1

O’Connor II

Lynch v. Donnelly, 465 U.S. 668 (1984)

Syllabus

The city of Pawtucket, R.I., annually erects a Christmas display in a park owned by a nonprofit organization and
located in the heart of the city's shopping district. The display includes, in addition to such objects as a Santa Claus
house, a Christmas tree, and a banner that reads "SEASONS GREETINGS," a creche or Nativity scene, which has
been part of this annual display for 40 years or more. Respondents brought an action in Federal District Court,
challenging the inclusion of the creche in the display on the ground that it violated the Establishment Clause of the
First Amendment, as made applicable to the states by the Fourteenth Amendment. The District Court upheld the
challenge and permanently enjoined the city from including the creche in the display. The Court of Appeals
affirmed.

Held: Notwithstanding the religious significance of the creche, Pawtucket has not violated the Establishment Clause.
P P. 672-687.

(a) The concept of a "wall" of separation between church and state is a useful metaphor, but is not an accurate
description of the practical aspects of the relationship that in fact exists. The Constitution does not require complete
separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and
forbids hostility toward any. Anything less would require the "callous indifference," Zorach v. Clauson, 343 U. S.
306, 314, that was never intended by the Establishment Clause. P P. 672-673.

(b) This Court's interpretation of the Establishment Clause comports with the contemporaneous understanding of the
Framers' intent. That neither the draftsmen of the Constitution, who were Members of the First Congress, nor the
First Congress itself saw any establishment problem in employing Chaplains to offer daily prayers in the Congress is
a striking example of the accommodation of religious beliefs intended by the Framers. P P. 673-674.

(c) Our history is pervaded by official acknowledgment of the role of religion in American life, and equally
pervasive is evidence of accommodation of all faiths and all forms of religious expression and hostility toward none.
P P. 674-678.

Page 465 U. S. 669

(d) Rather than taking an absolutist approach in applying the Establishment Clause and mechanically invalidating all
governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one
faith, this Court has scrutinized challenged conduct or legislation to determine whether, in reality, it establishes a
religion or religious faith or tends to do so. In the line-drawing process called for in each case, it has often been
found useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or
primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with
religion. But this Court has been unwilling to be confined to any single test or criterion in this sensitive area. P P.
678-679.

(e) Here, the focus of the inquiry must be on the creche in the context of the Christmas season. Focus exclusively on
the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause. P
P. 679-680.

(f) Based on the record in this case, the city has a secular purpose for including the creche in its Christmas display,
and has not impermissibly advanced religion or created an excessive entanglement between religion and
government. The display is sponsored by the city to celebrate the Holiday recognized by Congress and national
tradition and to depict the origins of that Holiday; these are legitimate secular purposes. Whatever benefit to one
faith or religion or to all religions inclusion of the creche in the display effects, is indirect, remote, and incidental,
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and is no more an advancement or endorsement of religion than the congressional and executive recognition of the
origins of Christmas, or the exhibition of religious paintings in governmentally supported museums. This Court is
unable to discern a greater aid to religion from the inclusion of the creche than from the substantial benefits
previously held not violative of the Establishment Clause. As to administrative entanglement, there is no evidence of
contact with church authorities concerning the content or design of the exhibition prior to or since the city's purchase
of the creche. No expenditures for maintenance of the creche have been necessary, and, since the city owns the
creche, now valued at 0, the tangible material it contributes is de minimis. Political divisiveness alone cannot serve
to invalidate otherwise permissible conduct, and, in any event, apart from the instant litigation, there is no evidence
of political friction or divisiveness over the creche in the 40-year history of the city's Christmas celebration. P P.
680-685.

(g) It would be ironic if the inclusion of the creche in the display, as part of a celebration of an event acknowledged
in the Western World for 20 centuries, and in this country by the people, the Executive Branch,

Page 465 U. S. 670

Congress, and the courts for 2 centuries, would so "taint" the exhibition as to render it violative of the Establishment
Clause. To forbid the use of this one passive symbol while hymns and carols are sung and played in public places
including schools, and while Congress and state legislatures open public sessions with prayers, would be an
overreaction contrary to this Nation's history and this Court's holdings. P P. 685-686.

691 F.2d 1029, reversed.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR,
JJ., joined. O'CONNOR, J., filed a concurring opinion, post, P. 687. BRENNAN, J., filed a dissenting opinion, in
which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, P. 694. BLACKMUN, J., filed a dissenting
opinion, in which STEVENS, J., joined, post, P. 726.

JUSTICE O'CONNOR, concurring.

I concur in the opinion of the Court. I write separately to suggest a clarification of our Establishment Clause
doctrine. The suggested approach leads to the same result in this case as that taken by the Court, and the Court's
opinion, as I read it, is consistent with my analysis.

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a
person's standing in the political community. Government can run afoul of that prohibition in two principal ways.
One is excessive

Page 465 U. S. 688

entanglement with religious institutions, which may interfere with the independence of the institutions, give the
institutions access to government or governmental powers not fully shared by nonadherents of the religion, and
foster the creation of political constituencies defined along religious lines. E.g., Larkin v. Grendel's Den, Inc., 459
U. S. 116 (1982). The second and more direct infringement is government endorsement or disapproval of religion.
Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community,
and an accompanying message to adherents that they are insiders, favored members of the political community.
Disapproval sends the opposite message. See generally Abington School District v. Schempp, 374 U. S. 203 (1963).

Our prior cases have used the three-part test articulated in Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971), as a
guide to detecting these two forms of unconstitutional government action. * It has never been entirely clear,
however,
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Page 465 U. S. 689

how the three parts of the test relate to the principles enshrined in the Establishment Clause. Focusing on
institutional entanglement and on endorsement or disapproval of religion clarifies the Lemon test as an analytical
device.

II

In this case, as even the District Court found, there is no institutional entanglement. Nevertheless, the respondents
contend that the political divisiveness caused by Pawtucket's display of its creche violates the excessive
entanglement prong of the Lemon test. The Court's opinion follows the suggestion in Mueller v. Allen, 463 U. S.
388, 403-404, n. 11 (1983), and concludes that "no inquiry into potential political divisiveness is even called for" in
this case. Ante at 465 U. S. 684. In my view, political divisiveness along religious lines should not be an independent
test of constitutionality.

Although several of our cases have discussed political divisiveness under the entanglement prong of Lemon, see,
e.g., Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 796 (1973); Lemon v.
Kurtzman, supra, at 403 U. S. 623, we have never relied on divisiveness as an independent ground for holding a
government practice unconstitutional. Guessing the potential for political divisiveness inherent in a government
practice is simply too speculative an enterprise, in part because the existence of the litigation, as this case illustrates,
itself may affect the political response to the government practice. Political divisiveness is admittedly an evil
addressed by the Establishment Clause. Its existence may be evidence that institutional entanglement is excessive or
that a government practice is perceived as an endorsement of religion. But the constitutional inquiry should focus
ultimately on the character of the government activity that might cause such divisiveness, not on the divisiveness
itself. The entanglement prong of the Lemon test is properly limited to institutional entanglement.

Page 465 U. S. 690

III

The central issue in this case is whether Pawtucket has endorsed Christianity by its display of the creche. To answer
that question, we must examine both what Pawtucket intended to communicate in displaying the creche and what
message the city's display actually conveyed. The purpose and effect prongs of the Lemon test represent these two
aspects of the meaning of the city's action.

The meaning of a statement to its audience depends both on the intention of the speaker and on the "objective"
meaning of the statement in the community. Some listeners need not rely solely on the words themselves in
discerning the speaker's intent: they can judge the intent by, for example, examining the context of the statement or
asking questions of the speaker. Other listeners do not have or will not seek access to such evidence of intent. They
will rely instead on the words themselves; for them, the message actually conveyed may be something not actually
intended. If the audience is large, as it always is when government "speaks" by word or deed, some portion of the
audience will inevitably receive a message determined by the "objective" content of the statement, and some portion
will inevitably receive the intended message. Examination of both the subjective and the objective components of
the message communicated by a government action is therefore necessary to determine whether the action carries a
forbidden meaning.

The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of
religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in
fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the
challenged practice invalid.

A
 4

The purpose prong of the Lemon test requires that a government activity have a secular purpose. That requirement

Page 465 U. S. 691

is not satisfied, however, by the mere existence of some secular purpose, however dominated by religious purposes.
In Stone v. Graham, 449 U. S. 39 (1980), for example, the Court held that posting copies of the Ten Commandments
in schools violated the purpose prong of the Lemon test, yet the State plainly had some secular objectives, such as
instilling most of the values of the Ten Commandments and illustrating their connection to our legal system, but see
449 U.S. at 41. See also Abington School District v. Schempp, 374 U.S. at 223-224. The proper inquiry under the
purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or
disapproval of religion.

Applying that formulation to this case, I would find that Pawtucket did not intend to convey any message of
endorsement of Christianity or disapproval of non-Christian religions. The evident purpose of including the creche
in the larger display was not promotion of the religious content of the creche, but celebration of the public holiday
through its traditional symbols. Celebration of public holidays, which have cultural significance even if they also
have religious aspects, is a legitimate secular purpose.

The District Court's finding that the display of the creche had no secular purpose was based on erroneous reasoning.
The District Court believed that it should ascertain the city's purpose in displaying the creche separate and apart
from the general purpose in setting up the display. It also found that, because the tradition-celebrating purpose was
suspect in the court's eyes, the city's use of an unarguably religious symbol "raises an inference" of intent to endorse.
When viewed in light of correct legal principles, the District Court's finding of unlawful purpose was clearly
erroneous.

Focusing on the evil of government endorsement or disapproval of religion makes clear that the effect prong of the
Lemon test is properly interpreted not to require invalidation of a government practice merely because it in fact
causes,

Page 465 U. S. 692

even as a primary effect, advancement or inhibition of religion. The laws upheld in Walz v. Tax Comm'n, 397 U. S.
664 (1970) (tax exemption for religious, educational, and charitable organizations), in McGowan v. Maryland, 366
U. S. 420 (1961) (mandatory Sunday closing law), and in Zorach v. Clauson, 343 U. S. 306 (1952) (released time
from school for off-campus religious instruction), had such effects, but they did not violate the Establishment
Clause. What is crucial is that a government practice not have the effect of communicating a message of government
endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or
unintentionally, that make religion relevant, in reality or public perception, to status in the political community.

Pawtucket's display of its creche, I believe, does not communicate a message that the government intends to endorse
the Christian beliefs represented by the creche. Although the religious and indeed sectarian significance of the
creche, as the District Court found, is not neutralized by the setting, the overall holiday setting changes what viewers
may fairly understand to be the purpose of the display -- as a typical museum setting, though not neutralizing the
religious content of a religious painting, negates any message of endorsement of that content. The display celebrates
a public holiday, and no one contends that declaration of that holiday is understood to be an endorsement of religion.
The holiday itself has very strong secular components and traditions. Government celebration of the holiday, which
is extremely common, generally is not understood to endorse the religious content of the holiday, just as government
celebration of Thanksgiving is not so understood. The creche is a traditional symbol of the holiday that is very
commonly displayed along with purely secular symbols, as it was in Pawtucket.
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These features combine to make the government's display of the creche in this particular physical setting no more an
endorsement of religion than such governmental "acknowledgments"

Page 465 U. S. 693

of religion as legislative prayers of the type approved in Marsh v. Chambers, 463 U. S. 783 (1983), government
declaration of Thanksgiving as a public holiday, printing of "In God We Trust" on coins, and opening court sessions
with "God save the United States and this honorable court." Those government acknowledgments of religion serve,
in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions,
expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.
For that reason, and because of their history and ubiquity, those practices are not understood as conveying
government approval of particular religious beliefs. The display of the creche likewise serves a secular purpose --
celebration of a public holiday with traditional symbols. It cannot fairly be understood to convey a message of
government endorsement of religion. It is significant in this regard that the creche display apparently caused no
political divisiveness prior to the filing of this lawsuit, although Pawtucket had incorporated the creche in its annual
Christmas display for some years. For these reasons, I conclude that Pawtucket's display of the creche does not have
the effect of communicating endorsement of Christianity.

The District Court's subsidiary findings on the effect test are consistent with this conclusion. The court found as
facts that the creche has a religious content, that it would not be seen as an insignificant part of the display, that its
religious content is not neutralized by the setting, that the display is celebratory and not instructional, and that the
city did not seek to counteract any possible religious message. These findings do not imply that the creche
communicates government approval of Christianity. The District Court also found, however, that the government
was understood to place its imprimatur on the religious content of the creche. But whether a government activity
communicates endorsement of religion is not a question of simple historical fact.

Page 465 U. S. 694

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. The District Court's conclusion concerning the effect of Pawtucket's display of
its creche was in error as a matter of law.

IV

Every government practice must be judged in its unique circumstances to determine whether it constitutes an
endorsement or disapproval of religion. In making that determination, courts must keep in mind both the
fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in
which Establishment Clause values can be eroded. Government practices that purport to celebrate or acknowledge
events with religious significance must be subjected to careful judicial scrutiny.

The city of Pawtucket is alleged to have violated the Establishment Clause by endorsing the Christian beliefs
represented by the creche included in its Christmas display. Giving the challenged practice the careful scrutiny it
deserves, I cannot say that the particular creche display at issue in this case was intended to endorse or had the effect
of endorsing Christianity. I agree with the Court that the judgment below must be reversed.

* The Court wrote in Lemon v. Kurtzman that a statute must pass three tests to withstand Establishment Clause
challenge.

"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that
neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement
with religion.'"
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403 U.S. at 612-613 (citations omitted). Though phrased as a uniformly applicable test for constitutionality, this
three-part test "provides no more than [a] helpful signpos[t]' in dealing with Establishment Clause challenges."
Mueller v. Allen, 463 U. S. 388, 394 (1983) (quoting Hunt v. McNair, 413 U. S. 734, 741 (1973)).

Moreover, the Court has held that a statute or practice that plainly embodies an intentional discrimination among
religions must be closely fitted to a compelling state purpose in order to survive constitutional challenge. See Larson
v. Valente, 456 U. S. 228 (1982). As the Court's opinion observes, ante at 465 U. S. 687, n. 13, this case does not
involve such discrimination. The Larson standard, I believe, may be assimilated to the Lemon test in the clarified
version I propose. Plain intentional discrimination should give rise to a presumption, which may be overcome by a
showing of compelling purpose and close fit, that the challenged government conduct constitutes an endorsement of
the favored religion or a disapproval of the disfavored.

Lyng v. Northwest Indian Cemetery, 485 U.S. 439 (1988)

Syllabus

In 1982, the United States Forest Service prepared a final environmental impact statement for constructing a paved
road through federal land, including the Chimney Rock area of the Six Rivers National Forest. This area, as reported
in a study commissioned by the Service, has historically been used by certain American Indians for religious rituals
that depend upon privacy, silence, and an undisturbed natural setting. Rejecting the study's recommendation that the
road not be completed through the Chimney Rock area because it would irreparably damage the sacred areas, and
also rejecting alternative routes outside the National Forest, the Service selected a route through the Chimney Rock
area that avoided archeological sites and was removed as far as possible from the sites used by the Indians for
specific spiritual activities. At about the same time, the Service also adopted a management plan allowing for timber
harvesting in the same area, but providing for protective zones around all the religious sites identified in the study.
After exhausting administrative remedies, respondents -- an Indian organization, individual Indians, nature
organizations and members thereof, and the State of California -- filed suit in Federal District Court challenging
both the road-building and timber harvesting decisions. The court issued a permanent injunction that prohibited the
Government from constructing the Chimney Rock section of the road or putting the timber harvesting plan into
effect, holding, inter alia, that such actions would violate respondent Indians' rights under the Free Exercise Clause
of the First Amendment and would violate certain federal statutes. The Court of Appeals affirmed in pertinent part.

Held:

1. The courts below did not clearly explain whether -- in keeping with the principle requiring that courts reach
constitutional questions only when necessary -- they determined that a decision on the First Amendment issue was
necessary because it might entitle respondents to relief beyond that to which they were entitled on their statutory
claims. The structure and wording of the District Court's injunction, however, suggest that the statutory holding
would not have supported all the relief

Page 485 U. S. 440

granted, and the Court of Appeals' silence as to the necessity of reaching the First Amendment issue may have
reflected its understanding that the District Court's injunction necessarily rested in part on constitutional grounds.
Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, and
because the Government is confident that it can cure the statutory defects identified below, it would be inadvisable
for this Court to vacate and remand without addressing the constitutional question on the merits. P P. 445-447.

2. The Free Exercise Clause does not prohibit the Government from permitting timber harvesting in the Chimney
Rock area or constructing the proposed road. P P. 447-458.

(a) In Bowen v. Roy, 476 U. S. 693 -- which held that a federal statute requiring States to use Social Security
numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise
 7

Clause -- this Court rejected the same kind of challenge that respondents assert. Just as in Roy, the affected
individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would
the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the
rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may
interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary
to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise
lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not
in terms of what the individual can exact from the government. Even assuming that the Government's actions here
will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a
principle that could justify upholding respondents' legal claims. P P. 447-453.

(b) The Government's right to the use of its own lands need not and should not discourage it from accommodating
religious practices like those engaged in by the Indian respondents. The Government has taken numerous steps to
minimize the impact that construction of the road will have on the Indians' religious activities -- such as choosing
the route that best protects sites of specific rituals from adverse audible intrusions and planning steps to reduce the
visual impact of the road on the surrounding country. Such solicitude accords with the policy and requirements of
the American Indian Religious Freedom Act. Contrary to respondents' contention, however, that Act does not create
any enforceable legal right that could authorize the District Court's injunction. P P. 453-455.

795 F.2d 688, reversed and remanded.

Page 485 U. S. 441

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and
SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ.,
joined, post, P. 458. KENNEDY, J., took no part in the consideration or decision of the case.

JUSTICE O'CONNOR delivered the opinion of the Court.

This case requires us to consider whether the First Amendment's Free Exercise Clause prohibits the Government
from permitting timber harvesting in, or constructing a road through, a portion of a National Forest that has
traditionally

Page 485 U. S. 442

been used for religious purposes by members of three American Indian tribes in northwestern California. We
conclude that it does not.

As part of a project to create a paved 75-mile road linking two California towns, Gasquet and Orleans, the United
States Forest Service has upgraded 49 miles of previously unpaved roads on federal land. In order to complete this
project (the G-O road), the Forest Service must build a 6-mile paved segment through the Chimney Rock section of
the Six Rivers National Forest. That section of the forest is situated between two other portions of the road that are
already complete.

In 1977, the Forest Service issued a draft environmental impact statement that discussed proposals for upgrading an
existing unpaved road that runs through the Chimney Rock area. In response to comments on the draft statement, the
Forest Service commissioned a study of American Indian cultural and religious sites in the area. The Hoopa Valley
Indian Reservation adjoins the Six Rivers National Forest, and the Chimney Rock area has historically been used for
religious purposes by Yurok, Karok, and Tolowa Indians. The commissioned study, which was completed in 1979,
found that the entire area "is significant as an integral and indispensable part of Indian religious conceptualization
and practice." App. 181. Specific sites are used for certain rituals, and
 8

"successful use of the [area] is dependent upon and facilitated by certain qualities of the physical environment, the
most important of which are privacy, silence, and an undisturbed natural setting."

Ibid. (footnote omitted). The study concluded that constructing a road along any of the available routes

"would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the
belief systems and lifeway of Northwest California Indian peoples."

Id. at 182. Accordingly, the report recommended that the G-O road not be completed.

Page 485 U. S. 443

In 1982, the Forest Service decided not to adopt this recommendation, and it prepared a final environmental impact
statement for construction of the road. The Regional Forester selected a route that avoided archeological sites and
was removed as far as possible from the sites used by contemporary Indians for specific spiritual activities.
Alternative routes that would have avoided the Chimney Rock area altogether were rejected because they would
have required the acquisition of private land, had serious soil stability problems, and would in any event have
traversed areas having ritualistic value to American Indians. See id. at 217-218. At about the same time, the Forest
Service adopted a management plan allowing for the harvesting of significant amounts of timber in this area of the
forest. The management plan provided for one-half mile protective zones around all the religious sites identified in
the report that had been commissioned in connection with the G-O road.

After exhausting their administrative remedies, respondents -- an Indian organization, individual Indians, nature
organizations and individual members of those organizations, and the State of California -- challenged both the
roadbuilding and timber harvesting decisions in the United States District Court for the Northern District of
California. Respondents claimed that the Forest Service's decisions violated the Free Exercise Clause, the Federal
Water Pollution Control Act (FWPCA), 86 Stat. 896, as amended, 33 U.S.C. § 1251 et seq., the National
Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., several other federal statutes, and
governmental trust responsibilities to Indians living on the Hoopa Valley Reservation.

After a trial, the District Court issued a permanent injunction prohibiting the Government from constructing the
Chimney Rock section of the G-O road or putting the timber harvesting management plan into effect. See Northwest
Indian Cemetery Protective Assn. v. Peterson, 565 F.Supp. 586 (1983). The court found that both actions would
violate

Page 485 U. S. 444

the Free Exercise Clause because they "would seriously damage the salient visual, aural, and environmental qualities
of the high country." Id. at 594-595. The court also found that both proposed actions would violate the FWPCA, and
that the environmental impact statements for construction of the road were deficient under the NEPA. Finally, the
court concluded that both projects would breach the Government's trust responsibilities to protect water and fishing
rights reserved to the Hoopa Valley Indians.

While an appeal was pending before the United States Court of Appeals for the Ninth Circuit, Congress enacted the
California Wilderness Act of 1984, Pub.L. 98-425, 98 Stat. 1619. Under that statute, much of the property covered
by the Forest Service's management plan is now designated a wilderness area, which means that commercial
activities such as timber harvesting are forbidden. The statute exempts a narrow strip of land, coinciding with the
Forest Service's proposed route for the remaining segment of the G-O road, from the wilderness designation. The
legislative history indicates that this exemption was adopted "to enable the completion of the Gasquet-Orleans Road
project if the responsible authorities so decide." S.Rep. No. 98-582, p. 29 (1984). The existing unpaved section of
road, however, lies within the wilderness area, and is therefore now closed to general traffic.
 9

A panel of the Ninth Circuit affirmed in part. Northwest Indian Cemetery Protective Assn. v. Peterson, 795 F.2d 688
(1986). The panel unanimously rejected the District Court's conclusion that the Government's proposed actions
would breach its trust responsibilities to Indians on the Hoopa Valley Reservation. The panel also vacated the
injunction to the extent that it had been rendered moot by the California Wilderness Act, which now prevents timber
harvesting in certain areas covered by the District Court's order. The District Court's decision, to the extent that it
rested on statutory grounds, was otherwise unanimously affirmed

Page 485 U. S. 445

By a divided decision, the District Court's constitutional ruling was also affirmed. Relying primarily on the Forest
Service's own commissioned study, the majority found that construction of the Chimney Rock section of the G-O
road would have significant, though largely indirect, adverse effects on Indian religious practices. The majority
concluded that the Government had failed to demonstrate a compelling interest in the completion of the road, and
that it could have abandoned the road without thereby creating "a religious preserve for a single group in violation of
the establishment clause." Id. at 694. The majority apparently applied the same analysis to logging operations that
might be carried out in portions of the Chimney Rock area not covered by the California Wilderness Act. See id. at
692-693 ("Because most of the high country has now been designated by Congress as a wilderness area, the issue of
logging becomes less significant, although it does not disappear").

The dissenting judge argued that certain of the adverse effects on the Indian respondents' religious practices could be
eliminated by less drastic measures than a ban on building the road, and that other actual or suggested adverse
effects did not pose a serious threat to the Indians' religious practices. He also concluded that the injunction against
timber harvesting needed to be reconsidered in light of the California Wilderness Act:

"It is not clear whether the district court would have issued an injunction based upon the development of the
remaining small parcels. Accordingly, I would remand to allow the district court to reevaluate its injunction in light
of the Act."

Id. at 704.

II

We begin by noting that the courts below did not articulate the bases of their decisions with perfect clarity. A
fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them. See Three

Page 485 U. S. 446

Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 157-158 (1984); see also,
e.g., Jean v. Nelson, 472 U. S. 846, 854 (1985); Gulf Oil Co. v. Bernard, 452 U. S. 89, 99 (1981); Ashwander v.
TVA, 297 U. S. 288, 346-348 (1936) (Brandeis, J., concurring). This principle required the courts below to
determine, before addressing the constitutional issue, whether a decision on that question could have entitled
respondents to relief beyond that to which they were entitled on their statutory claims. If no additional relief would
have been warranted, a constitutional decision would have been unnecessary, and therefore inappropriate.

Neither the District Court nor the Court of Appeals explained or expressly articulated the necessity for their
constitutional holdings. Were we persuaded that those holdings were unnecessary, we could simply vacate the
relevant portions of the judgment below without discussing the merits of the constitutional issue. The structure and
wording of the District Court's injunctive order, however, suggest that the statutory holdings would not have
supported all the relief granted. The order is divided into four sections. Two of those sections deal with a 31,100-
acre tract referred to as the Blue Creek Roadless Area. The injunction prohibits the Forest Service from engaging in
timber harvesting or roadbuilding anywhere on the tract "unless and until" compliance with the NEPA and the
FWPCA have been demonstrated. 565 F.Supp. at 606-607. The sections of the injunction dealing with the smaller
 10

Chimney Rock area (i.e., the area affected by the First Amendment challenge) are worded differently. The Forest
Service is permanently enjoined, without any qualifying language, from constructing the proposed portion of the G-
O road "and/or any alternative route" through that area; similarly, the injunction forbids timber harvesting or the
construction of logging roads in the Chimney Rock area pursuant to the Forest Service's proposed management plan
"or any other land management plan."

Page 485 U. S. 447

Id. at 606 (emphasis added). These differences in wording suggest, without absolutely implying, that an injunction
covering the Chimney Rock area would in some way have been conditional, or narrower in scope, if the District
Court had not decided the First Amendment issue as it did. Similarly, the silence of the Court of Appeals as to the
necessity of reaching the First Amendment issue may have reflected its understanding that the District Court's
injunction necessarily rested in part on constitutional grounds.

Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, we
believe that it would be inadvisable to vacate and remand without addressing that issue on the merits. This
conclusion is strengthened by considerations of judicial economy. The Government, which petitioned for certiorari
on the constitutional issue alone, has informed us that it believes it can cure the statutory defects identified below,
intends to do so, and will not challenge the adverse statutory rulings. Tr. of Oral Arg. 9-10. In this circumstance, it is
difficult to see what principle would be vindicated by sending this case on what would almost certainly be a brief
round trip to the courts below.

III

The Free Exercise Clause of the First Amendment provides that "Congress shall make no law . . . prohibiting the
free exercise [of religion]." It is undisputed that the Indian respondents' beliefs are sincere and that the Government's
proposed actions will have severe adverse effects on the practice of their religion. Those respondents contend that
the burden on their religious practices is heavy enough to violate the Free Exercise Clause unless the Government
can demonstrate a compelling need to complete the G-O road or to engage in timber harvesting in the Chimney
Rock area. We disagree.

Page 485 U. S. 448

In Bowen v. Roy, 476 U. S. 693 (1986), we considered a challenge to a federal statute that required the States to use
Social Security numbers in administering certain welfare programs. Two applicants for benefits under these
programs contended that their religious beliefs prevented them from acceding to the use of a Social Security number
for their 2-year-old daughter because the use of a numerical identifier would "rob the spirit' of [their] daughter and
prevent her from attaining greater spiritual power." Id. at 476 U. S. 696. Similarly, in this case, it is said that
disruption of the natural environment caused by the G-O road will diminish the sacredness of the area in question
and create distractions that will interfere with

"training and ongoing religious experience of individuals using [sites within] the area for personal medicine and
growth . . . and as integrated parts of a system of religious belief and practice which correlates ascending degrees of
personal power with a geographic hierarchy of power."

App. 181. Cf. id. at 178 ("Scarred hills and mountains, and disturbed rocks destroy the purity of the sacred areas, and
[Indian] consultants repeatedly stressed the need of a training doctor to be undistracted by such disturbance"). The
Court rejected this kind of challenge in Roy:

"The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal
affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist
 11

that [the Roys] engage in any set form of religious observance, so [they] may not demand that the Government join
in their chosen religious practices by refraining from using a number to identify their daughter. . . ."

". . . The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it
does not afford an individual a right to dictate the conduct of the Government's internal procedures."

476 U.S. at 699-700.

Page 485 U. S. 449

The building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished
from the use of a Social Security number in Roy. In both cases, the challenged Government action would interfere
significantly with private persons' ability to pursue spiritual fulfillment according to their own religious beliefs. In
neither case, however, would the affected individuals be coerced by the Government's action into violating their
religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal
share of the rights, benefits, and privileges enjoyed by other citizens.

We are asked to distinguish this case from Roy on the ground that the infringement on religious liberty here is
"significantly greater," or on the ground that the Government practice in Roy was "purely mechanical," whereas this
case involves "a case-by-case substantive determination as to how a particular unit of land will be managed." Brief
for Indian Respondents 33-34. Similarly, we are told that this case can be distinguished from Roy because "the
government action is not at some physically removed location where it places no restriction on what a practitioner
may do." Brief for Respondent State of California 18. The State suggests that the Social Security number in Roy

"could be characterized as interfering with Roy's religious tenets from a subjective point of view, where the
government's conduct of 'its own internal affairs' was known to him only second-hand, and did not interfere with his
ability to practice his religion."

Id. at 19 (footnote omitted; internal citation omitted). In this case, however, it is said that the proposed road will
"physically destro[y] the environmental conditions and the privacy without which the [religious] practices cannot be
conducted." Ibid.

These efforts to distinguish Roy are unavailing. This Court cannot determine the truth of the underlying beliefs that
led to the religious objections here or in Roy, see Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136,
144, n. 9 (1987), and accordingly cannot weigh the adverse effects

Page 485 U. S. 450

on the appellees in Roy and compare them with the adverse effects on the Indian respondents. Without the ability to
make such comparisons, we cannot say that the one form of incidental interference with an individual's spiritual
activities should be subjected to a different constitutional analysis than the other.

Respondents insist, nonetheless, that the courts below properly relied on a factual inquiry into the degree to which
the Indians' spiritual practices would become ineffectual if the G-O road were built. They rely on several cases in
which this Court has sustained free exercise challenges to government programs that interfered with individuals'
ability to practice their religion. See Wisconsin v. Yoder, 406 U. S. 205 (1972) (compulsory school-attendance law);
Sherbert v. Verner, 374 U. S. 398 (1963) (denial of unemployment benefits to applicant who refused to accept work
requiring her to violate the Sabbath); Thomas v. Review Board, Indiana Employment Security Div., 450 U. S. 707
(1981) (denial of unemployment benefits to applicant whose religion forbade him to fabricate weapons); Hobbie,
supra, (denial of unemployment benefits to religious convert who resigned position that required her to work on the
Sabbath).
 12

Even apart from the inconsistency between Roy and respondents' reading of these cases, their interpretation will not
withstand analysis. It is true that this Court has repeatedly held that indirect coercion or penalties on the free
exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. Thus, for
example, ineligibility for unemployment benefits, based solely on a refusal to violate the Sabbath, has been
analogized to a fine imposed on Sabbath worship. Sherbert, supra, at 374 U. S. 404. This does not and cannot imply
that incidental effects of government programs, which may make it more difficult to practice certain religions but
which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to
bring forward a compelling justification

Page 485 U. S. 451

for its otherwise lawful actions. T he crucial word in the constitutional text is "prohibit":

"For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of
what the individual can exact from the government."

Sherbert, supra, at 374 U. S. 412 (Douglas, J., concurring).

Whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the
legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects
of a governmental action on a religious objector's spiritual development. The Government does not dispute, and we
have no reason to doubt, that the logging and roadbuilding projects at issue in this case could have devastating
effects on traditional Indian religious practices. Those practices are intimately and inextricably bound up with the
unique features of the Chimney Rock area, which is known to the Indians as the "high country." Individual
practitioners use this area for personal spiritual development; some of their activities are believed to be critically
important in advancing the welfare of the Tribe, and indeed, of mankind itself. The Indians use this area, as they
have used it for a very long time, to conduct a wide variety of specific rituals that aim to accomplish their religious
goals. According to their beliefs, the rituals would not be efficacious if conducted at other sites than the ones
traditionally used, and too much disturbance of the area's natural state would clearly render any meaningful
continuation of traditional practices impossible. To be sure, the Indians themselves were far from unanimous in
opposing the G-O road, see App. 180, and it seems less than certain that construction of the road will be so
disruptive that it will doom their religion. Nevertheless, we can assume that the threat to the efficacy of at least some
religious practices is extremely grave.

Even if we assume that we should accept the Ninth Circuit's prediction, according to which the G-O road will
"virtually destroy the . . . Indians' ability to practice their religion,"

Page 485 U. S. 452

795 F.2d 693 (opinion below), the Constitution simply does not provide a principle that could justify upholding
respondents' legal claims. However much we might wish that it were otherwise, government simply could not
operate if it were required to satisfy every citizen's religious needs and desires. A broad range of government
activities -- from social welfare programs to foreign aid to conservation projects -- will always be considered
essential to the spiritual wellbeing of some citizens, often on the basis of sincerely held religious beliefs. Others will
find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual
fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give
to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does
not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in
sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent that it is feasible,
is for the legislatures and other institutions. Cf. The Federalist No. 10 (suggesting that the effects of religious
factionalism are best restrained through competition among a multiplicity of religious sects).
 13

One need not look far beyond the present case to see why the analysis in Roy, but not respondents' proposed
extension of Sherbert and its progeny, offers a sound reading of the Constitution. Respondents attempt to stress the
limits of the religious servitude that they are now seeking to impose on the Chimney Rock area of the Six Rivers
National Forest. While defending an injunction against logging operations and the construction of a road, they
apparently do not at present object to the area's being used by recreational visitors, other Indians, or forest rangers.
Nothing in the principle for which they contend, however, would distinguish this case from another lawsuit in which
they (or similarly situated religious objectors) might seek to exclude all human activity but

Page 485 U. S. 453

their own from sacred areas of the public lands. The Indian respondents insist that "[p]rivacy during the power
quests is required for the practitioners to maintain the purity needed for a successful journey." Brief for Indian
Respondents 8 (emphasis added; citation to record omitted). Similarly:

"The practices conducted in the high country entail intense meditation and require the practitioner to achieve a
profound awareness of the natural environment. Prayer seats are oriented so there is an unobstructed view, and the
practitioner must be surrounded by undisturbed naturalness."

Id. at 8, n. 4 (emphasis added; citations to record omitted). No disrespect for these practices is implied when one
notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public
property. Even without anticipating future cases, the diminution of the Government's property rights, and the
concomitant subsidy of the Indian religion, would in this case be far from trivial: the District Court's order
permanently forbade commercial timber harvesting, or the construction of a two-lane road, anywhere within an area
covering a full 27 sections (i.e. more than 17,000 acres) of public land.

The Constitution does not permit government to discriminate against religions that treat particular physical sites as
sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set
of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not
divest the Government of its right to use what is, after all, its land. Cf. Bowen v. Roy, 476 U.S. at 724-727
(O'CONNOR, J., concurring in part and dissenting in part) (distinguishing between the Government's use of
information in its possession and the Government's requiring an individual to provide such information).

Nothing in our opinion should be read to encourage governmental insensitivity to the religious needs of any citizen.

Page 485 U. S. 454

The Government's rights to the use of its own land, for example, need not and should not discourage it from
accommodating religious practices like those engaged in by the Indian respondents. Cf. Sherbert, 374 U.S. at 422-
423 (Harlan, J., dissenting). It is worth emphasizing, therefore, that the Government has taken numerous steps in this
very case to minimize the impact that construction of the G-O road will have on the Indians' religious activities.
First, the Forest Service commissioned a comprehensive study of the effects that the project would have on the
cultural and religious value of the Chimney Rock area. The resulting 423-page report was so sympathetic to the
Indians' interests that it has constituted the principal piece of evidence relied on by respondents throughout this
litigation.

Although the Forest Service did not in the end adopt the report's recommendation that the project be abandoned,
many other ameliorative measures were planned. No sites where specific rituals take place were to be disturbed. In
fact, a major factor in choosing among alternative routes for the road was the relation of the various routes to
religious sites: the route selected by the Regional Forester is, he noted,
 14

"the farthest removed from contemporary spiritual sites; thus, the adverse audible intrusions associated with the road
would be less than all other alternatives."

App. 102. Nor were the Forest Service's concerns limited to "audible intrusions." As the dissenting judge below
observed, 10 specific steps were planned to reduce the visual impact of the road on the surrounding country. See 795
F.2d 703 (Beezer, J., dissenting in part).

Except for abandoning its project entirely, and thereby leaving the two existing segments of road to dead-end in the
middle of a National Forest, it is difficult to see how the Government could have been more solicitous. Such
solicitude accords with

"the policy of the United States to protect and preserve for American Indians their inherent right of freedom to
believe, express, and exercise the traditional religions

Page 485 U. S. 455

of the American Indian . . . including but not limited to access to sites, use and possession of sacred objects, and the
freedom to worship through ceremonials and traditional rites."

American Indian Religious Freedom Act (AIRFA), Pub.L. 95-341, 92 Stat. 469, 42 U.S.C. § 1996.

Respondents, however, suggest that AIRFA goes further, and in effect enacts their interpretation of the First
Amendment into statutory law. Although this contention was rejected by the District Court, they seek to defend the
judgment below by arguing that AIRFA authorizes the injunction against completion of the G-O road. This
argument is without merit. After reciting several legislative findings, AIRFA "resolves" upon the policy quoted
above. A second section of the statute, 92 Stat. 470, required an evaluation of federal policies and procedures, in
consultation with native religious leaders, of changes necessary to protect and preserve the rights and practices in
question. The required report dealing with this evaluation was completed and released in 1979. Reply Brief for
Petitioners 2, n. 3. Nowhere in the law is there so much as a hint of any intent to create a cause of action or any
judicially enforceable individual rights.

What is obvious from the face of the statute is confirmed by numerous indications in the legislative history. The
sponsor of the bill that became AIRFA, Representative Udall, called it "a sense of Congress joint resolution," aimed
at ensuring that

"the basic right of the Indian people to exercise their traditional religious practices is not infringed without a clear
decision on the part of the Congress or the administrators that such religious practices must yield to some higher
consideration."

124 Cong.Rec. 21444 (1978). Representative Udall emphasized that the bill would not "confer special religious
rights on Indians," would "not change any existing State or Federal law," and in fact "has no teeth in it." Id. at
21444-21445.

Page 485 U. S. 456

The dissent proposes an approach to the First Amendment that is fundamentally inconsistent with the principles on
which our decision rests. Notwithstanding the sympathy that we all must feel for the plight of the Indian
respondents, it is plain that the approach taken by the dissent cannot withstand analysis. On the contrary, the path
towards which it points us is incompatible with the text of the Constitution, with the precedents of this Court, and
with a responsible sense of our own institutional role.
 15

The dissent begins by asserting that the

"constitutional guarantee we interpret today . . . is directed against any form of government action that frustrates or
inhibits religious practice."

Post at 485 U. S. 459 (emphasis added). The Constitution, however, says no such thing. Rather, it states: "Congress
shall make no law . . . prohibiting the free exercise [of religion]." U.S.Const., Amdt. 1 (emphasis added).

As we explained above, Bowen v. Roy rejected a First Amendment challenge to Government activities that the
religious objectors sincerely believed would "rob the spirit' of [their] daughter and prevent her from attaining
greater spiritual power." See supra at 485 U. S. 448 (quoting Roy, 476 U.S. at 696). The dissent now offers to
distinguish that case by saying that the Government was acting there "in a purely internal manner," whereas land-
use decisions "are likely to have substantial external effects." Post at 485 U. S. 470. Whatever the source or
meaning of the dissent's distinction, it has no basis in Roy. Robbing the spirit of a child, and preventing her from
attaining greater spiritual power, is both a "substantial external effect" and one that is remarkably similar to the
injury claimed by respondents in the case before us today. The dissent's reading of Roy would effectively overrule
that decision, without providing any compelling justification for doing so.

The dissent also misreads Wisconsin v. Yoder, 406 U. S. 205 (1972). The statute at issue in that case prohibited the

Page 485 U. S. 457

Amish parents, on pain of criminal prosecution, from providing their children with the kind of education required by
the Amish religion. Id. at 406 U. S. 207-209, 406 U. S. 223. The statute directly compelled the Amish to send their
children to public high schools "contrary to the Amish religion and way of life." Id. at 406 U. S. 209. The Court
acknowledged that the statute might be constitutional, despite its coercive nature, if the State could show with
sufficient

"particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an
exemption to the Amish."

Id. at 406 U. S. 236 (citation omitted). The dissent's out-of-context quotations notwithstanding, there is nothing
whatsoever in the Yoder opinion to support the proposition that the "impact" on the Amish religion would have been
constitutionally problematic if the statute at issue had not been coercive in nature. Cf. post at 485 U. S. 466.

Perceiving a "stress point in the longstanding conflict between two disparate cultures," the dissent attacks us for
declining to

"balanc[e] these competing and potentially irreconcilable interests, choosing instead to turn this difficult task over to
the Federal Legislature."

Post at 485 U. S. 473. Seeing the Court as the arbiter, the dissent proposes a legal test under which it would decide
which public lands are "central" or "indispensable" to which religions, and by implication which are "dispensable"
or "peripheral," and would then decide which government programs are "compelling" enough to justify
"infringement of those practices." Post at 485 U. S. 475. We would accordingly be required to weigh the value of
every religious belief and practice that is said to be threatened by any government program. Unless a "showing of
centrality,'" post at 485 U. S. 474, is nothing but an assertion of centrality, see post at 485 U. S. 475, the dissent
thus offers us the prospect of this Court's holding that some sincerely held religious beliefs and practices are not
"central" to certain religions, despite protestations to the contrary from the religious objectors who brought the
lawsuit. In other words, the dissent's approach would

Page 485 U. S. 458

 16

require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an
approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a
role that we were never intended to play.

IV

The decision of the court below, according to which the First Amendment precludes the Government from
completing the G-O road or from permitting timber harvesting in the Chimney Rock area, is reversed. In order that
the District Court's injunction may be reconsidered in light of this holding, and in the light of any other relevant
events that may have intervened since the injunction issued, the case is remanded for further proceedings consistent
with this opinion.

It is so ordered.

Board of Educ. v. Mergens, 496 U.S. 226 (1990)

Syllabus

Westside High School, a public secondary school that receives federal financial assistance, permits its students to
join, on a voluntary basis, a number of recognized groups and clubs, all of which meet after school hours on school
premises. Citing the Establishment Clause and a School Board policy requiring clubs to have faculty sponsorship,
petitioner school officials denied the request of respondent Mergens for permission to form a Christian club that
would have the same privileges and meet on the same terms and conditions as other Westside student groups, except
that it would have no faculty sponsor. After the Board voted to uphold the denial, respondents, current and former
Westside students, brought suit seeking declaratory and injunctive relief. They alleged, inter alia, that the refusal to
permit the proposed club to meet at Westside violated the Equal Access Act, which prohibits public secondary
schools that receive federal assistance and that maintain a "limited open forum" from denying "equal access" to
students who wish to meet within the forum on the basis of the "religious, political, philosophical, or other content"
of the speech at such meetings. In reversing the District Court's entry of judgment for petitioners, the Court of
Appeals held that the Act applied to forbid discrimination against respondents' proposed club on the basis of its
religious content, and that the Act did not violate the Establishment Clause.

Held: The judgment is affirmed.

867 F.2d 1076 (CA8 1989), affirmed.

Justice O'CONNOR delivered the opinion of the Court with respect to Parts I, II-A, II-B, and II-C, concluding that
petitioners violated the Equal Access Act by denying official recognition to respondents' proposed club. P P. 234-
247.

(a) The Act provides, among other things, that a "limited open forum" exists whenever a covered school "grants an
offering to or opportunity for one or more noncurriculum related student groups to meet on school premises." Its
equal access obligation is therefore triggered even if

Page 496 U. S. 227

such a school allows only one "noncurriculum related" group to meet. P P. 234-237.

(b) Although the Act does not define the crucial phrase "noncurriculum related student group," that term is best
interpreted in the light of the Act's language, logic, and nondiscriminatory purpose, and Congress' intent to provide a
low threshold for triggering the Act's requirements, to mean any student group that does not directly relate to the
body of courses offered by the school. A group directly relates to a school's curriculum if the group's subject matter
is actually taught, or will soon be taught, in a regularly offered course; if that subject matter concerns the body of
 17

courses as a whole; or if participation in the group is required for a particular course or results in academic credit.
Whether a specific group is "noncurriculum related" will therefore depend on the particular school's curriculum, a
determination that would be subject to factual findings well within the competence of trial courts to make. P P. 237-
243.

(c) Westside's existing student clubs include one or more "noncurriculum related student group[s]" under the
foregoing standard. For example, Subsurfers, a club for students interested in scuba diving, is such a group, since its
subject matter is not taught in any regularly offered course; it does not directly relate to the curriculum as a whole in
the same way that a student government or similar group might; and participation in it is not required by any course
and does not result in extra academic credit. Thus, the school has maintained a "limited open forum" under the Act
and is prohibited from discriminating, based on the content of the students' speech, against students who wish to
meet on school premises during noninstructional time. P P. 243-247.

(d) Westside's denial of respondents' request to form a religious group constitutes a denial of "equal access" to the
school's limited open forum. Although the school apparently permits respondents to meet informally after school,
they seek equal access in the form of official recognition, which allows clubs to be part of the student activities
program and carries with it access to the school newspaper, bulletin boards, public address system, and annual Club
Fair. Since denial of such recognition is based on the religious content of the meetings respondents wish to conduct
within the school's limited open forum, it violates the Act. P P. 247-253.

Page 496 U. S. 228

Justice O'CONNOR, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice BLACKMUN, concluded in
Part III that the Equal Access Act does not, on its face and as applied to Westside, contravene the Establishment
Clause. The logic of Widmar v. Vincent, 454 U. S. 263, 271-275 -- which applied the three-part test of Lemon v.
Kurtzman, 403 U. S. 602, 612-613, to hold that an "equal access" policy, at the state university level, does not
violate the Clause -- applies with equal force to the Act.

(a) Because the Act on its face grants equal access to both secular and religious speech, it meets the secular purpose
prong of the test. P P. 248-249.

(b) The Act does not have the primary effect of advancing religion. There is a crucial difference between
government and private speech endorsing religion, and, as Congress recognized in passing the Act, high school
students are mature enough and are likely to understand that a school does not endorse or support student speech that
it merely permits on a nondiscriminatory basis. Moreover, the Act expressly limits participation by school officials
at student religious group meetings and requires that such meetings be held during "noninstructional time," and
thereby avoids the problems of the students' emulation of teachers as role models and mandatory attendance
requirements that might otherwise indicate official endorsement or coercion. Although the possibility of student peer
pressure remains, there is little if any risk of government endorsement or coercion where no formal classroom
activities are involved and no school officials actively participate. P P. 249-252.

(c) Westside does not risk excessive entanglement between government and religion by complying with the Act,
since the Act's provisions prohibit faculty monitors from participating in, nonschool persons from directing,
controlling, or regularly attending, and school "sponsorship" of, religious meetings. Indeed, a denial of equal access
might well create greater entanglement problems in the form of invasive monitoring to prevent religious speech at
meetings at which it might occur. P P. 252-253.

Justice KENNEDY, joined by Justice SCALIA, agreeing that the Act does not violate the Establishment Clause,
concluded that, since the accommodation of religion mandated by the Act is a neutral one, in the context of this case
it suffices to inquire whether the Act violates either of two principles. First, the government cannot give direct
benefits to religion in such a degree that it in fact establishes a state religion or religious faith, or tends to do so.
County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 655
(KENNEDY, J., concurring in judgment in part and dissenting in part). Any incidental benefits that accompany
official recognition of a religious club under the Act's criteria do not lead to the establishment of religion under this
 18

standard. See Widmar v. Vincent, 454 U. S. 263. Second, the government cannot coerce any student to participate in
a religious activity. Cf. County of Allegheny, supra, 492 U.S. at 659. The Act also satisfies this standard, since
nothing on its face or in the facts of this case demonstrates that its enforcement will pressure students to participate
in such an activity. P P. 258-258, 496 U. S. 260-262.

Justice MARSHALL, joined by Justice BRENNAN, although agreeing that the Act as applied to Westside could
withstand Establishment

Page 496 U. S. 229

Clause scrutiny, concluded that the inclusion of the Christian Club in the type of forum presently established at the
school, without more, will not assure government neutrality toward religion. P P. 263-270.

(a) The introduction of religious speech into the public schools reveals the tension between the Free Speech and
Establishment Clauses, because the failure of a school to stand apart from religious speech can convey a message
that the school endorses rather than merely tolerates that speech. Thus, the particular vigilance this Court has shown
in monitoring compliance with the Establishment Clause in elementary and secondary schools, see, e.g., Edwards v.
Aguillard, 482 U. S. 578, 583-584, must extend to monitoring of the actual effects of an "equal access" policy. P P.
263-264.

(b) The plurality misplaces its reliance on Widmar v. Vincent, 454 U. S. 263 in light of the substantially different
character of the student forum at issue here. In Widmar, the state university maintained a wide-open and independent
forum, affording many ideological organizations access to school facilities; took concrete steps to assure that the
university's name was not identified with the policies or programs of any student group; and emphasized the
autonomy of its students. Here, in contrast, Westside currently does not recognize any student group that advocates a
controversial viewpoint and explicitly promotes its student clubs as a vital part of its total educational program and
as a means of developing citizenship, shaping character, and inculcating fundamental values. Moreover, the absence
of other advocacy-oriented clubs in the highly controlled environment provides a fertile ground for peer pressure. In
these circumstances, Westside's failure to disassociate itself from the activities and goals of the Christian Club poses
a real danger that it will be viewed by students as endorsing religious activity. P P. 264-269.

(c) Thus, Westside must take steps to fully disassociate itself from the Christian Club's religious speech and avoid
appearing to sponsor or endorse the Club's goals. It could, for example, entirely discontinue encouraging student
participation in clubs, and clarify that the clubs are not instrumentally related to the school's overall mission. Or, if
Westside sought to continue its general endorsement of those clubs that did not engage in controversial speech, it
could do so if it also affirmatively disclaimed endorsement of the Christian Club. P P. 269-270.

O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I,
II-A II-B, and II-C, in which REHNQUIST, C.J., and WHITE, BLACKMUN, SCALIA, and KENNEDY, JJ.,
joined, and an opinion with respect to Part III, in which REHNQUIST, C.J., and WHITE AND BLACKMUN, JJ.,
joined. KENNEDY, J., filed an opinion

Page 496 U. S. 230

concurring in part and concurring in the judgment, in which SCALIA, J., joined, post, P. 258. MARSHALL, J., filed
an opinion concurring in the judgment, in which BRENNAN, J., joined. STEVENS, J., filed a dissenting opinion,
post, P. 270.

Page 496 U. S. 231

Justice O'CONNOR delivered the opinion of the Court, except as to Part III.
 19

This case requires us to decide whether the Equal Access Act, 98 Stat. 1302, 20 U.S.C. §§ 4071-4074, prohibits
Westside High School from denying a student religious group permission to meet on school premises during
noninstructional time, and if so, whether the Act, so construed, violates the Establishment Clause of the First
Amendment.

Respondents are current and former students at Westside High School, a public secondary school in Omaha,
Nebraska. At the time this suit was filed, the school enrolled about 1,450 students and included grades 10 to 12; in
the 1987-1988 school year, ninth graders were added. Westside High School is part of the Westside Community
School system, an independent public school district. Petitioners are the Board of Education of Westside
Community Schools (District 66); Wayne W. Meier, the president of the school board; James E. Findley, the
principal of Westside High School; Kenneth K. Hanson, the superintendent of schools for the school district; and
James A. Tangdell, the assistant superintendent of schools for the school district.

Students at Westside High School are permitted to join various student groups and clubs, all of which meet after
school hours on school premises. The students may choose from approximately 30 recognized groups on a voluntary
basis. A list of student groups, together with a brief description of each provided by the school, appears in the
Appendix to this opinion.

School Board Policy 5610 concerning "Student Clubs and Organizations" recognizes these student clubs as a "vital
part of the total education program as a means of developing citizenship, wholesome attitudes, good human
relations, knowledge and skills." App. 488. Board Policy 5610 also provides that each club shall have faculty
sponsorship and that

Page 496 U. S. 232

"clubs and organizations shall not be sponsored by any political or religious organization, or by any organization
which denies membership on the basis of race, color, creed, sex or political belief."

Ibid. Board Policy 6180, on "Recognition of Religious Beliefs and Customs" requires that "[s]tudents adhering to a
specific set of religious beliefs or holding to little or no belief shall be alike respected." Id. at 462. In addition, Board
Policy 5450 recognizes its students' "Freedom of Expression," consistent with the authority of the Board. Id. at 489.

There is no written school board policy concerning the formation of student clubs. Rather, students wishing to form
a club present their request to a school official, who determines whether the proposed club's goals and objectives are
consistent with school board policies and with the school district's "Mission and Goals" -- a broadly worded
"blueprint" that expresses the district's commitment to teaching academic, physical, civic, and personal skills and
values. Id. at 473-478.

In January, 1985, respondent Bridget Mergens met with Westside's principal, Dr. Findley, and requested permission
to form a Christian club at the school. The proposed club would have the same privileges and meet on the same
terms and conditions as other Westside student groups, except that the proposed club would not have a faculty
sponsor. According to the students' testimony at trial, the club's purpose would have been, among other things, to
permit the students to read and discuss the Bible, to have fellowship, and to pray together. Membership would have
been voluntary and open to all students, regardless of religious affiliation.

Findley denied the request, as did associate superintendent Tangdell. In February, 1985, Findley and Tangdell
informed Mergens that they had discussed the matter with superintendent Hanson and that he had agreed that her
request should be denied. The school officials explained that school policy required all student clubs to have a
faculty sponsor,

Page 496 U. S. 233

 20

which the proposed religious club would not or could not have, and that a religious club at the school would violate
the Establishment Clause. In March, 1985, Mergens appealed the denial of her request to the Board of Education,
but the Board voted to uphold the denial.

Respondents, by and through their parents as next friends, then brought this suit in the United States District Court
for the District of Nebraska, seeking declaratory and injunctive relief. They alleged that petitioners' refusal to permit
the proposed club to meet at Westside violated the Equal Access Act, 20 U.S.C. §§ 4071-4074, which prohibits
public secondary schools that receive federal financial assistance and that maintain a "limited open forum" from
denying "equal access" to students who wish to meet within the forum on the basis of the content of the speech at
such meetings, § 4071(a). Respondents further alleged that petitioners' actions denied them their First and
Fourteenth Amendment rights to freedom of speech, association, and the free exercise of religion. Petitioners
responded that the Equal Access Act did not apply to Westside, and that, if the Act did apply, it violated the
Establishment Clause of the First Amendment, and was therefore unconstitutional. The United States intervened in
the action pursuant to 28 U.S.C. § 2403 to defend the constitutionality of the Act.

The District Court entered judgment for petitioners. The court held that the Act did not apply in this case because
Westside did not have a "limited open forum" as defined by the Act -- all of Westside's student clubs, the court
concluded, were curriculum-related and tied to the educational function of the school. The court rejected
respondents' constitutional claims, reasoning that Westside did not have a limited public forum as set forth in
Widmar v. Vincent, 454 U. S. 263 (1981), and that Westside's denial of respondents' request was reasonably related
to legitimate pedagogical concerns, see Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 273 (1988).

Page 496 U. S. 234

The United States Court of Appeals for the Eighth Circuit reversed. 867 F.2d 1076 (1989). The Court of Appeals
held that the District Court erred in concluding that all the existing student clubs at Westside were curriculum-
related. The Court of Appeals noted that the "broad interpretation" advanced by the Westside school officials "would
make the [Equal Access Act] meaningless" and would allow any school to "arbitrarily deny access to school
facilities to any unfavored student club on the basis of its speech content," which was "exactly the result that
Congress sought to prohibit by enacting the [Act]." Id. at 1078. The Court of Appeals instead found that "[m]any of
the student clubs at WHS, including the chess club, are noncurriculum-related." Id. at 1079. Accordingly, because it
found that Westside maintained a limited open forum under the Act, the Court of Appeals concluded that the Act
applied to "forbi[d] discrimination against [respondents'] proposed club on the basis of its religious content." Ibid.

The Court of Appeals then rejected petitioners' contention that the Act violated the Establishment Clause. Noting
that the Act extended the decision in Widmar v. Vincent, supra, to public secondary schools, the Court of Appeals
concluded that "[a]ny constitutional attack on the [Act] must therefore be predicated on the difference between
secondary school students and university students." 867 F.2d 1080 (footnote omitted). Because "Congress
considered the difference in the maturity level of secondary students and university students before passing the
[Act]," the Court of Appeals held, on the basis of Congress' factfinding, that the Act did not violate the
Establishment Clause. Ibid.

We granted certiorari, 492 U.S. 917 (1989), and now affirm.

II

In Widmar v. Vincent, 454 U. S. 263 (1981), we invalidated, on free speech grounds, a state university regulation
that prohibited

Page 496 U. S. 235

 21

student use of school facilities "for purposes of religious worship or religious teaching.'" Id. at 454 U. S. 265. In
doing so, we held that an "equal access" policy would not violate the Establishment Clause under our decision in
Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971). In particular, we held that such a policy would have a secular
purpose, would not have the primary effect of advancing religion, and would not result in excessive entanglement
between government and religion. Widmar, 454 U.S. at 271-274. We noted, however, that

"[u]niversity students are, of course, young adults. They are less impressionable than younger students, and should
be able to appreciate that the University's policy is one of neutrality toward religion."

Id. at 454 U. S. 274, n. 14.

In 1984, Congress extended the reasoning of Widmar to public secondary schools. Under the Equal Access Act, a
public secondary school with a "limited open forum" is prohibited from discriminating against students who wish to
conduct a meeting within that forum on the basis of the "religious, political, philosophical, or other content of the
speech at such meetings." 20 U.S.C. §§ 4071(a) and (b). Specifically, the Act provides:

"It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a
limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to
conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other
content of the speech at such meetings."

20 U.S.C. § 4071(a). A "limited open forum" exists whenever a public secondary school

"grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school
premises during noninstructional time."

§ 4071(b). "Meeting" is defined to include "those activities of student groups which are permitted under a school's
limited open forum and are not directly related to the school curriculum." § 4072(3).

Page 496 U. S. 236

"Noninstructional time" is defined to mean "time set aside by the school before actual classroom instruction begins
or after actual classroom instruction ends." § 4072(4). Thus, even if a public secondary school allows only one
"noncurriculum related student group" to meet, the Act's obligations are triggered and the school may not deny other
clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstructional
time.

The Act further specifies that "[s]chools shall be deemed to offer a fair opportunity to students who wish to conduct
a meeting within its limited open forum" if the school uniformly provides that the meetings are voluntary and
student-initiated; are not sponsored by the school, the government, or its agents or employees; do not materially and
substantially interfere with the orderly conduct of educational activities within the school; and are not directed,
controlled, conducted, or regularly attended by "nonschool persons." §§ 4071(c)(1), (2), (4), and (5). "Sponsorship"
is defined to mean

"the act of promoting, leading, or participating in a meeting. The assignment of a.teacher, administrator, or other
school employee to a meeting for custodial purposes does not constitute sponsorship of the meeting."

§ 4072(2). If the meetings are religious, employees or agents of the school or government may attend only in a
"nonparticipatory capacity." § 4071(c)(3). Moreover, a State may not influence the form of any religious activity,
require any person to participate in such activity, or compel any school agent or employee to attend a meeting if the
content of the speech at the meeting is contrary to that person's beliefs. §§ 4071(d)(1), (2), and (3).
 22

Finally, the Act does not "authorize the United States to deny or withhold Federal financial assistance to any
school," § 4071(e), or

"limit the authority of the school, its agents or employees, to maintain order and discipline on school premises, to
protect the wellbeing of students and faculty, and to

Page 496 U. S. 237

assure that attendance of students at the meetings is voluntary."

§ 4071(f).

The parties agree that Westside High School receives federal financial assistance and is a public secondary school
within the meaning of the Act. App. 57-58. The Act's obligation to grant equal access to student groups is therefore
triggered if Westside maintains a "limited open forum" -- i.e., if it permits one or more "noncurriculum related
student groups" to meet on campus before or after classes.

Unfortunately, the Act does not define the crucial phrase "noncurriculum related student group." Our immediate task
is therefore one of statutory interpretation. We begin, of course, with the language of the statute. See, e.g., Mallard
v. U.S. District Court, 490 U. S. 294, 300; United States v. James, 478 U. S. 597, 604 (1986). The common meaning
of the term "curriculum" is "the whole body of courses offered by an educational institution or one of its branches."
Webster's Third New International Dictionary 557 (1976); see also Black's Law Dictionary 345 (5th ed. 1979) ("The
set of studies or courses for a particular period, designated by a school or branch of a school"). Cf. Hazelwood
School Dist. v. Kuhlmeier, 484 U.S. at 271 (high school newspaper produced as part of the school's journalism class
was part of the curriclum). Any sensible interpretation of "noncurriculum related student group" must therefore be
anchored in the notion that such student groups are those that are not related to the body of courses offered by the
school. The difficult question is the degree of "unrelatedness to the curriculum" required for a group to be
considered "noncurriculum related."

The Act's definition of the sort of "meeting[s]" that must be accommodated under the statute, § 4071(a), sheds some
light on this question. "[T]he term meeting' includes those activities of student groups which are . . . not directly
related to the school curriculum." § 4072(3) (emphasis added). Congress'

Page 496 U. S. 238

use of the phrase "directly related" implies that student groups directly related to the subject matter of courses
offered by the school do not fall within the "noncurriculum related" category, and would therefore be considered
"curriculum related."

The logic of the Act also supports this view, namely, that a curriculum-related student group is one that has more
than just a tangential or attenuated relationship to courses offered by the school. Because the purpose of granting
equal access is to prohibit discrimination between religious or political clubs on the one hand and other
noncurriculum-related student groups on the other, the Act is premised on the notion that a religious or political club
is itself likely to be a noncurriculum-related student group. It follows, then, that a student group that is "curriculum
related" must at least have a more direct relationship to the curriculum than a religious or political club would have.

Although the phrase "noncurriculum related student group" nevertheless remains sufficiently ambiguous that we
might normally resort to legislative history, see, e.g., James, supra, 478 U.S. at 606, we find the legislative history
on this issue less than helpful. Because the bill that led to the Act was extensively rewritten in a series of multilateral
negotiations after it was passed by the House and reported out of committee by the Senate, the committee reports
shed no light on the language actually adopted. During congressional debate on the subject, legislators referred to a
 23

number of different definitions, and thus both petitioners and respondents can cite to legislative history favoring
their interpretation of the phrase. Compare 130 Cong.Rec. 19223 (1984) (statement of Sen. Hatfield) (curriculum-
related clubs are those that are "really a kind of extension of the classroom"), with ibid. (statement of Sen. Hatfield)
(in response to question whether school districts would have full authority to decide what was curriculum-related,
"[w]e in no way seek to limit that discretion"). See Laycock, Equal Access and Moments of Silence: The Equal

Page 496 U. S. 239

Status of Religious Speech by Private Speakers, 81 Nw.U.L.Rev. 1, 37-39 (1986).

We think it significant, however, that the Act, which was passed by wide, bipartisan majorities in both the House
and the Senate, reflects at least some consensus on a broad legislative purpose. The committee reports indicate that
the Act was intended to address perceived widespread discrimination against religious speech in public schools, see
H.R.Rep. No. 98-710, p. 4 (1984); S.Rep. No. 98-357, pp. 10-11 (1984), and, as the language of the Act indicates,
its sponsors contemplated that the Act would do more than merely validate the status quo. The committee reports
also show that the Act was enacted in part in response to two federal appellate court decisions holding that student
religious groups could not, consistent with the Establishment Clause, meet on school premises during
noninstructional time. See H.R. Rep. No. 98-710, supra, at 3-6 (discussing Lubbock Civil Liberties Union v.
Lubbock Independent School Dist., 669 F.2d 1038, 1042-1048 (CA5 1982), cert. denied, 459 U.S. 1155-1156
(1983), and Brandon v. Guilderland Bd. of Ed., 635 F.2d 971 (CA2 1980), cert. denied, 454 U.S. 1123 (1981));
S.Rep. No. 98-357, supra, at 6-9, 11-14 (same). A broad reading of the Act would be consistent with the views of
those who sought to end discrimination by allowing students to meet and discuss religion before and after classes.

In light of this legislative purpose, we think that the term "noncurriculum related student group" is best interpreted
broadly to mean any student group that does not directly relate to the body of courses offered by the school. In our
view, a student group directly relates to a school's curriculum if the subject matter of the group is actually taught, or
will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a
whole; if participation in the group is required for a particular course; or if participation in the group results in
academic

Page 496 U. S. 240

credit. We think this limited definition of groups that directly relate to the curriculum is a common sense
interpretation of the Act that is consistent with Congress' intent to provide a low threshold for triggering the Act's
requirements.

For example, a French club would directly relate to the curriculum if a school taught French in a regularly offered
course or planned to teach the subject in the near future. A school's student government would generally relate
directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals
pertaining to the body of courses offered by the school. If participation in a school's band or orchestra were required
for the band or orchestra classes, or resulted in academic credit, then those groups would also directly relate to the
curriculum. The existence of such groups at a school would not trigger the Act's obligations.

On the other hand, unless a school could show that groups such as a chess club, a stamp collecting club, or a
community service club fell within our description of groups that directly relate to the curriculum, such groups
would be "noncurriculum related student groups" for purposes of the Act. The existence of such groups would create
a "limited open forum" under the Act and would prohibit the school from denying equal access to any other student
group on the basis of the content of that group's speech. Whether a specific student group is a "noncurriculum
related student group" will therefore depend on a particular school's curriculum, but such determinations would be
subject to factual findings well within the competence of trial courts to make.

Petitioners contend that our reading of the Act unduly hinders local control over schools and school activities, but
we think that schools and school districts nevertheless retain a significant measure of authority over the type of
 24

officially recognized activities in which their students participate. See, e.g., Hazelwood School Dist. v. Kuhlmeier,
484 U. S. 260 (1988); Bethel School Dist. No. 403 v. Fraser, 478 U.S.

Page 496 U. S. 241

675 (1986). First, schools and school districts maintain their traditional latitude to determine appropriate subjects of
instruction. To the extent that a school chooses to structure its course offerings and existing student groups to avoid
the Act's obligations, that result is not prohibited by the Act. On matters of statutory interpretation, "[o]ur task is to
apply the text, not to improve on it." Pavelic & LeFlore v. Marvel Entertainment Group, 493 U. S. 120, 126 (1989)
(slip op., at 6). Second, the Act expressly does not limit a school's authority to prohibit meetings that would
"materially and substantially interfere with the orderly conduct of educational activities within the school." §
4071(c)(4); cf. Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 509 (1969). The Act also
preserves

"the authority of the school, its agents or employees, to maintain order and discipline on school premises, to protect
the wellbeing of students and faculty, and to assure that attendance of students, at meetings is voluntary."

§ 4071(f). Finally, because the Act applies only to public secondary schools that receive federal financial assistance,
§ 4071(a), a school district seeking to escape the statute's obligations could simply forgo federal funding. Although
we do not doubt that in some cases this may be an unrealistic option, Congress clearly sought to prohibit schools
from discriminating on the basis of the content of a student group's speech, and that obligation is the price a
federally funded school must pay if it opens its facilities to noncurriculum-related student groups.

The dissent suggests that

"an extracurricular student organization is 'noncurriculum related' if it has as its purpose (or as part of its purpose)
the advocacy of partisan theological, political, or ethical views."

Post at 496 U. S. 276; see also id. at 496 U. S. 271, 496 U. S. 290 (Act is triggered only if school permits
"controversial" or "distasteful" groups to use its facilities); post at 496 U. S. 291 ("noncurriculum" subjects are those
that "cannot properly be included in a public school curriculum'"). This interpretation of the Act, we are told, is
mandated by Congress' intention to

Page 496 U. S. 242

"track our own Free Speech Clause jurisprudence," post at 496 U. S. 279, n. 10, by incorporating Widmar's notion
of a "limited public forum" into the language of the Act. Post at 496 U. S. 271-272.

This suggestion is flawed for at least two reasons. First, the Act itself neither uses the phrase "limited public forum"
nor so much as hints that that doctrine is somehow "incorporated" into the words of the statute. The operative
language of the statute, 20 U.S.C. § 4071(a), of course, refers to a "limited open forum," a term that is specifically
defined in the next subsection, § 4071(b). Congress was presumably aware that "limited public forum," as used by
the Court, is a term of art, see, e.g., Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45-49 (1983), and
had it intended to import that concept into the Act, one would suppose that it would have done so explicitly. Indeed,
Congress' deliberate choice to use a different term -- and to define that term -- can only mean that it intended to
establish a standard different from the one established by our free speech cases. See Laycock, 81 Nw.U.L. Rev. at 36
("The statutory limited open forum' is an artificial construct, and comparisons with the constitutional [`limited
public forum'] cases can be misleading"). To paraphrase the dissent, "[i]f Congress really intended to [incorporate]
Widmar for reasons of administrative clarity, Congress kept its intent well hidden, both in the statute and in the
debates preceding its passage." Post at 496 U. S. 281-282, n. 15.

Second, and more significant, the dissent's reliance on the legislative history to support its interpretation of the Act
shows just how treacherous that task can be. The dissent appears to agree with our view that the legislative history of
 25

the Act, even if relevant, is highly unreliable, see, e.g., post at 496 U. S. 274-275, n. 5, and 496 U. S. 281-282, n. 15,
yet the interpretation it suggests rests solely on a few passing, general references by legislators to our decision in
Widmar, see post at 496 U. S. 274 and n. 4. We think that reliance on legislative history is hazardous at best, but
where "not even the sponsors of the bill

Page 496 U. S. 243

knew what it meant,'" post at 496 U. S. 281, n. 15 (quoting Laycock, supra, at 38 (citation omitted)), such reliance
cannot form a reasonable basis on which to interpret the text of a statute. For example, the dissent appears to place
great reliance on a comment by Senator Levin that the Act extends the rule in Widmar to secondary schools, see
post at 496 U. S. 274, n. 4, but Senator Levin's understanding of the "rule," expressed in the same breath as the
statement on which the dissent relies, fails to support the dissent's reading of the Act. See 130 Cong.Rec. 19236
(1984) ("The pending amendment will allow students equal access to secondary schools student-initiated religious
meetings before and after school where the school generally allows groups of secondary school students to meet
during those times") (emphasis added). Moreover, a number of Senators, during the same debate, warned that some
of the views stated did not reflect their own views. See, e.g., ibid. ("I am troubled with the legislative history that you
are making here") (statement of Sen. Chiles); id. at 19237 ("[T]here have been a number of statements made on the
floor today which may be construed as legislative history modifying what my understanding was or what anyone's
understanding might be of this bill") (statement of Sen. Denton). The only thing that can be said with any confidence
is that some Senators may have thought that the obligations of the Act would be triggered only when a school
permits advocacy groups to meet on school premises during noninstructional time. That conclusion, of course,
cannot bear the weight the dissent places on it.

The parties in this case focus their dispute on 10 of Westside's approximately 30 voluntary student clubs: Interact (a
service club related to Rotary International); Chess; Subsurfers (a club for students interested in scuba diving);
National Honor Society; Photography; Welcome to Westside (a club to introduce new students to the

Page 496 U. S. 244

school); Future Business Leaders of America; Zonta (the female counterpart to Interact); Student Advisory Board
(student government); and Student Forum (student government). App. 60. Petitioners contend that all of these
student activities are curriculum-related because they further the goals of particular aspects of the school's
curriculum. Welcome to Westside, for example, helps "further the School's overall goal of developing effective
citizens by requiring student members to contribute to their fellow students." Brief for Petitioners 16. The student
government clubs "advance the goals of the School's political science classes by providing an understanding and
appreciation of government processes." Id. at 17. Subsurfers furthers "one of the essential goals of the Physical
Education Department -- enabling students to develop lifelong recreational interests." Id. at 18. Chess
"supplement[s] math and science courses because it enhances students' ability to engage in critical thought
processes." Id. at 18-19. Participation in Interact and Zonta "promotes effective citizenship, a critical goal of the
WHS curriculum, specifically the Social Studies Department." Id. at 19.

To the extent that petitioners contend that "curriculum related" means anything remotely related to abstract
educational goals, however, we reject that argument. To define "curriculum related" in a way that results in almost
no schools having limited open fora, or in a way that permits schools to evade the Act by strategically describing
existing student groups, would render the Act merely hortatory. See 130 Cong.Rec. 19222 (1984) (statement of Sen.
Leahy) ("[A] limited open forum should be triggered by what a school does, not by what it says"). As the court
below explained:

"Allowing such a broad interpretation of 'curriculum-related' would make the [Act] meaningless. A school's
administration could simply declare that it maintains a closed forum and choose which student clubs it wanted to
allow by tying the purposes of those clubs to
 26

Page 496 U. S. 245

some broadly defined educational goal. At the same time, the administration could arbitrarily deny access to school
facilities to any unfavored student club on the basis of its speech content. This is exactly the result that Congress
sought to prohibit by enacting the [Act]. A public secondary school cannot simply declare that it maintains a closed
forum and then discriminate against a particular student group on the basis of the content of the speech of that
group."

867 F.2d 1076, 1078 (CA8 1989). See also Garnett v. Renton School Dist. No. 403, 874 F.2d 608, 614 (CA9 1989)
("Complete deference [to the school district] would render the Act meaningless because school boards could
circumvent the Act's requirements simply by asserting that all student groups are curriculum related").

Rather, we think it clear that Westside's existing student groups include one or more "noncurriculum related student
groups." Although Westside's physical education classes apparently include swimming, see Record, Tr. of
Preliminary Injunction Hearing 25, counsel stated at oral argument that scuba diving is not taught in any regularly
offered course at the school, Tr. of Oral Arg. 6. Based on Westside's own description of the group, Subsurfers does
not directly relate to the curriculum as a whole in the same way that a student government or similar group might.
App. 485-486. Moreover, participation in Subsurfers is not required by any course at the school, and does not result
in extra academic credit. Id. at 170-171, 236. Thus, Subsurfers is a "noncurriculum related student group" for
purposes of the Act. Similarly, although math teachers at Westside have encouraged their students to play chess, id.,
at 442-444, chess is not taught in any regularly offered course at the school, Tr. of Oral Arg. 6, and participation in
the chess club is not required for any class and does not result in extra credit for any class, App. 302-304. The chess
club is therefore another "noncurriculum related student group" at

Page 496 U. S. 246

Westside. Moreover, Westside's principal acknowledged at trial that the Peer Advocates program -- a service group
that works with special education classes -- does not directly relate to any courses offered by the school and is not
required by any courses offered by the school. Id. at 231-233; see also id. at 198-199 (participation in Peer
Advocates is not required for any course and does not result in extra credit in any course). Peer Advocates would
therefore also fit within our description of a "noncurriculum related student group." The record therefore supports a
finding that Westside has maintained a limited open forum under the Act.

Although our definition of "noncurriculum related student activities" looks to a school's actual practice, rather than
its stated policy, we note that our conclusion is also supported by the school's own description of its student
activities. As reprinted in the Appendix to this opinion, the school states that Band "is included in our regular
curriculum"; Choir "is a course offered as part of the curriculum"; Distributive Education "is an extension of the
Distributive Education class"; International Club is "developed through our foreign language classes"; Latin Club is
"designed for those students who are taking Latin as a foreign language"; Student Publications "includes classes
offered in preparation of the yearbook (Shield) and the student newspaper (Lance)"; Dramatics "is an extension of a
regular academic class"; and Orchestra "is an extension of our regular curriculum." These descriptions constitute
persuasive evidence that these student clubs directly relate to the curriculum. By inference, however, the fact that the
descriptions of student activities such as Subsurfers and chess do not include such references strongly suggests that
those clubs do not, by the school's own admission, directly relate to the curriculum. We therefore conclude that
Westside permits "one or more noncurriculum related student groups to meet on school premises during
noninstructional time," § 4071(b). Because Westside maintains a "limited open forum" under the Act, it is prohibited
from

Page 496 U. S. 247

discriminating, based on the content of the students' speech, against students who wish to meet on school premises
during noninstructional time.
 27

The remaining statutory question is whether petitioners' denial of respondents' request to form a religious group
constitutes a denial of "equal access" to the school's limited open forum. Although the school apparently permits
respondents to meet informally after school, App. 315-316, respondents seek equal access in the form of official
recognition by the school. Official recognition allows student clubs to be part of the student activities program, and
carries with it access to the school newspaper, bulletin boards, the public address system, and the annual Club Fair.
Id. at 434-435. Given that the Act explicitly prohibits denial of "equal access . . . to . . . any students who wish to
conduct a meeting within [the school's] limited open forum" on the basis of the religious content of the speech at
such meetings, § 4071(a), we hold that Westside's denial of respondents' request to form a Christian club denies
them "equal access" under the Act.

Because we rest our conclusion on statutory grounds, we need not decide -- and therefore express no opinion on --
whether the First Amendment requires the same result.

III

Petitioners contend that, even if Westside has created a limited open forum within the meaning of the Act, its denial
of official recognition to the proposed Christian club must nevertheless stand because the Act violates the
Establishment Clause of the First Amendment, as applied to the States through the Fourteenth Amendment.
Specifically, petitioners maintain that, because the school's recognized student activities are an integral part of its
educational mission, official recognition of respondents' proposed club would effectively incorporate religious
activities into the school's official program, endorse participation in the religious club, and provide

Page 496 U. S. 248

the club with an official platform to proselytize other students.

We disagree. In Widmar, we applied the three-part Lemon test to hold that an "equal access" policy, at the university
level, does not violate the Establishment Clause. See 454 U.S. at 271-275 (applying Lemon, 403 U.S. at 612-613).
We concluded that "an open-forum policy, including nondiscrimination against religious speech, would have a
secular purpose," 454 U.S. at 271 (footnotes omitted), and would in fact avoid entanglement with religion. See id. at
454 U. S. 272, n. 11 ("[T]he University would risk greater entanglement' by attempting to enforce its exclusion of
`religious worship' and `religious speech'"). We also found that, although incidental benefits accrued to religious
groups who used university facilities, this result did not amount to an establishment of religion. First, we stated that
a university's forum does not "confer any imprimatur of state approval on religious sects or practices." Id. at 454 U.
S. 274. Indeed, the message is one of neutrality rather than endorsement; if a State refused to let religious groups
use facilities open to others, then it would demonstrate not neutrality but hostility toward religion.

"The Establishment Clause does not license government to treat religion and those who teach or practice it, simply
by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities."

McDaniel v. Paty, 435 U. S. 618, 641 (1978) (BRENNAN, J., concurring in judgment). Second, we noted that "[t]he
[University's] provision of benefits to [a] broad . . . spectrum of groups" -- both nonreligious and religious speakers
-- was "an important index of secular effect." 454 U.S. at 274.

We think the logic of Widmar applies with equal force to the Equal Access Act. As an initial matter, the Act's
prohibition of discrimination on the basis of "political, philosophical, or other" speech as well as religious speech is
a sufficient basis for meeting the secular purpose prong of the Lemon test. See Edwards v. Aguillard, 482 U. S. 578,
586 (1987)

Page 496 U. S. 249

(Court "is normally deferential to a [legislative] articulation of a secular purpose"); Mueller v. Allen, 463 U. S. 388,
394-395 (1983) (Court is "reluctan[t] to attribute unconstitutional motives to the States, particularly when a plausible
 28

secular purpose for the State's program may be discerned from the face of the statute"). Congress' avowed purpose --
to prevent discrimination against religious and other types of speech -- is undeniably secular. See Corporation of
Presiding Bishop, Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 335-336 (1987); Committee
for Public Education and Religious Liberty v. Nyquist, 413 U. S. 756, 773 (1973). Cf. 42 U.S.C. § 2000e-2(a)
(prohibiting employment discrimination on grounds of race, color, religion sex, or national origin). Even if some
legislators were motivated by a conviction that religious speech in particular was valuable and worthy of protection,
that alone would not invalidate the Act, because what is relevant is the legislative purpose of the statute, not the
possibly religious motives of the legislators who enacted the law. Because the Act on its face grants equal access to
both secular and religious speech, we think it clear that the Act's purpose was not to "endorse or disapprove of
religion,'" Wallace v. Jaffree, 472 U. S. 38, 56 (1985) (quoting Lynch v. Donnelly, 465 U. S. 668, 690 (1984)
(O'CONNOR, J., concurring)).

Petitioners' principal contention is that the Act has the primary effect of advancing religion. Specifically, petitioners
urge that, because the student religious meetings are held under school aegis, and because the state's compulsory
attendance laws bring the students together (and thereby provide a ready-made audience for student evangelists), an
objective observer in the position of a secondary school student will perceive official school support for such
religious meetings. See County of Allegheny v. ACLU, 492 U. S. 573, 593 (1989) (Establishment Clause inquiry is
whether the government "convey[s] or attempt[s] to convey a message that religion or

Page 496 U. S. 250

a particular religious belief is favored or preferred'") (quoting Wallace v. Jaffree, supra, 472 U.S. at 70
(O'CONNOR, J., concurring in part and concurring in judgment)).

We disagree. First, although we have invalidated the use of public funds to pay for teaching state-required subjects
at parochial schools, in part because of the risk of creating

"a crucial symbolic link between government and religion, thereby enlisting -- at least in the eyes of impressionable
youngsters -- the powers of government to the support of the religious denomination operating the school,"

Grand Rapids School Dist. v. Ball, 473 U. S. 373, 385 (1985), there is a crucial difference between government
speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the
Free Speech and Free Exercise Clauses protect. We think that secondary school students are mature enough and are
likely to understand that a school does not endorse or support student speech that it merely permits on a
nondiscriminatory basis. Cf. Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969) (no
danger that high school students' symbolic speech implied school endorsement); West Virginia State Bd. of Ed. v.
Barnette, 319 U. S. 624 (1943) (same). See generally Note, 92 Yale L.J. 499, 507-509 (1983) (summarizing research
in adolescent psychology). The proposition that schools do not endorse everything they fail to censor is not
complicated.

"[P]articularly in this age of massive media information . . . the few years difference in age between high school and
college students [does not] justif[y] departing from Widmar."

Bender v. Williamsport Area School Dist., 475 U. S. 534, 556 (1986) (Powell, J., dissenting).

Indeed, we note that Congress specifically rejected the argument that high school students are likely to confuse an
equal access policy with state sponsorship of religion. See S.Rep. No. 98-357, p. 8 (1984); id. at 35 ("[S]tudents
below the college level are capable of distinguishing between State-initiated, school sponsored, or teacher-led
religious

Page 496 U. S. 251

 29

speech on the one hand and student-initiated, student-led religious speech on the other"). Given the deference due
"the duly enacted and carefully considered decision of a coequal and representative branch of our Government,"
Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 319 (1985); see also Rostker v. Goldberg, 453 U. S.
57, 64 (1981), we do not lightly second-guess such legislative judgments, particularly where the judgments are
based in part on empirical determinations.

Second, we note that the Act expressly limits participation by school officials at meetings of student religious
groups, §§ 4071(c)(2) and (3), and that any such meetings must be held during "noninstructional time," § 4071(b).
The Act therefore avoids the problems of "the students' emulation of teachers as role models" and "mandatory
attendance requirements," Edwards v. Aguillard, 482 U.S. at 584; see also Illinois ex rel. McCollum v. Board of
Education, 333 U. S. 203, 209-210 (1948) (release time program invalid where students were "released in part from
their legal duty [to attend school] upon the condition that they attend the religious classes"). To be sure, the
possibility of student peer pressure remains, but there is little if any risk of official state endorsement or coercion
where no formal classroom activities are involved and no school officials actively participate. Moreover, petitioners'
fear of a mistaken inference of endorsement is largely self-imposed, because the school itself has control over any
impressions it gives its students. To the extent a school makes clear that its recognition of respondents' proposed
club is not an endorsement of the views of the club's participants, see Widmar, 454 U.S. at 274, n. 14 (noting that
university student handbook states that the university's name will not be identified with the aims, policies, or
opinions of any student organization or its members), students will reasonably understand that the school's official
recognition of the club evinces neutrality toward, rather than endorsement of, religious speech.

Page 496 U. S. 252

Third, the broad spectrum of officially recognized student clubs at Westside, and the fact that Westside students are
free to initiate and organize additional student clubs, see App. 221-222, counteract any possible message of official
endorsement of or preference for religion or a particular religious belief. See Widmar, 454 U.S. at 274 ("The
provision of benefits to so broad a spectrum of groups is an important index of secular effect"). Although a school
may not itself lead or direct a religious club, a school that permits a student-initiated and student-led religious club
to meet after school, just as it permits any other student group to do, does not convey a message of state approval or
endorsement of the particular religion. Under the Act, a school with a limited open forum may not lawfully deny
access to a Jewish students' club, a Young Democrats club, or a philosophy club devoted to the study of Nietzsche.
To the extent that a religious club is merely one of many different student-initiated voluntary clubs, students should
perceive no message of government endorsement of religion. Thus, we conclude that the Act does not, at least on its
face and as applied to Westside, have the primary effect of advancing religion. See id. at 454 U. S. 275 ("At least in
the absence of empirical evidence that religious groups will dominate [the university's] open forum, . . . the
advancement of religion would not be the forum's primary effect'").

Petitioners' final argument is that, by complying with the Act's requirement, the school risks excessive entanglement
between government and religion. The proposed club, petitioners urge, would be required to have a faculty sponsor
who would be charged with actively directing the activities of the group, guiding its leaders, and ensuring balance in
the presentation of controversial ideas. Petitioners claim that this influence over the club's religious program would
entangle the government in day-to-day surveillance of religion of the type forbidden by the Establishment Clause.

Page 496 U. S. 253

Under the Act, however, faculty monitors may not participate in any religious meetings, and nonschool persons may
not direct, control, or regularly attend activities of student groups. §§ 4071(c)(3) and (5). Moreover, the Act
prohibits school "sponsorship" of any religious meetings, § 4071(c)(2), which means that school officials may not
promote, lead, or participate in any such meeting, § 4072(2). Although the Act permits "[t]he assignment of a
teacher, administrator, or other school employee to the meeting for custodial purposes," ibid., such custodial
oversight of the student-initiated religious group, merely to ensure order and good behavior, does not impermissibly
entangle government in the day-to-day surveillance or administration of religious activities. See Tony and Susan
Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 305-306 (1985). Indeed, as the Court noted in Widmar, a
denial of equal access to religious speech might well create greater entanglement problems in the form of invasive
 30

monitoring to prevent religious speech at meetings at which such speech might occur. See Widmar, 454 U.S. at 272,
n. 11.

Accordingly, we hold that the Equal Access Act does not on its face contravene the Establishment Clause. Because
we hold that petitioners have violated the Act, we do not decide respondents' claims under the Free Speech and Free
Exercise Clauses. For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Employment Div. v. Smith., 494 U.S. 872 (1990)

Syllabus

Respondents Smith and Black were fired by a private drug rehabilitation organization because they ingested peyote,
a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications
for unemployment compensation were denied by the State of Oregon under a state law disqualifying employees
discharged for work-related "misconduct." Holding that the denials violated respondents' First Amendment free
exercise rights, the State Court of Appeals reversed. The State Supreme Court affirmed, but this Court vacated the
judgment and remanded for a determination whether sacramental peyote use is proscribed by the State's controlled
substance law, which makes it a felony to knowingly or intentionally possess the drug. Pending that determination,
the Court refused to decide whether such use is protected by the Constitution. On remand, the State Supreme Court
held that sacramental peyote use violated, and was not excepted from, the state law prohibition, but concluded that
that prohibition was invalid under the Free Exercise Clause.

Held: The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny
unemployment benefits to persons discharged for such use. P P. 876-890.

(a) Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to
ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause
does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the
performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious
practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.
See, e.g., Reynolds v. United States, 98 U. S. 145, 166-167. The only decisions in which this Court has held that the
First Amendment bars application of a neutral, generally applicable law to religiously motivated action are
distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction
with other constitutional

Page 494 U. S. 873

protections. See, e.g., Cantwell v. Connecticut, 310 U. S. 296, 304-307; Wisconsin v. Yoder, 406 U. S. 205. P P. 876-
882.

(b) Respondents' claim for a religious exemption from the Oregon law cannot be evaluated under the balancing test
set forth in the line of cases following Sherbert v. Verner, 374 U. S. 398, 402-403, whereby governmental actions
that substantially burden a religious practice must be justified by a "compelling governmental interest." That test
was developed in a context -- unemployment compensation eligibility rules -- that lent itself to individualized
governmental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board
criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to
ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of
religious belief. Nor could such a right be limited to situations in which the conduct prohibited is "central" to the
individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular
beliefs or practices to a faith. Cf. Hernandez v. Commissioner, 490 U. S. 680, 699. Thus, although it is
 31

constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not
constitutionally required. P P. 882-890.

307 Or. 68, 763 P.2d 146, reversed.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and
KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in Parts I and II of which
BRENNAN, MARSHALL, and BLACKMUN, JJ., joined without concurring in the judgment, post, P. 891.
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, P. 907.

Justice O'CONNOR, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join as to
Parts I and II, concurring in the judgment. *

Although I agree with the result the Court reaches in this case, I cannot join its opinion. In my view, today's holding
dramatically departs from well settled First Amendment jurisprudence, appears unnecessary to resolve the question
presented, and is incompatible with our Nation's fundamental commitment to individual religious liberty.

At the outset, I note that I agree with the Court's implicit determination that the constitutional question upon which
we granted review -- whether the Free Exercise Clause protects a person's religiously motivated use of peyote from
the reach of a State's general criminal law prohibition -- is properly presented in this case. As the Court recounts,
respondents Alfred Smith and Galen Black were denied unemployment compensation benefits because their
sacramental use of peyote constituted work-related "misconduct," not because they violated Oregon's general
criminal prohibition against possession of peyote. We held, however, in Employment Div., Dept. of Human
Resources of Oregon v. Smith, 485 U. S. 660 (1988) (Smith I), that whether a State may, consistent with federal law,
deny unemployment compensation benefits to persons for their religious use of peyote depends on whether the State,
as a matter of state law, has criminalized the underlying conduct. See id. at 485 U. S. 670-672. The Oregon Supreme
Court, on remand from this Court, concluded that "the Oregon statute against possession of controlled substances,
which include peyote, makes no exception for the sacramental use of peyote." 307 Or. 68, 72-73, 763 P.2d 146, 148
(1988) (footnote omitted).

Page 494 U. S. 892

Respondents contend that, because the Oregon Supreme Court declined to decide whether the Oregon Constitution
prohibits criminal prosecution for the religious use of peyote, see id. at 73, n. 3, 763 P.2d at 148, n. 3, any ruling on
the federal constitutional question would be premature. Respondents are of course correct that the Oregon Supreme
Court may eventually decide that the Oregon Constitution requires the State to provide an exemption from its
general criminal prohibition for the religious use of peyote. Such a decision would then reopen the question whether
a State may nevertheless deny unemployment compensation benefits to claimants who are discharged for engaging
in such conduct. As the case comes to us today, however, the Oregon Supreme Court has plainly ruled that Oregon's
prohibition against possession of controlled substances does not contain an exemption for the religious use of
peyote. In light of our decision in Smith I, which makes this finding a "necessary predicate to a correct evaluation of
respondents' federal claim," 485 U.S. at 672, the question presented and addressed is properly before the Court.

II

The Court today extracts from our long history of free exercise precedents the single categorical rule that

"if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise
valid provision, the First Amendment has not been offended."
 32

Ante at 494 U. S. 878 (citations omitted). Indeed, the Court holds that, where the law is a generally applicable
criminal prohibition, our usual free exercise jurisprudence does not even apply. Ante at 494 U. S. 884. To reach this
sweeping result, however, the Court must not only give a strained reading of the First Amendment but must also
disregard our consistent application of free exercise doctrine to cases involving generally applicable regulations that
burden religious conduct.

Page 494 U. S. 893

The Free Exercise Clause of the First Amendment commands that "Congress shall make no law . . . prohibiting the
free exercise [of religion]." In Cantwell v. Connecticut, 310 U. S. 296 (1940), we held that this prohibition applies to
the States by incorporation into the Fourteenth Amendment and that it categorically forbids government regulation
of religious beliefs. Id. at 310 U. S. 303. As the Court recognizes, however, the "free exercise" of religion often, if
not invariably, requires the performance of (or abstention from) certain acts. Ante at 494 U. S. 877; cf. 3 A New
English Dictionary on Historical Principles 401-402 (J. Murray, ed. 1897) (defining "exercise" to include "[t]he
practice and performance of rites and ceremonies, worship, etc.; the right or permission to celebrate the observances
(of a religion)" and religious observances such as acts of public and private worship, preaching, and prophesying).
"[B]elief and action cannot be neatly confined in logic-tight compartments." Wisconsin v. Yoder, 406 U. S. 205, 220
(1972). Because the First Amendment does not distinguish between religious belief and religious conduct, conduct
motivated by sincere religious belief, like the belief itself, must therefore be at least presumptively protected by the
Free Exercise Clause.

The Court today, however, interprets the Clause to permit the government to prohibit, without justification, conduct
mandated by an individual's religious beliefs, so long as that prohibition is generally applicable. Ante at 494 U. S. .
But a law that prohibits certain conduct -- conduct that happens to be an act of worship for someone -- manifestly
does prohibit that person's free exercise of his religion. A person who is barred from engaging in religiously
motivated conduct is barred from freely exercising his religion. Moreover, that person is barred from freely
exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious
reasons, only by members of that religion, or by all persons. It is difficult to deny that a law that prohibits

Page 494 U. S. 894

religiously motivated conduct, even if the law is generally applicable, does not at least implicate First Amendment
concerns.

The Court responds that generally applicable laws are "one large step" removed from laws aimed at specific
religious practices. Ibid. The First Amendment, however, does not distinguish between laws that are generally
applicable and laws that target particular religious practices. Indeed, few States would be so naive as to enact a law
directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally
applicable laws that had the effect of significantly burdening a religious practice. If the First Amendment is to have
any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly
targets a religious practice. As we have noted in a slightly different context,

"'[s]uch a test has no basis in precedent and relegates a serious First Amendment value to the barest level of
minimum scrutiny that the Equal Protection Clause already provides.'"

Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U. S. 136, 141-142 (1987) (quoting Bowen v. Roy, 476
U. S. 693, 727 (1986) (opinion concurring in part and dissenting in part)).

To say that a person's right to free exercise has been burdened, of course, does not mean that he has an absolute right
to engage in the conduct. Under our established First Amendment jurisprudence, we have recognized that the
freedom to act, unlike the freedom to believe, cannot be absolute. See, e.g., Cantwell, supra, 310 U.S. at 304;
 33

Reynolds v. United States, 98 U. S. 145, 161-167. Instead, we have respected both the First Amendment's express
textual mandate and the governmental interest in regulation of conduct by requiring the Government to justify any
substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to
achieve that interest. See Hernandez v. Commissioner, 490 U. S. 680,

Page 494 U. S. 895

490 U. S. 699 (1989); Hobbie, supra, 480 U.S. at 141; United States v. Lee, 455 U. S. 252, 257-258 (1982); Thomas
v. Review Bd., Indiana Employment Security Div., 450 U. S. 707, 718 (1981); McDaniel v. Paty, 435 U. S. 618, 626-
629 (1978) (plurality opinion); Yoder, supra, 406 U.S. at 215; Gillette v. United States, 401 U. S. 437, 462 (1971);
Sherbert v. Verner, 374 U. S. 398, 403 (1963); see also Bowen v. Roy, supra, 476 U.S. at 732 (opinion concurring in
part and dissenting in part); West Virginia State Bd. of Educ. v. Barnette, 319 U. S. 624, 639 (1943). The compelling
interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it
occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or
indirect, unless required by clear and compelling governmental interests "of the highest order," Yoder, supra, 406
U.S. at 215.

"Only an especially important governmental interest pursued by narrowly tailored means can justify exacting a
sacrifice of First Amendment freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed
by other citizens."

Roy, supra, 476 U.S. at 728 (opinion concurring in part and dissenting in part).

The Court attempts to support its narrow reading of the Clause by claiming that

"[w]e have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law
prohibiting conduct that the State IS free to regulate."

Ante at 494 U. S. 878-879. But as the Court later notes, as it must, in cases such as Cantwell and Yoder, we have in
fact interpreted the Free Exercise Clause to forbid application of a generally applicable prohibition to religiously
motivated conduct. See Cantwell, supra, 310 U.S. at 304-307; Yoder, supra, 406 U.S. at 214-234. Indeed, in Yoder
we expressly rejected the interpretation the Court now adopts:

"[O]ur decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free
Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject

Page 494 U. S. 896

to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general
welfare, or the Federal Government in the exercise of its delegated powers. But to agree that religiously grounded
conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct
protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control,
even under regulations of general applicability. . . . "

". . . A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for
government neutrality if it unduly burdens the free exercise of religion."

406 U.S. at 219-220 (emphasis added; citations omitted).

The Court endeavors to escape from our decisions in Cantwell and Yoder by labeling them "hybrid" decisions, ante
at 494 U. S. 892, but there is no denying that both cases expressly relied on the Free Exercise Clause, see Cantwell,
310 U.S. at 303-307; Yoder, 406 U.S. at 219-229, and that we have consistently regarded those cases as part of the
mainstream of our free exercise jurisprudence. Moreover, in each of the other cases cited by the Court to support its
 34

categorical rule, ante at 494 U. S. 879-880, we rejected the particular constitutional claims before us only after
carefully weighing the competing interests. See Prince v. Massachusetts, 321 U. S. 158, 168-170 (1944) (state
interest in regulating children's activities justifies denial of religious exemption from child labor laws); Braunfeld v.
Brown, 366 U. S. 599, 608-609 (1961) (plurality opinion) (state interest in uniform day of rest justifies denial of
religious exemption from Sunday closing law); Gillette, supra, 401 U.S. at 462 (state interest in military affairs
justifies denial of religious exemption from conscription laws); Lee, supra, 455 U.S. at 258-259 (state interest in
comprehensive social security system justifies denial of religious exemption from mandatory participation
requirement). That we rejected the free exercise

Page 494 U. S. 897

claims in those cases hardly calls into question the applicability of First Amendment doctrine in the first place.
Indeed, it is surely unusual to judge the vitality of a constitutional doctrine by looking to the win-loss record of the
plaintiffs who happen to come before us.

Respondents, of course, do not contend that their conduct is automatically immune from all governmental regulation
simply because it is motivated by their sincere religious beliefs. The Court's rejection of that argument, ante at 494
U. S. 882, might therefore be regarded as merely harmless dictum. Rather, respondents invoke our traditional
compelling interest test to argue that the Free Exercise Clause requires the State to grant them a limited exemption
from its general criminal prohibition against the possession of peyote. The Court today, however, denies them even
the opportunity to make that argument, concluding that "the sounder approach, and the approach in accord with the
vast majority of our precedents, is to hold the [compelling interest] test inapplicable to" challenges to general
criminal prohibitions. Ante at 494 U. S. 885.

In my view, however, the essence of a free exercise claim is relief from a burden imposed by government on
religious practices or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific
religious practices, or indirectly through laws that, in effect, make abandonment of one's own religion or conformity
to the religious beliefs of others the price of an equal place in the civil community. As we explained in Thomas:

"Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it
denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an
adherent to modify his behavior and to violate his beliefs, a burden upon religion exists." 450 U.S. at 717-718.

Page 494 U. S. 898

See also Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829, 832 (1989); Hobbie, 480 U.S. at 141. A
State that makes criminal an individual's religiously motivated conduct burdens that individual's free exercise of
religion in the severest manner possible, for it "results in the choice to the individual of either abandoning his
religious principle or facing criminal prosecution." Braunfeld, supra, 366 U.S. at 605. I would have thought it
beyond argument that such laws implicate free exercise concerns.

Indeed, we have never distinguished between cases in which a State conditions receipt of a benefit on conduct
prohibited by religious beliefs and cases in which a State affirmatively prohibits such conduct. The Sherbert
compelling interest test applies in both kinds of cases. See, e.g., Lee, 455 U.S. at 257-260 (applying Sherbert to
uphold social security tax liability); Gillette, 401 U.S. at 462 (applying Sherbert to uphold military conscription
requirement); Yoder, supra, 406 U.S. at 215-234 (applying Sherbert to strike down criminal convictions for
violation of compulsory school attendance law). As I noted in Bowen v. Roy:

"The fact that the underlying dispute involves an award of benefits rather than an exaction of penalties does not
grant the Government license to apply a different version of the Constitution. . . . "
 35

". . . The fact that appellees seek exemption from a precondition that the Government attaches to an award of
benefits does not, therefore, generate a meaningful distinction between this case and one where appellees seek an
exemption from the Government's imposition of penalties upon them."

476 U.S. at 731-732 (opinion concurring in part and dissenting in part). See also Hobbie, supra, 480 U.S. at 141-
142; Sherbert, 374 U.S. at 404. I would reaffirm that principle today: a neutral criminal law prohibiting conduct that
a State may legitimately regulate is, if anything, more burdensome than a neutral civil

Page 494 U. S. 899

statute placing legitimate conditions on the award of a state benefit.

Legislatures, of course, have always been "left free to reach actions which were in violation of social duties or
subversive of good order." Reynolds, 98 U.S. at 164; see also Yoder, 406 U.S. at 219-220; Braunfeld, 366 U.S. at
603-604. Yet because of the close relationship between conduct and religious belief,

"[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe
the protected freedom."

Cantwell, 310 U.S. at 304. Once it has been shown that a government regulation or criminal prohibition burdens the
free exercise of religion, we have consistently asked the Government to demonstrate that unbending application of
its regulation to the religious objector "is essential to accomplish an overriding governmental interest," Lee, supra,
455 U.S. at 257-258, or represents "the least restrictive means of achieving some compelling state interest," Thomas,
450 U.S. at 718. See, e.g., Braunfeld, supra, 366 U.S. at 607; Sherbert, supra, 374 U.S. at 406; Yoder, supra, 406
U.S. at 214-215; Roy, 476 U.S. at 728-732 (opinion concurring in part and dissenting in part). To me, the sounder
approach -- the approach more consistent with our role as judges to decide each case on its individual merits -- is to
apply this test in each case to determine whether the burden on the specific plaintiffs before us is constitutionally
significant, and whether the particular criminal interest asserted by the State before us is compelling. Even if, as an
empirical matter, a government's criminal laws might usually serve a compelling interest in health, safety, or public
order, the First Amendment at least requires a case-by-case determination of the question, sensitive to the facts of
each particular claim. Cf. McDaniel, 435 U.S. at 628, n. 8 (plurality opinion) (noting application of Sherbert to
general criminal prohibitions and the "delicate balancing required by our decisions in" Sherbert and Yoder). Given
the range of conduct that a State might legitimately make

Page 494 U. S. 900

criminal, we cannot assume, merely because a law carries criminal sanctions and is generally applicable, that the
First Amendment never requires the State to grant a limited exemption for religiously motivated conduct.

Moreover, we have not "rejected" or "declined to apply" the compelling interest test in our recent cases. Ante at 494
U. S. 883-884. Recent cases have instead affirmed that test as a fundamental part of our First Amendment doctrine.
See, e.g., Hernandez, 490 U.S. at 699; Hobbie, supra, 480 U.S. at 141-142 (rejecting Chief Justice Burger's
suggestion in Roy, supra, 476 U.S. at 707-708, that free exercise claims be assessed under a less rigorous
"reasonable means" standard). The cases cited by the Court signal no retreat from our consistent adherence to the
compelling interest test. In both Bowen v. Roy, supra, and Lyng v. Northwest Indian Cemetary Protective Assn., 485
U. S. 439 (1988), for example, we expressly distinguished Sherbert on the ground that the First Amendment does
not

"require the Government itself to behave in ways that the individual believes will further his or her spiritual
development. . . . The Free Exercise Clause simply cannot be understood to require the Government to conduct its
own internal affairs in ways that comport with the religious beliefs of particular citizens."

Roy, supra, 476 U.S. at 699; see Lyng, supra, 485 U.S. at 449. This distinction makes sense because
 36

"the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of
what the individual can exact from the government."

Sherbert, supra, 374 U.S. at 412 (Douglas, J., concurring). Because the case sub judice, like the other cases in which
we have applied Sherbert, plainly falls into the former category, I would apply those established precedents to the
facts of this case.

Similarly, the other cases cited by the Court for the proposition that we have rejected application of the Sherbert test
outside the unemployment compensation field, ante at 494 U. S. 884, are distinguishable because they arose in the
narrow, specialized contexts in which we have not traditionally required

Page 494 U. S. 901

the government to justify a burden on religious conduct by articulating a compelling interest. See Goldman v.
Weinberger, 475 U. S. 503, 507 (1986) ("Our review of military regulations challenged on First Amendment
grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian
society"); O'Lone v. Estate of Shabazz, 482 U. S. 342, 349 (1987) ("[P]rison regulations alleged to infringe
constitutional rights are judged under a reasonableness' test less restrictive than that ordinarily applied to alleged
infringements of fundamental constitutional rights") (citation omitted). That we did not apply the compelling
interest test in these cases says nothing about whether the test should continue to apply in paradigm free exercise
cases such as the one presented here.

The Court today gives no convincing reason to depart from settled First Amendment jurisprudence. There is nothing
talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral toward
religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively
as laws aimed at religion. Although the Court suggests that the compelling interest test, as applied to generally
applicable laws, would result in a "constitutional anomaly," ante at 494 U. S. 886, the First Amendment
unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a
"constitutional nor[m]," not an "anomaly." Ibid. Nor would application of our established free exercise doctrine to
this case necessarily be incompatible with our equal protection cases. Cf. Rogers v. Lodge, 458 U. S. 613, 618
(1982) (race-neutral law that "bears more heavily on one race than another'" may violate equal protection) (citation
omitted); Castaneda v. Partida, 430 U. S. 482, 492-495 (1977) (grand jury selection). We have, in any event,
recognized that the Free Exercise Clause protects values distinct from those protected by the Equal Protection
Clause. See Hobbie, 480 U.S. at 141-142. As the language of the

Page 494 U. S. 902

Clause itself makes clear, an individual's free exercise of religion is a preferred constitutional activity. See, e.g.,
McConnell, Accommodation of Religion, 1985 Sup.Ct.Rev. 1, 9 ("[T]he text of the First Amendment itself `singles
out' religion for special protections"); P. Kauper, Religion and the Constitution 17 (1964). A law that makes
criminal such an activity therefore triggers constitutional concern -- and heightened judicial scrutiny -- even if it
does not target the particular religious conduct at issue. Our free speech cases similarly recognize that neutral
regulations that affect free speech values are subject to a balancing, rather than categorical, approach. See, e.g.,
United States v. O'Brien, 391 U. S. 367, 377 (1968); City of Renton v. Playtime Theatres, Inc., 475 U. S. 41, 46-47
(1986); cf. Anderson v. Celebrezze, 460 U. S. 780, 792-794 (1983) (generally applicable laws may impinge on free
association concerns). The Court's parade of horribles, ante at 494 U. S. 888-889, not only fails as a reason for
discarding the compelling interest test, it instead demonstrates just the opposite: that courts have been quite
capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and
competing state interests.

Finally, the Court today suggests that the disfavoring of minority religions is an "unavoidable consequence" under
our system of government, and that accommodation of such religions must be left to the political process. Ante at
494 U. S. 890. In my view, however, the First Amendment was enacted precisely to protect the rights of those
whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free
 37

exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious
groups such as the Jehovah's Witnesses and the Amish. Indeed, the words of Justice Jackson in West Virginia Board
of Education v. Barnette (overruling Minersville School District v. Gobitis, 310 U. S. 586 (1940)) are apt:

Page 494 U. S. 903

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy,
to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by
the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly,
and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

319 U.S. at 638. See also United States v. Ballard, 322 U. S. 78, 87 (1944) ("The Fathers of the Constitution were
not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of,
the lack of any one religions creed on which all men would agree. They fashioned a charter of government which
envisaged the widest possible toleration of conflicting views"). The compelling interest test reflects the First
Amendment's mandate of preserving religious liberty to the fullest extent possible in a pluralistic society. For the
Court to deem this command a "luxury," ante at 494 U. S. 888, is to denigrate "[t]he very purpose of a Bill of
Rights."

III

The Court's holding today not only misreads settled First Amendment precedent; it appears to be unnecessary to this
case. I would reach the same result applying our established free exercise jurisprudence.

There is no dispute that Oregon's criminal prohibition of peyote places a severe burden on the ability of respondents
to freely exercise their religion. Peyote is a sacrament of the Native American Church, and is regarded as vital to
respondents' ability to practice their religion. See O. Stewart, Peyote Religion: A History 327-336 (1987) (describing
modern status of peyotism); E. Anderson, Peyote: The Divine Cactus 41-65 (1980) (describing peyote ceremonies);
Teachings from

Page 494 U. S. 904

the American Earth: Indian Religion and Philosophy 96-104 (D. Tedlock & B. Tedlock eds. 1975) (same); see also
People v. Woody, 61 Cal.2d 716, 721-722, 40 Cal.Rptr. 69, 73-74, 394 P.2d 813, 817-818 (1964). As we noted in
Smith I, the Oregon Supreme Court concluded that

"the Native American Church is a recognized religion, that peyote is a sacrament of that church, and that
respondent's beliefs were sincerely held."

485 U.S. at 667. Under Oregon law, as construed by that State's highest court, members of the Native American
Church must choose between carrying out the ritual embodying their religious beliefs and avoidance of criminal
prosecution. That choice is, in my view, more than sufficient to trigger First Amendment scrutiny.

There is also no dispute that Oregon has a significant interest in enforcing laws that control the possession and use
of controlled substances by its citizens. See, e.g., Sherbert, 374 U.S. at 403 (religiously motivated conduct may be
regulated where such conduct "pose[s] some substantial threat to public safety, peace or order"); Yoder, 406 U.S. at
220 ("activities of individuals, even when religiously based, are often subject to regulation by the States in the
exercise of their undoubted power to promote the health, safety and general welfare"). As we recently noted, drug
abuse is "one of the greatest problems affecting the health and welfare of our population" and thus "one of the most
serious problems confronting our society today." Treasury Employees v. Von Raab, 489 U. S. 656, 668, 489 U. S.
674 (1989). Indeed, under federal law (incorporated by Oregon law in relevant part, see Ore.Rev.Stat. § 475.005(6)
 38

(1989)), peyote is specifically regulated as a Schedule I controlled substance, which means that Congress has found
that it has a high potential for abuse, that there is no currently accepted medical use, and that there is a lack of
accepted safety for use of the drug under medical supervision. See 21 U.S.C. § 812(b)(1). See generally R. Julien, A
Primer of Drug Action 149 (3d ed. 1981). In light of our recent decisions holding that the governmental

Page 494 U. S. 905

interests in the collection of income tax, Hernandez, 490 U.S. at 490 U. S. 699-700, a comprehensive social security
system, see Lee, 455 U.S. at 258-259, and military conscription, see Gillette, 401 U.S. at 460, are compelling,
respondents do not seriously dispute that Oregon has a compelling interest in prohibiting the possession of peyote by
its citizens.

Thus, the critical question in this case is whether exempting respondents from the State's general criminal
prohibition "will unduly interfere with fulfillment of the governmental interest." Lee, supra, 455 U.S. at 259; see
also Roy, 476 U.S. at 727 ("[T]he Government must accommodate a legitimate free exercise claim unless pursuing
an especially important interest by narrowly tailored means"); Yoder, 406 U.S. at 221; Braunfeld, 366 U.S. at 605-
607. Although the question is close, I would conclude that uniform application of Oregon's criminal prohibition is
"essential to accomplish," Lee, supra, at 455 U.S. at 257, its overriding interest in preventing the physical harm
caused by the use of a Schedule I controlled substance. Oregon's criminal prohibition represents that State's
judgment that the possession and use of controlled substances, even by only one person, is inherently harmful and
dangerous. Because the health effects caused by the use of controlled substances exist regardless of the motivation
of the user, the use of such substances, even for religious purposes, violates the very purpose of the laws that
prohibit them. Cf. State v. Massey, 229 N.C. 734, 51 S.E.2d 179 (denying religious exemption to municipal
ordinance prohibiting handling of poisonous reptiles), appeal dism'd sub nom. Bunn v. North Carolina, 336 U.S. 942
(1949). Moreover, in view of the societal interest in preventing trafficking in controlled substances, uniform
application of the criminal prohibition at issue is essential to the effectiveness of Oregon's stated interest in
preventing any possession of peyote. Cf. 197 U. S.

Page 494 U. S. 906

Massachusetts, 197 U. S. 11 (1905) (denying exemption from smallpox vaccination requirement).

For these reasons, I believe that granting a selective exemption in this case would seriously impair Oregon's
compelling interest in prohibiting possession of peyote by its citizens. Under such circumstances, the Free Exercise
Clause does not require the State to accommodate respondents' religiously motivated conduct. See, e.g., Thomas,
450 U.S. at 719. Unlike in Yoder, where we noted that

"[t]he record strongly indicates that accommodating the religious objections of the Amish by forgoing one, or at
most two, additional years of compulsory education will not impair the physical or mental health of the child, or
result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any
other way materially detract from the welfare of society,"

406 U.S. at 234; see also id. at 406 U. S. 238-240 (WHITE, J., concurring), a religious exemption in this case would
be incompatible with the State's interest in controlling use and possession of illegal drugs.

Respondents contend that any incompatibility is belied by the fact that the Federal Government and several States
provide exemptions for the religious use of peyote, see 21 CFR § 1307.31 (1989); 307 Or. at 73, n. 2, 763 P.2d at
148, n. 2 (citing 11 state statutes that expressly exempt sacramental peyote use from criminal proscription). But
other governments may surely choose to grant an exemption without Oregon, with its specific asserted interest in
uniform application of its drug laws, being required to do so by the First Amendment. Respondents also note that the
sacramental use of peyote is central to the tenets of the Native American Church, but I agree with the Court, ante at
 39

494 U. S. 886-887, that because "[i]t is not within the judicial ken to question the centrality of particular beliefs or
practices to a faith," Hernandez, supra, at 494 U. S. 699, our determination of the constitutionality of Oregon's
general criminal prohibition cannot, and should not, turn on the centrality of the particular

Page 494 U. S. 907

religious practice at issue. This does not mean, of course, that courts may not make factual findings as to whether a
claimant holds a sincerely held religious belief that conflicts with, and thus is burdened by, the challenged law. The
distinction between questions of centrality and questions of sincerity and burden is admittedly fine, but it is one that
is an established part of our free exercise doctrine, see Ballard, 322 U.S. at 85-88, and one that courts are capable of
making. See Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 303-305 (1985).

I would therefore adhere to our established free exercise jurisprudence and hold that the State in this case has a
compelling interest in regulating peyote use by its citizens, and that accommodating respondents' religiously
motivated conduct "will unduly interfere with fulfillment of the governmental interest." Lee, 455 U.S. at 259.
Accordingly, I concur in the judgment of the Court.

* Although Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join Parts I and II of this opinion,
they do not concur in the judgment.

McCREARY COUNTY, KENTUCKY, et al. v. ACLU OF KENTUCKY et al. (2005)

No. 03-1693.Argued March 2, 2005--Decided June 27, 2005

After petitioners, two Kentucky Counties, each posted large, readily visible copies of the Ten Commandments in
their courthouses, respondents, the American Civil Liberties Union (ACLU) et al., sued under 42 U. S. C. §1983 to
enjoin the displays on the ground that they violated the First Amendment's Establishment Clause. The Counties then
adopted nearly identical resolutions calling for a more extensive exhibit meant to show that the Commandments are
Kentucky's "precedent legal code." The resolutions noted several grounds for taking that position, including the state
legislature's acknowledgment of Christ as the "Prince of Ethics." The displays around the Commandments were
modified to include eight smaller, historical documents containing religious references as their sole common
element, e.g., the Declaration of Independence's "endowed by their Creator" passage. Entering a preliminary
injunction, the District Court followed the Lemon v. Kurtzman, 403 U. S. 602, test to find, inter alia, that the
original display lacked any secular purpose because the Commandments are a distinctly religious document, and that
the second version lacked such a purpose because the Counties narrowly tailored their selection of foundational
documents to those specifically referring to Christianity. After changing counsel, the Counties revised the exhibits
again. No new resolution authorized the new exhibits, nor did the Counties repeal the resolutions that preceded the
second one. The new posting, entitled "The Foundations of American Law and Government Display," consists of
nine framed documents of equal size. One sets out the Commandments explicitly identified as the "King James
Version," quotes them at greater length, and explains that they have profoundly influenced the formation of Western
legal thought and this Nation. With the Commandments are framed copies of, e.g., the Star Spangled Banner's lyrics
and the Declaration of Independence, accompanied by statements about their historical and legal significance. On
the ACLU's motion, the District Court included this third display in the injunction despite the Counties' professed
intent to show that the Commandments were part of the foundation of American Law and Government and to
educate County citizens as to the documents. The court took proclaiming the Commandments' foundational value as
a religious, rather than secular, purpose under Stone v. Graham, 449 U. S. 39, and found that the Counties' asserted
educational goals crumbled upon an examination of this litigation's history. Affirming, the Sixth Circuit stressed
that, under Stone, displaying the Commandments bespeaks a religious object unless they are integrated with a
secular message. The court saw no integration here because of a lack of a demonstrated analytical or historical
connection between the Commandments and the other documents.

Held:
 40

1. A determination of the Counties' purpose is a sound basis for ruling on the Establishment Clause complaints. The
Counties' objective may be dispositive of the constitutional enquiry. Pp. 10-19.

(a) Lemon's "secular legislative purpose" enquiry, 403 U. S., at 612, has been a common, albeit seldom dispositive,
element of this Court's cases, Wallace v. Jaffree, 472 U. S. 38, 75. When the government acts with the ostensible
and predominant purpose of advancing religion, it violates the central Establishment Clause value of official
religious neutrality, there being no neutrality when the government's ostensible object is to take sides. Corporation
of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 335. A purpose to favor
one faith over another, or adherence to religion generally, clashes with the "understanding ... that liberty and social
stability demand a ... tolerance that respects the religious views of all citizens." Zelman v. Simmons-Harris, 536 U.
S. 639, 718. Pp. 11-12.

(b) The Court declines the Counties' request to abandon Lemon's purpose test. Their assertions that true "purpose" is
unknowable, and its search merely an excuse for courts to act selectively and unpredictably in picking out evidence
of subjective intent, are as seismic as they are unconvincing. Examination of purpose is a staple of statutory
interpretation for every American appellate court, e.g., General Dynamics Land Systems, Inc. v. Cline, 540 U. S.
581, 600, and governmental purpose is a key element of a good deal of constitutional doctrine, e.g., Washington v.
Davis, 426 U. S. 229. Scrutinizing purpose makes practical sense in Establishment Clause analysis, where an
understanding of official objective emerges from readily discoverable fact set forth in a statute's text, legislative
history, and implementation or comparable official act. Wallace v. Jaffree, 472 U. S., at 73-74. Nor is there any
indication that the purpose enquiry is rigged in practice to finding a religious purpose dominant every time a case is
filed. Pp. 12-15.

(c) The Court also avoids the Counties' alternative tack of trivializing the purpose enquiry. They would read the
Court's cases as if the enquiry were so naive that any transparent claim to secularity would satisfy it, and they would
cut context out of the enquiry, to the point of ignoring history, no matter what bearing it actually had on the
significance of current circumstances. There is no precedent for these arguments, or reason supporting them. Pp. 15-
19.

(1) A legislature's stated reasons will generally warrant the deference owed in the first instance to such official
claims, but Lemon requires the secular purpose to be genuine, not a sham, and not merely secondary to a religious
objective, see, e.g., Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 308. In those unusual cases where the
claim was an apparent sham, or the secular purpose secondary, the unsurprising results have been findings of no
adequate secular object, as against a predominantly religious one. See, e.g., Stone, supra, at 41. Pp. 15-17.

(2) The Counties' argument that purpose in a case like this should be inferred only from the latest in a series of
governmental actions, however close they may all be in time and subject, bucks common sense. Reasonable
observers have reasonable memories, and the Court's precedents sensibly forbid an observer "to turn a blind eye to
the context in which [the] policy arose." Santa Fe, supra, at 315. Pp. 17-19.

2. Evaluation of the Counties' claim of secular purpose for the ultimate displays may take their evolution into
account. The development of the presentation should be considered in determining its purpose. Pp. 19-26.

(a) Stone is the Court's initial benchmark as its only case dealing with the constitutionality of displaying the
Commandments. It recognized that the Commandments are an "instrument of religion" and that, at least on the facts
before the Court, their text's display could presumptively be understood as meant to advance religion: although state
law specifically required their posting in classrooms, their isolated exhibition did not allow even for an argument
that secular education explained their being there. 449 U. S., at 41, n. 3. But Stone did not purport to decide the
constitutionality of every possible way the government might set out the Commandments, and under the
Establishment Clause detail is key, County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U. S. 573, 595. Hence, the Court looks to the record showing the progression leading up to the
Commandments' third display, beginning with the first. Pp. 19-20.
 41

(b) There are two obvious similarities between the display Stone rejected and the first one here: both set out the
Commandments' text as distinct from any traditionally symbolic representation like blank tablets, and each stood
alone, not as part of an arguably secular display. Stone stressed the significance of integrating the Commandments
into a secular scheme to forestall the broadcast of an otherwise clearly religious message, 449 U. S., at 42, and for
good reason, the Commandments being a central point of reference in the religious and moral history of Jews and
Christians. They proclaim the existence of a monotheistic god (no other gods), regulate details of religious
obligation (no graven images, sabbath breaking, or vain oath swearing), and unmistakably rest even the universally
accepted prohibitions (as against murder, theft, etc.) on the sanction of the divinity proclaimed at the text's
beginning. Displaying that text is thus different from symbolic representation, like tablets with 10 roman numerals,
which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set
out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a
message going beyond an excuse to promote the religious point of view. The display in Stone had no such context,
and the Counties' solo exhibit here did nothing more to counter the sectarian implication than the Stone postings.
The reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments'
religious message. Pp. 20-21.

(c) The Counties' second display, unlike the first, did not hang the Commandments in isolation, but included the
statement of the government's purpose expressly set out in the county resolutions, and underscored it by juxtaposing
the Commandments to other documents whose references to God were highlighted as their sole common element.
The display's unstinting focus was on religious passages, showing that the Counties posted the Commandments
precisely because of their sectarian content. That demonstration of the government's objective was enhanced by
serial religious references and the accompanying resolutions' claim about the embodiment of ethics in Christ.
Together, the display and resolution presented an indisputable, and undisputed, showing of an impermissible
purpose. Pp. 21-22.

(d) The lower courts' conclusion that no legitimizing secular purpose prompted the Counties' third display, the
"Foundations of American Law and Government" exhibit, is amply justified. That display placed the
Commandments in the company of other documents the Counties deemed especially significant in the historical
foundation of American government. In trying to persuade the District Court to lift the preliminary injunction, the
Counties cited several new purposes for the third version, including a desire to educate County citizens as to the
significance of the documents displayed. The Counties' claims, however, persuaded neither that court, which was
intimately familiar with this litigation's details, nor the Sixth Circuit. Where both lower courts were unable to
discern an arguably valid secular purpose, this Court normally should hesitate to find one. Edwards v. Aguillard,
482 U. S. 578, 594. The Counties' new statements of purpose were presented only as a litigating position, there
being no further authorizing resolutions by the Counties' governing boards. And although repeal of the earlier
county authorizations would not have erased them from the record of evidence bearing on current purpose, the
extraordinary resolutions for the second displays passed just months earlier were not repealed or otherwise
repudiated. Indeed, the sectarian spirit of the resolutions found enhanced expression in the third display, which
quoted more of the Commandment's purely religious language than the first two displays had done. No reasonable
observer, therefore, could accept the claim that the Counties had cast off the objective so unmistakable in the earlier
displays. Nor did the selection of posted material suggest a clear theme that might prevail over evidence of the
continuing religious object. For example, it is at least odd in a collection of documents said to be "foundational" to
include a patriotic anthem, but to omit the Fourteenth Amendment, the most significant structural provision adopted
since the original framing. An observer would probably suspect the Counties of reaching for any way to keep a
religious document on the walls of courthouses constitutionally required to embody religious neutrality. Pp. 22-25.

(e) In holding that the preliminary injunction was adequately supported by evidence that the Counties' purpose had
not changed at the third stage, the Court does not decide that the Counties' past actions forever taint any effort on
their part to deal with the subject matter. The Court holds only that purpose is to be taken seriously under the
Establishment Clause and is to be understood in light of context. District courts are fully capable of adjusting
preliminary relief to take account of genuine changes in constitutionally significant conditions. Nor does the Court
hold that a sacred text can never be integrated constitutionally into a governmental display on law or history. Its own
courtroom frieze depicts Moses holding tablets exhibiting a portion of the secularly phrased Commandments; in the
company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as
evidence that the National Government was violating religious neutrality. P. 26.
 42

354 F. 3d 438, affirmed.

Souter, J., delivered the opinion of the Court, in which Stevens, O'Connor, Ginsburg, and Breyer, JJ., joined.
O'Connor, J., filed a concurring opinion. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and
Thomas, J., joined, and in which Kennedy, J., joined as to Parts II and III.

Justice O'Connor, concurring.

I join in the Court's opinion. The First Amendment expresses our Nation's fundamental commitment to religious
liberty by means of two provisions--one protecting the free exercise of religion, the other barring establishment of
religion. They were written by the descendents of people who had come to this land precisely so that they could
practice their religion freely. Together with the other First Amendment guarantees--of free speech, a free press, and
the rights to assemble and petition--the Religion Clauses were designed to safeguard the freedom of conscience and
belief that those immigrants had sought. They embody an idea that was once considered radical: Free people are
entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.

Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses
is clear: to carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic
society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the
prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of
religious authority by government, Americans may count themselves fortunate: Our regard for constitutional
boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-
known statement that "[w]e are a religious people," Zorach v. Clauson, 343 U. S. 306, 313 (1952), has proved true.
Americans attend their places of worship more often than do citizens of other developed nations, R. Fowler, A.
Hertzke, & L. Olson, Religion and Politics in America 28-29 (2d ed. 1999), and describe religion as playing an
especially important role in their lives, Pew Global Attitudes Project, Among Wealthy Nations U. S. Stands Alone in
its Embrace of Religion (Dec. 19, 2002). Those who would renegotiate the boundaries between church and state
must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has
served others so poorly&&&

Our guiding principle has been James Madison's--that "[t]he Religion ... of every man must be left to the conviction
and conscience of every man." Memorial and Remonstrance Against Religious Assessments, 2 Writings of James
Madison 183, 184 (G. Hunt ed. 1901) (hereinafter Memorial). To that end, we have held that the guarantees of
religious freedom protect citizens from religious incursions by the States as well as by the Federal Government.
Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947); Cantwell v. Connecticut, 310 U. S. 296 (1940).
Government may not coerce a person into worshiping against her will, nor prohibit her from worshiping according
to it. It may not prefer one religion over another or promote religion over nonbelief. Everson, supra, at 15-16. It may
not entangle itself with religion. Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 674 (1970). And
government may not, by "endorsing religion or a religious practice," "mak[e] adherence to religion relevant to a
person's standing in the political community." Wallace v. Jaffree, 472 U. S. 38, 69 (1985) (O'Connor, J., concurring
in judgment).

When we enforce these restrictions, we do so for the same reason that guided the Framers--respect for religion's
special role in society. Our Founders conceived of a Republic receptive to voluntary religious expression, and
provided for the possibility of judicial intervention when government action threatens or impedes such expression.
Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon
itself as when government directly interferes with private religious practices. When the government associates one
set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual's
decision about whether and how to worship. In the marketplace of ideas, the government has vast resources and
special status. Government religious expression therefore risks crowding out private observance and distorting the
natural interplay between competing beliefs. Allowing government to be a potential mouthpiece for competing
religious ideas risks the sort of division that might easily spill over into suppression of rival beliefs. Tying secular
and religious authority together poses risks to both.
 43

Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment
Clause violation. See ante, at 19-25. The purpose behind the counties' display is relevant because it conveys an
unmistakable message of endorsement to the reasonable observer. See Lynch v. Donnelly, 465 U. S. 668, 690 (1984)
(O'Connor, J., concurring).

It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count
heads before enforcing the First Amendment. See West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943)
("The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be
applied by the courts"). Nor can we accept the theory that Americans who do not accept the Commandments'
validity are outside the First Amendment's protections. There is no list of approved and disapproved beliefs
appended to the First Amendment--and the Amendment's broad terms ("free exercise," "establishment," "religion")
do not admit of such a cramped reading. It is true that the Framers lived at a time when our national religious
diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of
religions for which this Nation would eventually provide a home. They surely could not have predicted new
religions, some of them born in this country. But they did know that line-drawing between religions is an enterprise
that, once begun, has no logical stopping point. They worried that "the same authority which can establish
Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in
exclusion of all other Sects." Memorial 186. The Religion Clauses, as a result, protect adherents of all religions, as
well as those who believe in no religion at all.

***

We owe our First Amendment to a generation with a profound commitment to religion and a profound commitment
to religious liberty--visionaries who held their faith "with enough confidence to believe that what should be rendered
to God does not need to be decided and collected by Caesar." Zorach, supra, at 324-325 (Jackson, J., dissenting). In
my opinion, the display at issue was an establishment of religion in violation of our Constitution. For the reasons
given above, I join in the Court's opinion.

RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL. v. AMERICAN CIVIL LIBERTIES
UNION ET AL. 521 U.S. 844 (1996)

Syllabus

RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL. v. AMERICAN CIVIL LIBERTIES
UNION ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA

No. 96-511. Argued March 19, 1997-Decided June 26, 1997

Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful
material on the Internet, an international network of interconnected computers that enables millions of people to
communicate with one another in "cyberspace" and to access vast amounts of information from around the world.
Title 47 U. S. C. § 223(a)(I)(B)(ii) (1994 ed., Supp. II) criminalizes the "knowing" transmission of "obscene or
indecent" messages to any recipient under 18 years of age. Section 223(d) prohibits the "knowin[g]" sending or
displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory activities or organs." Mfirmative defenses are
provided for those who take "good faith, ... effective ... actions" to restrict access by minors to the prohibited
communications, § 223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age
proof, such as a verified credit card or an adult identification number, §223(e)(5)(B). A number of plaintiffs filed
suit challenging the constitutionality of §§ 223(a)(I) and 223(d). Mter making extensive findings of fact, a three-
 44

judge District Court convened pursuant to the Act entered a preliminary injunction against enforcement of both
challenged provisions. The court's judgment enjoins the Government from enforcing § 223(a)(I)(B)'s prohibitions
insofar as they relate to "indecent" communications, but expressly preserves the Government's right to investigate
and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of
§ 223(d) is unqualified because that section contains no separate reference to obscenity or child pornography. The
Government appealed to this Court under the Act's special review provisions, arguing that the District Court erred in
holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because
it is vague.

Held: The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the freedom of
speech" protected by the First Amendment. Pp. 864-885.

845

(a) Although the CDA's vagueness is relevant to the First Amendment overbreadth inquiry, the judgment should be
affirmed without reaching the Fifth Amendment issue. P. 864.

(b) A close look at the precedents relied on by the GovernmentGinsberg v. New York, 390 U. S. 629; FCC v.
Pacifica Foundation, 438 U. S. 726; and Renton v. Playtime Theatres, Inc., 475 U. S. 41-raises, rather than relieves,
doubts about the CDA's constitutionality. The CDA differs from the various laws and orders upheld in those cases in
many ways, including that it does not allow parents to consent to their children's use of restricted materials; is not
limited to commercial transactions; fails to provide any definition of "indecent" and omits any requirement that
"patently offensive" material lack socially redeeming value; neither limits its broad categorical prohibitions to
particular times nor bases them on an evaluation by an agency familiar with the medium's unique characteristics; is
punitive; applies to a medium that, unlike radio, receives full First Amendment protection; and cannot be properly
analyzed as a form of time, place, and manner regulation because it is a content-based blanket restriction on speech.
These precedents, then, do not require the Court to uphold the CDA and are fully consistent with the application of
the most stringent review of its provisions. Pp. 864-868.

(c) The special factors recognized in some of the Court's cases as justifying regulation of the broadcast media-the
history of extensive Government regulation of broadcasting, see, e. g., Red Lion Broadcasting Co. v. FCC, 395 U. S.
367, 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 637-638; and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S.
115, 128-are not present in cyberspace. Thus, these cases provide no basis for qualifying the level of First
Amendment scrutiny that should be applied to the Internet. Pp.868-870.

(d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities
concerning the scope of its coverage render it problematic for First Amendment purposes. For instance, its use of the
undefined terms "indecent" and "patently offensive" will provoke uncertainty among speakers about how the two
standards relate to each other and just what they mean. The vagueness of such a content-based regulation, see, e. g.,
Gentile v. State Bar of Nev., 501 U. S. 1030, coupled with its increased deterrent effect as a criminal statute, see, e.
g., Dombrowski v. Pfister, 380 U. S. 479, raise special First Amendment concerns because of its obvious chilling
effect on free speech. Contrary to the Government's argument, the CDA is not saved from vagueness by the fact that
its "patently offensive" stand-

846

ard repeats the second part of the three-prong obscenity test set forth in Miller v. California, 413 U. S. 15,24. The
second Miller prong reduces the inherent vagueness of its own "patently offensive" term by requiring that the
proscribed material be "specifically defined by the applicable state law." In addition, the Miller definition applies
only to "sexual conduct," whereas the CDA prohibition extends also to "excretory activities" and "organs" of both a
sexual and excretory nature. Each of Miller's other two prongs also critically limits the uncertain sweep of the
obscenity definition. Just because a definition including three limitations is not vague, it does not follow that one of
 45

those limitations, standing alone, is not vague. The CDA's vagueness undermines the likelihood that it has been
carefully tailored to the congressional goal of protecting minors from potentially harmful materials. Pp.870-874.

(e) The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech.
Although the Government has an interest in protecting children from potentially harmful materials, see, e. g.,
Ginsberg, 390 U. S., at 639, the CDA pursues that interest by suppressing a large amount of speech that adults have
a constitutional right to send and receive, see, e. g., Sable, 492 U. S., at 126. Its breadth is wholly unprecedented.
The CDA's burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in
achieving the Act's legitimate purposes. See, e. g., id., at 126. The Government has not proved otherwise. On the
other hand, the District Court found that currently available user-based software suggests that a reasonably effective
method by which parents can prevent their children from accessing material which the parents believe is
inappropriate will soon be widely available. Moreover, the arguments in this Court referred to possible alternatives
such as requiring that indecent material be "tagged" to facilitate parental control, making exceptions for messages
with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the
Internet differently from others. Particularly in the light of the absence of any detailed congressional findings, or
even hearings addressing the CDA's special problems, the Court is persuaded that the CDA is not narrowly tailored.
Pp.874-879.

(f) The Government's three additional arguments for sustaining the CDA's affirmative prohibitions are rejected.
First, the contention that the Act is constitutional because it leaves open ample "alternative channels" of
communication is unpersuasive because the CDA regulates speech on the basis of its content, so that a "time, place,
and manner" analysis is inapplicable. See, e. g., Consolidated Edison Co. of N. Y. v.

847

Public Servo Comm'n of N. Y., 447 U. S. 530, 536. Second, the assertion that the CDA's "knowledge" and "specific
person" requirements significantly restrict its permissible application to communications to persons the sender
knows to be under 18 is untenable, given that most Internet forums are open to all comers and that even the strongest
reading of the "specific person" requirement would confer broad powers of censorship, in the form of a "heckler's
veto," upon any opponent of indecent speech. Finally, there is no textual support for the submission that material
having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's prohibitions.
Pp. 879-881.

(g) The § 223(e)(5) defenses do not constitute the sort of "narrow tailoring" that would save the CDA. The
Government's argument that transmitters may take protective "good faith actio[n]" by "tagging" their indecent
communications in a way that would indicate their contents, thus permitting recipients to block their reception with
appropriate software, is illusory, given the requirement that such action be "effective": The proposed screening
software does not currently exist, but, even if it did, there would be no way of knowing whether a potential recipient
would actually block the encoded material. The Government also failed to prove that § 223(b)(5)'s verification
defense would significantly reduce the CDA's heavy burden on adult speech. Although such verification is actually
being used by some commercial providers of sexually explicit material, the District Court's findings indicate that it
is not economically feasible for most noncommercial speakers. Pp.881-882.

(h) The Government's argument that this Court should preserve the CDA's constitutionality by honoring its
severability clause, § 608, and by construing nonseverable terms narrowly, is acceptable in only one respect.
Because obscene speech may be banned totally, see Miller, 413 U. S., at 18, and § 223(a)'s restriction of "obscene"
material enjoys a textual manifestation separate from that for "indecent" material, the Court can sever the term "or
indecent" from the statute, leaving the rest of § 223(a) standing. Pp. 882-885.

(i) The Government's argument that its "significant" interest in fostering the Internet's growth provides an
independent basis for upholding the CDA's constitutionality is singularly unpersuasive. The dramatic expansion of
this new forum contradicts the factual basis underlying this contention: that the unregulated availability of
"indecent" and "patently offensive" material is driving people away from the Internet. P. 885.
 46

929 F. Supp. 824, affirmed.

848

STEVENS, J., delivered the opinion of the Court, in which SCALIA, KENNEDY, SOUTER, THOMAS,
GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment in part and
dissenting in part, in which REHNQUIST, C. J., joined, post, p. 886.

886

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring in the judgment in part and dissenting
in part.

I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an
attempt by Congress to create "adult zones" on the Internet. Our precedent indicates that the creation of such zones
can be constitutionally sound. Despite the soundness of its purpose, however, portions of the CDA are
unconstitutional because they stray from the blueprint our prior cases have developed for constructing a "zoning
law" that passes constitutional muster.

Appellees bring a facial challenge to three provisions of the CDA. The first, which the Court describes as the
"indecency transmission" provision, makes it a crime to knowingly transmit an obscene or indecent message or
image to a person the sender knows is under 18 years old. 47 U. S. C. § 223(a)(1)(B) (1994 ed., Supp. II). What the
Court classifies as a single" 'patently offensive display'" provision, see ante, at 859, is in reality two separate
provisions. The first of these makes it a crime to knowingly send a patently offensive message or image to a specific
person under the age of 18 ("specific person" provision). § 223(d)(1)(A). The second criminalizes the display of
patently offensive messages or images "in a[ny] manner available" to minors ("display" provision). § 223(d)(1)(B).
None of these provisions purports to keep indecent (or patently offensive) material away from adults, who have a
First Amendment right to obtain this speech. Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989)
("Sexual expression which is indecent but not obscene is protected by the First Amendment"). Thus, the undeniable
purpose of the CDA is to segregate indecent material on the Internet into certain areas that minors cannot access.
See S. Conf. Rep. No. 104-230, p. 189 (1996) (CDA imposes "access restrictions ... to protect minors from exposure
to indecent material").

887

The creation of "adult zones" is by no means a novel concept. States have long denied minors access to certain
establishments frequented by adults.1 States have also denied minors access to speech deemed to be "harmful to
minors." 2

1 See, e. g., Alaska Stat. Ann. § 11.66.300 (1996) (no minors in "adult entertainment" places); Ariz. Rev. Stat. Ann.
§ 13-3556 (1989) (no minors in places where people expose themselves); Ark. Code Ann. §§ 5-27-223, 5-27-224
(1993) (no minors in poolrooms and bars); Colo. Rev. Stat. § 18-7502(2) (1986) (no minors in places displaying
movies or shows that are "harmful to children"); Del. Code Ann., Tit. 11, § 1365(i)(2) (1995) (same); D. C. Code
Ann. § 22-2001(b)(I)(B) (1996) (same); Fla. Stat. § 847.013(2) (1994) (same); Ga. Code Ann. § 16-12-103(b)
(1996) (same); Haw. Rev. Stat. § 712-1215(1)(b) (1994) (no minors in movie houses or shows that are
"pornographic for minors"); Idaho Code § 18-1515(2) (1987) (no minors in places displaying movies or shows that
are "harmful to minors"); La. Rev. Stat. Ann. § 14:91.11(B) (West 1986) (no minors in places displaying movies
that depict sex acts and appeal to minors' prurient interest); Md. Ann. Code, Art. 27, §416E (1996) (no minors in
establishments where certain enumerated acts are performed or portrayed); Mich. Compo Laws § 750.141 (1991)
(no minors without an adult in places where alcohol is sold); Minn. Stat. § 617.294 (1987 and Supp. 1997) (no
minors in places displaying movies or shows that are "harmful to minors"); Miss. Code Ann. § 97-5-11 (1994) (no
minors in poolrooms, billiard halls, or where alcohol is sold); Mo. Rev. Stat. § 573.507 (1995) (no minors in adult
cabarets); Neb. Rev. Stat. § 28-809 (1995) (no minors in places displaying movies or shows that are "harmful to
 47

minors"); Nev. Rev. Stat. §201.265(3) (1997) (same); N. H. Rev. Stat. Ann. § 571-B:2(II) (1986) (same); N. M. Stat.
Ann. § 30-37-3 (1989) (same); N. Y. Penal Law §235.21(2) (McKinney 1989) (same); N. D. Cent. Code § 12.1-
27.1-03 (1985 and Supp. 1995) (same); 18 Pa. Cons. Stat. § 5903(a) (Supp. 1997) (same); S. D. Compo Laws Ann.
§22-24-30 (1988) (same); Tenn. Code Ann. §39-17-911(b) (1991) (same); Vt. Stat. Ann., Tit. 13, §2802(b) (1974)
(same); Va. Code Ann. § 18.2-391 (1996) (same).

2 See, e. g., Ala. Code § 13A-12-200.5 (1994); Ariz. Rev. Stat. Ann. § 133506 (1989); Ark. Code Ann. § 5-68-502
(1993); Cal. Penal Code Ann. §313.1 (West Supp. 1997); Colo. Rev. Stat. § 18-7-502(1) (1986); Conn. Gen. Stat. §
53a-196 (1994); Del. Code Ann., Tit. 11, § 1365(i)(I) (1995); D. C. Code Ann. § 22-2001(b)(I)(A) (1996); Fla. Stat.
§ 847.012 (1994); Ga. Code Ann. § 16-12-103(a) (1996); Haw. Rev. Stat. § 712-1215(1) (1994); Idaho Code § 18-
1515(1) (1987); Ill. Compo Stat., ch. 720, § 5/11-21 (1993); Ind. Code § 35-49-3-3(1) (Supp. 1996); Iowa Code §
728.2 (1993); Kan. Stat. Ann. §21-4301c(a)(2) (1988); La. Rev. Stat. Ann. § 14:91.11(B) (West 1986);

888

The Court has previously sustained such zoning laws, but only if they respect the First Amendment rights of adults
and minors. That is to say, a zoning law is valid if (i) it does not unduly restrict adult access to the material; and (ii)
minors have no First Amendment right to read or view the banned material. As applied to the Internet as it exists in
1997, the "display" provision and some applications of the "indecency transmission" and "specific person"
provisions fail to adhere to the first of these limiting principles by restricting adults' access to protected materials in
certain circumstances. Unlike the Court, however, I would invalidate the provisions only in those circumstances.

Our cases make clear that a "zoning" law is valid only if adults are still able to obtain the regulated speech. If they
cannot, the law does more than simply keep children away from speech they have no right to obtain-it interferes
with the rights of adults to obtain constitutionally protected speech and effectively "reduce[s] the adult population ...
to reading only what is fit for children." Butler v. Michigan, 352 U. S. 380, 383 (1957). The First Amendment does
not tolerate such interference. See ibid. (striking down a Michi-

Md. Ann. Code, Art. 27, §416B (1996); Mass. Gen. Laws, ch. 272, §28 (1992); Minn. Stat. § 617.293 (1987 and
Supp. 1997); Miss. Code Ann. § 975-11 (1994); Mo. Rev. Stat. § 573.040 (1995); Mont. Code Ann. § 45-8-206
(1995); Neb. Rev. Stat. § 28-808 (1995); Nev. Rev. Stat. §§ 201.265(1), (2) (1997); N. H. Rev. Stat. Ann. § 571-
B:2(I) (1986); N. M. Stat. Ann. § 30-37-2 (1989); N. Y. Penal Law § 235.21(1) (McKinney 1989); N. C. Gen. Stat.
§ 14190.15(a) (1993); N. D. Cent. Code § 12.1-27.1-03 (1985 and Supp. 1995); Ohio Rev. Code Ann. § 2907.31(A)
(I) (Supp. 1997); Okla. Stat., Tit. 21, § 1040.76(2) (Supp. 1997); 18 Pa. Cons. Stat. § 5903(c) (Supp. 1997); R. 1.
Gen. Laws § 11-31-10(a) (1996); S. C. Code Ann. § 16-15-385(A) (Supp. 1996); S. D. Compo Laws Ann. §22-24-
28 (1988); Tenn. Code Ann. §39-17911(a) (1991); Tex. Penal Code Ann. § 43.24(b) (1994); Utah Code Ann. §
7610-1206(2) (1995); Vt. Stat. Ann., Tit. 13, §2802(a) (1974); Va. Code Ann. § 18.2-391 (1996); Wash. Rev. Code
§ 9.68.060 (1988 and Supp. 1997); Wis. Stat. § 948.11(2) (Supp. 1995).

889

gan criminal law banning sale of books-to minors or adults-that contained words or pictures that" 'tende[d] to ...
corrup[t] the morals of youth' "); Sable Communications, supra (invalidating federal law that made it a crime to
transmit indecent, but nonobscene, commercial telephone messages to minors and adults); Bolger v. Youngs Drug
Products Corp., 463 U. S. 60, 74 (1983) (striking down a federal law prohibiting the mailing of unsolicited
advertisements for contraceptives). If the law does not unduly restrict adults' access to constitutionally protected
speech, however, it may be valid. In Ginsberg v. New York, 390 U. S. 629, 634 (1968), for example, the Court
sustained a New York law that barred store owners from selling pornographic magazines to minors in part because
adults could still buy those magazines.
 48

The Court in Ginsberg concluded that the New York law created a constitutionally adequate adult zone simply
because, on its face, it denied access only to minors. The Court did not question-and therefore necessarily assumed-
that an adult zone, once created, would succeed in preserving adults' access while denying minors' access to the
regulated speech. Before today, there was no reason to question this assumption, for the Court has previously only
considered laws that operated in the physical world, a world that with two characteristics that make it possible to
create "adult zones": geography and identity. See Lessig, Reading the Constitution in Cyberspace, 45 Emory L. J.
869, 886 (1996). A minor can see an adult dance show only if he enters an establishment that provides such
entertainment. And should he attempt to do so, the minor will not be able to conceal completely his identity (or,
consequently, his age). Thus, the twin characteristics of geography and identity enable the establishment's proprietor
to prevent children from entering the establishment, but to let adults inside.

The electronic world is fundamentally different. Because it is no more than the interconnection of electronic
pathways, cyberspace allows speakers and listeners to mask their iden-

890

tities. Cyberspace undeniably reflects some form of geography; chat rooms and Web sites, for example, exist at
fixed "locations" on the Internet. Since users can transmit and receive messages on the Internet without revealing
anything about their identities or ages, see id., at 901, however, it is not currently possible to exclude persons from
accessing certain messages on the basis of their identity.

Cyberspace differs from the physical world in another basic way: Cyberspace is malleable. Thus, it is possible to
construct barriers in cyberspace and use them to screen for identity, making cyberspace more like the physical world
and, consequently, more amenable to zoning laws. This transformation of cyberspace is already underway. Id., at
888-889; id., at 887 (cyberspace "is moving ... from a relatively unzoned place to a universe that is extraordinarily
well zoned"). Internet speakers (users who post material on the Internet) have begun to zone cyberspace itself
through the use of "gateway" technology. Such technology requires Internet users to enter information about
themselves-perhaps an adult identification number or a credit card number-before they can access certain areas of
cyberspace, 929 F. Supp. 824, 845 (ED Pa. 1996), much like a bouncer checks a person's driver's license before
admitting him to a nightclub. Internet users who access information have not attempted to zone cyberspace itself, but
have tried to limit their own power to access information in cyberspace, much as a parent controls what her children
watch on television by installing a lock box. This user-based zoning is accomplished through the use of screening
software (such as Cyber Patrol or SurfWatch) or browsers with screening capabilities, both of which search
addresses and text for keywords that are associated with "adult" sites and, if the user wishes, blocks access to such
sites. Id., at 839-842. The Platform for Internet Content Selection project is designed to facilitate user-based zoning
by encouraging Internet speakers to rate the content

891

of their speech using codes recognized by all screening programs. Id., at 838-839.

Despite this progress, the transformation of cyberspace is not complete. Although gateway technology has been
available on the World Wide Web for some time now, id., at 845; Shea v. Reno, 930 F. Supp. 916, 933-934 (SDNY
1996), it is not available to all Web speakers, 929 F. Supp., at 845-846, and is just now becoming technologically
feasible for chat rooms and USE NET newsgroups, Brief for Appellants 3738. Gateway technology is not ubiquitous
in cyberspace, and because without it "there is no means of age verification," cyberspace still remains largely
unzoned-and unzoneable. 929 F. Supp., at 846; Shea, supra, at 934. U serbased zoning is also in its infancy. For it to
be effective, (i) an agreed-upon code (or "tag") would have to exist; (ii) screening software or browsers with
screening capabilities would have to be able to recognize the "tag"; and (iii) those programs would have to be widely
available-and widely used-by Internet users. At present, none of these conditions is true. Screening software "is not
in wide use today" and "only a handful of browsers have screening capabilities." Shea, supra, at 945-946. There is,
moreover, no agreedupon "tag" for those programs to recognize. 929 F. Supp., at 848; Shea, supra, at 945.
 49

Although the prospects for the eventual zoning of the Internet appear promising, I agree with the Court that we must
evaluate the constitutionality of the CDA as it applies to the Internet as it exists today. Ante, at 881. Given the
present state of cyberspace, I agree with the Court that the "display" provision cannot pass muster. Until gateway
technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the
speech he displays will reach only adults because it is impossible to confine speech to an "adult zone." Thus, the
only way for a speaker to avoid liability under the CDA is to refrain completely from using indecent speech. But this

892

forced silence impinges on the First Amendment right of adults to make and obtain this speech and, for all intents
and purposes, "reduce[s] the adult population [on the Internet] to reading only what is fit for children." Butler, 352
U. S., at 383. As a result, the "display" provision cannot withstand scrutiny. Accord, Sable Communications, 492 U.
S., at 126131; Bolger v. Youngs Drug Products Corp., 463 U. S., at 73-75.

The "indecency transmission" and "specific person" provisions present a closer issue, for they are not
unconstitutional in all of their applications. As discussed above, the "indecency transmission" provision makes it a
crime to transmit knowingly an indecent message to a person the sender knows is under 18 years of age. 47 U. S. C.
§ 223(a)(1)(B) (1994 ed., Supp. II). The "specific person" provision proscribes the same conduct, although it does
not as explicitly require the sender to know that the intended recipient of his indecent message is a minor. § 223(d)
(1)(A). The Government urges the Court to construe the provision to impose such a knowledge requirement, see
Brief for Appellants 2527, and I would do so. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building &
Constr. Trades Council, 485 U. S. 568, 575 (1988) ("[W]here an otherwise acceptable construction of a statute
would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress").

So construed, both provisions are constitutional as applied to a conversation involving only an adult and one or more
minors-e. g., when an adult speaker sends an e-mail knowing the addressee is a minor, or when an adult and minor
converse by themselves or with other minors in a chat room. In this context, these provisions are no different from
the law we sustained in Ginsberg. Restricting what the adult may say to the minors in no way restricts the adult's
ability to communicate with other adults. He is not prevented from

893

speaking indecently to other adults in a chat room (because there are no other adults participating in the
conversation) and he remains free to send indecent e-mails to other adults. The relevant universe contains only one
adult, and the adult in that universe has the power to refrain from using indecent speech and consequently to keep all
such speech within the room in an "adult" zone.

The analogy to Ginsberg breaks down, however, when more than one adult is a party to the conversation. If a minor
enters a chat room otherwise occupied by adults, the CDA effectively requires the adults in the room to stop using
indecent speech. If they did not, they could be prosecuted under the "indecency transmission" and "specific person"
provisions for any indecent statements they make to the group, since they would be transmitting an indecent
message to specific persons, one of whom is a minor. Accord, ante, at 876. The CDA is therefore akin to a law that
makes it a crime for a bookstore owner to sell pornographic magazines to anyone once a minor enters his store. Even
assuming such a law might be constitutional in the physical world as a reasonable alternative to excluding minors
completely from the store, the absence of any means of excluding minors from chat rooms in cyberspace restricts the
rights of adults to engage in indecent speech in those rooms. The "indecency transmission" and "specific person"
provisions share this defect.

But these two provisions do not infringe on adults' speech in all situations. And as discussed below, I do not find
that the provisions are overbroad in the sense that they restrict minors' access to a substantial amount of speech that
minors have the right to read and view. Accordingly, the CDA can be applied constitutionally in some situations.
Normally, this fact would require the Court to reject a direct facial challenge. United States v. Salerno, 481 U. S.
 50

739, 745 (1987) ("A facial challenge to a legislative Act [succeeds only if] the challenger ... establish[es] that no set
of circum-

894

stances exists under which the Act would be valid"). Appellees' claim arises under the First Amendment, however,
and they argue that the CDA is facially invalid because it is "substantially overbroad"-that is, it "sweeps too
broadly ... [and] penaliz[es] a substantial amount of speech that is constitutionally protected," Forsyth County v.
Nationalist Movement, 505 U. S. 123, 130 (1992). See Brief for Appellees American Library Association et al. 48;
Brief for Appellees American Civil Liberties Union et al. 39-41. I agree with the Court that the provisions are
overbroad in that they cover any and all communications between adults and minors, regardless of how many adults
might be part of the audience to the communication.

This conclusion does not end the matter, however.

Where, as here, "the parties challenging the statute are those who desire to engage in protected speech that the
overbroad statute purports to punish, ... [t]he statute may forthwith be declared invalid to the extent that it reaches
too far, but otherwise left intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504 (1985). There is no question
that Congress intended to prohibit certain communications between one adult and one or more minors. See 47 U. S.
C. § 223(a)(1)(B) (1994 ed., Supp. II) (punishing "[w]hoever ... initiates the transmission of [any indecent
communication] knowing that the recipient of the communication is under 18 years of age"); § 223(d)(1)(A)
(punishing "[w]hoever ... send[s] to a specific person or persons under 18 years of age [a patently offensive
message]"). There is also no question that Congress would have enacted a narrower version of these provisions had
it known a broader version would be declared unconstitutional. 47 U. S. C. § 608 ("If ... the application [of any
provision of the CDA] to any person or circumstance is held invalid, ... the application of such provision to other
persons or circumstances shall not be affected thereby"). I would therefore sustain the "indecency transmission" and
"specific person" provisions to the extent they

895

apply to the transmission of Internet communications where the party initiating the communication knows that all of
the recipients are minors.

II

Whether the CDA substantially interferes with the First Amendment rights of minors, and thereby runs afoul of the
second characteristic of valid zoning laws, presents a closer question. In Ginsberg, the New York law we sustained
prohibited the sale to minors of magazines that were "harmful to minors." Under that law, a magazine was "harmful
to minors" only if it was obscene as to minors. 390 U. S., at 632-633. Noting that obscene speech is not protected by
the First Amendment, Roth v. United States, 354 U. S. 476, 485 (1957), and that New York was constitutionally free
to adjust the definition of obscenity for minors, 390 U. S., at 638, the Court concluded that the law did not "invad[e]
the area of freedom of expression constitutionally secured to minors," id., at 637. New York therefore did not
infringe upon the First Amendment rights of minors. Cf. Erznoznik v. Jacksonville, 422 U. S. 205, 213 (1975)
(striking down city ordinance that banned nudity that was not "obscene even as to minors").

The Court neither "accept[s] nor reject[s]" the argument that the CDA is facially overbroad because it substantially
interferes with the First Amendment rights of minors. Ante, at 878. I would reject it. Ginsberg established that
minors may constitutionally be denied access to material that is obscene as to minors. As Ginsberg explained,
material is obscene as to minors if it (i) is "patently offensive to prevailing standards in the adult community as a
whole with respect to what is suitable ... for minors"; (ii) appeals to the prurient interest of minors; and (iii) is
"utterly without redeeming social importance for minors." 390 U. S., at 633. Because the CDA denies minors the
right to obtain material that is "patently offensive"-even if it has some redeeming value for minors and even if it
does not appeal to their pruri-
 51

896

ent interests-Congress' rejection of the Ginsberg "harmful to minors" standard means that the CDA could ban some
speech that is "indecent" (i. e., "patently offensive") but that is not obscene as to minors.

I do not deny this possibility, but to prevail in a facial challenge, it is not enough for a plaintiff to show "some"
overbreadth. Our cases require a proof of "real" and "substantial" overbreadth, Broadrick v. Oklahoma, 413 U. S.
601, 615 (1973), and appellees have not carried their burden in this case. In my view, the universe of speech
constitutionally protected as to minors but banned by the CDA-i. e., the universe of material that is "patently
offensive," but which nonetheless has some redeeming value for minors or does not appeal to their prurient interest-
is a very small one. Appellees cite no examples of speech falling within this universe and do not attempt to explain
why that universe is substantial "in relation to the statute's plainly legitimate sweep." Ibid. That the CDA might deny
minors the right to obtain material that has some "value," see ante, at 878, is largely beside the point. While
discussions about prison rape or nude art, see ibid., may have some redeeming educational value for adults, they do
not necessarily have any such value for minors, and under Ginsberg, minors only have a First Amendment right to
obtain patently offensive material that has "redeeming social importance for minors," 390 U. S., at 633 (emphasis
added). There is also no evidence in the record to support the contention that "many e-mail transmissions from an
adult to a minor are conversations between family members," ante, at 865, n. 32, and no support for the legal
proposition that such speech is absolutely immune from regulation. Accordingly, in my view, the CDA does not
burden a substantial amount of minors' constitutionally protected speech.

Thus, the constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes with
the First Amendment rights of adults. Because the rights

897

of adults are infringed only by the "display" provision and by the "indecency transmission" and "specific person"
provisions as applied to communications involving more than one adult, I would invalidate the CDA only to that
extent. Insofar as the "indecency transmission" and "specific person" provisions prohibit the use of indecent speech
in communications between an adult and one or more minors, however, they can and should be sustained. The Court
reaches a contrary conclusion, and from that holding I respectfully dissent.

CITY OF ERIE ET AL. v. PAP'S A. M., TDBA "KANDYLAND" 529 U.S. 277 (2000)

Syllabus

Erie, Pennsylvania, enacted an ordinance making it a summary offense to knowingly or intentionally appear in
public in a "state of nudity." Respondent Pap's A. M. (hereinafter Pap's), a Pennsylvania corporation, operated
"Kandyland," an Erie establishment featuring totally nude erotic dancing by women. To comply with the ordinance,
these dancers had to wear, at a minimum, "pasties" and a "G-string." Pap's filed suit against Erie and city officials,
seeking declaratory relief and a permanent injunction against the ordinance's enforcement. The Court of Common
Pleas struck down the ordinance as unconstitutional, but the Commonwealth Court reversed. The Pennsylvania
Supreme Court in turn reversed, finding that the ordinance's public nudity sections violated Pap's right to freedom of
expression as protected by the First and Fourteenth Amendments. The Pennsylvania court held that nude dancing is
expressive conduct entitled to some quantum of protection under the First Amendment, a view that the court noted
was endorsed by eight Members of this Court in Barnes v. Glen Theatre, Inc., 501 U. S. 560. The Pennsylvania
court explained that, although one stated purpose of the ordinance was to combat negative secondary effects, there
was also an unmentioned purpose to "impact negatively on the erotic message of the dance." Accordingly, the
Pennsylvania court concluded that the ordinance was related to the suppression of expression. Because the ordinance
was not content neutral, it was subject to strict scrutiny. The court held that the ordinance failed the narrow tailoring
requirement of strict scrutiny. Mter this Court granted certiorari, Pap's filed a motion to dismiss the case as moot,
noting that Kandyland no longer operated as a nude dancing club, and that Pap's did not operate such a club at any
other location. This Court denied the motion.
 52

Held: The judgment is reversed, and the case is remanded. 553 Pa. 348, 719 A. 2d 273, reversed and remanded. . .

280

JUSTICE SCALIA, joined by JUSTICE THOMAS, agreed that the Pennsylvania Supreme Court's decision must be
reversed, but disagreed with the mode of analysis that should be applied. Erie self-consciously modeled its
ordinance on the public nudity statute upheld in Barnes v. Glen Theatre, Inc., 501 U. S. 560, calculating (one would
have supposed reasonably) that the Pennsylvania courts would consider themselves bound by this Court's judgment
on a question of federal constitutional law. That statute was constitutional not because it survived some lower level
of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at
expression, it was not subject to First Amendment scrutiny at all. Id., at 572 (SCALIA, J., concurring in

281

judgment). Erie's ordinance, too, by its terms prohibits not merely nude dancing, but the act-irrespective of whether
it is engaged in for expressive purposes-of going nude in public. The facts that the preamble explains the ordinance's
purpose, in part, as limiting a recent increase in nude live entertainment, that city councilmembers in supporting the
ordinance commented to that effect, and that the ordinance includes in the definition of nudity the exposure of
devices simulating that condition, neither make the law any less general in its reach nor demonstrate that what the
municipal authorities really find objectionable is expression rather than public nakedness. That the city made no
effort to enforce the ordinance against a production of Equus involving nudity that was being staged in Erie at the
time the ordinance became effective does not render the ordinance discriminatory on its face. The assertion of the
city's counsel in the trial court that the ordinance would not cover theatrical productions to the extent their
expressive activity rose to a higher level of protected expression simply meant that the ordinance would not be
enforceable against such productions if the Constitution forbade it. That limitation does not cause the ordinance to
be not generally applicable, in the relevant sense of being targeted against expressive conduct. Moreover, even if it
could be concluded that Erie specifically singled out the activity of nude dancing, the ordinance still would not
violate the First Amendment unless it could be proved (as on this record it could not) that it was the communicative
character of nude dancing that prompted the ban. See id., at 577. There is no need to identify "secondary effects"
associated with nude dancing that Erie could properly seek to eliminate. The traditional power of government to
foster good morals, and the acceptability of the traditional judgment that nude public dancing itself is immoral, have
not been repealed by the First Amendment. Pp. 307-310.

O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I
and II, in which REHNQUIST, C. J., and KENNEDY, SOUTER, and BREYER, JJ., joined, and an opinion with
respect to Parts III and IV, in which REHNQUIST, C. J., and KENNEDY and BREYER, JJ., joined. SCALIA, J.,
filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 302. SOUTER, J., filed an
opinion concurring in part and dissenting in part, post, p. 310. STEVENS, J., filed a dissenting opinion, in which
GINSBURG, J., joined, post, p. 317.

282

JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to
Parts I and II, and an opinion with respect to Parts III and IV; in which THE CHIEF JUSTICE, JUSTICE
KENNEDY, and JUSTICE BREYER join.

The city of Erie, Pennsylvania, enacted an ordinance banning public nudity. Respondent Pap's A. M. (hereinafter

*Briefs of amici curiae urging reversal were filed for Brevard County, Florida, by Scott L. Knox; for the American
Liberties Institute et al. by Frederick H. Nelson, Lonnie N. Groot, and Anthony A. Garganese; for Erie County
Citizen's Coalition Against Violent Pornography by Keith O. Barrows; for Morality in Media, Inc., et al. by Paul J.
M cGeady, Bruce A. Taylor, and Janet M. LaRue; and for the National Family Legal Foundation by Len L. Munsil.
 53

Briefs of amici curiae urging affirmance were filed for the American Association for Nude Recreation by Robert T.
Page; for the American Civil Liberties Union et al. by Steven R. Shapiro, Witold J. Walczak, Bruce J. Ennis, Jr., and
Paul M. Smith; for Deja Vu Consulting, Inc., et al. by Bradley J. Shafer; for Feminists for Free Expression by Mary
D. Dorman; for the First Amendment Lawyers Association by Randall D. B. Tigue, Steven H. Swander, and
Richard L. Wilson; for the Thomas Jefferson Center for Protection of Free Expression et al. by J. Joshua Wheeler;
and for Bill Conte, on behalf of The Dante Project: Inferno et al. by Jack R. Burns.

Briefs of amici curiae were filed for the State of Kansas et al. by Carla J. Stovall, Attorney General of Kansas,
Stephen R. McAllister, State Solicitor, Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State
Solicitor, and Elise Porter, Assistant Solicitor, and by the Attorneys General for their respective States as follows:
Alan G. Lance of Idaho, Richard P. Ieyoub of Louisiana, Jennifer M. Granholm of Michigan, Mike Moore of
Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, D. Michael Fisher of Pennsylvania,
Charles M. Condon of South Carolina, Paul G. Summers of Tennessee, John Cornyn of Texas, Jan Graham of Utah,
and Mark L. Earley of Virginia; and for Orange County, Florida, by Joel D. Prinsell.

283

Pap's), which operated a nude dancing establishment in Erie, challenged the constitutionality of the ordinance and
sought a permanent injunction against its enforcement. The Pennsylvania Supreme Court, although noting that this
Court in Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991), had upheld an Indiana ordinance that was "strikingly
similar" to Erie's, found that the public nudity sections of the ordinance violated respondent's right to freedom of
expression under the United States Constitution. 553 Pa. 348, 356, 719 A. 2d 273, 277 (1998). This case raises the
question whether the Pennsylvania Supreme Court properly evaluated the ordinance's constitutionality under the
First Amendment. We hold that Erie's ordinance is a content-neutral regulation that satisfies the four-part test of
United States v. O'Brien, 391 U. S. 367 (1968). Accordingly, we reverse the decision of the Pennsylvania Supreme
Court and remand for the consideration of any remaining issues.

On September 28, 1994, the city council for the city of Erie, Pennsylvania, enacted Ordinance 75-1994, a public
indecency ordinance that makes it a summary offense to knowingly or intentionally appear in public in a "state of
nudity."*

*Ordinance 75-1994, codified as Article 711 of the Codified Ordinances of the city of Erie, provides in relevant
part:

"1. A person who knowingly or intentionally, in a public place: "a. engages in sexual intercourse

"b. engages in deviate sexual intercourse as defined by the Pennsylvania Crimes Code

"c. appears in a state of nudity, or

"d. fondles the genitals of himself, herself or another person commits Public Indecency, a Summary Offense.

"2. "Nudity" means the showing of the human male or female genital [sic], pubic area or buttocks with less than a
fully opaque covering; the showing of the female breast with less than a fully opaque covering of any part of the
nipple; the exposure of any device, costume, or covering which gives the appearance of or simulates the genitals,
pubic hair, natal cleft,

284

Respondent Pap's, a Pennsylvania corporation, operated an establishment in Erie known as "Kandyland" that
featured totally nude erotic dancing performed by women. To comply with the ordinance, these dancers must wear,
 54

at a minimum, "pasties" and a "G-string." On October 14, 1994, two days after the ordinance went into effect, Pap's
filed a complaint against the city of Erie, the mayor of the city, and members of the city council, seeking declaratory
relief and a permanent injunction against the enforcement of the ordinance.

The Court of Common Pleas of Erie County granted the permanent injunction and struck down the ordinance as
unconstitutional. Civ. No. 60059-1994 (Jan. 18, 1995), Pet. for Cert. 40a. On cross appeals, the Commonwealth
Court reversed the trial court's order. 674 A. 2d 338 (1996).

The Pennsylvania Supreme Court granted review and reversed, concluding that the public nudity provisions of the
ordinance violated respondent's rights to freedom of expression as protected by the First and Fourteenth
Amendments. 553 Pa. 348, 719 A. 2d 273 (1998). The Pennsylvania court first inquired whether nude dancing
constitutes expressive conduct that is within the protection of the First Amendment. The court noted that the act of
being nude, in and of

perineum anal region or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or
areola of the female breast, which device simulates and gives the realistic appearance of nipples and/or areola.

"3. "Public Place" includes all outdoor places owned by or open to the general public, and all buildings and enclosed
places owned by or open to the general public, including such places of entertainment, taverns, restaurants, clubs,
theaters, dance halls, banquet halls, party rooms or halls limited to specific members, restricted to adults or to
patrons invited to attend, whether or not an admission charge is levied.

"4. The prohibition set forth in subsection l(c) shall not apply to: "a. Any child under ten (10) years of age; or

"b. Any individual exposing a breast in the process of breastfeeding an infant under two (2) years of age."

285

itself, is not entitled to First Amendment protection because it conveys no message. Id., at 354, 719 A. 2d, at 276.
Nude dancing, however, is expressive conduct that is entitled to some quantum of protection under the First
Amendment, a view that the Pennsylvania Supreme Court noted was endorsed by eight Members of this Court in
Barnes. 553 Pa., at 354, 719 A. 2d, at 276.

The Pennsylvania court next inquired whether the government interest in enacting the ordinance was content neutral,
explaining that regulations that are unrelated to the suppression of expression are not subject to strict scrutiny but to
the less stringent standard of United States v. O'Brien, supra, at 377. To answer the question whether the ordinance
is content based, the court turned to our decision in Barnes. 553 Pa., at 355-356, 719 A. 2d, at 277. Although the
Pennsylvania court noted that the Indiana statute at issue in Barnes "is strikingly similar to the Ordinance we are
examining," it concluded that "[u]nfortunately for our purposes, the Barnes Court splintered and produced four
separate, non-harmonious opinions." 553 Pa., at 356, 719 A. 2d, at 277. After canvassing these separate opinions,
the Pennsylvania court concluded that, although it is permissible to find precedential effect in a fragmented decision,
to do so a majority of the Court must have been in agreement on the concept that is deemed to be the holding. See
Marks v. United States, 430 U. S. 188 (1977). The Pennsylvania court noted that "aside from the agreement by a
majority of the Barnes Court that nude dancing is entitled to some First Amendment protection, we can find no point
on which a majority of the Barnes Court agreed." 553 Pa., at 358, 719 A. 2d, at 278. Accordingly, the court
concluded that "no clear precedent arises out of Barnes on the issue of whether the [Erie] ordinance ... passes muster
under the First Amendment." Ibid.

Having determined that there was no United States Supreme Court precedent on point, the Pennsylvania court

286
 55

conducted an independent examination of the ordinance to ascertain whether it was related to the suppression of
expression. The court concluded that although one of the purposes of the ordinance was to combat negative
secondary effects, "[i]nextricably bound up with this stated purpose is an unmentioned purpose ... to impact
negatively on the erotic message of the dance." Id., at 359, 719 A. 2d, at 279. As such, the court determined the
ordinance was content based and subject to strict scrutiny. The ordinance failed the narrow tailoring requirement of
strict scrutiny because the court found that imposing criminal and civil sanctions on those who commit sex crimes
would be a far narrower means of combating secondary effects than the requirement that dancers wear pasties and
G-strings. Id., at 361-362, 719 A. 2d, at 280.

Concluding that the ordinance unconstitutionally burdened respondent's expressive conduct, the Pennsylvania court
then determined that, under Pennsylvania law, the public nudity provisions of the ordinance could be severed rather
than striking the ordinance in its entirety. Accordingly, the court severed §§ l(c) and 2 from the ordinance and
reversed the order of the Commonwealth Court. Id., at 363-364, 719 A. 2d, at 281. Because the court determined
that the public nudity provisions of the ordinance violated Pap's right to freedom of expression under the United
States Constitution, it did not address the constitutionality of the ordinance under the Pennsylvania Constitution or
the claim that the ordinance is unconstitutionally overbroad. Ibid.

In a separate concurrence, two justices of the Pennsylvania court noted that, because this Court upheld a virtually
identical statute in Barnes, the ordinance should have been upheld under the United States Constitution. 553 Pa., at
364, 719 A. 2d, at 281. They reached the same result as the majority, however, because they would have held that
the public nudity sections of the ordinance violate the Pennsylvania Constitution. Id., at 370, 719 A. 2d, at 284.

287

The city of Erie petitioned for a writ of certiorari, which we granted. 526 U. S. 1111 (1999). Shortly thereafter, Pap's
filed a motion to dismiss the case as moot, noting that Kandyland was no longer operating as a nude dancing club,
and Pap's was not operating a nude dancing club at any other location. Respondent's Motion to Dismiss as Moot 1.
We denied the motion. 527 U. S. 1034 (1999).

II

As a preliminary matter, we must address the justiciability question. "'[A] case is moot when the issues presented are
no longer "live" or the parties lack a legally cognizable interest in the outcome.'" County of Los Angeles v. Davis,
440 U. S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U. S. 486, 496 (1969)). The underlying concern is
that, when the challenged conduct ceases such that" 'there is no reasonable expectation that the wrong will be
repeated,'" United States v. W T. Grant Co., 345 U. S. 629, 633 (1953), then it becomes impossible for the court to
grant" 'any effectual relief whatever' to [the] prevailing party," Church of Scientology of Cal. v. United States, 506
U. S. 9, 12 (1992) (quoting Mills v. Green, 159 U. S. 651, 653 (1895)). In that case, any opinion as to the legality of
the challenged action would be advisory.

Here, Pap's submitted an affidavit stating that it had "ceased to operate a nude dancing establishment in Erie." Status
Report Re Potential Issue of Mootness 1 (Sept. 8, 1999). Pap's asserts that the case is therefore moot because "[t]he
outcome of this case will have no effect upon Respondent." Respondent's Motion to Dismiss as Moot 1. Simply
closing Kandyland is not sufficient to render this case moot, however. Pap's is still incorporated under Pennsylvania
law, and it could again decide to operate a nude dancing establishment in Erie. See Petitioner's Brief in Opposition
to Motion to Dismiss 3. JUSTICE SCALIA differs with our assessment as to the likelihood that Pap's may resume
its nude dancing

288

operation. Several Members of this Court can attest, however, that the "advanced age" of Pap's owner (72) does not
make it "absolutely clear" that a life of quiet retirement is his only reasonable expectation. Cf. Friends of Earth, Inc.
v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167 (2000). Moreover, our appraisal of Pap's affidavit is
 56

influenced by Pap's failure, despite its obligation to the Court, to mention a word about the potential mootness issue
in its brief in opposition to the petition for writ of certiorari, which was filed in April 1999, even though, as
JUSTICE SCALIA points out, Kandyland was closed and that property sold in 1998. See Board of License Comm'rs
of Tiverton v. Pastore, 469 U. S. 238, 240 (1985) (per curiam). Pap's only raised the issue after this Court granted
certiorari.

In any event, this is not a run of the mill voluntary cessation case. Here it is the plaintiff who, having prevailed
below, now seeks to have the case declared moot. And it is the city of Erie that seeks to invoke the federal judicial
power to obtain this Court's review of the Pennsylvania Supreme Court decision. Cf. ASARCO Inc. v. Kadish, 490
U. S. 605, 617-618 (1989). The city has an ongoing injury because it is barred from enforcing the public nudity
provisions of its ordinance. If the challenged ordinance is found constitutional, then Erie can enforce it, and the
availability of such relief is sufficient to prevent the case from being moot. See Church of Scientology of Cal. v.
United States, supra, at 13. And Pap's still has a concrete stake in the outcome of this case because, to the extent
Pap's has an interest in resuming operations, it has an interest in preserving the judgment of the Pennsylvania
Supreme Court. Our interest in preventing litigants from attempting to manipulate the Court's jurisdiction to insulate
a favorable decision from review further counsels against a finding of mootness here. See United States v. W T.
Grant Co., supra, at 632; cf. Arizonans for Official English v. Arizona, 520 U. S. 43,

289

74 (1997). Although the issue is close, we conclude that the case is not moot, and we turn to the merits.

III

Being "in a state of nudity" is not an inherently expressive condition. As we explained in Barnes, however, nude
dancing of the type at issue here is expressive conduct, although we think that it falls only within the outer ambit of
the First Amendment's protection. See Barnes v. Glen Theatre, Inc., 501 U. S., at 565-566 (plurality opinion); Schad
v. Mount Ephraim, 452 U. S. 61, 66 (1981).

To determine what level of scrutiny applies to the ordinance at issue here, we must decide "whether the State's
regulation is related to the suppression of expression." Texas v. Johnson, 491 U. S. 397, 403 (1989); see also United
States v. O'Brien, 391 U. S., at 377. If the governmental purpose in enacting the regulation is unrelated to the
suppression of expression, then the regulation need only satisfy the "less stringent" standard from O'Brien for
evaluating restrictions on symbolic speech. Texas v. Johnson, supra, at 403; United States v. O'Brien, supra, at 377.
If the government interest is related to the content of the expression, however, then the regulation falls outside the
scope of the O'Brien test and must be justified under a more demanding standard. Texas v. Johnson, supra, at 403.

In Barnes, we analyzed an almost identical statute, holding that Indiana's public nudity ban did not violate the First
Amendment, although no five Members of the Court agreed on a single rationale for that conclusion. We now
clarify that government restrictions on public nudity such as the ordinance at issue here should be evaluated under
the framework set forth in O'Brien for content-neutral restrictions on symbolic speech.

The city of Erie argues that the ordinance is a contentneutral restriction that is reviewable under O'Brien because the
ordinance bans conduct, not speech; specifically, public

290

nudity. Respondent counters that the ordinance targets nude dancing and, as such, is aimed specifically at
suppressing expression, making the ordinance a content-based restriction that must be subjected to strict scrutiny.

The ordinance here, like the statute in Barnes, is on its face a general prohibition on public nudity. 553 Pa., at 354,
719 A. 2d, at 277. By its terms, the ordinance regulates conduct alone. It does not target nudity that contains an
erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive
 57

activity. And like the statute in Barnes, the Erie ordinance replaces and updates provisions of an "Indecency and
Immorality" ordinance that has been on the books since 1866, predating the prevalence of nude dancing
establishments such as Kandyland. Pet. for Cert. 7a; see Barnes v. Glen Theatre, Inc., supra, at 568.

Respondent and JUSTICE STEVENS contend nonetheless that the ordinance is related to the suppression of
expression because language in the ordinance's preamble suggests that its actual purpose is to prohibit erotic dancing
of the type performed at Kandyland. Post, at 318 (dissenting opinion). That is not how the Pennsylvania Supreme
Court interpreted that language, however. In the preamble to the ordinance, the city council stated that it was
adopting the regulation

"'for the purpose of limiting a recent increase in nude live entertainment within the City, which activity adversely
impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to
violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other
deleterious effects.'" 553 Pa., at 359, 719 A. 2d, at 279.

The Pennsylvania Supreme Court construed this language to mean that one purpose of the ordinance was "to combat
negative secondary effects." Ibid.

291

As JUSTICE SOUTER noted in Barnes, "on its face, the governmental interest in combating prostitution and other
criminal activity is not at all inherently related to expression." 501 U. S., at 585 (opinion concurring in judgment). In
that sense, this case is similar to O'Brien. O'Brien burned his draft registration card as a public statement of his
antiwar views, and he was convicted under a statute making it a crime to knowingly mutilate or destroy such a card.
This Court rejected his claim that the statute violated his First Amendment rights, reasoning that the law punished
him for the "noncommunicative impact of his conduct, and for nothing else." 391 U. S., at 382. In other words, the
Government regulation prohibiting the destruction of draft cards was aimed at maintaining the integrity of the
Selective Service System and not at suppressing the message of draft resistance that O'Brien sought to convey by
burning his draft card. So too here, the ordinance prohibiting public nudity is aimed at combating crime and other
negative secondary effects caused by the presence of adult entertainment establishments like Kandyland and not at
suppressing the erotic message conveyed by this type of nude dancing. Put another way, the ordinance does not
attempt to regulate the primary effects of the expression, i. e., the effect on the audience of watching nude erotic
dancing, but rather the secondary effects, such as the impacts on public health, safety, and welfare, which we have
previously recognized are "caused by the presence of even one such" establishment. Renton v. Playtime Theatres,
Inc., 475 U. S. 41, 47-48, 50 (1986); see also Boos v. Barry, 485 U. S. 312, 321 (1988).

Although the Pennsylvania Supreme Court acknowledged that one goal of the ordinance was to combat the negative
secondary effects associated with nude dancing establishments, the court concluded that the ordinance was
nevertheless content based, relying on Justice White's position in dissent in Barnes for the proposition that a ban of
this type necessarily has the purpose of suppressing the erotic mes-

292

Opinion of O'CONNOR, J.

sage of the dance. Because the Pennsylvania court agreed with Justice White's approach, it concluded that the
ordinance must have another, "unmentioned" purpose related to the suppression of expression. 553 Pa., at 359, 719
A. 2d, at 279. That is, the Pennsylvania court adopted the dissent's view in Barnes that" '[s]ince the State permits the
dancers to perform if they wear pas ties and G-strings but forbids nude dancing, it is precisely because of the
distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the
 58

statutory prohibition." 553 Pa., at 359, 719 A. 2d, at 279 (quoting Barnes, supra, at 592 (White, J., dissenting)). A
majority of the Court rejected that view in Barnes, and we do so again here.

Respondent's argument that the ordinance is "aimed" at suppressing expression through a ban on nude dancing-an
argument that respondent supports by pointing to statements by the city attorney that the public nudity ban was not
intended to apply to "legitimate" theater productionsis really an argument that the city council also had an illicit
motive in enacting the ordinance. As we have said before, however, this Court will not strike down an otherwise
constitutional statute on the basis of an alleged illicit motive. O'Brien, supra, at 382-383; Renton v. Playtime
Theatres, Inc., supra, at 47-48 (that the "predominate" purpose of the statute was to control secondary effects was
"more than adequate to establish" that the city's interest was unrelated to the suppression of expression). In light of
the Pennsylvania court's determination that one purpose of the ordinance is to combat harmful secondary effects, the
ban on public nudity here is no different from the ban on burning draft registration cards in O'Brien, where the
Government sought to prevent the means of the expression and not the expression of antiwar sentiment itself.

JUSTICE STEVENS argues that the ordinance enacts a complete ban on expression. We respectfully disagree with
that characterization. The public nudity ban certainly has

293

the effect of limiting one particular means of expressing the kind of erotic message being disseminated at
Kandyland. But simply to define what is being banned as the "message" is to assume the conclusion. We did not
analyze the regulation in O'Brien as having enacted a total ban on expression. Instead, the Court recognized that the
regulation against destroying one's draft card was justified by the Government's interest in preventing the harmful
"secondary effects" of that conduct (disruption to the Selective Service System), even though that regulation may
have some incidental effect on the expressive element of the conduct. Because this justification was unrelated to the
suppression of O'Brien's antiwar message, the regulation was content neutral. Although there may be cases in which
banning the means of expression so interferes with the message that it essentially bans the message, that is not the
case here.

Even if we had not already rejected the view that a ban on public nudity is necessarily related to the suppression of
the erotic message of nude dancing, we would do so now because the premise of such a view is flawed. The State's
interest in preventing harmful secondary effects is not related to the suppression of expression. In trying to control
the secondary effects of nude dancing, the ordinance seeks to deter crime and the other deleterious effects caused by
the presence of such an establishment in the neighborhood. See Renton, supra, at 50-51. In Clark v. Community for
Creative Non-Violence, 468 U. S. 288 (1984), we held that a National Park Service regulation prohibiting camping
in certain parks did not violate the First Amendment when applied to prohibit demonstrators from sleeping in
Lafayette Park and the Mall in Washington, D. C., in connection with a demonstration intended to call attention to
the plight of the homeless. Assuming, arguendo, that sleeping can be expressive conduct, the Court concluded that
the Government interest in conserving park property was unrelated to the demonstrators' message about
homelessness. Id., at 299.

294

So, while the demonstrators were allowed to erect "symbolic tent cities," they were not allowed to sleep overnight in
those tents. Even though the regulation may have directly limited the expressive element involved in actually
sleeping in the park, the regulation was nonetheless content neutral.

Similarly, even if Erie's public nudity ban has some minimal effect on the erotic message by muting that portion of
the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments
are free to perform wearing pasties and G-strings. Any effect on the overall expression is de minimis. And as
JUSTICE STEVENS eloquently stated for the plurality in Young v. American Mini Theatres, Inc., 427 U. S. 50, 70
(1976), "even though we recognize that the First Amendment will not tolerate the total suppression of erotic
materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of
expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate," and
 59

"few of us would march our sons and daughters off to war to preserve the citizen's right to see" specified anatomical
areas exhibited at establishments like Kandyland. If States are to be able to regulate secondary effects, then de
minimis intrusions on expression such as those at issue here cannot be sufficient to render the ordinance content
based. See Clark v. Community for Creative Non- Violence, supra, at 299; Ward v. Rock Against Racism, 491 U. S.
781, 791 (1989) (even if regulation has an incidental effect on some speakers or messages but not others, the
regulation is content neutral if it can be justified without reference to the content of the expression).

This case is, in fact, similar to O'Brien, Community for Creative Non-Violence, and Ward. The justification for the
government regulation in each case prevents harmful "secondary" effects that are unrelated to the suppression of
expression. See, e. g., Ward v. Rock Against Racism, supra, at 791-792 (noting that "[t]he principal justification for
the

295

sound-amplification guideline is the city's desire to control noise levels at bands hell events, in order to retain the
character of the [adjacent] Sheep Meadow and its more sedate activities," and citing Renton for the proposition that
"[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others"). While the doctrinal theories behind "incidental
burdens" and "secondary effects" are, of course, not identical, there is nothing objectionable about a city passing a
general ordinance to ban public nudity (even though such a ban may place incidental burdens on some protected
speech) and at the same time recognizing that one specific occurrence of public nuditynude erotic dancing-is
particularly problematic because it produces harmful secondary effects.

JUSTICE STEVENS claims that today we "[f]or the first time" extend Renton's secondary effects doctrine to justify
restrictions other than the location of a commercial enterprise. Post, at 317 (dissenting opinion). Our reliance on
Renton to justify other restrictions is not new, however. In Ward, the Court relied on Renton to evaluate restrictions
on sound amplification at an outdoor bands hell, rejecting the dissent's contention that Renton was inapplicable. See
Ward v. Rock Against Racism, supra, at 804, n. 1 (Marshall, J., dissenting) ("Today, for the first time, a majority of
the Court applies Renton analysis to a category of speech far afield from that decision's original limited focus").
Moreover, Erie's ordinance does not effect a "total ban" on protected expression. Post, at 319.

In Renton, the regulation explicitly treated "adult" movie theaters differently from other theaters, and defined "adult"
theaters solely by reference to the content of their movies. 475 U. S., at 44. We nonetheless treated the zoning
regulation as content neutral because the ordinance was aimed at the secondary effects of adult theaters, a
justification unrelated to the content of the adult movies themselves. Id., at

296

Opinion of O'CONNOR, J.

48. Here, Erie's ordinance is on its face a content-neutral restriction on conduct. Even if the city thought that nude
dancing at clubs like Kandyland constituted a particularly problematic instance of public nudity, the regulation is
still properly evaluated as a content-neutral restriction because the interest in combating the secondary effects
associated with those clubs is unrelated to the suppression of the erotic message conveyed by nude dancing.

We conclude that Erie's asserted interest in combating the negative secondary effects associated with adult
entertainment establishments like Kandyland is unrelated to the suppression of the erotic message conveyed by nude
dancing. The ordinance prohibiting public nudity is therefore valid if it satisfies the four-factor test from O'Brien for
evaluating restrictions on symbolic speech.

IV
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Applying that standard here, we conclude that Erie's ordinance is justified under O'Brien. The first factor of the
O'Brien test is whether the government regulation is within the constitutional power of the government to enact.
Here, Erie's efforts to protect public health and safety are clearly within the city's police powers. The second factor
is whether the regulation furthers an important or substantial government interest. The asserted interests of
regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude
dancing are undeniably important. And in terms of demonstrating that such secondary effects pose a threat, the city
need not "conduct new studies or produce evidence independent of that already generated by other cities" to
demonstrate the problem of secondary effects, "so long as whatever evidence the city relies upon is reasonably
believed to be relevant to the problem that the city addresses." Renton v. Playtime Theatres, Inc., supra, at 51-52.
Because the nude dancing at Kandyland is of the same character as the adult entertain-

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ment at issue in Renton, Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), and California v. LaRue, 409
U. S. 109 (1972), it was reasonable for Erie to conclude that such nude dancing was likely to produce the same
secondary effects. And Erie could reasonably rely on the evidentiary foundation set forth in Renton and American
Mini Theatres to the effect that secondary effects are caused by the presence of even one adult entertainment
establishment in a given neighborhood. See Renton v. Playtime Theatres, Inc., supra, at 51-52 (indicating that
reliance on a judicial opinion that describes the evidentiary basis is sufficient). In fact, Erie expressly relied on
Barnes and its discussion of secondary effects, including its reference to Renton and American Mini Theatres. Even
in cases addressing regulations that strike closer to the core of First Amendment values, we have accepted a state or
local government's reasonable belief that the experience of other jurisdictions is relevant to the problem it is
addressing. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 393, n. 6 (2000). Regardless of whether
JUSTICE SOUTER now wishes to disavow his opinion in Barnes on this point, see post, at 316-317 (opinion
concurring in part and dissenting in part), the evidentiary standard described in Renton controls here, and Erie meets
that standard.

In any event, Erie also relied on its own findings. The preamble to the ordinance states that "the Council of the City
of Erie has, at various times over more than a century, expressed its findings that certain lewd, immoral activities
carried on in public places for profit are highly detrimental to the public health, safety and welfare, and lead to the
debasement of both women and men, promote violence, public intoxication, prostitution and other serious criminal
activity." Pet. for Cert. 6a (emphasis added). The city council members, familiar with commercial downtown Erie,
are the individuals who would likely have had firsthand knowledge of what took place at and around nude dancing
establish-

298

ments in Erie, and can make particularized, expert judgments about the resulting harmful secondary effects.
Analogizing to the administrative agency context, it is well established that, as long as a party has an opportunity to
respond, an administrative agency may take official notice of such "legislative facts" within its special knowledge,
and is not confined to the evidence in the record in reaching its expert judgment. See FCC v. National Citizens
Comm. for Broadcasting, 436 U. S. 775 (1978); Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945); 2 K. Davis
& R. Pierce, Administrative Law Treatise § 10.6 (3d ed. 1994). Here, Kandyland has had ample opportunity to
contest the council's findings about secondary effects-before the council itself, throughout the state proceedings, and
before this Court. Yet to this day, Kandyland has never challenged the city council's findings or cast any specific
doubt on the validity of those findings. Instead, it has simply asserted that the council's evidentiary proof was
lacking. In the absence of any reason to doubt it, the city's expert judgment should be credited. And the study relied
on by amicus curiae does not cast any legitimate doubt on the Erie city council's judgment about Erie. See Brief for
First Amendment Lawyers Association as Amicus Curiae 16-23.

Finally, it is worth repeating that Erie's ordinance is on its face a content-neutral restriction that regulates conduct,
not First Amendment expression. And the government should have sufficient leeway to justify such a law based on
secondary effects. On this point, O'Brien is especially instructive. The Court there did not require evidence that the
integrity of the Selective Service System would be jeopardized by the knowing destruction or mutilation of draft
 61

cards. It simply reviewed the Government's various administrative interests in issuing the cards, and then concluded
that "Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction and
assuring their continuing availability by punishing people

299

who knowingly and willfully destroy or mutilate them." 391 U. S., at 378-380. There was no study documenting
instances of draft card mutilation or the actual effect of such mutilation on the Government's asserted efficiency
interests. But the Court permitted Congress to take official notice, as it were, that draft card destruction would
jeopardize the system. The fact that this sort of leeway is appropriate in a case involving conduct says nothing
whatsoever about its appropriateness in a case involving actual regulation of First Amendment expression. As we
have said, so long as the regulation is unrelated to the suppression of expression, "[t]he government generally has a
freer hand in restricting expressive conduct than it has in restricting the written or spoken word." Texas v. Johnson,
491 U. S., at 406. See, e. g., United States v. O'Brien, supra, at 377; United States v. Albertini, 472 U. S. 675, 689
(1985) (finding sufficient the Government's assertion that those who had previously been barred from entering the
military installation pose a threat to the security of that installation); Clark v. Community for Creative Non-
Violence, 468 U. S., at 299 (finding sufficient the Government's assertion that camping overnight in the park poses a
threat to park property).

JUSTICE SOUTER, however, would require Erie to develop a specific evidentiary record supporting its ordinance.
Post, at 317 (opinion concurring in part and dissenting in part). JUSTICE SOUTER agrees that Erie's interest in
combating the negative secondary effects associated with nude dancing establishments is a legitimate government
interest unrelated to the suppression of expression, and he agrees that the ordinance should therefore be evaluated
under O'Brien. O'Brien, of course, required no evidentiary showing at all that the threatened harm was real. But that
case is different, JUSTICE SOUTER contends, because in O'Brien "there could be no doubt" that a regulation
prohibiting the destruction of draft cards would alleviate the harmful secondary ef-

300

fects flowing from the destruction of those cards. Post, at 311, n. 1.

But whether the harm is evident to our "intuition," ibid., is not the proper inquiry. If it were, we would simply say
there is no doubt that a regulation prohibiting public nudity would alleviate the harmful secondary effects associated
with nude dancing. In any event, JUSTICE SOUTER conflates two distinct concepts under O'Brien: whether there
is a substantial government interest and whether the regulation furthers that interest. As to the government interest, i.
e., whether the threatened harm is real, the city council relied on this Court's opinions detailing the harmful
secondary effects caused by establishments like Kandyland, as well as on its own experiences in Erie. JUSTICE
SOUTER attempts to denigrate the city council's conclusion that the threatened harm was real, arguing that we
cannot accept Erie's findings because the subject of nude dancing is "fraught with some emotionalism," post, at 314.
Yet surely the subject of drafting our citizens into the military is "fraught" with more emotionalism than the subject
of regulating nude dancing. Ibid. JUSTICE SOUTER next hypothesizes that the reason we cannot accept Erie's
conclusion is that, since the question whether these secondary effects occur is "amenable to empirical treatment," we
should ignore Erie's actual experience and instead require such an empirical analysis. Post, at 314-315, n. 3
(referring to a "scientifically sound" study offered by an amicus curiae to show that nude dancing establishments do
not cause secondary effects). In Nixon, however, we flatly rejected that idea. 528 U. S., at 394 (noting that the
"invocation of academic studies said to indicate" that the threatened harms are not real is insufficient to cast doubt
on the experience of the local government).

As to the second point-whether the regulation furthers the government interest-it is evident that, since crime and
other public health and safety problems are caused by the presence of nude dancing establishments like Kandyland,
a

301
 62

ban on such nude dancing would further Erie's interest in preventing such secondary effects. To be sure, requiring
dancers to wear pas ties and G-strings may not greatly reduce these secondary effects, but O'Brien requires only that
the regulation further the interest in combating such effects. Even though the dissent questions the wisdom of Erie's
chosen remedy, post, at 323 (opinion of STEVENS, J.), the" 'city must be allowed a reasonable opportunity to
experiment with solutions to admittedly serious problems,'" Renton v. Playtime Theatres, Inc., 475 U. S., at 52
(quoting American Mini Theatres, 427 U. S., at 71 (plurality opinion)). It also may be true that a pasties and G-string
requirement would not be as effective as, for example, a requirement that the dancers be fully clothed, but the city
must balance its efforts to address the problem with the requirement that the restriction be no greater than necessary
to further the city's interest.

The ordinance also satisfies O'Brien's third factor, that the government interest is unrelated to the suppression of free
expression, as discussed supra, at 289-296. The fourth and final O'Brien factor-that the restriction is no greater than
is essential to the furtherance of the government interestis satisfied as well. The ordinance regulates conduct, and
any incidental impact on the expressive element of nude dancing is de minimis. The requirement that dancers wear
pasties and G-strings is a minimal restriction in furtherance of the asserted government interests, and the restriction
leaves ample capacity to convey the dancer's erotic message. See Barnes v. Glen Theatre, Inc., 501 U. S., at 572
(plurality opinion of REHNQUIST, C. J., joined by O'CONNOR and KENNEDY, JJ.); id., at 587 (SOUTER, J.,
concurring in judgment). JUSTICE SOUTER points out that zoning is an alternative means of addressing this
problem. It is far from clear, however, that zoning imposes less of a burden on expression than the minimal
requirement implemented here. In any event, since this is a content-neutral restriction, least restrictive

302

means analysis is not required. See Ward, 491 U. S., at 798799, n. 6.

We hold, therefore, that Erie's ordinance is a contentneutral regulation that is valid under O'Brien. Accordingly, the
judgment of the Pennsylvania Supreme Court is reversed, and the case is remanded for further proceedings.

It is so ordered.

ASHCROFT, ET AL. v. FREE SPEECH COALITION ET AL. 535 U.S. 234 (2001)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Syllabus

The Child Pornography Prevention Act of 1996 (CPPA) expands the federal prohibition on child pornography to
include not only pornographic images made using actual children, 18 U. S. C. § 2256(8)(A), but also "any visual
depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture," that
"is, or appears to be, of a minor engaging in sexually explicit conduct," § 2256(8)(B), and any sexually explicit
image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the
impression" it depicts "a minor engaging in sexually explicit conduct," § 2256(8)(D). Thus, § 2256(8)(B) bans a
range of sexually explicit images, sometimes called "virtual child pornography," that appear to depict minors but
were produced by means other than using real children, such as through the use of youthful-looking adults or
computer-imaging technology. Section 2256(8)(D) is aimed at preventing the production or distribution of
pornographic material pandered as child pornography. Fearing that the CPPA threatened their activities,
respondents, an adult-entertainment trade association and others, filed this suit alleging that the "appears to be" and
"conveys the impression" provisions are overbroad and vague, chilling production of works protected by the First
Amendment. The District Court disagreed and granted the Government summary judgment, but the Ninth Circuit
reversed. Generally, pornography can be banned only if it is obscene under Miller v. California, 413 U. S. 15, but
pornography depicting actual children can be proscribed whether or not the images are obscene because of the
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State's interest in protecting the children exploited by the production process, New York v. Ferber, 458 U. S. 747,
758, and in prosecuting those who promote such sexual exploitation, id., at 761. The Ninth Circuit held the CPPA
invalid on its face, finding it to be substantially overbroad because it bans materials that are neither obscene under
Miller nor produced by the exploitation of real children as in Ferber.

Held: The prohibitions of § § 2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional. Pp. 244-258.

(a) Section 2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the
Government offers in

235

support of limiting the freedom of speech have no justification in this Court's precedents or First Amendment law.
Pp. 244-256.

(1) The CPPA is inconsistent with Miller. It extends to images that are not obscene under the Miller standard, which
requires the Government to prove that the work in question, taken as a whole, appeals to the prurient interest, is
patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value,
413 U. S., at 24. Materials need not appeal to the prurient interest under the CPPA, which proscribes any depiction
of sexually explicit activity, no matter how it is presented. It is not necessary, moreover, that the image be patently
offensive. Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case
contravene community standards. The CPPA also prohibits speech having serious redeeming value, proscribing the
visual depiction of an idea-that of teenagers engaging in sexual activity-that is a fact of modern society and has been
a theme in art and literature for centuries. A number of acclaimed movies, filmed without any child actors, explore
themes within the wide sweep of the statute's prohibitions. If those movies contain a single graphic depiction of
sexual activity within the statutory definition, their possessor would be subject to severe punishment without inquiry
into the literary value of the work. This is inconsistent with an essential First Amendment rule: A work's artistic
merit does not depend on the presence of a single explicit scene. See, e. g., Book Named "John Cleland's Memoirs
of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413, 419. Under Miller, redeeming value is judged
by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason
become obscene, even though the scene in isolation might be offensive. See Kois v. Wisconsin, 408 U. S. 229, 231
(per curiam). The CPPA cannot be read to prohibit obscenity, because it lacks the required link between its
prohibitions and the affront to community standards prohibited by the obscenity definition. Pp. 244-249.

(2) The CPPA finds no support in Ferber. The Court rejects the Government's argument that speech prohibited by
the CPPA is virtually indistinguishable from material that may be banned under Ferber. That case upheld a
prohibition on the distribution and sale of child pornography, as well as its production, because these acts were
"intrinsically related" to the sexual abuse of children in two ways. 458 U. S., at 759. First, as a permanent record of a
child's abuse, the continued circulation itself would harm the child who had participated. See id., at 759, and n. 10.
Second, because the traffic in child pornography was an economic motive for its production, the State had an
interest in closing the distribution network. Id., at 760. Under

236

either rationale, the speech had what the Court in effect held was a proximate link to the crime from which it came.
In contrast to the speech in Ferber, speech that is itself the record of sexual abuse, the CPPA prohibits speech that
records no crime and creates no victims by its production. Virtual child pornography is not "intrinsically related" to
the sexual abuse of children. While the Government asserts that the images can lead to actual instances of child
abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends
upon some unquantified potential for subsequent criminal acts. The Government's argument that these indirect
harms are sufficient because, as Ferber acknowledged, child pornography rarely can be valuable speech, see id., at
762, suffers from two flaws. First, Ferber's judgment about child pornography was based upon how it was made, not
on what it communicated. The case reaffirmed that where the speech is neither obscene nor the product of sexual
abuse, it does not fall outside the First Amendment's protection. See id., at 764-765. Second, Ferber did not hold
 64

that child pornography is by definition without value. It recognized some works in this category might have
significant value, see id., at 761, but relied on virtual images-the very images prohibited by the CPPA-as an
alternative and permissible means of expression, id., at 763. Because Ferber relied on the distinction between actual
and virtual child pornography as supporting its holding, it provides no support for a statute that eliminates the
distinction and makes the alternative mode criminal as well. Pp.249-251.

(3) The Court rejects other arguments offered by the Government to justify the CPPA's prohibitions. The contention
that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of
the principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield
children from it. See, e. g., Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 130-131. That the evil in
question depends upon the actor's unlawful conduct, defined as criminal quite apart from any link to the speech in
question, establishes that the speech ban is not narrowly drawn. The argument that virtual child pornography whets
pedophiles' appetites and encourages them to engage in illegal conduct is unavailing because the mere tendency of
speech to encourage unlawful acts is not a sufficient reason for banning it, Stanley v. Georgia, 394 U. S. 557, 566,
absent some showing of a direct connection between the speech and imminent illegal conduct, see, e. g.,
Brandenburg v. Ohio, 395 U. S. 444, 447 (per curiam). The argument that eliminating the market for pornography
produced using real children necessitates a prohibition on virtual images as well is somewhat implausible because

237

few pornographers would risk prosecution for abusing real children if fictional, computerized images would suffice.
Moreover, even if the market deterrence theory were persuasive, the argument cannot justify the CPPA because,
here, there is no underlying crime at all. Finally, the First Amendment is turned upside down by the argument that,
because it is difficult to distinguish between images made using real children and those produced by computer
imaging, both kinds of images must be prohibited. The overbreadth doctrine prohibits the Government from banning
unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. See Broadrick
v. Oklahoma, 413 U. S. 601, 612. The Government's rejoinder that the CPPA should be read not as a prohibition on
speech but as a measure shifting the burden to the accused to prove the speech is lawful raises serious constitutional
difficulties. The Government misplaces its reliance on § 2252A(c), which creates an affirmative defense allowing a
defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only
adults and were not otherwise distributed in a manner conveying the impression that they depicted real children.
Even if an affirmative defense can save a statute from First Amendment challenge, here the defense is insufficient
because it does not apply to possession or to images created by computer imaging, even where the defendant could
demonstrate no children were harmed in producing the images. Thus, the defense leaves unprotected a substantial
amount of speech not tied to the Government's interest in distinguishing images produced using real children from
virtual ones. Pp.251-256.

(b) Section 2256(8)(D) is also substantially overbroad. The Court disagrees with the Government's view that the
only difference between that provision and § 2256(8)(B)'s "appears to be" provision is that § 2256(8)(D) requires the
jury to assess the material at issue in light of the manner in which it is promoted, but that the determination would
still depend principally upon the prohibited work's content. The "conveys the impression" provision requires little
judgment about the image's content; the work must be sexually explicit, but otherwise the content is irrelevant. Even
if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title
and trailers convey the impression that such scenes will be found in the movie. The determination turns on how the
speech is presented, not on what is depicted. The Government's other arguments in support of the CPPA do not bear
on §2256(8)(D). The materials, for instance, are not likely to be confused for child pornography in a criminal trial.
Pandering may be relevant, as an evidentiary matter, to the question whether particular materials are obscene. See
Ginzburg v. United

238

States, 383 U. S. 463, 474. Where a defendant engages in the "commercial exploitation" of erotica solely for the
sake of prurient appeal, id., at 466, the context created may be relevant to evaluating whether the materials are
obscene. Section 2256(8)(D), however, prohibits a substantial amount of speech that falls outside Ginzburg's
 65

rationale. Proscribed material is tainted and unlawful in the hands of all who receive it, though they bear no
responsibility for how it was marketed, sold, or described. The statute, furthermore, does not require that the context
be part of an effort at "commercial exploitation." Thus, the CPPA does more than prohibit pandering. It bans
possession of material pandered as child pornography by someone earlier in the distribution chain, as well as a
sexually explicit film that contains no youthful actors but has been packaged to suggest a prohibited movie.
Possession is a crime even when the possessor knows the movie was mislabeled. The First Amendment requires a
more precise restriction. Pp. 257-258.

(c) In light of the foregoing, respondents' contention that §§ 2256(8)(B) and 2256(8)(D) are void for vagueness need
not be addressed. P. 258. 198 F. 3d 1083, affirmed.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ.,
joined. THOMAS, J., filed an opinion concurring in the judgment, post, p. 259. O'CONNOR, J., filed an opinion
concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and SCALIA, J., joined as to
Part II, post, p. 260. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA, J., joined except for the
paragraph discussing legislative history, post, p. 267

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join as to Part II, concurring in
the judgment in part and dissenting in part.

The Child Pornography Prevention Act of 1996 (CPPA), 18 U. S. C. § 2251 et seq., proscribes the "knowin[gJ"
reproduction, distribution, sale, reception, or possession of images that fall under the statute's definition of child
pornography, § 2252A(a). Possession is punishable by up to 5 years in prison for a first offense, § 2252A(b), and all
other transgressions are punishable by up to 15 years in prison for a first offense, § 2252A(a). The CPP A defines
child pornography to include "any visual depiction ... of sexually explicit conduct" where "such visual depiction is,
or appears to be, of a minor engaging in sexually explicit conduct," § 2256(8)(B) (emphasis added), or "such visual
depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression
that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct," § 2256(8)(D)
(emphasis added). The statute defines "sexually explicit conduct" as "actual or simulated- ... sexual
intercourse ... ; ... bestiality; ... masturbation; ... sadistic or masochistic abuse; or ... lascivious exhibition of the
genitals or pubic area of any person." § 2256(2).

The CPPA provides for two affirmative defenses. First, a defendant is not liable for possession if the defendant
possesses less than three proscribed images and promptly destroys such images or reports the matter to law
enforcement. § 2252A(d). Second, a defendant is not liable for the remaining acts proscribed in § 2252A(a) if the
images involved were

261

produced using only adult subjects and are not presented in such a manner as to "convey the impression" they
contain depictions of minors engaging in sexually explicit conduct. §2252A(c).

This litigation involves a facial challenge to the CPP A's prohibitions of pornographic images that "appea[r] to be ...
of a minor" and of material that "conveys the impression" that it contains pornographic images of minors. While I
agree with the Court's judgment that the First Amendment requires that the latter prohibition be struck down, I
disagree with its decision to strike down the former prohibition in its entirety. The "appears to be ... of a minor"
language in § 2256(8)(B) covers two categories of speech: pornographic images of adults that look like children
("youthful adult pornography") and pornographic images of children created wholly on a computer, without using
any actual children ("virtual child pornography"). The Court concludes, correctly, that the CPP A's ban on youthful
adult pornography is overbroad. In my view, however, respondents fail to present sufficient evidence to demonstrate
that the ban on virtual child pornography is overbroad. Because invalidation due to overbreadth is such "strong
medicine," Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973), I would strike down the prohibition of pornography
that "appears to be" of minors only insofar as it is applied to the class of youthful adult pornography.
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Respondents assert that the CPP A's prohibitions of youthful adult pornography, virtual child pornography, and
material that "conveys the impression" that it contains actual child pornography are overbroad, that the prohibitions
are content-based regulations not narrowly tailored to serve a compelling Government interest, and that the
prohibitions are unconstitutionally vague. The Government not only disagrees with these specific contentions, but
also requests that

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the Court exclude youthful adult and virtual child pornography from the protection of the First Amendment.

I agree with the Court's decision not to grant this request.

Because the Government may already prohibit obscenity without violating the First Amendment, see Miller v.
California, 413 U. S. 15, 23 (1973), what the Government asks this Court to rule is that it may also prohibit youthful
adult and virtual child pornography that is merely indecent without violating that Amendment. Although such
pornography looks like the material at issue in New York v. Ferber, 458 U. S. 747 (1982), no children are harmed in
the process of creating such pornography. Id., at 759. Therefore, Ferber does not support the Government's ban on
youthful adult and virtual child pornography. See ante, at 249-251. The Government argues that, even if the
production of such pornography does not directly harm children, this material aids and abets child abuse. See ante,
at 251-254. The Court correctly concludes that the causal connection between pornographic images that "appear" to
include minors and actual child abuse is not strong enough to justify withdrawing First Amendment protection for
such speech. See ante, at 250.

I also agree with the Court's decision to strike down the CPP A's ban on material presented in a manner that
"conveys the impression" that it contains pornographic depictions of actual children ("actual child pornography"). 18
U. S. C. § 2256(8)(D). The Government fails to explain how this ban serves any compelling state interest. Any
speech covered by § 2256(8)(D) that is obscene, actual child pornography, or otherwise indecent is prohibited by
other federal statutes. See §§ 1460-1466 (obscenity), 2256(8)(A), (B) (actual child pornography), 2256(8)(B)
(youthful adult and virtual child pornography). The Court concludes that § 2256(8)(D) is overbroad, but its
reasoning also persuades me that the provision is not narrowly tailored. See ante, at 257-258. The provision
therefore fails strict scrutiny. United States

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v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000).

Finally, I agree with the Court that the CPP A's ban on youthful adult pornography is overbroad. The Court provides
several examples of movies that, although possessing serious literary, artistic, or political value and employing only
adult actors to perform simulated sexual conduct, fall under the CPPA's proscription on images that "appea[r] to
be ... of a minor engaging in sexually explicit conduct," 18 U. S. C. § 2256(8)(B). See ante, at 247-248 (citing
Romeo and Juliet, Traffic, and American Beauty). Individuals or businesses found to possess just three such films
have no defense to criminal liability under the CPPA. § 2252A(d).

II

I disagree with the Court, however, that the CPP A's prohibition of virtual child pornography is overbroad. Before I
reach that issue, there are two preliminary questions: whether the ban on virtual child pornography fails strict
scrutiny and whether that ban is unconstitutionally vague. I would answer both in the negative.

The Court has long recognized that the Government has a compelling interest in protecting our Nation's children.
See Ferber, supra, at 756-757 (citing cases). This interest is promoted by efforts directed against sexual offenders
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and actual child pornography. These efforts, in turn, are supported by the CPP A's ban on virtual child pornography.
Such images whet the appetites of child molesters, § 121, 110 Stat. 3009-26, Congressional Findings (4), (10)(B),
notes following 18 U. S. C. § 2251, who may use the images to seduce young children, id., Finding (3). Of even
more serious concern is the prospect that defendants indicted for the production, distribution, or possession of actual
child pornography may evade liability by claiming that the images attributed to them are in fact computer generated.
Id., Finding (6)(A). Respondents may be correct that no defendant has success-

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fully employed this tactic. See, e. g., United States v. Fox, 248 F. 3d 394 (CA5 2001); United States v. Vig, 167 F.
3d 443 (CA8 1999); United States v. Kimbrough, 69 F. 3d 723 (CA5 1995); United States v. Coleman, 54 M. J. 869
(Army Ct. Crim. App. 2001). But, given the rapid pace of advances in computer-graphics technology, the
Government's concern is reasonable. Computer-generated images lodged with the Court by amici curiae National
Law Center for Children and Families et al. bear a remarkable likeness to actual human beings. Anyone who has
seen, for example, the film Final Fantasy: The Spirits Within (H. Sakaguchi and M. Sakakibara directors, 2001) can
understand the Government's concern. Moreover, this Court's cases do not require Congress to wait for harm to
occur before it can legislate against it. See Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 212 (1997).

Respondents argue that, even if the Government has a compelling interest to justify banning virtual child
pornography, the "appears to be ... of a minor" language is not narrowly tailored to serve that interest. See Sable
Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). They assert that the CPP A would capture even
cartoon sketches or statues of children that were sexually suggestive. Such images surely could not be used, for
instance, to seduce children. I agree. A better interpretation of "appears to be ... of" is "virtually indistinguishable
from" -an interpretation that would not cover the examples respondents provide. Not only does the text of the statute
comfortably bear this narrowing interpretation, the interpretation comports with the language that Congress
repeatedly used in its findings of fact. See, e. g., Congressional Finding (8), notes following 18 U. S. C. § 2251
(discussing how "visual depictions produced wholly or in part by electronic, mechanical, or other means, including
by computer, which are virtually indistinguishable to the unsuspecting viewer from photographic images of actual
children" may whet the appetites of

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child molesters). See also id., Findings (5), (12). Finally, to the extent that the phrase "appears to be ... of" is
ambiguous, the narrowing interpretation avoids constitutional problems such as overbreadth and lack of narrow
tailoring. See Crowell v. Benson, 285 U. S. 22, 62 (1932).

Reading the statute only to bar images that are virtually indistinguishable from actual children would not only assure
that the ban on virtual child pornography is narrowly tailored, but would also assuage any fears that the "appears to
be ... of a minor" language is vague. The narrow reading greatly limits any risks from "'discriminatory
enforcement.''' Reno v. American Civil Liberties Union, 521 U. S. 844, 872 (1997). Respondents maintain that the
"virtually indistinguishable from" language is also vague because it begs the question: from whose perspective? This
problem is exaggerated. This Court has never required "mathematical certainty" or "'meticulous specificity''' from
the language of a statute. Grayned v. City of Rockford, 408 U. S. 104, 110 (1972).

The Court concludes that the CPP A's ban on virtual child pornography is overbroad. The basis for this holding is
unclear. Although a content-based regulation may serve a compelling state interest, and be as narrowly tailored as
possible while substantially serving that interest, the regulation may unintentionally ensnare speech that has serious
literary, artistic, political, or scientific value or that does not threaten the harms sought to be combated by the
Government. If so, litigants may challenge the regulation on its face as overbroad, but in doing so they bear the
heavy burden of demonstrating that the regulation forbids a substantial amount of valuable or harmless speech. See
Reno, supra, at 896 (O'CONNOR, J., concurring in judgment in part and dissenting in part) (citing Broadrick, 413
U. S., at 615). Respondents have not made such a demonstration. Respondents provide no examples of films or other
materials that are wholly computer generated and contain images that "appea[r] to be ...
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of minors" engaging in indecent conduct, but that have serious value or do not facilitate child abuse. Their
overbreadth challenge therefore fails.

III

Although in my view the CPP A's ban on youthful adult pornography appears to violate the First Amendment, the
ban on virtual child pornography does not. It is true that both bans are authorized by the same text: The statute's
definition of child pornography to include depictions that "appea[r] to be" of children in sexually explicit poses. 18
U. S. C. § 2256(8)(B). Invalidating a statute due to overbreadth, however, is an extreme remedy, one that should be
employed "sparingly and only as a last resort." Broadrick, supra, at 613. We have observed that "[i]t is not the usual
judicial practice, ... nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily."
Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 484-485 (1989).

Heeding this caution, I would strike the "appears to be" provision only insofar as it is applied to the subset of cases
involving youthful adult pornography. This approach is similar to that taken in United States v. Grace, 461 U. S.
171 (1983), which considered the constitutionality of a federal statute that makes it unlawful to "parade, stand, or
move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag,
banner, or device designed or adapted to bring into public notice any party, organization, or movement." 40 U. S. C.
§ 13k (1994 ed.). The term "Supreme Court ... grounds" technically includes the sidewalks surrounding the Court,
but because sidewalks have traditionally been considered a public forum, the Court held the statute unconstitutional
only when applied to sidewalks.

Although 18 U. S. C. § 2256(8)(B) does not distinguish between youthful adult and virtual child pornography, the
CPP A elsewhere draws a line between these two classes of

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speech. The statute provides an affirmative defense for those who produce, distribute, or receive pornographic
images of individuals who are actually adults, § 2252A(c), but not for those with pornographic images that are
wholly computer generated. This is not surprising given that the legislative findings enacted by Congress contain no
mention of youthful adult pornography. Those findings focus explicitly only on actual child pornography and virtual
child pornography. See, e. g., Finding (9), notes following § 2251 ("[T]he danger to children who are seduced and
molested with the aid of child sex pictures is just as great when the child pornographer or child molester uses visual
depictions of child sexual activity produced wholly or in part by electronic, mechanical, or other means, including
by computer, as when the material consists of unretouched photographic images of actual children engaging in
sexually explicit conduct"). Drawing a line around, and striking just, the CPP A's ban on youthful adult pornography
not only is consistent with Congress' understanding of the categories of speech encompassed by § 2256(8)(B), but
also preserves the CPP A's prohibition of the material that Congress found most dangerous to children.

In sum, I would strike down the CPP A's ban on material that "conveys the impression" that it contains actual child
pornography, but uphold the ban on pornographic depictions that "appea[r] to be" of minors so long as it is not
applied to youthful adult pornography.