Attorney General of New York v. Soto-Lopez

YORK v. GENERAL OF NEW ATTORNEY SOTO-LOPEZ et al. Argued January 15,

No. 84-1803. 1986 Decided June Brennan, J., judgment announced the of the Court and delivered an opinion, Marshall, Blackmun, which Powell, JJ., joined. and Burger, J., post, p. White, C. J., and post, p. 916, opinions filed concurring in judgment. Stevens, J., dissenting opinion, filed a post, p. O’Connor, J., Rehnquist 916. opinion, filed a dissenting in which and Stevens, JJ., joined, post, p. 918.

Robert Hermann, Solicitor General of York, argued the cause for With him appellant. on the brief were Robert Abrams, Attorney General, se, Peter pro Sherwood, Dep- Solicitor uty General, and Keith Christopher Hall, Assistant General. Attorney

Kenneth Kimerling argued cause for appellees. With him on the brief was Juan Cartagena.* announced the judgment the Court

Justice Brennan and delivered an opinion, which Justice Marshat,t,, and Justice join. Blackmun, Justice Powell The question presented this appeal whether a prefer- ence in civil service employment opportunities offered by the State of New York solely to resident veterans who lived the State at the time entered they service military violates the constitutional rights of resident veterans who lived out- side the State when they entered military service. Carolyn

* M. Cox and Barton F. Stichman filed a brief for Vietnam Veterans of America as urging amicus curiae affirmance.

I Constitution, N. Y. York, through of New State Y. Law, N. Civ. §6, Art. and its Civil Service Const., V, 1986), grants §85 (McKinney Supp. Serv. Law form points civil employment preference, York are scores, to New residents who to examination added the United States Armed veterans of honorably discharged war, and who were resi- time of Forces, during who served military York entered service.1 dents of New when once, either for may only origi- be exercised This preference §6. Y. Const., V, N. Art. promotion. nal or for one hiring Baez- and Eliezer Soto-Lopez Eduardo Appellees, Army of the United States Hernandez, are veterans Both of New York. men claim have residents long-time for the New York State civil met all the criteria eligibility New York when en- they residence except service preference the Both and Baez-Hernandez Army. Soto-Lopez tered V, Constitution, §6, provides: Art. 1 NewYork in promotions the civil service of the state and of all “Appointments and thereof, including villages, cities and shall be made ac- the civil divisions ascertained, practicable, by be far as cording to merit and fitness to as examination, which, practicable, competitive; provided, far shall be as as however, any forces of the that member of the armed United States who war, is a and resident of state therein in time of who citizen this and served his into the armed of was a resident at the time of entrance forces the honorably discharged or and was released under honorable United States service, points shall entitled to receive five circumstances from such be ad- competitive original appointment for ditional credit in a examination points promotion in an examination two and one-half additional credit for or, performance duty any in if was the actual of such member disabled points receive in a com- war... he shall be entitled to ten additional credit appointment points petitive original for and five additional examination promotion. ... No such member credit in an examination shall receive ap- granted the this section after he has received one additional credit pointment, original promotion, eligible or from an list either entrance on granted by the credit this section.” which he was allowed additional essentially §85 Law of New York Civ. restates the substance the Serv. provision constitutional and defines the relevant terms. City

passed New civil examinations, York but were preference by City the denied veterans’ the New York Civil because Service Commission were residents of Puerto they joined military. Appellees Rico at the time the sued city alleging require- Federal District Court, they joined military ment of residence when violated the Equal Protection Clause of the Fourteenth Amendment and constitutionally protected right Attorney to travel. The of New General the State York intervened as a defendant. appellees’ complaint, holding The District Court dismissed summary August that this Court’s affirmance v. Bron (1974),aff’g Supp. (SDNY), stein, 417 U. S. 369 F. three-judge panel upheld against equal pro case which a right-to-travel challenges tection and the same sections of the New York State Constitution and Civil Service Law at issue compelled action, in the instant that result. The Court Appeals Soto-Lopez for the Circuit Second reversed. Newv. City York Comm’n, Civil F. 2d 266 Service It August, supra, implicitly concluded that had been overruled by our more recent decision Zobel v. prior requirement and held residence

the New York civil service offends both the Ap Protection Clause to travel. Court of peals including instructions, remanded various with the di permanently enjoin rection that the Court District the de denying points qualified fendants from bonus otherwise not veterans who were residents of New York at the time military probable juris entered the service. noted We appeal Attorney diction of this of the of General New York.

473 U. S. 903 We affirm.

II throughout “‘[F]reedom to travel the United States has long recognized right been as a basic under the Constitu- (1972)(quot- Blumstein, 330, tion.’” Dunn v. 405 338 U. S. (1966)). ing Guest, 745, See, United States 383 758 v. U. S. 902 (1849)(Taney, Passenger g., Cases, 492 283, J., 7 How. C.

e. dissenting); (1868); Nevada, 35, v. 6 Wall. 43-44 Crandall (1869); Virginia, 168, 8 180 Edwards v. Paul v. Wall. Cali (1941); Dulles, 116, v. 357 U. 314 U. S. 160 Kent S. fornia, Thompson, (1958);Shapiro 618, 629-631, 394U. v. S. (1970) (1969); (sepa Oregon Mitchell, 400 v. U. S. JJ.); opinion id., of and rate Brennan, White, Marshall, (Stewart, concurring part dissenting in in and J., at 285-286 joined); part, J., C. J., with whom Burger, Blackmun, Hospital Maricopa County, Memorial (1974). And, it is clear that the freedom to travel includes any in in the to enter and abide State Union.’” the “‘freedom 285). (quoting supra, supra, Mitchell, Dunn, at 338 at right to travel, of the constitutional The textual source right migration, precisely, free more of interstate or, variously assigned though, proved It has been has elusive. Privileges IV, see, Immunities Clause of Art. to the concurring judg g., supra, J., Zobel, e. at 71 (O’Connor, ment), to see Edwards v. Clause, California, the Commerce Privileges and to the and Immuni 173-174, 314 U. at g., id., e. Amendment, see, of the Fourteenth ties Clause concurring). right (Douglas, has also J., 177-178 government from the federal structure of been inferred adopted at 67 our Constitution. (Bren concurring); Shapiro, supra, J., 631; United States nan, light unques Guest, However, at 757-758. of acceptance principle free interstate tioned historic principle played migration, important has and of the role single transforming many Nation, have into a we States definitively any par impelled this felt locate not provision.2 Shapiro, supra, ticular constitutional (1982) (Bren in Zobel v. As was observed nan, J., concurring): most our to travel achieves its [that] is clear from cases “[It] if, analysis. equal protection But expression the context

forceful source, passage assign in the as its some finding no citable Constitution Whatever its origin, right migrate firmly established and has been repeatedly e. g., our recognized by See, cases. v. Bernalillo County Assessor, 612, U. S. 618, n. 6 (1985); Zobel, supra, Helms, Jones v. at 60, 6; n. U. 418 (1981); Memorial 412, S. Hospital v. Maricopa County, Dunn, supra; supra; Shapiro, United supra; States Guest, v. supra, at 757-759.

A state law implicates the travel when it actually deters such travel, see, e. Nevada, Crandall g., supra, at 46; see also Shapiro, supra, at 629, when travel impeding primary objective, see supra, 62, n. 9; Shapiro, 628-631, or when it uses “‘any classification which ’” serves to the exercise Dunn, supra, penalize of that right. 634). at 340 (quoting Shapiro, Our right-to- cases migrate have principally involved the latter, indirect manner of burdening right. More our re- particularly, cent cases have dealt with state laws that, by resi- classifying dents to the time according they established residence, re- sulted in the unequal distribution rights benefits among otherwise qualified bona fide residents.3 Hooper, might question independent be led to vitality principle of the of free migration, interstate I find its unmistakable essence in that document that transformed a loose confederation of States into one Nation.” always We carefully distinguished have between bona fide residence requirements, which seek to differentiate between residents and nonres idents, requirements, and residence durational, date, such as fixed point fixed requirements, residence which treat established residents differently they migrated based on the time See, into the g., State. e. Bynum, Martinez v. (1983); 461 U. S. 325-330 Memorial Hospital v. Maricopa 250, 255, County, (1974); Blumstein, 415 U. S. Dunn v. (1972); Shapiro Thompson, 618, 636, n. 21 explained As we in Martinez: “A bona requirement, appropriately fide residence uniformly defined and applied, furthers the assuring substantial state interest that services provided enjoyed only by for its residents are require- residents. Such a [generally] penalize ment . . . does not burden or constitutional travel, any person interstate is free to move to a State and to establish residence there. A requirement simply requires bona fide residence 904 (1982);

supra; 55 Zobel v. 457 S. Sosna v. U. (1975); Hospital, supra; Iowa, 419 393 Memorial Dunn U. S. supra. (1972);Shapiro, Blumstein, v. 405 U. S. 330 of residents Because the creation of different classes upon equal protection concerns, have also relied raises we Whenever a Clause these cases. Protection constitutionally protected right, infringes we state law a equal scrutiny protection of that law. undertake intensified Living g., Center, Inc., v. Cleburne 473 e. Cleburne See, (1985); Bynum, 321, 461 432, 440 Martinez v. U. S. U. S. (1983); Plyler 216-217, U. 328, Doe, 202, n. 7 v. S. (1982); Hospital, supra, 258, 262; at and n. 15 Memorial Rodriguez, Independent District v. Antonio School San (1973); Dept. 16, 30-32, n. Police 1, 39, (1972); Chicago Mosley, 92, Dunn, 408 U. S. v. Shapiro, supra, supra, 342; Thus, at sev at expressly cases, whether the distinction drawn eral we asked by burdens State between older newer residents right migrate. burden, a Where we found such we the required to jus- compelling to come forward with a

the State Thompson, supra; g., Shapiro Dunn, e. See, tification. County, Hospital Maricopa supra; Memorial we that the cases, In other where concluded not survive even rational-basis contested classifications did scrutiny, inquire to enhanced we had no occasion whether supra; supra. Hooper, scrutiny appropriate. Zobel, was analysis cases, however, in all is informed of these migrate protects guiding right principle the same —the being being disadvantaged, or from of a State from residents timing differently, simply their mi- of the treated because Hooper, similarly gration, from other situated residents.4 demanding services that are does establish person residence before at U. 328-329. restricted residents.” analysis course, place we on our regardless 4 Of label — right migrate find burden on the migrate equal protection we a or —once burden that must review is the same. Laws which the standard of supra, n. Memorial Hos supra, 6; n. 6; pital, Shapiro, 261; at 629-631.

New York’s eligibility requirements for its civil service preference conditions benefit on New York residence at a particular time in an past individual’s life. It favors those veterans who were New York residents at a fixed past point over those who were not New York residents at the same point their lives. cases Our have established that similar methods of favoring “prior” residents over ones, “newer” such as a benefit limiting to those who resided the State by a fixed past date, Hooper, supra; granting incrementally greater for benefits each year of residence, supra; and conditioning for eligibility certain benefits on of a completion e. fixed period of Memorial g., residence, see, Hospital, Blumstein, Dunn v. supra; supra; Shapiro, supra, warrant judicial careful But, review.5 our cases have also estab lished that only where a law State’s to “‘operates penalize those . . . persons who have exercised their constitutional right interstate migration’” is heightened scrutiny trig gered. Memorial Hospital, supra, quoting Oregon at be necessary to g., e. Memorial compelling See, further a state interest. Dunn, Hospital, supra; supra; Shapiro, supra. 5 cautioned, however, We have periods that waiting imper not all are See, g., e. Memorial Hospital, supra, missible. 258-259; Shapiro, at Iowa, Indeed, in Sosna v. n. (1975), S. 393 U. we upheld 1-year residency a maintaining condition for an action for divorce. We noted the strong, setting State’s traditional interest the terms of and procedures marriage Weighing for and appellant’s divorce. fact that to procedure only access the desired temporarily delayed, state was against important interest, the State’s we concluded that her mi to grate was not violated. We have also requirements, incorporated sustained domicile which 1- year waiting periods, for resident tuition at state universities. Starns v. Malkerson, (1971), summarily (Minn. aff’g U. S. 985 Supp. 326 F. 1970) court); Sturgis Washington, (three-judge v. 414 U. S. 1057 (WD summarily Wash.) court). aff’g Supp. 368 F. (three-judge See Kline, also Vlandis 452-454 Brennan, Mitchell, S., (separate at 238 opinion U. JJ.). Marshall,

White, then, is first to determine whether case, task in this Our to vet- of its civil service preference York’s restriction New Armed Forces while residing erans who entered the exercised persons York those who have operates penalize does, If we find that it appellees their migrate. York can demonstrate unless New must prevail in- a state necessary accomplish compelling is classification Dunn, Hospital, supra, 262; Memorial terest. at 634.6 Shapiro, U.

342; concurrence, asking us to his The Chief Justice takes task 6 In appropriate standard of review em in the first instance what argues The Chief ploy evaluating New York’s laws. Justice analysis initially through run the laws a rational-basis we should then, scrutiny, higher if level of ask whether level survive that appropriate. presented disagree. logical question to ask when with an first We first, usually claim, we ask is what level of

equal protection one (“In See, Dunn, S., g., e. 405 U. at 335 appropriate. consider review . . . ing challenged Equal [f]irst... Protection Clause we laws under also, appropriate”). what review is See Cle determine standard of must Inc., Center, (1985); Living Mississippi 473 U. S. 432 burne v. Cleburne (1982); Plyler Doe, University Hogan, 458 U. 718 v. 457 Women v. S. for County, (1982); Maricopa v. 250 Hospital Memorial U. S. U. S. (1974); Rodriguez, 411 Independent District v. U. S. San Antonio School (1972); Shapiro (1973); Chicago Mosley, 408 U. v. Dept. Police v. S. It is Thompson, 394 U. S. 618 well established that where a law by race, in alienage, origin, or national and where law classifies classifies way infringe constitutionally protected rights, fundamental such a as to See, scrutiny required. under the Protection Clause heightened Martinez, 440; 7; Plyler g., Cleburne, e. at 461 U. at n. 15; 258, 262; 216-217, Hospital, supra, n. Doe, supra, Memorial at at 39, 30-32, District, Independent supra, at and nn. San Antonio School 101; Dunn, 342; 40; Mosley, Shapiro, supra, supra, case, appellees only in ques In the contend not that the laws instant residents, they differently from also tion treat another class state them by treating differently, them burden their maintain that laws constitu Therefore, ap- in tionally protected to travel. order ascertain the Ill A previous In temporary cases, we have held that even deprivations very important rights oper- benefits and can penalize migration. example, Shapiro ate to For in and in Hospital, recently indigent Memorial we found that arrived deprived residents were of life’snecessities durational res- requirements idence for welfare assistance and for free, non- emergency respectively, medical care, which were available poor to other In Dunn, residents. we held that new resi- right by dents were denied a basic a durational residence re- quirement establishing eligibility to vote. The fact that deprivations temporary these were did not offset the Court’s they conclusionsthat were so severe and worked such serious inequities among qualified otherwise residents that ef- fectively penalized new residents for the exercise of their rights migrate. recently, Hooper

More Bernalillo, 472 U. S. 612 (1985), and Zobel v. we struck permanent among down state laws that created distinctions length timing residents based on the or of their residence the State. At issue was a New Mexico statute granted exemption a tax to Vietnam veterans who re- May sided the State before 8, 1976. Zobel concerned an granting Alaska statute residents one state mineral income year subsequent dividend unit for each of residence to 1959. employed equal protection analysis Because we rational-basis directly question cases, those we did not face whether propriate must, scrutiny, matter, level of we as an initial determine actually whether appellees’ or not the State’s laws burden to travel. true, The suggests, It is as Chief Justice that in v. Bernalillo Assessor, County (1985), 472 U. S. 612 and Zobel the Court did not logical sequence analysis. follow this same of approach We think that the better is that which employed the Court has equal protection inquire other cases —to proper first as to the level of scru- tiny apply and then to it. interstate migration. operated penalize the contested laws they penalize migration that did Nonetheless, the conclusion Constitu- from determination “the inferred our may be that ‘creates program not tolerate a state benefit tion will . . con- . . between. classes of distinctions . fixed, permanent on have residents, how long bona fide based cededly Zobel, supra, (quoting in the Hooper, been State.’” 59). See also a sig have been denied and Baez-Hernandez Soto-Lopez all situ similarly veterans granted nificant benefit time their entry residence at the of ated for State of except not sought the benefit here may into While military. life level as the necessities of importance rise to the same of it is substantial. vote, unquestionably and the can mean the difference between win award of bonus points with its civil service attendant ning employment, or losing and Brief Ap decent benefits.7 for job security, pay, good Assn. New York City 27-28. See also Guardians pellees of (SDNY Nadel, 1979), Dep Supp. In 477 F. Andrade v. City uty Department Director of the New York of Personnel testified: examinations, pronounced ‘bunching’ there a most civil service “[O]n scores). (i. e., very large percentage of the takers obtain similar a test point prefer of five veterans’ can be assumed that rescission or [I]t 1,300 employee receiving probationary [veterans ence in the case most year City specific in a re appointments would] in New York result their yet appointment, that has not been reached for ceiving a list number jobs.” losing] their their consequently [in . . . “bunching” phenomenon adversely

Appellees contend that this affected City employment opportunities their with the of New York. For exam examination, ple, passing City York civil Baez- after preliminarily points was 10 veterans’ bonus Hernandez awarded —5 status, disability, bringing 5 for his total veteran service-related his score, adjusted appointment on 87.3. this he received an score to Based city points 1981. The re with the June award bonus was later, however, days appointment two and the withdrawn when it scinded was that Baez-Hernandez was not a New York resident at the discovered entry Army. Soto-Lopez City into the New York Civil time of his Serv (CA2 1985). Comm’n, ice 755 F. 2d 268-269 Dept., Police Inc. v. Comm’n, Civil Service 630 F. 2d (CA2 1980), (1981); cert. denied, 452 U. S. 940 Andrade v. (SDNY 1979). Supp. Nadel, 477 F. Further appellees permanently deprived more, have been of the vet Appeals erans’ credits that seek. As the Court of ob ability satisfy served: “The veteran’s to the New York requirement residence is . . . fixed. He either was a New York resident at the time of his initial induction or he was change not; he cannot earn a in status.” 755 2d, F. at 275. permanent deprivation significant Such a only of a benefit, based past point on the fact of nonresidence at a in time, clearly operates penalize appellees exercising their rights migrate.

B justification New York offers four interests in of its fixed (1) point requirement: encouragement residence of New (2) join compensa- York residents to the Armed Services; by helping tion of residents for time of war these (3) upon coming veterans reestablish themselves home; inducement of veterans to return to New York after wartime (4) employment “uniquely service; and aof valuable class public possess experience acquired servants” who useful through military Appellant their service. Brief for 15. All justifications heightened scrutiny four fail to withstand on ground common of the State’s asserted interests could —each promoted fully granting points be bonus all otherwise qualified veterans. New York residents would still be en- couraged join the services. Veterans who served in time compensated. of war would be And, both former New York- prior ers and residents of other States would be drawn to serving providing New York after the Nation, thus the State larger pool potentially public with an even valuable servants. “[I]f ways

As we in Dunn: held there are other, reasonable compelling [a purpose] to achieve state with a lesser burden constitutionally protected activity, may on a State not choose greater way If it acts it must all, interference. of (quoting S., 405 U. at 343 ‘less means.’” choose drastic (1960)). 488 See also Tucker, 479, v. 364 U. S. Shelton Hospital, York 415 U. at 263. Because New S., Memorial accomplish purposes penalizing the could its without qualified by awarding special migrate veterans, to all credits promote through prefer its interests a is not free State system incorporates prior requirement. residence ence additional of York’s asserted interests have Two availability to in- First, the of weaknesses. enlistees undercuts the State’s contention ductees as well as important purposes of the veterans’ one of the most encourage to enlist the services. credit is to residents eligibility points is not limited Second, the fact that for bonus immediately following period a veteran’s return from to the easing purpose casts on New York’s asserted of war doubt military conditions to civilian the transition from wartime presumably, a veteran of the Korean War could life,8 for, points examination and receive the take a civil service bonus homecoming. Hooper, years after his Cf. tomorrow, 621. limit the to enlist- S., at The State’s failure to credit U. recently sug- strongly to New from war ees returned York principal simply gests that the interest reward- State’s country. ing for service to their residents Compensating past by provid for veterans their sacrifices advantages long ing them with over is a nonveteran citizens standing policy See, of our Federal and State Governments. g., Hooper, supra; Regan Representation v. with e. Taxation Washington, (1983); Personnel Admin Feeney, istrator Massachusetts n. 25 8Moreover, why joined it difficult to understand veterans who military effecting more as New York residents would have so much trouble justified reserving this transition other veterans that New York is than military only for national [it] “the benefits bestows service” one class Assessor, County S., Bernalillo resident veterans. 472 U. policy, compelling, if Nonetheless, this even deemed support does not a distinction between resident veterans they joined military. based on their when residence Members of the Forces Armed serve as a Nation whole. serviceperson’s doubtlessly While a home State derives indi- equally rect benefit from his or her service, the State benefits security from the contributions to our national made other personnel. “Permissible discriminations between persons” must be correlated to “their relevant characteris- concurring). tics.” U. J., (Brennan, prior only any, Because residence has if relation, a tenuous per- the benefit New York receives all from Armed Forces goal military rewarding sup- sonnel, the of service no offers port point requirement. for fixed New York’s residence

IV provisions In the of sum, Constitution, New York’s Art. V, § § 6, and Civil Service Law 85, which limit the award of a employment preference

civil service to resident veterans who they lived in York the New at time entered the Armed effectively qualified penalize Forces, otherwise resident vet- prior requirement erans who do not the meet residence right migrate. their exercise of the The State has not met heavy proving a burden of that it has means selected of pursuing compelling impinge a state which not interest does unnecessarily constitutionally protected on interests. Con- sequently, preference we that conclude New York’s veterans’ appellees’ constitutionally protected rights violates to mi- grate equal protection and to of the law.

Once veterans establish bona fide residence a State, may “become the State’s ‘own’ not be discriminated solely against [the of] on the basis of their date arrival the Hooper, State.” at Kline, 623. also Vlandis v. See (1973);Shapiro, and n. 6 449-450, S.,U. Passenger (Taney, Cases, at 632-633; How., at 492 C. J., long dissenting). For as as York chooses offer its employment preference, the a civil service resident veterans regard requires it so without to resi- do Constitution entry Accordingly, time of into the services.9 dence at the Appeals judgment of the Court

Affirmed. Burger, concurring judgment. Chief Justice Appeals In held that New York’s this case Court equal protec- violated civil veterans’ both relying on Zobel v. travel, tion and the (1982). Shortly Appeals’ S. 55 after the Court decision U. property we struck down New Mexico’s tax vet- issued, was preference Hooper County Assessor, v. Bernalillo erans’ Hooper held 472 U. Both Zobel S. preferences used to award to cer- classifications States pass a test under the tain citizens failed to rational-basis As result, Protection Clause. we had no occasionto would reach the issues whether heightened classifications survive scrutiny travel vio- or whether the was Hooper, supra, and n. 6; lated. See 60-61, and n. grounds equal protection

The classification held invalid on remarkably to the here; was similar one issue controlling. Hooper, appear to be therefore, would begins analysis plurality opinion, however, instead the by addressing “right migrate.” to Ante, 901-905. heightened scrutiny employed is without first Moreover, determining challenged whether the New York classification analysis. Ante, even rational-basis at 907- would survive in Zobel, 60, we n. 6, 909. But as observed only Hooper, supra, at reiterated last Term n. protection “[r]ight equal examined, travel cases have longer terms, distinctions newcomers and state between reality, right “[i]n This follows because term residents.” Bronstein, August summary Our affirmance hereby is overruled. analysis particular applica-

travel refers to little more than a equal protection analysis.” tion of n. 6. appropriate I reviewing believe the framework for preference by York’s scheme is the one dictated Zobel and very “[t]his followedin recent cases. Because —both case involves a distinction between residents based on when just first established residence in the State,” as Hooper, subject [must] equal protection “we this case to anal- ysis.” Hooper, question 472 U. atS., 618, n. 6. The first analysis whether the law survives rational-basis under the statutory “[I]f Protection Clause. scheme cannot pass rationality inquiry even the minimum our test, ends.” Hooper, Id., at 618. Under it seems clear that New York’s provision equal protection grounds. is invalid on proffers justifications challenged

The State four for the preference system classification. First, it claims that the en- courages during New York residents to enlist times of war. justification entirely This rests on the State’s characteriza- preference being prospective tion of self-executing as plainly preference granted only in nature. But retro- spectively following legislature; legis- definitive action necessary period lative action is fix both the when “war” is deemed to have commenced and when that war has ended. many entering military

In cases a New York resident serv- ice will have no idea whether he or she will be entitled to the preference following duty a successful tour of and honorable discharge. example, beginning For of the Vietnam era by legislation was established as a “time of war” some three years legislature hostilities commenced. The in 1973 after (which later declared the “end” of that “war” was never de- by Congress) purposes clared a “war” of the as finding expand 29, 1973, March but 1983it amended that coverage retroactively again May until 1975. 7, See Brief Appellant happened for 9-10. The same in the Korean Con- adopted provision the issue was after indeed, the at flict, grant to the benefit end War II with the clear intent of World retroactively Id., at to of that war. 7-8. veterans applies preference all enter-

Moreover, the to servicemen legislatively ing military during period, re- defined voluntarily gardless in- enlisted or were whether Providing to as a result of the draft. a “bonus” ducted hardly necessary “encour- a boon intended or draftees “encouragement age” Hence, this to enlist” them enlist. ‘bounty’ during sharply local laws enacted “differs from the paid through cash War which States residents era, Civil Hooper, enlisting.” at 12. 472 U. n. bonuses for preference provides par- argues that Second, State compensation during of war. tial to residents time rejected any holding Hooper clearly in retroac- But our such only past targeting ac- tive rewards residents. While we may knowledged that certain to all a “State award benefits just as case “it is veterans,” id., bona fide that serving grasp [New York] residents in the difficult to how military suffered more than residents of other States who not deserve served, so the latter would the benefits military for national service.” at 621. Id., State bestows permissible the State contends that it is to encour- Third, age past-resident veterans to settle New York after their military might indeed service ends. While such a simultaneously encourage to return, such veterans it has settling discouraging other effect veterans from appointments York who aware that civil service are hard to As we Zobel re- will be obtain. observed Hooper, “[t]he separation 619-620, iterated hardly likely way persuade into residents classes seems a [residents] the State welcomes them and them new wants stay.” n. Moreover, made provides as New it that a “selective incentive” such York clear the same faced here “would encounter constitutional barrier by [New Mexico] past statute’s distinction between and newly Hooper, supra, arrived residents.” at 619, n. 8.

Finally, targeted the State asserts that the very special group knowledge of veterans who have both military, local affairs and valuable skills learned exceptional who therefore would make civil servants. But “special undeniably possessed by these attributes” are all currently veterans who are residents of New York. irrationality high- Indeed, the of the New York scheme is lighted by appellee experiences. Baez-Hernandez’ The cur- provision grant hiring preference rent would a civil service entering military a serviceman while a resident of New only day. York even if he was a resident for a But Baez- Hernandez, who was a resident of New York for over 10 years applying position before for a civil service who —and considerably knowledge” therefore has more “local than many returning preference. veterans —can never receive the Moreover, Baez-Hernandez was a resident of New York for years two when he was called from reserve status to active duty, discharged partially where he remained until he was as disabled. He therefore “in served time of war” obtain- after ing residency. qualify despite New York Yet he still cannot being “special his endowed with all the desired attributes.” Hooper, “[stripped justifications, Just as in of its asserted [New York] statute suffers from the same constitutional flaw as the Alaska statute Zobel.” 472 S., U. at 622. granting Given our reasons for our review, admonition in only briefly need be reiterated to demonstrate the invalidity equal protection, of the New York scheme under analysis: rational-basis may

“The State not favor established residents over new may residents based on the view that the State take care by prior own,’ of ‘its if such is defined residence. New- by establishing comers, bona fide State, residence may become the State’s ‘own’and not be discriminated solely against their arrival the State on the basis of date].” [a Id., at 623. after fixed Soto-Lopez Appellees Baez-Hernandez, establish- ing York, residence in New have become bona fide accordingly regard with “own” and must be treated State’s preference. any Protection “Neither the to veterans’ precedents, permit the State to nor this Court’s Clause, prefer in newcomers established resident veterans over apportionment Ibid. of an economicbenefit.” retroactive Appeals judgment I of based would affirm the Court reasoning holdings Hooper rather on our in adding concerning dicta to travel. than in the White, Justice concurring judgment. agree with Justice O’Connor that the to travel is

I sufficiently implicated require heightened in this not case to scrutiny. Hence, I differ with in this re- Brennan Justice agree spect. But with that the New I Chief Justice equal protection at issue denies York statute of the laws be- employs the classification it is irrational. I cause therefore judgment. in the concur Stevens,

Justice dissenting. Justice O’Connor has the Court’s decision explained why I is erroneous. add these comments to I do not explain why Hooper v. Bernalillo feel constrained the decision in County Assessor, 472 to the Court’s join judgment. governmental grant special privilege

A decision to a to a minority group objectionable impose is less than a decision to minority.1 democracy special major- a burden on a In a unfairly. ity equal protection will treat In seldom itself anal- (Ste ante, Education, Wygant Board Jackson at 316-317 Cf. vens, J., dissenting).

ysis, appropriate give it is therefore some to the attention relative dimensions of favored and disfavored classes.2

The New Mexico statute that the Court held invalid gave exemption any a tax Vietnam veteran who prior May resided New Mexico 1976. The New York challenged grants preference only statute in this case those Vietnam veterans who were residents of the State they joined when the Armed Forces. The favored class narrowly this case is therefore drawn more than the class Hooper. Despite that excluded Mr. the fact that the reason- ing Hooper opinion might of the seem to cover this case as well, this distinction allows me to conclude otherwise for two reasons. Hooper opinion

First, the Court itself was careful to constitutionality question reserve of the New York particular, statute and of the class of statutes that condi- eligibility a veteran’s tion on residence at the general.3 in If time of enlistment the believed the Court reasoning Hooper controlling only in case, to be this it had Hooper in to omit its footnote and to affirm rather than note jurisdiction subsequently in case, this as it did. The Court open question Hooper cannot both leave a in order make its Assessor, County Hooper v. Bernalillo See 472 U. S. 629-630 (1985) (Stevens, J., dissenting); Personnel Administrator Massachu (1979) (Stevens, Feeney, J., setts v. concurring). Cf. (1976) Craig Boren, (Stevens, J., concurring). 213-214 statutes, eligibility “Veterans’ benefit which condition on state resi military, challenges dence the time of induction into the have survived g., Protection Clause before Zobel was decided. e. See, Equal under the Bronstein, August . . . (SDNY), aff’d, Supp. summarily 369 F. (1974)____ U. S. 901 recently

“. . . note has ruled that a [We that] Second Circuit such pass Equal light in statute could not muster under the Protection Clause (1982)]. Zobel Soto- holding [v. the Court’s 457 U. S. 55 City Lopez v. New York Civil (1985), ap 755 F. 2d 266 Service Comm’n, docketed, peal presented in No. 84-1803. Given the circumstances this ease, constitutionality we need not consider here the of these statutes.” Assessor, County 621-622, Hooper v. Bernalillo n. 11. 472 U. acceptable majority and at the decision to a of Members holding Hooper has resolved the same time claim that the open question. importance, greater each additional condi-

Second, and of pre- eligibility the size of the tion of that further narrows places greater logic undergirds ferred class stress on the holding. grant special If the Court’s a State should a bonus fighter pilots enlistment, who.are residents the time of fought Midway, perhaps just to those who the Battle of or Congressional to the few who received the Medal of Honor— deny Equal it Protection would violate Clause bonuses comparable veterans who moved into the State after the though reasoning I think not, end of the war? even supporting judgment opinions apply would to each of those cases as well as it does to and to this case. As judge surely apply the class narrows, not bound to reasoning using flawed in each case successive instead of each explain why marching new extension to the Court is in the wrong direction. respectfully

I dissent. Rehnquist O’Connor, Justice with whom Justice Justice Stevens join, dissenting. today preference

The Court holds unconstitutional public employment opportunities New York offers to resi- dent wartime veterans who resided New York when military entered service. Because I believe that New York’s constitutionally veterans’ scheme is not offensive penalize Clause, under the Protection does not some free-floating “right migrate,” to and does not violate the Privileges IV, §2, Immunities Clause of Art. of the I dissent. Constitution,

I plurality’s analysis generally The constitutional runs as fol- imposed by lows: because the classification New York’s lim- preference “penalizes” ited, one-time veterans’ civil service appellees’ “right migrate,” preference constitutional to the scrutiny, subjected heightened it

program which to must be narrowly insufficiently tailored because it is does not survive strength purposes. of this rea- On the its asserted to serve program preference plurality soning, that the the concludes “right migrate” appellees’ to constitutional violates both protection equal ante, at law, 911, the see their to analysis although is how much of its not make clear it does “right necessary to mi- a violation of the sufficient to find or grate” independently violation. an Protection Clause plurality simply analysis, pursuing re- new dual In this previously approach jects equal protection the Court has g., Hooper employed v. Bernalillo e. cases, see, in similar bothering County Assessor, without 472 U. S. migrate” analysis “right why explain use of its novel both scrutiny appropriate, equal protection is more nec- and strict doctrinally essary Helms, Cf. Jones coherent. or (1981) concurring). J., Indeed, 412, 426-427 (White, [‘the “impelled plurality to locate even feel does not provi- any definitively particular migrate’] constitutional major part ruling despite on its that its rests the fact sion,” penalizes that scheme determination plurali- right. n. The ante, 907-911, and See amplify opinion ty’s even more re- further is refusal very provi- overturning given Court markable and its Civil Service Law Constitution of New York’s sions years challenges just against upheld the same which it (SDNY), Supp. August ago. Bronstein, 369 F. See (1974). summarily S. 901 aff’d, U. unnecessary to address the finds it Justice Chief analytical “right case be-

proper to travel” this role of the scheme cannot survive that the New York he believes cause equal protection scrutiny purely as a matter of rational basis ante, 916. Yet See law. The Chief Justice’s assumption part depends position that New York’s on the past is not a contributions ... citizens for desire “to reward purpose,” legitimate Zobel v. state assumption not re- This ante, at 914. See Equal by anything quired rather, “a Clause; in the Protection (1969), Thompson, reading Shapiro of fiill [that] the Kline, 412 U. reveals S. and Vlandis objective only implementa- rejected when its has this Court migra- abridge in or an interest interstate travel tion would J., con- at 72 Zobel v. tion.” (O’Connor, judgment). curring in again has once failed to that the Court

It is unfortunate single justify by to textual sources a reference articulate analysis rely principle upon which it can or constitutional deciding my I the as this. adhere to belief that cases such § Privileges the IV, 2, Immunities Clause of Art. of Con- analysis evaluating supplies basis for the relevant stitution principal allegation appellees’, is that like where claims impermissibly distinguishes between state the state scheme allegedly imposing a relative burden on those who residents, recently their resi- exercised establish have more Williams, 457 See Zobel v. U. dence the State. concurring judgment). I also J., 74-75 (O’Connor, compensate to believe that State’s desire continue prior inherently contributions is “neither citizens for their “right irrational,” nor either under Court’s invidious component migrate” substantive undefined, or under some presents Id., at 72. This case Protection Clause. recognition citi- in which the of state of those instances one past interest constitutes a valid state zens’ sacrifices constitutionally any protected infringe interest, in- does not cluding settle another State fundamental by Privileges protected and Immunities Clause which §2. id., n. 1. IV, Art. See

II my scheme the New York veterans’ view, In any scrutiny the theories under constitutional weathers acknowledges plurality propounded the Court. statutory appropriate only scrutiny heightened if “actually primarily “penalize^],” or is deters,” classification “imped[e]” right intended to the exercise of to the travel. finding ante, See In at 903. that the New York program imposes “penalty” appellees’ right migrate, on to plurality permanent the likens the New York the scheme to property exemption state tax for veterans struck down in County supra, v. Bernalillo Assessor, and the dura- residency requirements governmental tional for essential Hospital Maricopa services invalidated Memorial v.

County, Shapiro Thompson, 415 U. S. 250 and v. supra. Hospital acknowledged

This in Memorial Court that Sha- piro impact right left the unclear amount of on the to travel necessary give application heightened which is to rise to scrutiny. Hospital Maricopa County, See Memorial v. plurality implicitly recognizes, As 256-259. the something

see fair ante, 907-909, it is to infer that negligible impact right more than a or minimal on to required scrutiny applied. travel is before I strict believe three-judge panel August put that, as the v. Bronstein it, preference granted “the limited under the . . .New York law realistically infringe can[not] penalize right be held to or Supp., to travel.” F. certainly directly York

The New law does not restrict or appellees’ burden freedom move York to New and to es- by imposing discriminatory tablish residence there fees, Passenger taxes, or direct restraints. Cases, other Cf. The (1849). preference program 7 How. 283 York does permanently deprive appellees right participate not “significant”activity, “public in some or fundamental even employment not a constitutional . . . States framing employee qualifications.” have wide discretion Feeney, Personnel Administrator Massachusetts v. (1979). Iowa, U. S. Sosna See also v. (1975). Blumstein, Cf. Dunn v. 405 U. S. 330, program indirectly penal- 336-337, 341 Nor does migration by depriving ize the newcomers of fundamental rights governmental or essential services until have re- of time. Cf. Memorial for a set period in the State sided Blumstein, Dunn v. County, supra; v. Maricopa Hospital supra. Shapiro Thompson, supra; effectively does not penalize York scheme the New Finally, fundamental settle exercise their those who a sta accept newcomers by requiring of their choice State of New York upon of all oldtime residents inferior to that tus (O’Con Zobel at their arrival. Cf. Those veterans who were nor, J., concurring judgment). the United States they joined York residents when not New York, move to New Forces, who subsequently Armed are treated employment to secure civil service who endeavor citizens; of New York majority as the vast exactly the same citizens” when in sense as “second-class regarded are no they of New Yorkers or even the majority with the vast compared whom must against they compete of the candidates majority Orbeck, Hicklin in civil Cf. obtaining employment. as appel To the extent such persons U. S. it is a disability, disability under any practical lees labor countless other New York in measure with they equal share who joined New York residents residents, including York but are for the vet ineligible Armed Forces from New for other reasons. erans’ preference have an based advantage who only persons arguably in New York relation to residency persons on their prior of veterans who group are a discrete position appellees’ residents, Armed Forces while New York who joined York, returned to New and who wartime, served who during does to seek Even that public employment. group elected over based on advantage appellees not an enjoy unqualified preference their residence. New York’s veterans’ prior that veterans a number of satisfy precon- scheme requires one, before ditions, prior residency only qual- which in- Moreover, only for the ify preference. securing appointment; creases the civil possibility it. Those arrived veterans who newly it does not guarantee sufficiently high may achieve a score on the exam not be dis- advantaged by preference program; conversely, at all very may chances of those who receive a low score not be af- competitors fected the fact that their received bonus points. Finally, program the bonus is a one-time benefit. join satisfy Veterans who the service in York, who statutory requirements, sufficiently other and who achieve a high bring range score on the exam to them within of secur- ing may employment only points use the bonus on one exami- appointment job promotion. nation for one for Thus, persons appellees such as are not forced to labor under a disability” by comparison “continuous even to this discrete group of New York citizens. Zobel v. 457 U. concurring judgment). at 75 J., (O’Connor, Certainly preference program the New York veterans’ im- poses “significant” a less direct burden on a less interest than many resident-preference programs up- that this Court has difficulty. example, held without marily For this Court has sum- residency requirements affirmed certain state college Sturgis Washington, state tuition rates, (1973), eligibility and a limited statute New York for scholarship Spatt assistance, York, v. New 414 U. S. 1058 though requirements poten- even those constituted a tially prohibitive “important” burden on access to educational opportunities. Independent San Antonio District School (1973). Rodriguez, v. U. S. 31-32 The Court has upheld 1-year requirement also a durational residence for eli- gibility Iowa, to obtain a divorce in state courts, Sosna v. though right marriage even the to terminate a has been deemed in some sense “fundamental.” Boddie See (1971). Connecticut, 401 U. S. 371 finding theory practical In sum, that this scheme or ef- “penalty” appellees’ fect constitutes a on fundamental to “right migrate” settle New York or on their to seems to me ephemeral, completely unnecessary safeguard and to the con- purpose “maintaining stitutional of a Union rather than a ‘league at Zobel v. of States.’” mere judgment). concurring ante, also See (O’Connor, J., “transforming many migrate” plays (“right role of to Nation”). heightened scrutiny, single Thus, into a States “right migrate” or Protection the either under inappropriate. ante, n. 904-905, see Clause, plainly program review, New York’s Under rational basis passes contends that its muster. New York constitutional expression employment preference serves as an of veterans’ gratitude as New York to veterans who entered legitimacy plurality acknowledges Even residents. purpose. ante, Indeed, it is diffi- of this state See country “[o]ur impeach long- for has a interest, cult this past standing policy compensating veterans for their con- advantages.” by providing them with numerous tributions Regan Washington, Representation Taxation with Personnel Administrator See also Feeney, 442 U. at 261. As Justice Massachusetts v. S., simple explained, expressing has “the interest Stevens gratitude majority’s for services that often entail hard- ship, family separation friends, from and hazard, security may of our Nation, be vital the continued adequate justification providing itself veterans with an tangible appreciation.” token of v. Bernalillo a (dissenting). County In Assessor, at 626 sum, U. inherently hardly interest could be deemed invidi- this state by ous irrational. as demonstrated the above discus- Nor, or constitutionally could it be said to be offensive because sion, implementation a fundamental has burdened travel. difficulty believing

I veterans’ have rationally employed New York does not relate to scheme certainly thought legitimate I had this state interest. a desig- all New veterans of State could award medal to York it in honor of wars, or that could erect memorials cer- nated returning particular conflicts; tain from armed it is residents hardly employ gives irrational to a means which certain re- turning tangible expres- wartime veterans a more and useful gratitude by way employment preferences. sion of I also Equal find it hard to credit the idea that the Protection requires Clause New York to reward the sacrifices of all joined those who the Armed Forces from other States and came to reside New if York it wishes to reward the service represented

of those who New York in the Armed Forces. Certainly represented those veterans who other States military by aiding aided New York the Nation, and suffered equal measure with New York veterans, but that is not the expressing gratitude prior issue. New York is not for the resident’s to, and sacrifice for, the Nation as much as attempting say you” it personified “thank to those who part” supporting New York’s sacrifice and effort to “do its prior this Nation’s war efforts. The residence of the individ- seeking statutory clearly ual benefit is a “relevant charac- legitimate longstanding teristic” to this state interest and is one which has a manifest relation to the furtherance of that interest. “right migrate,”

Whether this issue is tested under the Privileges Protection Clause, or the and Immuni- § something ties IV, 2, Clause of Art. more than the minimal migrate effect on the to travel or that exists in this case required trigger heightened scrutiny plu- must be or the rality’s right analysis to travel will swallow all the traditional regulation. deference shown to state economic and social penalize The modest scheme at issue here does not in a con- joined stitutional sense veterans who the Armed Forces in choosing eventually other States for settle York, deny equal protection. and does not them I would reverse judgment Appeals of the Court of for the Second Circuit.

Case Details

Case Name: Attorney General of New York v. Soto-Lopez

Court Name: Supreme Court of the United States

Date Published: Jun 17, 1986

Citation: 476 U.S. 898

Docket Number: 84-1803

Court Abbreviation: SCOTUS