source: Caselaw Access Project

author: Per Curiam. Justice White,

license: Public Domain

text:
    CALIFORNIA v. ROONEY
    No. 85-1835.
    Argued March 25, 1987
    Decided June 23, 1987

      Arnold T. Guminski argued the cause for petitioner. With him on the briefs were Harry B. Sondheim and Ira Reiner.

      Arthur Lewis argued the cause for respondent. With him on the brief was Roger S. Hanson.

      Briefs of amici curiae urging reversal were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Steve White, Chief Assistant Attorney General, Thomas A. Brady, Supervising Deputy Attorney General, Laurence K. Sullivan, Assistant Supervising Deputy Attorney General, and by the Attorneys General for their respective States as follows: Charles A. Graddick of Alabama, Jim Smith of Florida, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, David L. Armstrong of Kentucky, Edward Lloyd Pittman of Mississippi, Nicholas J. Spaeth of North Dakota, LeRoy S. Zimmerman of Pennsylvania, T. Travis Medlock of South Carolina, Mary Sue Terry of Virginia, Kenneth O. Eikenberry of Washington, Bronson La Follette of Wisconsin, and A. G. McClintock of Wyoming; and for Americans for Effective Law Enforcement, Inc., et al. by David Crump, Courtney A. Evans, Daniel B. Hales, Jack E. Yelverton, Fred E. Inbau, Wayne W. Schmidt, and James P. Manak.

        John Hamilton Scott filed a brief for the California Public Defender’s Association as amicus curiae urging affirmance.

   Per Curiam.

We granted the State’s petition for certiorari to decide whether respondent retained an expectation of privacy in a bag that he placed in the communal trash bin of a multi-unit apartment building. After briefing and oral argument on that issue, it has now become clear that the question is not properly presented in this case.

I

Based upon an informant’s tip that respondent was accepting wagers on professional football games at a specified telephone number, police began an investigation which eventually led to an application for a search warrant for 1120 North Flores Street, Apartment No. 8, West Hollywood, California. In conjunction with the application, a police officer submitted an affidavit including at least five details in support of the warrant: (1) that the informant had named Rooney and had correctly specified when Rooney would be at the apartment; (2) that the telephone number and utilities were listed to one Peter Ryan, and that use of a pseudonym is common among bookmakers; (3) that Rooney had previously been arrested for bookmaking at the apartment; (4) that through a search of the communal trash bin in the apartment building’s basement the police had retrieved a bag containing mail addressed to Rooney at Apartment No. 8, and containing evidence of gambling activity; and (5) that the police had dialed the telephone number the informant had given them and had overheard a conversation involving point spreads on professional football games. See App. 19-28. The Magistrate found probable cause for a search of Apartment No. 8, and issued a warrant. Incriminating evidence was found during the search, and respondent was arrested.

After he was charged with a number of felony offenses, respondent brought a motion to quash the search warrant and to dismiss the felony charges against him. He argued that there was no probable cause to support the warrant because the earlier warrantless search of the communal trash bin had violated his Fourth Amendment rights under a number of California Supreme Court precedents, and that, without the incriminating evidence found in the trash, there was insufficient evidence to support the warrant. A Magistrate granted respondent’s motion, agreeing that the evidence obtained from the trash bin could not be used to support the search warrant for the apartment, and ruling that the other evidence offered in support of the search warrant was insufficient to establish probable cause. The Superior Court reached the same conclusion. Pursuant to California procedural rules, the State then informed the court that it could not prosecute the case without the evidence seized in the search of the apartment, and the case was dismissed, thus allowing the State to appeal the order quashing the warrant.

The Court of Appeal reversed on the only issue before it— to use the State’s words, “the sufficiency of the affidavit in support of the search warrant.” 175 Cal. App. 3d 634, 221 Cal. Rptr. 49 (1985). Although it concluded that the evidence found in the trash bin could not be used to support the search warrant, the Court of Appeal examined the other evidence offered in support of the warrant under the standards set forth in Illinois v. Gates, 462 U. S. 213 (1983), and held that there was sufficient other evidence to establish probable cause in support of the warrant. The Superior Court’s order dismissing the case was therefore reversed, allowing the prosecution to proceed. The California Supreme Court denied both petitioner’s and respondent’s petitions for review. The State then sought review in this Court, arguing that the California courts had erred in stating that the search of the trash was unconstitutional. We granted certiorari. 479 U. S. 881 (1986).

II

This Court “reviews judgments, not statements in opinions.” Black v. Cutter Laboratories, 351 U. S. 292, 297 (1956); see also Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984); Williams v. Norris, 12 Wheat. 117, 120 (1827). Here, the judgment of the Court of Appeal was entirely in the State’s favor — the search warrant which was the sole focus of the litigation was deemed valid. The fact that the Court of Appeal reached its decision through analysis different than this Court might have used does not make it appropriate for this Court to rewrite the California court’s decision, or for the prevailing party to request us to review it. That the Court of Appeal even addressed the trash bin issue is mere fortuity; it could as easily have held that since there was sufficient evidence to support the search even without the trash evidence, it would not discuss the constitutionality of the trash search. The Court of Appeal’s use of analysis that may have been adverse to the State’s long-term interests does not allow the State to claim status as a losing party for purposes of this Court’s review.

But, the State argues, if the case does come to trial, and if the State does wish to introduce the evidence, it will be barred from doing so because the reasoning in the Court of Appeal’s decision will constitute the law of the case. There are two too many “ifs” in that proposition to make our review appropriate at this stage. Even if everything the prosecution fears comes to bear, the State will still have the opportunity to appeal such an order, and this Court will have the chance to review it, with the knowledge that we are reviewing a state-court judgment on the issue, and that the State Supreme Court has passed upon or declined review in a case squarely presenting the issue. As it stands, we have no way of knowing what the California Supreme Court’s position on the issue of trash searches currently is. It is no answer to say that the California Supreme Court already had its chance to review the matter and declined to do so when it denied the State’s petition for review in this case. The denial of review may well have been based on that court’s recognizing, as we now do, that the prosecution won below, and was therefore not in a position to appeal. Giving the California Supreme Court an opportunity to consider the issue in a case that properly raises it is a compelling reason for us to dismiss this petition. Under these circumstances, our review of the trash-search issue, which has never been the subject of an actual judgment, would be most premature.

The writ of certiorari is dismissed as improvidently granted.

Justice Marshall concurs in the judgment.

Justice White,

with whom

The Chief Justice and Justice Powell join, dissenting.

The police obtained information that respondent, using a specified telephone number, was accepting wagers on professional football games. It was learned from the telephone company that the telephone number was listed to one Peter Ryan at 1120 North Flores Street, Apartment No. 8, West Hollywood, California. Two officers went to 1120 North Flores Street, a 28-unit apartment building with a subterranean garage which was accessible to the public, entered the garage, and searched the communal trash bin. In the bottom half of the bin they discovered a brown paper shopping bag which contained mail addressed to respondent at 1120 North Flores Street, Apartment No. 8, and papers bearing bookmaking notations. The police seized the bag. They used these items and the results of further investigation to support a search warrant of respondent’s apartment, which was duly executed.

Rooney was charged with bookmaking and associated crimes. He moved to have the warrant quashed and the evidence obtained from the search of the trash bin excluded. The trial court granted his motion, the State declared that it could not proceed, and the case was dismissed. The State’s appeal followed. The California Court of Appeal held that the State had failed to prove that Rooney had abandoned his property by putting it into the trash bin. Because the garage was accessible to the public, however, and the officers did not commit a trespass by entering the garage, the court also rejected Rooney’s claim that the search of the bin was illegal because it occurred within the curtilage of his apartment. In so ruling, the Court of Appeal relied on a holding of the California Supreme Court to this effect. People v. Terry, 61 Cal. 2d 137, 152, 390 P. 2d 381, 391 (1964). The court went on to hold that under the decisions of the Supreme Court of California, the Fourth Amendment did not require a warrant for a trash-bin search but did require probable cause, which the court found lacking here. The search of the trash bin therefore violated the Fourth Amendment and the evidence seized from the bin was not admissible. The subsequent warrant, however, was itself valid, since it was supported by probable cause wholly aside from the trash-bin evidence. It is the former holding that the State challenged in its petition for certiorari after the California Supreme Court denied review. I would reverse.

I

We granted certiorari to consider whether the search of the communal trash bin violated the Fourth Amendment. The Court now holds that the issue is not properly before us and dismisses the writ. Because this judgment is plainly infirm, I dissent.

Rooney first moved to quash the search warrant in the Municipal Court on the ground that the evidence taken from the trash bin had been illegally seized and could not be used to furnish probable cause for the warrant. The Magistrate agreed that the trash-bin search was illegal and that aside from the items taken from the bin, the search warrant affidavit failed to reveal probable cause for the issuance of the warrant. The case was dismissed when the State indicated it could not proceed.

The State, claiming that the ruling had been erroneous, moved in the Superior Court to reinstate the charges. The motion was granted and a trial date was set. Rooney then filed a motion “to suppress as evidence all tangible or intangible things seized, including but not limited to observations and conversations.” App. 40-41. There were two grounds for the motion: first, that the State had obtained the address of the apartment without a warrant and that this alleged violation tainted the fruits of all subsequent investigations; second, that the search of the trash bin was illegal. Id., at 43-45. Most of the hearing on the motion centered on the search of the trash bin, the court concluding that the items seized from the bin could not be used to furnish probable cause for the warrant. Id., at 69-70. The case was again dismissed on the State’s representation that it could not proceed.

The record to this point plainly reveals that the motion to suppress filed in the Superior Court literally covered the items seized from the trash bin. Moreover, quashing the warrant was based on the ruling that the search of the bin was illegal and that the items seized could not be used to support the warrant. It makes no sense to characterize this ruling as anything but a suppression of the items seized: they could not be used as evidence to support the warrant and obviously could not be used as evidence at trial.

The State appealed, arguing that the ruling on the trash bin was erroneous and that the warrant was valid. The Court now suggests that the Court of Appeal had before it only the admissibility at trial of the evidence seized from the apartment pursuant to the warrant. But the warrant could have been sustained either because the trash-bin search was legal and the items seized from the bin therefore admissible or because the other evidence was itself sufficient. The Court of Appeal expressly said that both issues were before it:

“The People bring this appeal (Pen. Code, § 1238, subd. (a)(7)) from the order dismissing the case against defendant who was charged with bookmaking (§ 337a). The dismissal was entered after the prosecution represented that it could not proceed due to the granting of defendant’s motion to quash a search warrant and suppress evidence (§ 1538.5). The first issue before us is whether the warrantless search of the defendant’s apartment building’s trash bin constituted an unreasonable search and seizure. We conclude that it did for lack of probable cause. The second issue is whether a police officer’s affidavit provided probable cause for the issuance of the search warrant authorizing the search of defendant’s apartment. We conclude that even excluding the items seized from the trash bin, the tip from the informant coupled with other corroborating evidence were sufficient to support the warrant. We therefore reverse and remand.” 175 Cal. App. 3d 634, 638-639, 221 Cal. Rptr. 49, 51 (1985) (emphasis added).

The State argued only the legality of the search of the bin, and the Court of Appeal addressed that issue first, devoting most of its opinion to the question, which it surely would not have done if the issue were irrelevant to its disposition of the case. Had the Court of Appeal upheld the trash-bin search, it would have reversed the Superior Court. The Court of Appeal dealt with the adequacy of the other evidence only after holding that the items seized from the bin could not be used as evidence to support the warrant. That ruling effectively made that evidence unavailable to the State.

Both parties filed petitions for rehearing, Rooney arguing that the issue of the adequacy of the evidence aside from the items seized from the bin was not properly before the court and that the issue had been improperly decided. The State reargued the legality of the search of the bin but also asked in any event that the court strike the portion of its opinion dealing with the items seized from the trash, since that ruling foreclosed using that evidence at trial. Both petitions were denied.

Both sides then filed petitions for review in the California Supreme Court, the State arguing that it had erroneously been denied the use at trial of the evidence found in the trash bin. Both petitions for review were denied. The State then sought a stay of the Court of Appeal’s judgment pending certiorari here. Its argument was that it was entitled to the stay in order to permit it to seek review of the judgment that the trash-bin items were not admissible at trial. The Court of Appeal granted the stay and we in turn granted certiorari.

There is no jurisdictional obstacle to deciding the issue on which we granted certiorari. The highest court of the State in which review could be had decided that question against the State, clearly holding that the trash-bin evidence must be suppressed. It then stayed the effect of that ruling. We granted certiorari, the case was briefed and orally argued, and Rooney never suggested that the issue of the trash-bin search is not properly before us. We have repeatedly held pretrial orders suppressing evidence to be final judgments within the meaning of 28 U. S. C. § 1257(3). See New York v. Quarles, 467 U. S. 649, 651, n. 1 (1984); California v. Stewart, decided with Miranda v. Arizona, 384 U. S. 436, 498, n. 71 (1966); see also Michigan v. Clifford, 464 U. S. 287 (1984); Michigan v. Tyler, 436 U. S. 499 (1978); Colorado v. Bannister, 449 U. S. 1 (1980).

The Court now dismisses the case, but I suggest that its action is based on a careless and inadequate reading of the record and that it should have more regard for the time and effort that will be wasted by its belated order. Because in my view the legality of the search of the communal trash can is properly here, I shall address it.

II

I note at the outset that I have no reason to differ with the state court that the trash bin was not within the curtilage of Rooney’s apartment, that the garage was open to the public, and that the officers committed no trespass and were not invading any private zone when they approached the trash bin. The question is whether the search of the trash bin and the seizure of some of its contents were unreasonable within the meaning of the Fourth Amendment, which protects the right of the people to be secure “in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The State submits that once Rooney placed the seized items in the trash bin, he abandoned them and lost any possessory or ownership interest in them that he may have had. Hence, they were no longer his papers or effects and were not protected by the Fourth Amendment. The Court of Appeal rejected this submission and for present purposes, I assume that under state law Rooney retained an ownership or possessory interest in the trash bag and its contents. Rooney’s property interest, however, does not settle the matter for Fourth Amendment purposes, for the reach of the Fourth Amendment is not determined by state property law. As we have said, the premise that property interests control the right of officials to search and seize has been discredited. Oliver v. United States, 466 U. S. 170, 183 (1984); Katz v. United States, 389 U. S. 347, 353 (1967); Warden v. Hayden, 387 U. S. 294, 304 (1967). The primary object of the Fourth Amendment is to protect privacy, not property, and the question in this case, as the Court of Appeal recognized, is not whether Rooney had abandoned his interest in the property-law sense, but whether he retained a subjective expectation of privacy in his trash bag that society accepts as objectively reasonable. O’Connor v. Ortega, 480 U. S. 709, 715 (1987); California v. Ciraolo, 476 U. S. 207, 211, 212 (1986); Oliver v. United States, supra, at 177; Smith v. Maryland, 442 U. S. 735, 740 (1979); Katz v. United States, supra, at 361 (Harlan, J., concurring). I therefore proceed to that inquiry.

I acknowledge at the outset that trash can reveal a great deal about the life of its disposer. As respondent eloquently phrases it, the domestic garbage can contains numerous “tell-tale items on the road map of life in the previous week.” Brief for Respondent 15. A hope of privacy is not equivalent to an expectation of privacy, however. Respondent vigorously argues that he exhibited an expectation of privacy by taking the affirmative step of placing his bag of trash in the bottom half of the dumpster. Tr. of Oral Arg. 37-38, 43-44, 55-56. This argument is somewhat difficult to accept. Nothing in the record demonstrates that respondent actually buried his trash in the bin as opposed to simply throwing it in when the bin was nearly empty. In any event, assuming that respondent did have a subjective expectation of privacy, “steps taken to protect privacy [do not] establish that expectations of privacy . . . are legitimate.” Oliver v. United States, 466 U. S., at 182. “Rather, the correct inquiry is whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Id., at 182-183. A person may well intend not to relinquish all rights in personal property but nevertheless take action rendering this intent ineffective for Fourth Amendment purposes.

The State points out that the communal trash bin in which respondent placed his refuse was accessible to other tenants in the apartment building and their guests, to the owner and manager of the building, and to the public at large. It is common knowledge that trash bins and cans are commonly visited by animals, children, and scavengers looking for valuable items, such as recyclable cans and bottles, and serviceable clothing and household furnishings. Accordingly, California argues, any expectation of privacy respondent may have had in the contents of the trash bin was unreasonable.

Respondent argues in response that the probability that garbage collectors or the police will search the contents of a particular trash bin is extremely small, and that this minute probability, in and of itself, makes his expectation of privacy in the trash bin reasonable. According to respondent, the reality of domestic garbage collection is that the collectors move quickly from bin to bin, do not have time to look for valuable items, and probably would not recognize evidence of criminal activity. Garbage is promptly intermingled with other garbage in a truck such that its origin can no longer be identified. It is then “hauled to the dump, where it will be burned/destroyed/plowed under by Caterpillar tractors, to form the foundation for new housing developments.” Brief for Respondent 16. Similarly, respondent asserts that there clearly are too few policemen in Los Angeles to conduct random searches of trash cans for evidence of crime. Respondent further argues that one may have a “differential expectation of privacy” with respect to animals, children, and scavengers and with respect to the police. Id., at 18; see Smith v. Alaska, 510 P. 2d 793, 803 (Alaska 1973) (Rabinowitz, C. J., dissenting). While it may not be totally unforeseeable that trash collectors or other third persons may occasionally rummage through one’s trash, it may be quite unexpected that the police will conduct a systematic inspection for evidence of criminal activity. In any event, respondent states that the Fourth Amendment protects against the acts of the government, not private citizens.

I am unpersuaded. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, supra, at 351-352 (citations omitted). Respondent knowingly exposed his betting papers to the public by depositing them in a trash bin which was accessible to the public. Once they were in the bin, he no longer exercised control over them. While he may not have welcomed intrusions, respondent did nothing to ensure that his refuse would not be discovered and appropriated. Indeed, he placed his papers in the bin for the express purpose of conveying them to third parties, the trash collectors, whom he had no reasonable expectation would not cooperate with the police. In Smith v. Maryland, 442 U. S. 735 (1979), we held that the installation, at the request of the police, of a pen register at the telephone company’s offices to record the telephone numbers dialed on the petitioner’s telephone did not violate the Fourth Amendment. The petitioner had no legitimate expectation of privacy in the telephone numbers since he voluntarily conveyed them to the telephone company when he used his telephone. “This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Id., at 743-744.

Respondent’s reliance on the fact that the police do not ordinarily engage in random searches, or comprehensive citywide searches, of trash cans is misplaced. A police department, like any organization with limited resources, allocates its resources to activities most likely to result in the detection or prevention of crime. The police in this case searched the trash bin after receiving a tip from an informant that a bookmaking operation was being conducted at the apartment house. It is not unforeseeable that police will investigate when they have information suggesting that an investigation will be useful. In Smith v. Maryland, for example, a Baltimore woman was robbed and thereafter received threatening and obscene phone calls from a man identifying himself as the robber. When their investigation led the police to suspect that the petitioner was the perpetrator, they had the pen register installed and recorded a call from the petitioner’s home to the victim. The petitioner would have been entirely justified in believing that the police would not likely have discovered his telephone call to the victim by means of a random search of telephone numbers dialed in the city, and that the police would not likely have undertaken a systematic search of all telephone calls made in the city. That fact, however, did not give petitioner a legitimate expectation of privacy in the telephone numbers he dialed. In California v. Ciraolo, 476 U. S., at 214, n. 2, we expressly rejected the California Court of Appeal’s position that a search, which it would have found permissible if conducted pursuant to a routine police patrol, violated the Fourth Amendment because information of illegality had led the police to focus on a particular place. We held in that case that the observation of a fenced backyard by police officers trained in marijuana identification from a private plane at an altitude of 1,000 feet did not violate the Fourth Amendment because the defendant had no legitimate expectation that his property would not be so observed:

“The observations of Officers Shutz and Rodriguez in this case took place within public navigable airspace . . . in a physically nonintrusive manner; from this point they were able to observe plants readily discernible to the naked eye as marijuana. That the observation from the aircraft was directed at identifying the plants and the officers were trained to recognize marijuana is irrelevant. Such observation is precisely what a judicial officer needs to provide a basis for a warrant. Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. On this record, we readily conclude that respondent’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.” Id., at 213-214.

Any distinction between the examination of trash by trash collectors and scavengers on the one hand and the police on the other is untenable. If property is exposed to the general public, it is exposed in equal measure to the police. It is clear from Ciraolo that the Fourth Amendment does not require the police to avert their eyes from evidence of criminal activity that any member of the public could have observed, even if a casual observer would not likely have realized that the object indicated criminal activity or would not likely have notified the police even if he or she had realized the object’s significance. It may of course be true that a person minds an examination by the police more than an examination by an animal, a child, a neighbor, a scavenger, or a trash collector, but that does not render the intrusion by the police illegitimate.

The Court of Appeal noted the existence of municipal ordinances which prohibit persons other than authorized collectors from rummaging through the trash of another. Such ordinances, however, do not change the fact that the owner of the trash completely relinquishes control over the trash to a third party, the designated trash collector, who, for all the owner knows, will cooperate with the police. Cf. Lewis v. United States, 385 U. S. 206 (1966); Hoffa v. United States, 385 U. S. 293 (1966). Moreover, it is not at all clear that such a municipal ordinance would evoke an expectation of privacy in trash. Respondent did not rely on any such ordinance here, and it has been noted that the purpose of such ordinances is sanitation and economic protection of the authorized trash collector rather than privacy. See United States v. Vahalik, 606 F. 2d 99, 100-101 (CA5 1979), cert. denied, 444 U. S. 1081 (1980); People v. Krivda, 5 Cal. 3d 357, 368, n. 1, 486 P. 2d 1262, 1264, n. 1 (1971) (Wright, C. J., concurring and dissenting), vacated and remanded, 409 U. S. 33 (1972), on remand, 8 Cal. 3d 623, 504 P. 2d 457, cert. denied, 412 U. S. 919 (1973).

Every Federal Court of Appeals that has addressed the issue has concluded that the Fourth Amendment does not protect trash placed for collection outside a residence and its curtilage. United States v. Dela Espriella, 781 F. 2d 1432, 1437 (CA9 1986); United States v. O’Bryant, 775 F. 2d 1528 (CA11 1985); United States v. Michaels, 726 F. 2d 1307, 1312-1313 (CA8), cert. denied, 469 U. S. 820 (1984); United States v. Kramer, 711 F. 2d 789 (CA7), cert. denied, 464 U. S. 962 (1983); United States v. Terry, 702 F. 2d 299, 308-309 (CA2), cert. denied sub nom. Williams v. United States, 461 U. S. 931 (1983); United States v. Reicherter, 647 F. 2d 397, 399 (CA3 1981); United States v. Vahalik, supra; United States v. Crowell, 586 F. 2d 1020, 1025 (CA4 1978), cert. denied, 440 U. S. 959 (1979); Magda v. Benson, 536 F. 2d 111, 112-113 (CA6 1976); United States v. Mustone, 469 F. 2d 970, 972 (CA1 1972). The Courts of Appeals had little difficulty reaching this conclusion. As the Third Circuit stated in United States v. Reicherter:

“Defendant claims that... he had a reasonable expectation of privacy in the trash he placed in a public area to be picked up by trash collectors .... A mere recitation of the contention carries with it its own refutation.
“. . . Having placed the trash in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it, it is inconceivable that the defendant intended to retain a privacy interest in the discarded objects. If he had such an expectation, it was not reasonable.” 647 F. 2d, at 399.

This unanimity of opinion among the federal appellate courts supports the determination that society is not prepared to accept as reasonable an expectation of privacy in trash deposited in an area accessible to the public pending collection by a municipal authority or its authorized agent.

       Opening Brief for Appellant in No. B006936, Cal. 2d App. Dist.
      Throughout the proceedings it was clear that the courts were passing only upon Rooney’s motion to quash the search warrant and suppress the evidence found in the apartment; there was no motion to suppress the evidence found in the trash. For example, the first thing the Magistrate said after calling Rooney’s case was: “This is before the Court on the notice of motion to quash the search warrant pursuant to Penal Code Section 1538.5.” Clerk’s Transcript 2-3. After hearing argument involving the different parts of the affidavit supporting the search warrant, the Magistrate announced: “It is going to be the ruling of this Court that although this is a relatively close matter, but I feel that the notice of motion to quash the search warrant pursuant to Penal Code Section 1538.5 should be granted.” Id., at 21.
      Again, when the ease came before the Superior Court, the first thing the judge stated was: “The matter pending, motion to suppress evidence pursuant to Section 1538.5. At this point, to classify the issue, is directed at the sufficiency of the affidavit in support of the search warrant and challenges that affidavit on its face.” App. 50.

       A careful and adequate reading of the record, cf. post, at 318 (White, J., dissenting), reveals that the State itself has never believed that the Court of Appeal’s judgment incorporated any motion to suppress the evidence found in the trash. For example, as Justice White notes, the State sought rehearing in the Court of Appeal, but as part of that petition it stated that the Court of Appeal’s “opinion should be appropriately modified to delete its discussion of the issue since its determination that the search warrant was based upon probable cause was made notwithstanding its conclusion that the Krivda rule [People v. Krivda, 5 Cal. 3d 357, 486 P. 2d 1262 (1971)] applies to communal trash bins.” Petition for Rehearing or Modification of Opinion in No. B006936 (Cal. 2d App. Dist.), p. 4. If the Court of Appeal had actually issued a judgment on the issue, the State would have sought a modification of the judgment — not a mere modification of the opinion. That the State does not believe that the Court of Appeal issued a judgment excluding the evidence from the trash search is further corroborated by the State’s own arguments before this Court. In its petition for certiorari, the State explained:
      “At first blush, it might be urged that a petition for writ of certiorari should not be granted because the Court of Appeal’s conclusion that the search of the apartment building communal trash bin was unreasonable constitutes obiter dicta. However, the Court of Appeal’s determination that the search of the trash bin was unreasonable cannot be deemed to merely constitute obiter dicta. . . . Unless overturned on this point, the Court of Appeal’s conclusion constitutes the law of the case. . . . Hence at the trial, the People would be precluded from introducing evidence as to what the police officers had found in the trash bin.” Pet. for Cert. 14-15 (emphasis added, citations omitted).
      Similarly, the Deputy District Attorney arguing the case before this Court candidly described the State’s reasons for seeking certiorari in this case:
      “Q. So that everything you found under the search warrant is admissible.
      “Mr. Guminski: That is correct, Your Honor. But the ruling ... is a ruling that forecloses the use of what was discovered as far as the trash bag; that would be the rule of the case.
      “Q. And you think you’re really going to use that at this trial, or you think that you would really need to?
      “A. Well, Your Honor, I think what we really want would be to . . . overrule People v. Krivda, which was here before this Court in 1972, and which was remanded then because there were independent state grounds.
      “I mean, I wish to answer candidly to your question, Justice; there is an intention to use it, of course.
      “But it is a vehicle of review.” Tr. of Oral Arg. 26-27.
      Of course, as we explain, see text this page and infra, at 313-314, the law-of-the-case doctrine provides no justification for our granting review at this stage. See Barclay v. Florida, 463 U. S. 939, 946 (1983); Hathorn v. Lovorn, 457 U. S. 255, 261-262 (1982); see generally R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 132 (6th ed. 1986).

       Assuming that respondent’s motion to suppress the trash evidence will be granted, the prosecution will then have to decide whether it can prosecute without the evidence. If it cannot, then an order of dismissal will be entered, and the prosecution may immediately appeal. See Cal. Penal Code Ann. §§ 1238, 1538.5 (West 1982). Even if the prosecution can proceed without the evidence, however, it may still obtain immediate review through a writ of mandate or prohibition. § 1538.5(o). A writ of mandate could compel the Superior Court to admit the evidence and “must be issued where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” Cal. Civ. Proe. Code Ann. § 1086 (West 1982). See generally B. Witkin, California Criminal Procedure §§ 869, 870 (1985 Supp., pt. 2).

       The California rule regarding trash searches is derived from the California Supreme Court’s decision in People v. Krivda, 5 Cal. 3d 357, 486 P. 2d 1262 (1971) (en banc). We granted certiorari to review that decision but we were unable to determine whether the California Supreme Court had rested its decision on state or federal grounds. 409 U. S. 33 (1972). On remand, the court announced that it had rested on both state and federal constitutional grounds, 8 Cal. 3d 623, 504 P. 2d 457, cert. denied, 412 U. S. 919 (1973), which prevented us from reviewing the case. In 1985, however, the people of California amended their Constitution to bar the suppression of evidence seized in violation of the California, but not the Federal, Constitution. Cal. Const., Art. I, § 28(d); see generally In re Lance W., 37 Cal. 3d 873, 694 P. 2d 744 (1985). Thus, the Court of Appeal was forced to rest its discussion of the trash-search issue in this case on the Federal Constitution.
      While we express no view on the merits of the issue, we note that the arguments that the State now makes rely, in large part, on post-Krivda developments, including the state constitutional amendment discussed above, this Court’s intervening decisions, and decisions of the United States Courts of Appeals dealing with trash searches. The California Supreme Court should be afforded the opportunity to consider these factors before we intervene.

       Moreover, because of the unusual posture of the case, we cannot know whether the prosecution will even seek to introduce the trash evidence at trial. If the evidence found in the apartment pursuant to the valid warrant is strong enough, the prosecution might not even be interested in presenting the more attenuated evidence found'in the trash.

       The court observed that the “Truth in Evidence” provision of the Victim’s Bill of Rights (Proposition 8) abrogated a defendant’s right to object to and to suppress evidence seized in violation of the California but not of the Federal Constitution. 175 Cal. App. 3d 634, 644, 221 Cal. Rptr. 49, 55 (1985). The Court of Appeal noted, however, that the California Supreme Court had held that under both the California and Federal Constitutions, a trash can outside the curtilage of a house could be searched without a warrant, but not without probable cause. People v. Krivda, 5 Cal. 3d 357, 486 P. 2d 1262 (1971), vacated and remanded, 409 U. S. 33 (1972), on remand, 8 Cal. 3d 623, 504 P. 2d 457, cert. denied, 412 U. S. 919 (1973).

       The State emphasizes that the Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects.” Brief for Petitioner 2. It points to Oliver v. United States, 466 U. S. 170, 176-177 (1984), as an illustration of the plain language approach to the Fourth Amendment. In Oliver, we based our holding that the Fourth Amendment does not extend to an open field on the explicit language of the Amendment. We held that an open field is neither a “house” nor an “effect.” See also id., at 184 (White, J., concurring).

       The Garbage Project of the University of Arizona, directed by archaeologists at the university, was founded upon the advice of archaeology pioneer Emil Haury: “If you want to know what is really going on in a community, look at its garbage.” W. Rathje, Archaeological Ethnography . . . Because Sometimes It is Better to Give than to Receive, in Explorations in Ethnoarchaeology 49, 54 (R. Gould ed. 1978). In that project, Tucson Sanitation Division personnel randomly selected refuse set out for collection by households throughout the city. Procedures ensured anonymity. The archaeologists sorted the refuse from each household into more than 150 categories in order to improve their understanding of contemporary society (as well as to refine techniques for understanding the material culture of earlier societies).


author: Justice White Justice Brennan, Justice Blackmun, Justice O’Connor,

text:
    CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS et al. v. AMOS et al.
    No. 86-179.
    Argued March 31, 1987
    Decided June 24, 1987

      White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Powell, Stevens, and.ScALiA, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in which Marshall, J., joined, post, p. 340. Blackmun, J., post, p. 346, and O’Connor, J., post, p. 346, filed opinions concurring in the judgment.

      Rex E. Lee argued the cause for appellants in No. 86-179. With him on the briefs were Wilford W. Kirton, Jr., Dan S. Bushnell, M. Karlynn Hinman, Benjamin W. Heineman, Jr., Carter G. Phillips, and Ronald S. Flagg. Assistant Attorney General Reynolds argued the cause for the United States in No. 86-401. With him on the briefs were Solicitor General Fried, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Carvin, and Andrew J. Pincus.

      David B. Watkiss argued the cause for appellees in both cases. With him on the brief were Elizabeth T. Dunning, John A. Powell, Joan E. Berlin, and John E. Harvey

      Together with No. 86-401, United States v. Amos et al., also on appeal from the same court.

       Briefs of amici curiae urging reversal were filed for the American Association of Presidents of Independent Colleges and Universities et al. by Edward McGlynn Gaffney, Jr.; for the American Jewish Congress by Marc D. Stem and Amy Adelson; for the Baptist Joint Committee on Public Affairs by Donald R. Brewer and Oliver S. Thomas; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Christian Legal Society et al. by Michael W. McConnell, Michael J. Woodruff, Samuel E. Ericsson, Kimberlee W. Colby, Philip E. Draheim, and Forest D. Montgomery; for the General Conference of Seventh-day Adventists by Warren L. Johns, Walter E. Carson, and Melvin B. Sabey; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; for the United States Catholic Conference by John A. Liekweg and Mark E. Chopko; and for the Council on Religious Freedom by Lee Boothby, James M. Parker, Robert W. Nixon, and Rolland Truman.

      Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations et al. by Michael H. Gottesman, Robert M. Weinberg, David M. Silberman, and Laurence Gold; for the Anti-Defamation League of B’nai B’rith by Harold P. Weinberger, Justin J. Finger, Jeffrey P. Sinensky, Jill L. Kahn, Ruti G. Tietel, and Meyer Eisenberg; for the Employment Law Center of the Legal Aid Society of San Francisco by Joan M. Graff, Robert Barnes, and Robert E. Borton; and for the Women’s Legal Defense Fund et al. by Donna Lenhoff.

        Jordan W. Lorence filed a brief for Concerned Women of America as amicus curiae.

   Justice White

delivered the opinion of the Court.

Section 702 of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U. S. C. §2000e-l, exempts religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion. The question presented is whether applying the § 702 exemption to the secular nonprofit activities of religious organizations violates the Establishment Clause of the First Amendment. The District Court held that it does, and these cases are here on direct appeal pursuant to 28 U. S. C. §1252. We reverse.

I

The Deseret Gymnasium (Gymnasium) in Salt Lake City, Utah, is a nonprofit facility, open to the public, run by the Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints (CPB), and the Corporation of the President of The Church of Jesus Christ of Latter-day Saints (COP). The CPB and the COP are religious entities associated with The Church of Jesus Christ of Latter-day Saints (Church), an unincorporated religious association sometimes called the Mormon or LDS Church.

Appellee Mayson worked at the Gymnasium for some 16 years as an assistant building engineer and then as building engineer. He was discharged in 1981 because he failed to qualify for a temple recommend, that is, a .certificate that he is a member of the Church and eligible to attend its temples.

Mayson and others purporting to represent a class of plaintiffs brought an action against the CPB and the COP alleging, among other things, discrimination on the basis of religion in violation of §703 of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2. The defendants moved to dismiss this claim on the ground that § 702 shields them from liability. The plaintiffs contended that if construed to allow religious employers to discriminate on religious grounds in hiring for nonreligious jobs, §702 violates the Establishment Clause.

The District Court first considered whether the facts of these cases require a decision on the plaintiffs’ constitutional argument. Starting from the premise that the religious activities of religious employers can permissibly be exempted under § 702, the court developed a three-part test to determine whether an activity is religious. Applying this test to Mayson’s situation, the court found: first, that the Gymnasium is intimately connected to the Church financially and in matter's of management; second, that there is no clear connection between the primary function which the Gymnasium performs and the religious beliefs and tenets of the Mormon Church or church administration; and third, that none of Mayson’s duties at the Gymnasium are “even tangentially related to any conceivable religious belief or ritual of the Mormon Church or church administration,” 594 F. Supp. 791, 802 (Utah 1984). The court concluded that Mayson’s case involves nonreligious activity.

The court next considered the plaintiffs’ constitutional challenge to § 702. Applying the three-part test set out in Lemon v. Kurtzman, 403 U. S. 602 (1971), the court first held that § 702 has the permissible secular purpose of “assuring that the government remains neutral and does not meddle in religious affairs by interfering with the decision-making process in religions . . . .” 594 F. Supp, at 812. The court concluded, however, that § 702 fails the second part of the Lemon test because the provision has the primary effect of advancing religion. Among the considerations mentioned by the court were: that § 702 singles out religious enti-ties for a benefit, rather than benefiting a broad grouping of which religious organizations are only a part; that §702 is not supported by long historical tradition; and that §702 burdens the free exercise rights of employees of religious institutions who work in nonreligious jobs. Finding that § 702 impermissibly sponsors religious organizations by granting them “an exclusive authorization to engage in conduct which can directly and immediately advance religious tenets and practices,” id., at 825, the court declared the statute unconstitutional as applied to secular activity. The court entered summary judgment in favor of Mayson pursuant to Federal Rule of Civil Procedure 54(b) and ordered him reinstated with backpay. Subsequently, the court vacated its judgment so that the United States could intervene to defend the constitutionality of § 702. After further briefing and argument the court affirmed its prior determination and reentered a final judgment for Mayson.

II

“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136, 144-145 (1987) (footnote omitted). It is well established, too, that “[t]he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.” Walz v. Tax Comm’n, 397 U. S. 664, 673 (1970). There is ample room under the Establishment Clause for “benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Id., at 669. At some point, accommodation may devolve into “an unlawful fostering of religion,” Hobbie, supra, at 145, but these are not such cases, in our view.

The private appellants contend that we should not apply the three-part Lemon approach, which is assertedly unsuited to judging the constitutionality of exemption statutes such as §702. Brief for Appellants in No. 86-179, pp. 24-26. The argument is that an exemption statute will always have the effect of advancing religion and hence be invalid under the second (effects) part of the Lemon test, a result claimed to be inconsistent with cases such as Walz v. Tax Comm’n, supra, which upheld property tax exemptions for religious organizations. The first two of the three Lemon factors, however, were directly taken from pre-Walz decisions, 403 U. S., at 612-613, and Walz did not purport to depart from prior Establishment Clause cases, except by adding a consideration that became the third element of the Lemon test. 403 U. S., at 613. In any event, we need not reexamine Lemon as applied in this context, for the exemption involved here is in no way questionable under the Lemon analysis.

Lemon requires first that the law at issue serve a “secular legislative purpose.” Id., at 612. This does not mean that the law’s purpose must be unrelated to religion — that would amount to a requirement “that the government show a callous indifference to religious groups,” Zorach v. Clauson, 343 U. S. 306, 314 (1952), and the Establishment Clause has never been so interpreted. Rather, Lemon’s “purpose” requirement aims at preventing the relevant governmental decisionmaker — in this case, Congress — from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.

Under the Lemon analysis, it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions. Appellees argue that there is no such purpose here because §702 provided adequate protection for religious employers prior to the 1972 amendment, when it exempted only the religious activities of such employers from the statutory ban on religious discrimination. We may assume for the sake of argument that the pre-1972 exemption was adequate in the sense that the Free Exercise Clause required no more. Nonetheless, it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.

After a detailed examination of the legislative history of the 1972 amendment, the District Court concluded that Congress’ purpose was to minimize governmental “interference] with the decision-making process in religions. ” 594 F. Supp., at 812. We agree with the District Court that this purpose does not violate the Establishment Clause.

The second requirement under Lemon is that the law in question have “a principal or primary effect. . . that neither advances nor inhibits religion.” 403 U. S., at 612. Undoubtedly, religious organizations are better able now to advance their purposes than they were prior to the 1972 amendment to § 702. But religious groups have been better able to advance their purposes on account of many laws that have passed constitutional muster: for example, the property tax exemption at issue in Walz v. Tax Comm’n, supra, or the loans of schoolbooks to schoolchildren, including parochial school students, upheld in Board of Education v. Allen, 392 U. S. 236 (1968). A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden “effects” under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence. As the Court observed in Walz, “for the men who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.” 397 U. S., at 668. Accord, Lemon, 403 U. S., at 612.

The District Court appeared to fear that sustaining the exemption would permit churches with financial resources impermissibly to extend their influence and propagate their faith by entering the commercial, profit-making world. 594 F. Supp., at 825. The cases before us, however, involve a nonprofit activity instituted over 75 years ago in the hope that “all who assemble here, and who come for the benefit of their health, and for physical blessings, [may] feel that they are in a house dedicated to the Lord.” Dedicatory Prayer for the Gymnasium, quoted, 594 F. Supp., at 800-801, n. 15. These cases therefore do not implicate the apparent concerns of the District Court. Moreover, we find no persuasive evidence in the record before us that the Church’s ability to propagate its religious doctrine through the Gymnasium is any greater now than it was prior to the passage of the Civil Rights Act in 1964. In such circumstances, we do not see how any advancement of religion achieved by the Gymnasium can be fairly attributed to the Government, as opposed to the Church.

We find unpersuasive the District Court’s reliance on the fact that §702 singles out religious entities for a benefit. Although the Court has given weight to this consideration in its past decisions, see n. 11, supra, it has never indicated that statutes that give special consideration to religious groups are per se invalid. That would run contrary to the teaching of our cases that there is ample room for accommodation of religion under the Establishment Clause. See supra, at 334-335. Where, as here, government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption come packaged with benefits to secular entities.

We are also unpersuaded by the District Court’s reliance on the argument that § 702 is unsupported by long historical tradition. There was simply no need to consider the scope of the § 702 exemption until the 1964 Civil Rights Act was passed, and the fact that Congress concluded after eight years that the original exemption was unnecessarily narrow is a decision entitled to deference, not suspicion.

Appellees argue that § 702 offends equal protection principles by giving less protection to the employees of religious employers than to the employees of secular employers. Appellees rely on Larson v. Valente, 456 U. S. 228, 246 (1982), for the proposition that a law drawing distinctions on religious grounds must be strictly scrutinized. But Larson indicates that laws discriminating among religions are subject to strict scrutiny, ibid., and that laws “affording a uniform benefit to all religions” should be analyzed under Lemon, 456 U. S., at 252. In cases such as these, where a statute is neutral on its face and motivated by a permissible purpose of limiting governmental interference with the exercise of religion, we see no justification for applying strict scrutiny to a statute that passes the Lemon test. The proper inquiry is whether Congress has chosen a rational classification to further a legitimate end. We have already indicated that «Congress acted with a legitimate purpose in expanding the § 702 exemption to cover all activities of religious employers. Supra, at 336. To dispose of appellees’ equal protection argument, it suffices to hold — as we now do — that as applied to the nonprofit activities of religious employers, § 702 is rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions.

It cannot be seriously contended that §702 impermissibly entangles church and state; the statute effectuates a more complete separation of the two and avoids the kind of intrusive inquiry into religious belief that the District Court engaged in in this case. The statute easily passes muster under the third part of the Lemon test.

The judgment of the District Court is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Brennan,

with whom

Justice Marshall joins, concurring in the judgment.

I write separately to emphasize that my concurrence in the judgment rests on the fact that these cases involve a challenge to the application of § 702’s categorical exemption to the activities of a nonprofit organization. I believe that the particular character of nonprofit activity makes inappropriate a case-by-case determination whether its nature is religious or secular.

These cases present a confrontation between the rights of religious organizations and those of individuals. Any exemption from Title VII’s proscription on religious discrimination necessarily has the effect of burdening the religious liberty of prospective and current employees. An exemption says that a person may be put to the choice of either conforming to certain religious tenets or losing a job opportunity, a promotion, or, as in these cases, employment itself. The potential for coercion created by such a provision is in serious tension with our commitment to individual freedom of conscience in matters of religious belief.

At the same time, religious organizations have an interest in autonomy in ordering their internal affairs, so that they may be free to:

“select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions. Religion includes important communal elements for most believers. They exercise their religion through religious organizations, and these organizations must be protected by the [Free Exercise] [C]lause.” Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1389 (1981).

See also Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696 (1976) (church has interest in effecting binding resolution of internal governance disputes); Kedroff v. Saint Nicholas Cathedral, 344 U. S. 94 (1952) (state statute purporting to transfer administrative control from one church authority to another violates Free Exercise Clause). For many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. Determining that certain activities are in furtherance of an organization’s religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself. Solicitude for a church’s ability to do so reflects the idea that furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.

The authority to engage in this process of self-definition inevitably involves what we normally regard as infringement on free exercise rights, since a religious organization is able to condition employment in certain activities on subscription to particular religious tenets. We are willing to countenance the imposition of such a condition because we deem it vital that, if certain activities constitute part of a religious community’s practice, then a religious organization should be able to require that only members of its community perform those activities.

This rationale suggests that, ideally, religious organizations should be able to discriminate on the basis of religion only with respect to religious activities, so that a determination should be made in each case whether an activity is religious or secular. This is because the infringement on religious liberty that results from conditioning performance of secular activity upon religious belief cannot be defended as necessary for the community’s self-definition. Furthermore, the authorization of discrimination in such circumstances is not an accommodation that simply enables a church to gain members by the normal means of prescribing the terms of membership for those who seek to participate in furthering the mission of the community. Rather, it puts at the disposal of religion the added advantages of economic leverage in the secular realm. As a result, the authorization of religious discrimination with respect to nonreligious activities goes beyond reasonable accommodation, and has the effect of furthering religion in violation of the Establishment Clause. See Lemon v. Kurtzman, 403 U. S. 602, 612 (1971).

What makes the application of a religious-secular distinction difficult is that the character of an activity is not self-evident. As a result, determining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable ongoing government entanglement in religious affairs. See id., at 613. Furthermore, this prospect of government intrusion raises concern that a religious organization may be chilled in its free exercise activity. While a church may regard the conduct of certain functions as integral to its mission, a court may disagree. A religious organization therefore would have an incentive to characterize as religious only those activities about which there likely would be no dispute, even if it genuinely believed that religious commitment was important in performing other tasks as well. As a result, the community’s process of self-definition would be shaped in part by the prospects of litigation. A case-by-case analysis for all activities therefore would both produce excessive government entanglement with religion and create the danger of chilling religious activity.

The risk of chilling religious organizations is most likely to arise with respect to nonprofit activities. The fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation. In contrast to a for-profit corporation, a nonprofit organization must utilize its earnings to finance the continued provision of the goods or services it furnishes, and may not distribute any surplus to the owners. See generally Hansmann, The Role of Nonprofit Enterprise, 89 Yale L. J. 835 (1980). This makes plausible a church’s contention that an entity is not operated simply in order to generate revenues for the church, but that the activities themselves are infused with a religious purpose. Furthermore, unlike for-profit corporations, nonprofits historically have been organized specifically to provide certain community services, not simply to engage in commerce. Churches often regard the provision of such services as a means of fulfilling religious duty and of providing an example of the way of life a church seeks to foster.

Nonprofit activities therefore are most likely to present cases in which characterization of the activity as religious or secular will be a close question. If there is a danger that a religious organization will be deterred from classifying as religious those activities it actually regards as religious, it is likely to be in this domain. This substantial potential for chilling religious activity makes inappropriate a case-by-case determination of the character of a nonprofit organization, and justifies a categorical exemption for nonprofit activities. Such an exemption demarcates a sphere of deference with respect to those activities most likely to be religious. It permits infringement on employee free exercise rights in those instances in which discrimination is most likely to reflect a religious community’s self-definition. While not every nonprofit activity may be operated for religious purposes, the likelihood that many are makes a categorical rule a suitable means to avoid chilling the exercise of religion.

Sensitivity to individual religious freedom dictates that religious discrimination be permitted only with respect to employment in religious activities. Concern for the autonomy of religious organizations demands that we avoid the entanglement and the chill on religious expression that a case-by-case determination would produce. We cannot escape the fact that these aims are in tension. Because of the nature of nonprofit activities, I believe that a categorical exemption for such enterprises appropriately balances these competing concerns. As a result, I concur in the Court’s judgment that the nonprofit Deseret Gymnasium may avail itself of an automatic exemption from Title VII’s proscription on religious discrimination.

Justice Blackmun,

concurring in the judgment.

Essentially for the reasons set forth in Justice O’Con-nor’s opinion, particularly the third and final paragraphs thereof, I too, concur in the judgment of the Court. I fully agree that the distinction drawn by the Court seems “to obscure far more than to enlighten,” as Justice O’Connor states, post, at 347, and that, surely, the “question of the constitutionality of the §702 exemption as applied to for-profit activities of religious organizations remains open,” post, at 349.

Justice O’Connor,

concurring in the judgment.

Although I agree with the judgment of the Court, I write separately to note that this action once again illustrates certain difficulties inherent in the Court’s use of the test articulated in Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971). See Wallace v. Jaffree, 472 U. S. 38, 67 (1985) (O’Connor, J., concurring in judgment); Lynch v. Donnelly, 465 U. S. 668, 687 (1984) (O’Connor, J., concurring). As a result of this problematic analysis, while the holding of the opinion for the Court extends only to nonprofit organizations, its reasoning fails to acknowledge that the amended § 702, 42 U. S. C. § 2000e-1, raises different questions as it is applied to profit and nonprofit organizations.

In Wallace v. Jaffree, supra, I noted a tension in the Court’s use of the Lemon test to evaluate an Establishment Clause challenge to government efforts to accommodate the free exercise of religion:

“On the one hand, a rigid application of the Lemon test would invalidate legislation exempting religious observers from generally applicable government obligations. By definition, such legislation has a religious purpose and effect in promoting the free exercise of religion. On the other hand, judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause. Any statute pertaining to religion can be viewed as an ‘accommodation’ of free exercise rights.” Wallace v. Jaffree, supra, at 82.

In my view, the opinion for the Court leans toward the second of the two unacceptable options described above. While acknowledging that “[undoubtedly, religious organizations are better able now to advance their purposes than they were prior to the 1972 amendment to § 702,” the Court seems to suggest that the “effects” prong of the Lemon test is not at all implicated as long as the government action can be characterized as “allowing” religious organizations to advance religion, in contrast to government action directly advancing religion. Ante, at 337. This distinction seems to me to obscure far more than to enlighten. Almost any government benefit to religion could be recharacterized as simply “allowing” a religion to better advance itself, unless perhaps it involved actual proselytization by government agents. In nearly every case of a government benefit to religion, the religious mission would not be advanced if the religion did not take advantage of the benefit; even a direct financial subsidy to a religious organization would not advance religion if for some reason the organization failed to make any use of the funds. It is for this same reason that there is little significance to the Court’s observation that it was the Church rather than the Government that penalized Mayson’s refusal to adhere to Church doctrine. Ante, at 337, n. 15. The Church had the power to put Mayson to a choice of qualifying for a temple recommend or losing his job because the Government had lifted from religious organizations the general regulatory burden imposed by § 702.

The necessary first step in evaluating an Establishment Clause challenge to a government action lifting from religious organizations a generally applicable regulatory burden is to recognize that such government action does have the effect of advancing religion. The necessary second step is to separate those benefits to religion that constitutionally accommodate the free exercise of religion from those that provide unjustifiable awards of assistance to religious organizations. As I have suggested in earlier opinions, the inquiry framed by the Lemon test should be “whether government’s purpose is to endorse religion and whether the statute actually conveys a message of endorsement.” Wallace, 472 U. S., at 69. To ascertain whether the statute conveys a message of endorsement, the relevant issue is how it would be perceived by an objective observer, acquainted with the text, legislative history, and implementation of the statute. Id., at 76. Of course, in order to perceive the government action as a permissible accommodation of religion, there must in fact be an identifiable burden on the exercise of religion that can be said to be lifted by the government action. The determination whether the objective observer will perceive an endorsement of religion “is not a question of simple historical fact. Although evidentiary submissions may help answer it, the question is, like the question whether racial or sex-based classifications communicate an invidious message, in large part a legal question to be answered on the basis of judicial interpretation of social facts.” Lynch v. Donnelly, supra, at 693-694.

The above framework, I believe, helps clarify why the amended §702 raises different questions as it is applied to nonprofit and for-profit organizations. As Justice Brennan observes in his concurrence: “The fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation.” Ante, at 344 (opinion concurring in judgment). These cases involve a Government decision to lift from a nonprofit activity of a religious organization the burden of demonstrating that the particular nonprofit activity is religious as well as the burden of refraining from discriminating on the basis of religion. Because there is a probability that a nonprofit activity of a religious organization will itself be involved in the organization’s religious mission, in my view the objective observer should perceive the Government action as an accommodation of the exercise of religion rather than as a Government endorsement of religion.

It is not clear, however, that activities conducted by religious organizations solely as profit-making enterprises will be as likely to be directly involved in the religious mission of the organization. While I express no opinion on the issue, I emphasize that under the holding of the Court, and under my view of the appropriate Establishment Clause analysis, the question of the constitutionality of the § 702 exemption as applied to for-profit activities of religious organizations remains open.

       Section 702 provides in relevant part:
      “This subchapter [i. e., Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq.l shall not apply... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

       Title 28 U. S. C. § 1252 permits any party to appeal to this Court from an interlocutory or final judgment, decree, or order of any court of the United States holding an Act of Congress unconstitutional in any civil action to which the United States is a party.

       The CPB and the COP are “corporations sole” organized under Utah law to perform various activities on behalf of the Church. Both corporations are tax-exempt, nonprofit religious entities under § 501(c)(3) of the Internal Revenue Code. Appellees do not contest that the CPB and the COP are religious organizations for purposes of § 702.

       Temple recommends are issued only to individuals who observe the Church’s standards in such matters as regular church attendance, tithing, and abstinence from coffee, tea, alcohol, and tobacco.

       The District Court did not certify a class. The other plaintiffs below, whose claims are not at issue in this appeal, initially included former employees of Beehive Clothing Mills, which manufactures garments with religious significance for Church members. The complaint was amended to add as plaintiff a former employee of Deseret Industries, a division of the Church’s Welfare Services Department. The District Court’s rulings on the other plaintiffs’ claims are described at n. 13, infra.

       The District Court described the test as follows:
      “First, the court must look at the tie between the religious organization and the activity at issue with regard to such areas as financial affairs, day-to-day operations and management. Second, whether or not there is a close and substantial tie between the two, the court next must examine the nexus between the primary function of the activity in question and the religious rituals or tenets of the religious organization or matters of church administration. If there is substantial connection between the activity in question and the religious organization’s religious tenets or matters of church administration and the tie under the first part of the test is close, the court does not need to proceed any further and may declare the activity religious. . . . However, where the tie between the religious entity and activity in question is either close or remote under the first prong of the test and the nexus between the primary function of the activity in question and the religious tenets or rituals of the religious organization or matters of church administration is tenuous or non-existent, the court must engage in a third inquiry. It must consider the relationship between the nature of the job the employee is performing and the religious rituals or tenets of the religious organization or matters of church administration. If there is a substantial relationship between the employee’s job and church administration or the religious organization’s rituals or tenets, the court must find that the activity in question is religious. If the relationship is not substantial, the activity is not religious.” 594 F. Supp. 791, 799 (Utah 1984).

       The court found that “nothing in the running or purpose of [the Gymnasium] . . . suggests that it was intended to spread or teach the religious beliefs and doctrine and practices of sacred ritual of the Mormon Church or that it was intended to be an integral part of church administration.” Id., at 800. The court emphasized that no contention was made that the religious doctrines of the Mormon Church either require religious discrimination in employment or treat physical exercise as a religious ritual. Id., at 801.

       The court also considered and rejected the possibility that §702 could be construed to exempt a religious organization only with respect to employment involving religious activities. Id., at 803-804.

       The court examined in considerable detail the legislative history of the 1972 amendment of § 702. Id., at 805-812. Prior to that time, § 702 exempted only the religious activities of religious employers from the statutory proscription against religious discrimination in employment. The 1972 amendment extending the exemption to all activities of religious organizations was sponsored by Senators Allen and Ervin. Senator Ervin explained that the purpose of the amendment was to “take the political hands of Caesar off of the institutions of God, where they have no place to be.” 118 Cong. Rec. 4503 (1972).

       The court rejected the defendants’ arguments that §702 is required both by the need to avoid excessive governmental entanglement with religion and by the Free Exercise Clause. 594 F. Supp., at 814-820.

       Cf., e. g., Mueller v. Allen, 463 U. S. 388, 397 (1983) (provision of benefits to a broad spectrum of groups is an important index of secular effect); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 794 (1973) (narrowness of benefited class is an important factor in evaluating whether effect of a law violates the Establishment Clause).

       Cf. Walz v. Tax Comm’n, 397 U. S. 664, 676-679 (1970) (relying in part, in upholding property tax exemption for religious groups, on long historical tradition for such exemptions).

       The court declared that its determination regarding § 702 “applies with equal force to the [similar] state exemption as it relates to the facts of this case.” 594 F. Supp., at 798. It deferred ruling on the plaintiffs’ claim that § 702 violates the Due Process and Equal Protection Clauses of the United States Constitution, id., at 828, and rejected the plaintiffs’ state-law claims of wrongful discharge and intentional infliction of emotional distress, id., at 828-830.
      Subsequently, the court concluded that disputed issues of material fact precluded summary judgment for the Beehive employees (see n. 5, supra). 618 F. Supp. 1013, 1016 (Utah 1985).
      A plaintiff added by amendment of the complaint, Ralph Whitaker, claimed impermissible religious discrimination in his discharge from the position of truckdriver by Deseret Industries (Industries) based on his failure to qualify for a temple recommend. Industries, a division of the Church’s Welfare Services Department, runs a workshop program for the handicapped, retarded, and unemployed, who sort and assemble items and refurbish donated goods for sale in Industries’ thrift stores. Relying on the Church’s emphasis on charity and work, the court held that Industries is a religious activity because “there is an intimate connection between Industries and the defendants and the Mormon Church and between the primary function of Industries and the religious tenets of the Church. ” Id., at 1027. Finding no Establishment Clause violation in applying the § 702 exemption to Industries, the court granted summary judgment against Whitaker, who did not appeal.

         The present cases are illustrative of the difficulties: the distinction between Deseret Industries, see n. 13, supra, and the Gymnasium is rather fine. Both activities are run on a nonprofit basis, and the CPB and the COP argue that the District Court failed to appreciate that the Gymnasium as well as Deseret Industries is expressive of the Church’s religious values. Brief for Appellants in No. 86-179, pp. 6-8, 19.

       Undoubtedly, Mayson’s freedom of choice in religious matters was impinged upon, but it was the Church (through the COP and the CPB), and not the Government, who put him to the choice of changing his religious practices or losing his job. This is a very different case than Estate of Thornton v. Caldor, Inc., 472 U. S. 703 (1985). In Caldor, the Court struck down a Connecticut statute prohibiting an employer from requiring an employee to work on a day designated by the employee as his Sabbath. In effect, Connecticut had given the force of law to the employee’s designation of a Sabbath day and required accommodation by the employer regardless of the burden which that constituted for the employer or other employees. See Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136, 145, n. 11 (1987). In the present cases, appellee Mayson was not legally obligated to take the steps necessary to qualify for a temple recommend, and his discharge was not required by statute. We find no merit in appellees’ contention that § 702 “impermissibly delegates governmental power to religious employees and conveys a message of governmental endorsement of religious discrimination.” Brief for Appellees 31.

       Appellees also argue that § 702 violates equal protection principles by giving religious employers greater leeway to discriminate than secular employers. It is not clear why appellees should have standing to represent the interests of secular employers, but in any event this argument is, practically speaking, merely a restatement of the first point.

       We have no occasion to pass on the argument of the COP and the CPB that the exemption to which they are entitled under § 702 is required by the Free Exercise Clause.
      Appellees argue that § 702 creates danger of political divisiveness along political lines. As the Court stated in Lynch v. Donnelly, 465 U. S. 668, 684 (1984):
      “[T]his Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct. And we decline to so hold today. This case does not involve a direct subsidy to church-sponsored schools or colleges, or other, religious institutions, and hence no inquiry into political divisiveness is even called for, Mueller v. Allen, 463 U. S. 388, 403-404, n. 11 (1983).”

       The fact that a religious organization is permitted, rather than required, to impose this burden is irrelevant; what is significant is that the burden is the effect of the exemption. See Lemon v. Kurtzman, 403 U. S. 602, 612 (1971). An exemption by its nature merely permits certain behavior, but that has never stopped this Court from examining the effect of exemptions that would free religion from regulations placed on others. See, e. g., United States v. Lee, 455 U. S. 252, 261 (1982) (“Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees”); Walz v. Tax Comm’n, 397 U. S. 664, 674 (1970) (legislative purpose in granting tax exemption not determinative; “[w]e must also be sure that the end result — the effect — is not an excessive government entanglement with religion”); see also Wisconsin v. Yoder, 406 U. S. 205, 220-221 (1972) (“The Court must not ignore the danger that an exception from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause”). This approach reflects concern not only about the impact of exemptions on others, but also awareness that:
      “Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any — or all-religious denominations as when it attempts to inculcate specific religious doctrines. If this identification conveys a message of government endorsement ... of religion, a core purpose of the Establishment Clause is violated.” Grand Rapids School Dist. v. Ball, 473 U. S. 373, 389 (1985).
      In these cases, as Justice O’Connor cogently observes in her concurrence, “[t]he Church had the power to put [appellee] Mayson to a choice of qualifying for a temple recommend or losing his job because the Government had lifted from religious organizations the general regulatory burden imposed by § 702.” Post, at 347.

       As James Madison expressed it:
      “[W]e hold it for a fundamental and undeniable truth, ‘that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.’ The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” J. Madison, Memorial and Remonstrance Against Religious Assessment, in 2 Writings of James Madison 184 (G. Hunt ed. 1901) (quoting Virginia Declaration of Rights, Art. 16).
      See also Wallace v. Jaffree, 472 U. S. 38, 50 (1985) (“[T]he Court has identified the individual’s freedom of conscience as the central liberty that unifies the various Clauses in the First Amendment”).

       See, e. g., K. Barth, The Christian Community and the Civil Community, in Community, State and Church 149 (1960); Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983). Cf. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional “Interpretation,” 58 S. Cal. L. Rev. 551, 558 (1985) (tradition represents “a particular history or narrative, in which the central motif is an aspiration to a particular form of life, to certain projects, goals, [and] ideals, and the central discourse ... is an argument. . . about how that form of life is to be cultivated and revised”).

       Until quite recently it was common for state laws to permit an entity to incorporate as a nonprofit only if formed to serve one or more of a limited set of purposes. Hansmann, The Role of Nonprofit Enterprise, 89 Yale L. J. 835, 839 (1980). Many States, however, now permit the formation of a nonprofit corporation for any lawful purpose. Ibid. If it were possible easily to transform an enterprise that appeared commercial in substance into one nonprofit in form, a church’s decision to do so might signal that the church regarded the religious character of an entity as so significant that it was willing to forgo direct financial benefits in order to be able to hire persons committed to the church’s mission. Nonetheless, if experience proved that nonprofit incorporation was frequently used simply to evade Title VII, I would find it necessary to reconsider the judgment in these cases.

       Furthermore, as Justice O’Connor notes in her excellent concurrence, when an exemption is provided for nonprofit activity, “the objective observer should perceive the government action as an accommodation of the exercise of religion, rather than as a government endorsement of religion.” Post, at 349.

       It is also conceivable that some for-profit activities could have a religious character, so that religious discrimination with respect to these activities would be justified in some cases. The cases before us, however, involve a nonprofit organization; I believe that a categorical exemption authorizing discrimination is particularly appropriate for such entities, because claims that they possess a religious dimension will be especially colorable.