled in Northwest College, he decided to pursue a double major in pastoral ministries and business management/administration. Id., at 43. There is no dispute that the pastoral ministries degree is devotional and therefore excluded under the Promise Scholarship Program.

At the beginning of the 1999-2000 academic year, Davey met with Northwest’s director of financial aid. He learned for the first time at this meeting that he could not use his scholarship to pursue a devotional theology degree. He was informed that to receive the funds appropriated for his use, he must certify in writing that he was not pursuing such a degree at Northwest. He refused to sign the form and did not receive any scholarship funds.

Davey then brought an action under Rev. Stat. § 1979, 42 U. S. C. § 1983, against various state officials (hereinafter State) in the District Court for the Western District of Washington to enjoin the State from refusing to award the scholarship solely because a student is pursuing a devotional theology degree, and for damages. He argued the denial of his scholarship based on his decision to pursue a theology degree violated, inter alia, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, as incorporated by the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. After the District Court denied Davey’s request for a preliminary injunction, the parties filed cross-motions for summary judgment. The District Court rejected Davey’s constitutional claims and granted summary judgment in favor of the State.

A divided panel of the United States Court of Appeals for the Ninth Circuit reversed. 299 F. 3d 748 (2002). The court concluded that the State had singled out religion for unfavorable treatment and thus under our decision in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), the State’s exclusion of theology majors must be narrowly tailored to achieve a compelling state interest. 299 F. 3d, at 757-758. Finding that the State’s own antiestablishment concerns were not compelling, the court declared Washington's Promise Scholarship Program unconstitutional. Id., at 760. We granted certiorari, 538 U. S. 1031 (2003), and now reverse.

The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension. See Norwood v. Harrison, 413 U. S. 455, 469 (1973) (citing Tilton v. Richardson, 403 U. S. 672, 677 (1971)). Yet we have long said that “there is room for play in the joints” between them. Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 669 (1970). In other words, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.

This case involves that “play in the joints” described above. Under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. See Zelman v. Simmons-Harris, 536 U. S. 639, 652 (2002); Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 13-14 (1993); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 487 (1986); Mueller v. Allen, 463 U. S. 388, 399-400 (1983). As such, there is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology, see Witters, supra, at 489, and the State does not contend otherwise. The question before us, however, is whether Washington, pursuant to its own constitution, which has been authoritatively interpreted as prohibiting even indirectly funding religious instruction that will prepare students for the ministry, see Witters v. State Comm’n for the Blind, 112 Wash. 2d 363, 369-370, 771 P. 2d 1119, 1122 (1989) (en banc); cf. Witters v. State Comm’n for the Blind, 102 Wash. 2d 624, 629, 689 P. 2d 53, 56 (1984) (en banc) (“It is not the role of the State to pay for the religious education of future ministers”), rev’d, 474 U. S. 481 (1986), can deny them such funding without violating the Free Exercise Clause.

Davey urges us to answer' that question in the negative. He contends that under the rule we enunciated in Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra, the program is presumptively unconstitutional because it is not facially neutral with respect, to religion. We reject his claim of presumptive unconstitutionality, however; to do otherwise would extend the Lukumi line of cases well beyond not only their facts but their reasoning. In Lukumi, the city of Hialeah made it a crime to engage in certain kinds of animal slaughter. We found that the law sought to suppress ritualistic animal sacrifices of the Santería religion. . 508 U. S., at 535. In the present case, the State’s disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. See McDaniel v. Paty, 435 U. S. 618 (1978). And it does not require students to choose between their religious beliefs and receiving a government benefit. See ibid.; Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 460 U. S. 707 (1981); Sherbert v. Verner, 374 U. S. 398 (1963). The State has merely chosen not to fund a distinct category of instruction.

Justice Scalia argues, however, that generally available benefits are part of the “baseline against which burdens on religion are measured.” Post, at 726 (dissenting opinion). Because the Promise Scholarship Program funds training for .all secular professions, Justice Scalia contends the State must also fund training for religious professions. See post, at 726-727. But training for religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit. See Calvary Bible Presbyterian Church v. Board of Regents, 72 Wash. 2d 912, 919, 436 P. 2d 189, 193 (1967) (en banc) (holding public funds may not be expended for “that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct”); App. 40 (Davey stating his “religious beliefs [were] the only reason for [him] to seek a college degree”). And the subject of religion is one in which both the United States and state constitutions embody distinct views — in favor of free exercise, but opposed to establishment — that find no counterpart with respect to other callings or professions. That a State would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion.

Even though the differently worded Washington Constitution draws a more stringent line than that drawn by the United States Constitution, the interest it seeks to further is scarcely novel. In fact, we can think of few areas in which a State’s antiestablishment interests come more into play. Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an “established” religion. See R. Butts, The American Tradition in Religion and Education 15-17, 19-20, 26-37 (1950); F. Lambert, The Founding Fathers and the Place of Religion in America 188 (2003) (“In defending their religious liberty against overreaching clergy, Americans in all regions found that Radical Whig ideas best framed their argument that state-supported clergy undermined liberty of conscience and should be opposed”); see also J. Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 65, 68 (1947) (appendix to dissent of Rutledge, J.) (noting the dangers to civil liberties from supporting clergy with public funds).

Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. E. g., Ga. Const., Art. IV, §5 (1789), reprinted in 2 Federal and State Constitutions, Colonial Charters, and Other Organic Laws 789 (F. Thorpe ed. 1909) (reprinted 1993) (“All persons shall have the free exercise of religion, without being obliged to contribute to the support of any religious profession but their own”); Pa. Const., Art. II (1776), in 5 id., at 3082 (“[N]o man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent”); N. J. Const., Art. XVIII (1776), in id., at 2597 (similar); Del. Const., Art. I, § 1 (1792), in 1 id., at 568 (similar); Ky. Const., Art. XII, § 3 (1792), in 3 id., at 1274 (similar); Vt. Const., Ch. I, Art. 3 (1793), in 6 id., at 3762 (similar); Tenn. Const., Art. XI, §3 (1796), in id., at 3422 (similar); Ohio Const., Art. VIII, § 3 (1802), in 5 id., at 2910 (similar). The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate, as Justice Scalia contends, post, at 728, n. 1, that these provisions would not have applied so long as the State equally supported other professions or if the amount at stake was de minimis. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk.

Far from evincing the hostility toward religion which was manifest in Lukumi, we believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits. The program permits students to attend pervasively religious schools, so long as they are accredited. As Northwest advertises, its “concept of education is distinctly Christian in the evangelical sense.” App. 168. It prepares all of its students, “through instruction, through modeling, [and] through [its] classes, to use . . . the Bible as their guide, as the truth,” no matter their chosen profession. Id., at 169. And under the Promise Scholarship Program’s current guidelines, students are still eligible to take devotional theology courses. Davey notes all students at Northwest are required to take at least four devotional courses, “Exploring the Bible,” “Principles of Spiritual Development,” “Evangelism in the Christian Life,” and “Christian Doctrine,” Brief for Respondent 11, n. 5; see also App. 151, and some students may have additional religious requirements as part of their majors. Brief for Respondent 11, n. 5; see also App. 150-151.

In short, we find neither in the history or text of Article I, § 11, of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus toward religion. Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect.

Without a presumption of unconstitutionality, Davey’s claim must fail. The State’s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here. We need not venture further into this difficult area in order to uphold the Promise Scholarship Program as currently operated by the State of Washington.

The judgment of the Court of Appeals is therefore

Reversed.

Justice Scalia,

with whom Justice Thomas joins, dissenting.

In Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), the majority opinion held that “[a] law burdening religious practice that is not neutral... must undergo the most rigorous of scrutiny,” id., at 546, and that “the minimum requirement of neutrality is that a law not discriminate on its face,” id., at 533. The concurrence of two Justices stated that “[w]hen a law discriminates against religion as such, ... it automatically will fail strict scrutiny.” Id., at 579 (Blackmun, J., joined by O’Connor, J., concurring in judgment). And the concurrence of a third Justice endorsed the “noncontroversial principle” that “formal neutrality” is a “necessary conditio[n] for free-exercise constitutionality.” Id., at 563 (Souter, J., concurring in part and concurring in judgment). These opinions are irreconcilable with today's decision, which sustains a public benefits program that facially discriminates against religion.

HH

We articulated the principle that governs this case more than 50 years ago in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947):

“New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” Id., at 16 (emphasis deleted).

When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.

That is precisely what the State of Washington has done here. It has created a generally available public benefit, whose receipt is conditioned only on academic performance, income, and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology. Wash. Rev. Code Ann. §28B.l 19.010(8) (West Supp. 2004); Wash. Admin. Code §250-80-020(12)(g) (2003). No field of study but religion is singled out for disfavor in this fashion. Davey is not asking for a special benefit to which others are not entitled. Cf. Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439,453 (1988). He seeks only equal treatment — the right to direct his scholarship to his chosen course of study, a right every other Promise Scholar enjoys.

The Court’s reference to historical “popular uprisings against procuring taxpayer funds to support church leaders,” ante, at 722, is therefore quite misplaced. That history involved not the inclusion of religious ministers in public benefits programs like the one at issue here, but laws that singled them out for financial aid. For example, the Virginia bill at which Madison’s Remonstrance was directed provided: “[F]or the support of Christian teachers ... [a] sum payable for tax on the property within this Commonwealth, is hereby assessed ....” A Bill Establishing a Provision for Teachers of the Christian Religion (1784), reprinted in Everson, supra, at 72. Laws supporting the clergy in other States operated in a similar fashion. See S. Cobb, The Rise of Religious Liberty in America 131, 169, 270, 295, 304, 386 (1902). One can concede the Framers’ hostility to funding the clergy specifically, but that says nothing about whether the clergy had to be excluded from benefits the State made available to all. No one would seriously contend, for example, that the Framers would have barred ministers from using public roads on their way to church.

The Court does not dispute that the Free Exercise Clause places some constraints on public benefits programs, but finds none here, based on a principle of “ ‘play in the joints.’ ” Ante, at 719. I use the term “principle” loosely, for that is not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives. There is nothing anomalous about constitutional commands that abut. A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead “play in the joints” when haled into court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.

Even if “play in the joints” were a valid legal principle, surely it would apply only when it was a close call whether complying with one of the Religion Clauses would violate the other. But that is not the case here. It is not just that “the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology.” Ibid. The establishment question would not even be close, as is evident from the fact that this Court’s decision in Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986), was unanimous. Perhaps some formally neutral public benefits programs are so gerrymandered and devoid of plausible secular purpose that they might raise specters of state aid to religion, but an evenhanded Promise Scholarship Program is not among them.

In any case, the State already has all the play in the joints it needs. There are any number of ways it could respect both its unusually sensitive concern for the conscience of its taxpayers and the Federal Free Exercise Clause. It could make the scholarships redeemable only at public universities (where it sets the curriculum), or only for select courses of study. Either option would replace a program that facially discriminates against religion with one that just happens not to subsidize it. The State could also simply abandon the scholarship program altogether. If that seems a dear price to pay for freedom of conscience, it is only because the State has defined that freedom so broadly that it would be offended by a program with such an incidental, indirect religious effect.

What is the nature of the State’s asserted interest here? It cannot be protecting the pocketbooks of its citizens; given the tiny fraction of Promise Scholars who would pursue theology degrees, the amount of any citizen^ tax bill at stake is de minimis. It cannot be preventing mistaken appearance of endorsement; where a State merely declines to penalize students for selecting a religious major, “[n]o reasonable observer is likely to draw ... an inference that the State itself is endorsing a religious practice or belief.” Id., at 493 (O’Connor, J., concurring in part and concurring in judgment). Nor can Washington’s exclusion be defended as a means of assuring that the State will neither favor nor disfavor Davey in his religious calling. Davey will throughout his life contribute to the public fisc through sales taxes on personal purchases, property taxes on his home, and so on; and nothing in the Court's opinion turns on whether Davey winds up a net winner or loser in the State’s tax-and-spend scheme.

No, the interest to which the Court defers is not fear of a conceivable Establishment Clause violation, budget constraints, avoidance of endorsement, or substantive neutrality — none of these. It is a pure philosophical preference: the State’s opinion that it would violate taxpayers’ freedom of conscience not to discriminate against candidates for the ministry. This sort of protection of “freedom of conscience” has no logical limit and can justify the singling out of religion for exclusion from public programs in virtually any context. The Court never says whether it deems this interest compelling (the opinion is devoid of any mention of standard of review) but, self-evidently, it is not.

II

The Court makes no serious attempt to defend the program’s neutrality, and instead identifies two features thought to render its discrimination less offensive. The first is the lightness of Davey’s burden. The Court offers no authority for approving facial discrimination against religion simply because its material consequences are not severe. I might understand such a test if we were still in the business of reviewing facially neutral laws that merely happen to burden some individual’s religious exercise, but we are not. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 885 (1990). Discrimination on the face of a statute is something else. The indignity of being singled out for special burdens on the basis of one’s religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial. The Court has not required proof of “substantial” concrete harm with other forms of discrimination, see, e. g., Brown v. Board of Education, 347 U. S. 483, 493-495 (1954); cf. Craig v. Boren, 429 U. S. 190 (1976), and it should not do so here.

Even if there were some threshold quantum-of-harm requirement, surely Davey has satisfied it. The First Amendment, after all, guarantees free exercise of religion, and when the State exacts a financial penalty of almost $3,000 for religious exercise — whether by tax or by forfeiture of an otherwise available benefit — religious practice is anything but free. The Court’s only response is that “Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology.” Ante, at 721, n. 4. But part of what makes a Promise Scholarship attractive is that the recipient can apply it to his preferred course of study at his preferred accredited institution. That is part of the “benefit” the State confers. The Court distinguishes our precedents only by swapping the benefit to which Davey was actually entitled (a scholarship for his chosen course of study) with another, less valuable one (a scholarship for any course of study but his chosen one). On such reasoning, any facially discriminatory benefits program can be redeemed simply by redefining what it guarantees.

The other reason the Court thinks this particular facial discrimination less offensive is that the scholarship program was not motivated by animus toward religion. The Court does not explain why the legislature’s motive matters, and I fail to see why it should. If a State deprives a citizen of trial by jury or passes an ex post facto law, we do not pause to investigate whether it was actually trying to accomplish the evil the Constitution prohibits. It is sufficient that the citizen’s rights have been infringed. “[It does not] matter that a legislature consists entirely of the purehearted, if the law it enacts in fact singles out a religious practice for special burdens.” Lukumi, 508 U. S., at 559 (Scalia, J., concurring in part and concurring in judgment).

The Court has not approached other forms of discrimination this way. When we declared racial segregation unconstitutional, we did not ask whether the State had originally adopted the regime, not out of “animus” against blacks, but because of a well-meaning but misguided belief that the races would be better off apart. It was sufficient to note the current effect of segregation on racial minorities. See Brown, supra, at 493-495. Similarly, the Court does not excuse statutes that facially discriminate against women just because they are the vestigial product of a well-intentioned view of women’s appropriate social role. See, e. g., United States v. Virginia, 518 U. S. 515, 549-551 (1996); Adkins v. Children’s Hospital of D. C, 261 U. S. 525, 552-553 (1923). We do sometimes look to legislative intent to smoke out more subtle instances of discrimination, but we do so as a supplement to the core guarantee of facially equal treatment, not as a replacement for it. See Hunt v. Cromartie, 526 U. S. 541, 546 (1999).

There is no need to rely on analogies, however, because we have rejected the Court’s methodology in this very context. In McDaniel v. Paty, 435 U. S. 618 (1978), we considered a Tennessee statute that disqualified clergy from participation in the state constitutional convention. That statute, like the one here, was based upon a state constitutional provision — a clause in the 1796 Tennessee Constitution that disqualified clergy from sitting in the legislature. Id., at 621, and n. 1 (plurality opinion). The State defended the statute as an attempt to be faithful to its constitutional separation of church and state, and we accepted that claimed benevolent purpose as bona fide. See id., at 628. Nonetheless, because it did not justify facial discrimination against religion, we invalidated the restriction. Id., at 629.

It may be that Washington’s original purpose in excluding the clergy from public benefits was benign, and the same might be true of its purpose in maintaining the exclusion today. But those singled out for disfavor can be forgiven for suspecting more invidious forces at work. Let there be no doubt: This case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the State’s policy poses no obstacle to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects — those whose belief in their religion is so strong that they dedicate their study and their lives to its ministry — are a far narrower set. One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups, see, e. g., Romer v. Evans, 517 U. S. 620, 635 (1996), its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional.

Today’s holding is limited to training the clergy, but its logic is readily extendible, and there are plenty of directions to go. What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers’ freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the Court embraces today. See Sciolino, Chirac Backs Law to Keep Signs of Faith Out of School, N. Y. Times, Dec. 18, 2003, p. A17, col. 1. When the public’s freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression. Having accepted the justification in this case, the Court is less well equipped to fend it off in the future. I respectfully dissent.

Justice Thomas,

dissenting.

Because the parties agree that a “degree in theology” means a degree that is “devotional in nature or designed to induce religious faith,” Brief for Petitioners 6; Brief for Respondent 8, I assume that this is so for purposes of deciding this case. With this understanding, I join Justice Scalia’s dissenting opinion. I write separately to note that, in my view, the study of theology does not necessarily implicate religious devotion or faith. The contested statute denies Promise Scholarships to students who pursue “a degree in theology.” See Wash. Admin. Code §250-80-020(12)(g) (2003) (defining an “‘[eligible student,’” in part, as one who “[i]s not pursuing a degree in theology”); Wash. Rev. Code Ann. §28B.10.814 (West 1997) (“No aid shall be awarded to any student who is pursuing a degree in theology”). But the statute itself does not define “theology.” And the usual definition of the term “theology” is not limited to devotional studies. “Theology” is defined as “[t]he study of the nature of God and religious truth” and the “rational inquiry into religious questions.” American Heritage Dictionary 1794 (4th ed. 2000). See also Webster’s Ninth New Collegiate Dictionary 1223 (1991) (“the study of religious faith, practice, and experience” and “the study of God and his relation to the world”). These definitions include the study of theology from a secular perspective as well as from a religious one.

Assuming that the State denies Promise Scholarships only to students who pursue a degree in devotional theology, I believe that Justice Scalia’s application of our precedents is correct. Because neither party contests the validity of these precedents, I join Justice Scalia’s dissent.

       The State does not require students to certify anything or sign any forms. App. 86, 89.

       The relevant provision of the Washington Constitution, Art. I, §11, states:
      “Religious Freedom. Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.”

       Davey, relying on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), contends that the Promise Scholarship Program is an unconstitutional viewpoint restriction on speech. But the Promise Scholarship Program is not a forum for speech. The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to “‘encourage a diversity of views from private speakers.’” United States v. American Library Assn., Inc., 539 U. S. 194, 206 (2003) (plurality opinion) (quoting Rosenberger, swpra, at 834). Our cases dealing with speech forums are simply inapplicable. See American Library Assn., supra; Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 805 (1985).
      Davey also argues that the Equal discrimination on the basis of religion. Because we hold, infra, at 725, that the program is not a violation of the Free Exercise Clause, however, we apply rational-basis scrutiny to his equal protection claims. Johnson v. Robison, 415 U. S. 361, 375, n. 14 (1974); see also McDaniel v. Paty, 435 U. S. 618 (1978) (reviewing religious discrimination claim under the Free Exercise Clause). For the reasons stated herein, the program passes such review.

       Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology.

       Justice Scalia notes that the State’s “philosophical preference” to protect individual conscience is potentially without limit, see post, at 730; however, the only interest at issue here is the State’s interest in not funding the religious training of clergy. Nothing in our opinion suggests that the State may justify any interest that its “philosophical preference” commands.

       Perhaps the most famous example of public backlash is the defeat of “A Bill Establishing A Provision for Teachers of the Christian Religion” in the Virginia Legislature. The bill sought to assess a tax for “Christian teachers,” reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 72, 74 (1947) (supplemental appendix to dissent of Rutledge, J.); see also Rosenberger, supra, at 853 (Thomas, J., concurring) (purpose of the bill was to support “clergy in the performance of their function of teaching religion”), and was rejected after a public outcry. In its stead, the “Virginia Bill for Religious Liberty,” which was originally written by Thomas Jefferson, was enacted. This bill guaranteed “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” A Bill for Establishing Religious Freedom, reprinted in 2 Papers of Thomas Jefferson 546 (J. Boyd ed. 1950).

       The amici contend that Washington’s Constitution was born of religious bigotry because it contains a so-called “Blaine Amendment,” which has been linked with anti-Catholicism. See Brief for United States as Amicus Curiae 23, n. 5; Brief for Becket Fund for Religious Liberty et al. as Amici Curiae; see also Mitchell v. Helms, 530 U. S. 793, 828 (2000) (plurality opinion). As the State notes and Davey does not dispute, however, the provision in question is not a Blaine Amendment. Tr. of Oral Arg. 5; see Reply Brief for Petitioners 6-7. The enabling Act of 1889, which authorized the drafting of the Washington Constitution, required the state constitution to include a provision “for the establishment and maintenance of systems of public schools, which shall be ... free from sectarian control.” Act of Feb. 22, 1889, ch. 180, §4, ¶ Fourth, 25 Stat. 676. This provision was included in Article IX, § 4, of the Washington Constitution (“All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence”), and is not at issue in this case. Neither Davey nor amici have established a credible connection between the Blaine Amendment and Article I, § 11, the relevant constitutional provision. Accordingly, the Blaine Amendment’s history is simply not before us.

       Washington has also been solicitous in ensuring not hostile toward religion, see State ex rel. Gallwey v. Grimm, 146 Wash. 2d 445, 470, 48 P. 3d 274, 286 (2002) (en banc) (“[I]t was never the intention that our constitution should be construed in any manner indicating any hostility toward religion” (internal quotation marks omitted)), and at least in some respects, its constitution provides greater protection of religious liberties than the Free Exercise Clause, see First Covenant Church of Seattle v. Seattle, 120 Wash. 2d 203, 223-229, 840 P. 2d 174, 186-188 (1992) (en banc) (rejecting standard in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), in favor of more protective rule); Munns v. Martin, 131 Wash. 2d 192, 201, 930 P. 2d 318, 322 (1997) (en banc) (holding a city ordinance that imposed controls on demolition of historic structures inapplicable to the Catholic Church’s plan to demolish an old school building and build a new pastoral center because the facilities are intimately associated with the church’s religious mission). We have found nothing in Washington’s overall approach that indicates it “single[s] out” anyone “for special burdens on the basis of. . . religious calling,” as Justice Scalia contends, post, at 731.

       The State notes that it is an open question whether the Washington Constitution prohibits nontheology majors from taking devotional theology courses. At this point, however, the Program guidelines only exclude students who are pursuing a theology degree. Wash. Admin. Code § 250— 80-020(12)(g) (2003).

       Although we have sometimes characterized the Establishment Clause as prohibiting the State from “disapproving] of a particular religion or of religion in general,” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532 (1993) (citing cases), for the reasons noted supra, the State has not impermissibly done so here.

       Equally misplaced is the Court’s reliance on founding-era state constitutional provisions that prohibited the use of tax funds to support the ministry. Ante, at 723. There is no doubt what these provisions were directed against: measures of the sort discussed earlier in text, singling out the clergy for public support. See supra, at 727. The Court offers no historical support for the proposition that they were meant to exclude clergymen from general benefits available to all citizens. In choosing to interpret them in that fashion, the Court needlessly gives them a meaning that not only is contrary to our Religion Clause jurisprudence, but has no logical stopping point short of the absurd. No State with such a constitutional provision has, so far as I know, ever prohibited the hiring of public employees who use their salary to conduct ministries, or excluded ministers from generally available disability or unemployment benefits. Since the Court cannot identify any instance in which these provisions were applied in such a discriminatory fashion, its appeal to their “plain text,” ante, at 723, adds nothing whatever to the “plain text” of Washington’s own Constitution.

       The Court argues that those pursuing theology majors are not comparable to other Promise Scholars because “training for religious professions and training for secular professions are not fungible.” Ante, at 721. That may well be, but all it proves is that the State has a rational basis for treating religion differently. If that is all the Court requires, its holding is contrary not only to precedent, see supra, at 726, but to common sense. If religious discrimination required only a rational basis, the Free Exercise Clause would impose no constraints other than those the Constitution already imposes on all government action. The question is not whether theology majors are different, but whether the differences are substantial enough to justify a discriminatory financial penalty that the State inflicts on no other major. Plainly they are not.
      Equally unpersuasive is the Court’s argument that the State may discriminate against theology majors in distributing public benefits because the Establishment Clause and its state counterparts are themselves discriminatory. See ante, at 721, 723. The Court’s premise is true at some level of abstraction — the Establishment Clause discriminates against religion by singling it out as the one thing a State may not establish. All this proves is that a State has a compelling interest in not committing actual Establishment Clause violations. Cf. Widmar v. Vincent, 454 U. S. 263, 271 (1981). We have never inferred from this principle that a State has a constitutionally sufficient interest in discriminating against religion in whatever other context it pleases, so long as it claims some connection, however attenuated, to establishment concerns.

        McDaniel had no opinion for the Court, but nothing in the separate opinions suggests disagreement over the issues relevant here. Cf. 435 U. S., at 636, n. 9 (Brennan, J., concurring in judgment) (noting dispute over statute’s purpose but deeming it irrelevant).


author: Justice Kennedy

text:
    UNITED STATES POSTAL SERVICE v. FLAMINGO INDUSTRIES (USA) LTD. et al.
    No. 02-1290.
    Argued December 1, 2003
    Decided February 25, 2004

      Kennedy, J., delivered the opinion for a unanimous Court.

      Deputy Solicitor General Kneedler argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Assistant Attorney General Keister, Lisa S. Blatt, and Mark B. Stern:

      Harold J. Krent argued the cause for respondents. With him on the brief were Angela Wah and George P. Eshoo.

      Briefs of amici curiae urging affirmance were filed for the American Trucking Associations, Inc., by Drew S. Days III, Beth S. Brinkmann, Seth M. Galanter, Paul T. Friedman, and Robert Digges, Jr.; for Postal-Watch, Inc., by William S. Stancil; and for the Washington Legal Foundation et al. by Alan Charles Raul, Daniel J. Popeo, and Paul D. Kamenar.

        Nicholas M. Fobe filed a brief for the Center for the Advancement of Capitalism as amicus curiae.

   Justice Kennedy

delivered the opinion of the Court.

This case requires us to consider whether the United States Postal Service is subject to liability under the federal antitrust laws.

Flamingo Industries (USA) Ltd., a private corporation, and its owner and principal officer are the respondents here. Flamingo had been making mail sacks for the Postal Service, but then its contract was terminated. The respondents sued in United States District Court alleging that the Postal Service had sought to suppress competition and create a monopoly in mail sack production. (They also brought claims against the Postal Service under federal procurement law and state law, but those claims are not before us.) The Dis-triet Court dismissed the antitrust claims, concluding that the Postal Service is not subject to liability under federal antitrust law. The Court of Appeals reversed. It held that the Postal Service can be liable but that it has a limited immunity from antitrust liability for conduct undertaken at the command of Congress. 302 F. 3d 985, 993 (CA9 2002). We granted certiorari to consider the question whether the United States Postal Service is a “person” amenable to suit under the controlling antitrust statute. 538 U. S. 1056 (2003). We hold it is not subject to antitrust liability, and we reverse.

After the Revolution, both the Articles of Confederation and the Constitution explicitly empowered the National Government to provide and regulate postal services. Article of Confederation IX; U. S. Const., Art. I, § 8. The importance of the enterprise was prefigured by the Continental Congress’ appointment of Benjamin Franklin to be the first Postmaster General, on July 26, 1775. G. Cullinan, The United States Postal Service 26 (1973) (hereinafter Cullinan). From those beginnings, the Postal Service has become “the nation’s oldest and largest public business.” J. Tierney, Postal Reorganization: Managing the Public’s Business vii (1981) (hereinafter Tierney).

During its history since Postmaster Franklin, the postal organization has been reorganized or restructured at various times. In the immediate period after ratification of the Constitution, it was called the General Post Office and was subordinate to the Treasury Department. Cullinan 35-36. In 1825, its name changed from the General Post Office to the Post Office Department, an alteration accomplished by somewhat informal means when Postmaster Joseph McLean simply changed the title on official letterhead. McLean also began the practice of reporting directly to the President rather than to the Secretary of the Treasury. Id., at 50-51. (McLean was a popular Postmaster who served from 1823 until 1829, when the incoming President Andrew Jackson solved his worries about McLean’s independence in matters of postal governance, especially patronage, by appointing him to this Court. Id., at 52.) In 1829, President Jackson acknowledged the enhanced status of the Postmaster General by making him a member of the Cabinet, though it was not until 1872 that Congress formally recognized the Post Office Department as an executive department of the Federal Government. Id., at 36. A more complete account of the origins and mission of the postal system is set forth in Postal Service v. Council of Greenburgh Civic Assns., 453 U. S. 114, 120-126 (1981).

Major change came with the Postal Reorganization 1970 (PRA), 39 U. S. C. § 101 et seq. It was adopted to increase the efficiency of the Postal Service and reduce political influences on its operations. Tierney 1-26; Cullinan 5-10. The PRA renames the Post Office Department the United States Postal Service and removes it from the Cabinet to make it “an independent establishment of the executive branch of the Government of the United States.” 39 U. S. C. § 201. Superintendence over the new Postal Service is the responsibility of a Board of Governors, consisting of 11 members. §202. Nine governors are appointed by the President with the advice and consent of the Senate and are removable only for cause. Ibid. The other two governors are the Postmaster General, who also serves as the chief executive officer of the Postal Service, and who is appointed by the other nine, and the Deputy Postmaster General, who is appointed by the other nine together with the Postmaster General. Ibid.

The PRA creates a second independent establishment, the Postal Rate Commission, to make recommendations on postal rate changes. §3601. The Commission advises the Board of Governors on rates for all postal services, including both letter carriage and parcel delivery. §3621. Rates are set by the Board of Governors based on the recommendations of the Commission, and those decisions are in certain circumstances subject to judicial review. §§3625,3628. In making rate recommendations the Commission must consider factors including making each class of mail bear the costs attributable to it, and the effect of rate increases on the mail-using public and on competitors in the parcel delivery business. § 3622(b).

Under the PRA, the Postal Service retains its monopoly over the carriage of letters, and the power to authorize postal inspectors to search for, seize, and forfeit mail matter transported in violation of the monopoly. See §§601-606. It also retains the obligation to provide universal service to all parts of the country. §§101, 403. The Postal Service has the power of eminent domain, the power to make postal regulations, and the power to enter international postal agreements subject to the supervision of the Secretary of State. §§401,407. It has, in addition, powers to contract, to acquire property, and to settle claims. §401. As this brief summary indicates, the Postal Service has significant governmental powers, consistent with its status as an independent establishment of the Executive Branch. It was exempted from many, though not all, statutes governing federal agencies, and specifically subjected to some others. §§409-410. With respect to antitrust liability, however, the PRA neither exempts the Postal Service nor subjects it to liability by express mention. It is silent on the point.

The PRA waives the immunity of the Postal Service from suit by giving it the power “to sue and be sued in its official name.” §401. The first question we address is whether that waiver suffices by its own terms to subject the Postal Service to liability under the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U. S. C. § 1 et seq. We begin with a discussion of our precedents bearing on the inquiry.

This Court has held that when Congress passes enabling legislation allowing an agency or other entity of the Federal Government to be sued the waiver should be given a liberal — that is to say, expansive — construction. Federal Housing Administration v. Burr, 309 U. S. 242 (1940). In support of its holding in Burr the Court, in a passage often cited in later cases involving the waiver of sovereign immunity, wrote as follows:

“[I]t must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to ‘sue or be sued,’ that agency is not less amenable to judicial process than a private enterprise under like circumstances would be.” Id., at 245.

This general proposition was cited in the first two cases in which the Court considered the extent of the waiver effected by the sue-and-be-sued clause of the PRA. In Franchise Tax Bd. of Cal. v. Postal Service, 467 U. S. 512 (1984), the underlying dispute concerned the obligation of the Postal Service to withhold unpaid state taxes from the wages of its employees. A unanimous Court held that the Postal Service was required to respond to an order to withhold the amounts, even though the process was a state administrative tax levy, not an order issued by a state court. Id., at 525. The sue- and-be-sued clause, the Court held, must be given broad effect, and the Postal Service was required to respond to the administrative order even though it had not been issued by a judicial body. Id., at 519-521.

The second case in which the Court considered the scope of the waiver effected by the PRA’s sue-and-be-sued clause was Loeffler v. Frank, 486 U. S. 549 (1988). After the Postal Service had been found liable for damages from employment discrimination in an action brought under Title VII of the Civil Rights Act of 1964, the question arose whether it was subject as well to prejudgment interest. Id., at 551. The Court allowed the interest, and in the course of its decision asserted, or repeated, formulations which indicate that the sue-and-be-sued clause effects a broad waiver of immunity. Id., at 554-555. The Court also relied, however, upon the provisions of Title VII itself which, by specific amendment, extended the coverage under the Civil Rights Act to federal employees. Id., at 558-561.

After Loeffler, this Court decided FDIC v. Meyer, 510 U. S. 471, 484 (1994). In Meyer, the question was whether the Federal Savings and Loan Insurance Corporation (FSLIC), an agency of the United States, could be held liable in a so-called “Bivens action.” See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). A federal statute provided for a waiver of sovereign immunity in suits against the FSLIC, but the Court explained that the interpretation of the waiver statute was just the initial part of a two-part inquiry. Even though sovereign immunity had been waived, there was the further, separate question whether the agency was subject to the substantive liability recognized in Bivens. Meyer, supra, at 483. The Loeffler Court had not set forth the two-step analysis in the explicit terms Meyer used, but it did, as we have said, consult the statute as the source of the liability upon which the obligation to pay prejudgment interest depended.

The two-step analysis in Meyer applies here. We ask first whether there is a waiver of sovereign immunity for actions against the Postal Service. If there is, we ask the second question, which is whether the substantive prohibitions Of the Sherman Act apply to an independent establishment of the Executive Branch of the United States.

When the Court of Appeals considered the instant case, it cited Meyer and seemed at the outset to follow Meyer’s, two-step analysis. In our view, however, the ensuing discussion in the Court of Appeals’ opinion was not consistent with the Meyer framework; for, having found that the Postal Service’s immunity from suit is waived to the extent provided by the statutory sue-and-be-sued clause, the Court of Appeals relied on the same waiver to conclude that the Sherman Act applies to the Postal Service. This conflated the two steps and resulted in an erroneous conclusion. See Meyer, supra, at 484.

As to the first step, as an of the executive branch of the Government of the United States,” 39 U. S. C. § 201, the Postal Service is part of the Government and that status indicates immunity unless there is a waiver. The sue-and-bé-sued clause waives immunity, and makes the Postal Service amenable to suit, as well as to the incidents of judicial process. § 401. See Meyer, supra, at 482; Loeffler, supra, at 565; Franchise Tax Bd., supra, at 525. While Congress waived the immunity of the Postal Service, Congress did not strip it of its governmental status. The distinction is important. An absence of immunity does not result in liability if the substantive law in question is not intended to reach the federal entity. So we proceed to Meyer’s second step to determine if the substantive antitrust liability defined by the statute extends to the Postal Service. Under Meyer’s second step, we must look to the statute.

Some years before Meyer was decided, the Court of Appeals for the District of Columbia Circuit recognized the two distinct inquiries required when the question is whether the Government, or an entity it owns, is named as a defendant in a suit under the antitrust laws. Sea-Land Serv., Inc. v. Alaska R. Co., 659 F. 2d 243, 245 (1981) (R. Ginsburg, J.). That is the correct approach. Upon examining the Sherman Act, our decisions interpreting it, and the statutes that create and organize the Postal Service, we conclude that the Postal Service is not subject to antitrust liability.

The Sherman Act imposes liability on any “person.” It defines the word. It provides that “‘person* . . . shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States [or of States or foreign governments].” 15 U. S. C. §7. It follows then, that corporate or governmental status in most instances is not a bar to the imposition of liability on an entity as a “person” under the Act. The federal prohibition, for instance, binds state governmental bodies. See Georgia v. Evans, 316 U. S. 159 (1942); see also Pfizer Inc. v. Government of India, 434 U. S. 308 (1978).

It is otherwise, however, when liability is pursued against the Federal Government. The Court made this proposition clear in United States v. Cooper Corp., 312 U. S. 600, 614 (1941). The question in Cooper was whether, under the Sherman Act, the United States was a person who could bring a treble-damages claim for its own alleged antitrust injury. The Court held the United States could not sue for antitrust damages because it is not a person under the antitrust statute. Id., at 606-607. Important to the present case is an explicit reason given by the Cooper Court for reaching its decision. The Court observed that if the definition of “person” included the United States, then the Government would be exposed to liability as an antitrust defendant, a result Congress could not have intended. Id., at 607, 609.

After Cooper, Congress amended the antitrust statutes to allow the United States to bring antitrust suits. For our purposes, the means by which it did so is instructive. Congress did not change the definition of “person” in the statute, but added a new section allowing the United States to sue. See 15 U. S. C. § 15a. So, Cooper’s conclusion that the United States is not an antitrust “person,” in particular not a person who can be an antitrust defendant, was unaltered by Congress’ action; indeed, the means Congress used to amend the antitrust law implicitly ratified Cooper’s conclusion that the United States is not a proper antitrust defendant. See 312 U. S., at 609; Sea-Land, supra, at 245 (“Although Congress was well aware of the view the Court indicated in Cooper Corp., that Congress had not described the United States as a ‘person’ for Sherman Act purposes, Congress addressed only the direct holding in that case — the ruling that the United States was not authorized to proceed as a Sherman Act treble damage action plaintiff” (footnote omitted)).

The remaining question, the antitrust laws the Postal Service is a person separate from the United States itself. It is not. The statutory designation of the Postal Service as an “independent establishment of the executive branch of the Government of the United States” is not consistent with the idea that it is an entity existing outside the Government. The statutory instruction that the Postal Service is an establishment “of the executive branch of the Government of the United States” indicates just the contrary. The PRA gives the Postal Service a high degree of independence from other offices of the Government, but it remains part of the Government. The Sherman Act defines “person” to include corporations, and had the Congress chosen to create the Postal Service as a federal corporation, we would have to ask whether the Sherman Act’s definition extends to the federal entity under this part of the definitional text. Congress, however, declined to create the Postal Service as a Government corporation, opting instead for an independent establishment. The choice of words likely was more informed than unconsidered,'because Congress debated proposals to make the Postal Service a Government corporation before it enacted the PRA. See H. R. Rep. No. 91-1104, p. 6 (1970).

As we have noted, the PRA refers in explicit terms to various federal statutes and specifies that the Postal Service is exempt from some and subject to others. 39 U. S. C. §§ 409-410. It makes no mention of the Sherman Act or the antitrust laws, however. The silence leads to no helpful inference one way or the other on the issue before us; but the other considerations we have discussed lead us to say that absent an express statement from Congress that the Postal Service can be sued for antitrust violations despite its status as an independent establishment of the Government of the United States, the PRA does not subject the Postal Service to antitrust liability.

Our conclusion is consistent with the nationwide, public responsibilities of the Postal Service. The Postal Service has different goals, obligations, and powers from private corporations. Its goals are not those of private enterprise. The most important difference is that it does not seek profits, but only to break even, 39 U. S. C. §3621, which is consistent with its public character. It also has broader obligations, including the provision of universal mail delivery, the provision of free mail delivery to certain classes of persons, §§3201-3405, and, most recently, increased public responsibilities related to national security. Finally, the Postal Service has many powers more characteristic of Government than of private enterprise, including its state-conferred monopoly on mail delivery, the power of eminent domain, and the power to conclude international postal agreements.

On the other hand, but in ways still relevant to the non-applicability of the antitrust laws to the Postal Service, its powers are more limited than those of private businesses. It lacks the prototypical means of engaging in anti-competitive behavior: the power to set prices. This is true both as a matter of mechanics, because pricing decisions are made with the participation of the separate Postal Rate Commission, and as a matter of substance, because price decisions are governed by principles other than profitability. See supra, at 740-741. Similarly, before it can close a post office, it must provide written reasons, and its decision is subject to reversal by the Commission for arbitrariness, abuse of discretion, failure to follow procedures, or lack of evidence. § 404. The Postal Service’s public characteristics and responsibilities indicate it should be treated under the antitrust laws as part of the Government of the United States, not a market participant separate from it.

The Postal Service does operate nonpostal lines of business, for which it is free to set prices independent of the Commission, and in which it may seek profits to offset losses in the postal business. § 403(a). The great majority of the organization’s business, however, consists of postal services. See Revenue, Pieces, and Weight by Classes of Mail and Special Services for Government Fiscal Year 2003, available at http://www.usps.com/financials/_pdf/GFY03.pdf (as visited Jan. 23, 2004, and available in Clerk of Court’s case file). Further, the Postal Service’s predecessor, the Post Office Department, had nonpostal lines of business, such as money orders and postal savings accounts. Cullinan 84-85, 107. As a Cabinet agency, the old Post Office Department was not subject to the antitrust laws. The new Postal Service’s lines of business beyond the scope of its mail monopoly and universal service obligation do not show it is separate from the Government under the antitrust laws.

* * *

The Postal Service, in both form and function, is not a separate antitrust person from the United States. It is part of the Government of the United States and so is not controlled by the antitrust laws. The judgment of the Court of Appeals is reversed.

It is so ordered.


author: Per Curiam.

text:
    MUHAMMAD, aka MEASE v. CLOSE
    No. 02-9065.
    Argued December 1, 2003
    Decided February 25, 2004

      Corinne Beckwith, by appointment of the Court, 539 U. S. 925, argued the cause for petitioner. With her on the brief were James W. Klein, Sarnia Fam, and Giovanna Shay.

      Thomas L. Casey, Solicitor General of Michigan, argued the cause for respondent. With him on the briefs were Michael A. Cox, Attorney General, and Linda M. Olivieri and Kevin Himebaugh

         Alphonse A Gerhardstein filed a brief for the Prison Reform Advocacy Center as amicus curiae urging reversal.

   Per Curiam.

I

Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U. S. C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U. S. C. § 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U. S. 475, 500 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action. Some cases are hybrids, with a prisoner seeking relief unavailable in habeas, notably damages, but on allegations that not only support a claim for recompense, but imply the invalidity either of an underlying conviction or of a particular ground for denying release short of serving the maximum term of confinement. In Heck v. Humphrey, 512 U. S. 477 (1994), we held that where success in a prisoner’s § 1983 damages action would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence. Accordingly, in Edwards v. Balisok, 520 U. S. 641 (1997), we applied Heck in the circumstances of a § 1983 action claiming damages and equitable relief for a procedural defect in a prison’s administrative process, where the administrative, action taken against the plaintiff could affect credits toward release based on good time served. In each instance, conditioning the right to bring a §1983 action on a favorable result in state litigation or federal habeas served the practical objective of preserving limitations on the availability of habeas remedies. Federal petitions for habeas corpus may be granted only after other avenues of relief have been exhausted. 28 U. S. C. § 2254(b)(1)(A). See Rose v. Lundy, 455 U. S. 509 (1982). Prisoners suing under § 1983, in contrast, generally face a substantially lower gate, even with the requirement of the Prison Litigation Reform Act of 1995 that administrative opportunities be exhausted first. 42 U. S. C. § 1997e(a).

Heck's requirement to resort to state litigation and federal habeas before § 1983 is not, however, implicated by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his sentence. There is no need to preserve the habeas exhaustion rule and no impediment - under Heck in such a case, of which this is an example.

II

A

This suit grew out of a confrontation between petitioner, Muhammad, an inmate, and the respondent Michigan prison official, Close. App. 70. According to his amended complaint, Muhammad was eating breakfast when he saw Close . “staring at him through the hallway window.” Id., at 71. Eventually Muhammad stared back, provoking Close to assume “a fighting stance” and “com[e] into the dining area at a fast pace with his face contorted.” Ibid. Muhammad stood up and faced him, and when the two were within a foot of one another, Close asked, “whats [sic] up,” all the while “staring angerly [sic].” In the aftermath of the confrontation, Muhammad was handcuffed, taken to a detention cell, and charged with violating the prison rule prohibiting “Threatening Behavior.” (Emphasis deleted.) Under the rules, special detention was required prior to a hearing on the charge, which occurred six days later. Muhammad was acquitted of threatening behavior, but found guilty of the lesser infraction of insolence, for which prehearing detention would not have been mandatory. Ibid. Muhammad was required to serve an additional 7 days of detention and deprived of privileges for 30 days as penalties for insolence. Ibid.

Muhammad then brought this § 1983 action, alleging that Close had charged him with threatening behavior (and subjected him to mandatory prehearing lockup) in retaliation for prior lawsuits and grievance proceedings against Close. Id., at 72. He amended his original complaint after obtaining counsel, and neither in his amended complaint nor at any subsequent juncture did Muhammad challenge his conviction for insolence, or the subsequent disciplinary action. See Brief for Petitioner 42. The amended complaint sought no expungement of the misconduct finding, and in fact Muhammad conceded that the insolence determination was justified. The only relief sought was $10,000 in compensatory and punitive damages “for the physical, mental and emotional injuries sustained” during the six days of prehearing detention mandated by the charge of threatening behavior attributable to Close’s retaliatory motive. App. 72.

Following discovery, the Magistrate Judge recommended summary judgment for Close on the ground that Muhammad had failed to come forward with sufficient evidence of retaliation to raise a genuine issue of material fact .as to that element. Id., at 63. The District Court adopted the recommendation. Id., at 70.

B

Muhammad then appealed to the United States Court of Appeals for the Sixth Circuit, which, by an opinion designated not for publication, affirmed the summary judgment for Close, though not on the basis recommended by the Magistrate Judge and adopted by the District Court. 47 Fed. Appx. 738 (2002). Instead of considering the conclusion that Muhammad had produced inadequate evidence of retaliation, a ground that would have been dispositive if sustained, the Court of Appeals held the action barred by Heck because Muhammad had sought, among other relief, the expungement. of the misconduct charge from the prison record. Relying upon Circuit precedent, see Huey v. Stine, 230 F. 3d 226 (2000), the Court of Appeals held that an action under § 1983 to expunge his misconduct charge and for other relief occasioned by the misconduct proceedings could be brought only after satisfying Heck’s favorable termination requirement. The Circuit thus maintained a split on the applicability of Heck to prison disciplinary proceedings in the absence of any implication going to the fact or duration of underlying sentence, four Circuits having taken the contrary view. See Leamer v. Fauver, 288 F. 3d 532, 542-544 (CA3 2002); DeWalt v. Carter, 224 F. 3d 607, 613 (CA7 2000); Jenkins v. Haubert, 179 F. 3d 19, 27 (CA2 1999); Brown v. Plaut, 131 F. 3d 163, 167-169 (CADC 1997). We granted certiorari to resolve the conflict, 539 U. S. 925 (2003), and now reverse.

III

The decision of the Court of Appeals was flawed as a matter of fact and as a matter of law. Its factual error was the assumption that Muhammad sought to expunge the misconduct charge from his prison record. The court simply overlooked the amended complaint that sought no such relief. '

The factual error was compounded by following the mistaken view expressed in Circuit precedent that Heck applies categorically to all suits challenging prison disciplinary proceedings. But these administrative determinations do not as such raise any implication about the validity of the underlying conviction, and although they may affect the duration of time to be served (by bearing on the award or revocation of good-time credits) that is not necessarily so. The effect of disciplinary proceedings on good-time credits is a matter of state law or regulation, and in this case, the Magistrate Judge expressly found or assumed that no good-time credits were eliminated by the prehearing action Muhammad called in question. His § 1983 suit challenging this action could not therefore be construed as seeking a judgment at odds with his conviction or with the State’s calculation of time to be served in accordance with the underlying sentence. That is, he raised no claim on which habeas relief could have been granted on any recognized theory, with the consequence that Heck’s favorable termination requirement was inapplicable.

>

Close tries to salvage the appellate court’s judgment by arguing for the first time here that Heck is squarely on point because, if the § 1983 suit succeeded, Muhammad would be entitled to restoration of some good-time credits with the result of less time to be spent in prison. Brief for Respondent 17-18. But this eleventh-hour contention was waived. The Magistrate Judge’s report stated that good-time credits were not affected by the allegedly retaliatory overcharge of threatening behavior and the consequential prehearing detention Muhammad complained of, and Close had every opportunity to challenge the Magistrate Judge’s position in the District Court and in the Court of Appeals. Having failed to raise the claim when its legal and factual premises could have been litigated, Close cannot raise it now. See Auer v. Robbins, 519 U. S. 452, 464 (1997).

The judgment of the Court of Appeals, accordingly, is reversed, and the case is remanded for consideration of summary judgment on the ground adopted by the District Court, and for any further proceedings consistent with this opinion.

It is so ordered.

       The assumption is that the incarceration that matters under Heck is the incarceration ordered by the original judgment of conviction, not special disciplinary confinement for infraction of prison rules. This Court has never followed the speculation in Preiser v. Rodriguez, 411 U. S. 475, 499 (1973), that such a prisoner subject to “additional and unconstitutional restraints” might have a habeas claim independent of §1983, and the contention is not raised by the State here.

       Members of the Court have habeas for other reasons may also dispense with the Heck requirement. See Heck v. Humphrey, 512 U. S. 477, 491 (1994) (Souter, J., concurring in judgment); Spencer v. Kemna, 523 U. S. 1, 21-22 (1998) (Ginsburg, J., concurring). This case is no occasion to settle the issue.

       The Michigan Department No. 03.03.105 (June 6, 1994) (Directive), defines “Threatening Behavior” as “Words, actions or other behavior which expresses a[n] intent to injure or physically abuse another person.” App. 40 (emphasis deleted).

       The Directive defines “Insolence” as which is intended to harass, or cause alarm in an employee.” Id., at 44 (emphasis deleted).


text:
    October 6, 2003
    No. 02-1553.
    Philip Morris USA Inc. v. Williams, Personal Representative of the Estate of Williams, Deceased.
   Ct. App. Ore. Certiorari granted, judgment vacated, and case remanded for further consideration in light of State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003).


text:
    No. 02-1748.
    Chrysler Corp. v. Clark.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003).


text:
    No. 02-1752.
    Hughes Electronics Corp., Inc., et al. v. Garcia et al.
   Ct. App. Cal., 2d App. Dist. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Green Tree Financial Corp. v. Bazzle, 539 U. S. 444 (2003).


text:
    No. 02-11173.
    Grant v. Oklahoma.
   Ct. Crim. App. Okla. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Wiggins v. Smith, 539 U. S. 510 (2003).


text:
    No. 03-54.
    Wien & Malkin LLP et al. v. Helmsley-Spear, Inc.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Citizens Bank v. Alafabco, Inc., 539 U. S. 52 (2003) (per curiam).


text:
    No. 02-10724.
    Miller v. McCaughtry, Warden.
   C. A. 7th Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 02-10838.
    Tilli v. Rehnquist, Chief Justice of the United States, et al.
   C. A. D. C. Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 02-10847.
    Vukadinovich v. Board of School Trustees of North Newton School Corp. et al.
   C. A. 7th Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 02-11356.
    Sivak v. Johnson et al.
   C. A. 9th Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 03-5028.
    Gunnell v. Taft, Governor of Ohio, et al.
   C. A. 6th Cir. Motion of petitioner for leave to proceed informa pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 03-5030.
    Goldwater v. Arpaio.
   C. A. 9th Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 03-5118.
    Magee v. United States Court of Appeals for the Ninth Circuit.
   C. A. 9th Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 03-5216.
    Goldwater v. Katz, Judge, Superior Court of Arizona, Maricopa County.
   Ct. App. Ariz. Motion of petitioner for leave to proceed in forma pauperis denied, and certio-rari dismissed. See this Court’s Rule 39.8.


text:
    No. 03-5385.
    Nabelek v. Bradford et al.
   Ct. App. Tex., 14th Dist. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 03-5630.
    Okoro v. Scibana, Warden.
   C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 03-6099.
    Mathison v. United States.
   C. A. 8th Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8.


text:
    No. 02-11034.
    Swint v. United States.
   C. A. 3d Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8. As petitioner has repeatedly abused this Court’s process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and the petition is submitted in compliance with Rule 33.1.See Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam).

Justice Stevens dissents.

See id., at 4, and cases cited therein.


text:
    No. 02-11190.
    Jarrett v. Los Angeles County Department of Public Social Services.
   C. A. 9th Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8. As petitioner has repeatedly abused this Court’s process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and-the petition is submitted in compliance with Rule 33.1. See Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam).

Justice Stevens dissents.

See id., at 4, and cases cited therein.


text:
    No. 03-5051.
    Green v. Watkins, Warden.
   Sup. Ct. Colo. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8. As petitioner has repeatedly abused this Court’s process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rulé 38(a) is paid and the petition is submitted in compliance with Rule 33.1.See Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam).

Justice Stevens dissents.

See id., at 4, and cases cited therein.


text:
    No. 03-5164.
    Green v. Nadeau et al.
   Ct. App. Colo. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8. As petitioner has repeatedly abused this Court’s process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and the petition is submitted in compliance with Rule 33.1.See Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam).

Justice Stevens dissents.

See id., at 4, and cases cited therein.


text:
    No. 03-5457.
    McSheffrey v. Lappin, Director, Federal Bureau of Prisons, et al.
   C. A. D. C. Cir. Motion of petitioner for leave to proceed in forma pauperis denied, and certio-rari dismissed. See this Court’s Rule 39.8. As petitioner has repeatedly abused this Court’s process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and the petition is submitted in compliance with Rule 33.1. See Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam).

Justice Stevens dissents.

See id., at 4, and cases cited therein.


text:
    No. 03-5940.
    Eldridge v. United States.
   Ct. App. D. C. Motion of petitioner for leave to proceed in forma pauperis denied, and certiorari dismissed. See this Court’s Rule 39.8. As petitioner has repeatedly abused this Court’s process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and the petition is submitted in compliance with Rule 33.1. See Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam).

Justice Stevens dissents.

See id., at 4, and cases cited therein.


text:
    No. 02M96.
    McCorkle v. United States.
   Renewed motion for leave to file petition for writ of certiorari under seal with redacted copies for the public record granted.


text:
    No. 02M109.
    No. 03M21.
    Arguelles v. Utah; and Smith v. Missouri.
   Motions for leave to proceed in forma pauperis without affidavits of indigency executed by petitioners granted.


text:
    No. 03M1.
    M. K. B. v. Warden et al.
   Motion for leave to file petition for writ of certiorari under seal with redacted copies for the public record granted.


text:
    No. 03M2.
    Chambers v. Ashcroft, Attorney General, et al.; Estep v. Peace et al.; Freer-Heeter v. State Bar of Texas; Goodson v. Rowley, Superintendent, Northeast Correctional Center; Phillips v. Yarborough, Warden; Hess v. Johnson, Secretary of Navy; Renteria v. Department of Homeland Security; Pinckney v. Allard, Superintendent, Franklin Correctional Facility; Jackson v. Phoenix Police Department et al.; Larocco v. Senkowski, Superintendent, Clinton Correctional Facility; Moore v. Crosby, Secretary, Florida Department of Corrections, et al.; Johnson v. Nino; Brown v. United States; Portnoy v. Clairson International Corp.; and Johnson v. First Federal Savings & Loan.
    No. 03M3.
    No. 03M4.
    No. 03M5.
    No. 03M6.
    No. 03M8.
    No. 03M9.
    No. 03M11.
    No. 03M12.
    No. 03M14.
    No. 03M15.
    No. 03M16.
    No. 03M17.
    No. 03M19.
    No. 03M20.
   . Motions to direct the Clerk to file petitions for writs of certiorari out of time denied.


text:
    No. 03M7.
    Guinn v. McGuire.
   Motion to direct the Clerk to file petition for writ of certiorari out of time under this Court’s Rule 14.5 denied.


text:
    No. 03M10.
    American Forest & Paper Assn. et al. v. League of Wilderness Defenders/Blue Mountain Biodiversity Project et al.
   Motion for leave to intervene to file petition for writ of certiorari denied.


text:
    No. 03M13.
    No. 03M18.
    Nakahara v. California; and Bailey v. United States.
   Motions for leave to proceed in forma pauperis without affidavits of indigency executed by petitioners denied.


text:
    No. 129,
    Orig.
    Virginia v. Maryland.
   Motion of plaintiff for judicial notice denied. [For earlier order herein, see, e.g., 538 U. S. 997.]


text:
    No. 99-927.
    Ross et al. v. Alaska et al.,
   528 U. S. 1155. Motion of petitioners for costs and attorney’s fees denied.

Justice Breyer took no part in the consideration or decision of this motion.


text:
    No. 02-428.
    Dastar Corp. v. Twentieth Century Fox Film Corp. et al.,
   539 U. S. 23. Motion of petitioner for attorney’s fees denied without prejudice to filing in the United States Court of Appeals for the Ninth Circuit.

Justice Breyer took no part in the consideration or decision of this motion.


text:
    No. 02-626.
    South Florida Water Management District v. Miccosukee Tribe of Indians et al.
   C. A. 11th Cir. [Certiorari granted, 539 U. S. 957.] Motion of National Hydropower Association for leave to file a brief as amicus curiae granted.


text:
    No. 02-811.
    Groh v. Ramirez et al.
   C. A. 9th Cir. [Certiorari granted, 537 U. S. 1231.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 02-857.
    Household Credit Services, Inc., et al. v. Pfennig.
   C. A. 6th Cir. [Certiorari granted, 539 U. S. 957.] Motion of petitioner to dispense with printing the joint appendix granted.


text:
    No. 02-954.
    Office of Independent Counsel v. Favish et al.
   C. A. 9th Cir. [Certiorari granted, 538 U. S. 1012.] Motion of Reporters Committee for Freedom of the Press et al. for leave to participate in oral argument as amici curiae and for divided argument denied.


text:
    No. 02-964.
    Baldwin v. Reese.
   C. A. 9th Cir. [Certiorari granted, 538 U. S. 1056.] Motion of respondent for appointment of counsel granted, and Dennis N. Balske, Esq., of Portland, Ore,, is appointed to serve as counsel for respondent in this case.


text:
    No. 02-1019.
    Arizona v. Gant.
   Ct. App. Ariz. [Certiorari granted, 538 U. S. 976.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 02-1080.
    General Dynamics Land Systems, Inc. v. Cline et al.
   C. A. 6th Cir. [Certiorari granted, 538 U. S. 976.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 02-1205.
    Jones et al., on Behalf of Herself and a Class of Others Similarly Situated v. R. R. Donnelley & Sons Co.
   C. A. 7th Cir. [Certiorari granted, 538 U. S. 1030.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 02-1315.
    Locke, Governor of Washington, et al. v. Davey.
   C. A. 9th Cir. [Certiorari granted,.538 U. S. 1031.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 02-1348.
    Olympic Airways v. Husain, Individually, and as Personal Representative of the Estate of Hanson, Deceased, et al.
   C. A. 9th Cir. [Certiorari granted, 538 U. S. 1056.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.

Justice Breyer took no part in the consideration or decision of this motion.


text:
    No. 02-1646.
    No. 02-1672.
    No. 02-1865.
    Higbee Co., dba Dillard Department Stores, Inc. v. Chapman. Jackson v. Birmingham Board of Education. 3M Co., fka Minnesota Mining & Manufacturing Co. v. LePage’s Inc. et al.
   C. A. 6th Cir.;

C. A. 11th Cir.; and

C. A. 3d Cir. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 02-6683.
    Castro v. United States.
   C. A. 11th Cir. [Certiorari granted, 537 U. S. 1170.] Motion of petitioner for appointment of counsel granted, and Michael G. Frick, Esq., of Brunswick, Ga., is appointed to serve as counsel for petitioner in this case.


text:
    No. 02-9410.
    Crawford v. Washington.
   Sup. Ct. Wash. [Certiorari granted, 539 U. S. 914.] Motion of petitioner for appointment of counsel granted, and Jeffrey L. Fisher, Esq., of Seattle, Wash., is appointed to serve as counsel for petitioner in this case.


text:
    No. 02-9872.
    In re Morrison.
   Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [538 U. S. 1030] denied.


text:
    No. 02-9889.
    In re Morrison.
   Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [538 U. S. 1030] denied.


text:
    No. 02-9903.
    Strable v. Strable.
   Ct. App. S. C. Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [539 U. S. 913] denied.


text:
    No. 02-9936.
    Eldridge v. District of Columbia et al.
   C. A. D. C. Cir. Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [539 U. S. 913] denied.


text:
    No. 02-9945.
    Brooks v. Ajibade et al.
   C. A. 11th Cir. Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [538 U. S. 1054] denied.


text:
    No. 02-9957.
    Shelton v. Eikerman.
   C. A. 8th Cir. Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [539 U. S. 913] denied.


text:
    No. 02-10471.
    No. 02-10663.
    No. 03-5252.
    Harris v. San Bernardino County Department of Children’s Services. Rowe v. Union Planters Bank of Southeast Missouri et al. Gaines v. Pomona College.
   Ct. App. Cal., 4th App. Dist.;

C. A. 8th Cir.; and

C. A. 9th Cir. Motions of petitioners for leave to proceed in forma pauperis denied. Petitioners are allowed until October 27, 2003, within which to pay the docketing fee required by Rule 38(a) and to submit petitions in compliance with Rule 33.1 of the Rules of this Court.


text:
    No. 02-11062.
    Washington v. State Street Bank & Trust Co. et al.
   C. A. 1st Cir. Motion of petitioner for leave to proceed informa pauperis denied. Petitioner is allowed until October 27, 2003, within which to pay the docketing fee required by Rule 38(a) and to submit a petition in compliance with Rule 33.1 of the Rules of this Court.

Justice Breyer took no part in the consideration or decision of this motion.


text:
    No. 02-1789.
    No. 02-10760.
    No. 02-11141.
    No. 02-11155.
    No. 02-11363.
    No. 03-34.
    No. 03-5026.
    No. 03-5146.
    In re Simmons; In re Cooper; In re Rodgers; In re Hamidullah; In re Charles; In re Punchard; In re Hubbard; In re Gallego; In re Tibbs; In re Bankston; In re Sexton; In re Gorman; In re Zuniga-Hernandez; In re Bush; In re Riemer; In re McQuiddy; In re Brown; In re Powell; In re Cobbin; In re Ambort; In re Smith; In re Abdul-Mateen, aka Bennett; and In re Cruz.
    No. 03-5152.
    No. 03-5214.
    No. 03-5309.
    No. 03-5371.
    No. 03-5378.
    No. 03-5468.
    No. 03-5482.
    No. 03-5602.
    No. 03-5696.
    No. 03-5857.
    No. 03-5926.
    No. 03-6018.
    No. 03-6025.
    No. 03-6093.
    No. 03-6156.
   Petitions for writs of habeas corpus denied.


text:
    No. 02-11159.
    In re Ferenc.
   Motion of petitioner for leave to proceed in forma pauperis denied, and petition for writ of habeas corpus dismissed. See this Court’s Rule 39.8.


text:
    No. 03-5043.
    In re Phelps.
   Motion of petitioner for leave to proceed in forma pauperis denied, and petition for writ of habeas corpus dismissed. See this Court’s Rule 39.8.


text:
    No. 03-5743.
    In re Phelps.
   Motion of petitioner for leave to proceed in forma pauperis denied, and petition for writ of habeas corpus dismissed. See this Court’s Rule 39.8.


text:
    No. 03-5887.
    In re Graves.
   Motion of petitioner for leave to proceed in forma pauperié denied, and petition for writ of habeas corpus dismissed. See this Court’s Rule 39.8.


text:
    No. 02-1729.
    No. 02-1816.
    No. 02-10496.
    No. 02-10498.
    No. 02-10542.
    No. 02-10589.
    No. 02-10659.
    No. 02-10841.
    No. 02-10963.
    No. 02-10986.
    In re Barclay et al.; In re Jarmuth; In re Morales; In re Kingsberry; In re Gardella; In re Biers; In re Sedgwick; In re Acevedo; In re Robbins; In re Townsend; In re Williams; In re Walker; In re Williams; In re Nelson; In re Dye; In re Floret, L. L. C., et al.; In re Gregg; In re Mitchell; In re Broadway; and In re Amaker.
    No. 02-11021.
    No. 02-11238.
    No. 02-11267.
    No. 02-11271.
    No. 03-64.
    No. 03-105.
    No. 03-5016.
    No. 03-5121.
    No. 03-5128.
    No. 03-5418.
   Petitions for writs of mandamus denied.


text:
    No. 02-1774.
    In re Riggs et al.
   Motion of petitioners to strike all respondent’s responses and for Rule 11 sanctions denied. Petition.for writ of mandamus and/or prohibition denied.


text:
    No. 02-10672.
    No. 03-5069.
    No. 03-5504.
    In re Dudley; In re Crawford; and In re Page.
   Petitions for writs of mandamus and/or prohibition denied.


text:
    No. 02-901.
    Blackman v. City of Dallas, Texas.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 02-1094.
    Texas v. Jackson.
   Ct. App. Tex., 11th Dist. Certiorari denied.


text:
    No. 02-1223.
    Victoria County, Texas v. Pyle.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 02-1309.
    Stanfield v. City of Florence, Alabama.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 02-1424.
    Woodford, Warden v. Douglas.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-1466.
    Favreau et al. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 02-1486.
    Alameida, Director, California Department of Corrections, et al. v. Wyatt.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 02-1489.
    Hollins v. Barnhart, Commissioner of Social Security.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 02-1498.
    B. Willis, C. P. A., Inc. v. Surface Transportation Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 02-1501.
    Miller Waste Mills, Inc. v. National Labor Relations Board et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 02-1504.
    Kwok v. New York City Transit Authority et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 02-1511.
    Booker v. City of St. Louis, Missouri, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 02-1513.
    Stewart et ux. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 02-1521.
    AT&T Corp. v. Ting, Individually and on Behalf of All Others Similarly Situated, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 02-1522.
    Beem et al. v. McKune, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 02-1523.
    Sanford, Governor of South Carolina, et al. v. Thompson, Secretary of Health and Human Services, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 02-1524.
    Weinstock v. Columbia University.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 02-1529.
    Gomez-Chavez v. Perryman, District Director, Bureau of Immigration and Customs Enforcement, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 02-1537.
    Leeper et ux. v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Certiorari denied.