476 U.S. 898 (1986)

ATTORNEY GENERAL OF NEW YORK
v.
SOTO-LOPEZ ET AL.

No. 84-1803.

Supreme Court of United States.

Argued January 15, 1986 Decided June 17, 1986 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

*899 Robert Hermann, Solicitor General of New York, argued the cause for appellant. With him on the brief were Robert Abrams, Attorney General, pro se, O. Peter Sherwood, Deputy Solicitor General, and Christopher Keith Hall, Assistant Attorney General.

Kenneth Kimerling argued the cause for appellees. With him on the brief was Juan Cartagena.^[*]

JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE POWELL join.

The question presented by this appeal is whether a preference in civil service employment opportunities offered by the State of New York solely to resident veterans who lived in the State at the time they entered military service violates the constitutional rights of resident veterans who lived outside the State when they entered military service.

*900 I

The State of New York, through its Constitution, N. Y. Const., Art. V, § 6, and its Civil Service Law, N. Y. Civ. Serv. Law § 85 (McKinney 1983 and Supp. 1986), grants a civil service employment preference, in the form of points added to examination scores, to New York residents who are honorably discharged veterans of the United States Armed Forces, who served during time of war, and who were residents of New York when they entered military service.^[1] This preference may be exercised only once, either for original hiring or for one promotion. N. Y. Const., Art. V, § 6.

Appellees, Eduardo Soto-Lopez and Eliezer Baez-Hernandez, are veterans of the United States Army and long-time residents of New York. Both men claim to have met all the eligibility criteria for the New York State civil service preference except New York residence when they entered the Army. Both Soto-Lopez and Baez-Hernandez *901 passed New York City civil service examinations, but were denied the veterans' preference by the New York City Civil Service Commission because they were residents of Puerto Rico at the time they joined the military. Appellees sued the city in Federal District Court, alleging that the requirement of residence when they joined the military violated the Equal Protection Clause of the Fourteenth Amendment and the constitutionally protected right to travel. The Attorney General of the State of New York intervened as a defendant.

The District Court dismissed appellees' complaint, holding that this Court's summary affirmance in August v. Bronstein, 417 U. S. 901 (1974), aff'g 369 F. Supp. 190 (SDNY), a case in which a three-judge panel upheld against equal protection and right-to-travel challenges the same sections of the New York State Constitution and Civil Service Law at issue in the instant action, compelled that result. The Court of Appeals for the Second Circuit reversed. Soto-Lopez v. New York City Civil Service Comm'n, 755 F. 2d 266 (1985). It concluded that August, supra, had implicitly been overruled by our more recent decision in Zobel v. Williams, 457 U. S. 55 (1982), and held that the prior residence requirement of the New York civil service preference offends both the Equal Protection Clause and the right to travel. The Court of Appeals remanded with various instructions, including the direction that the District Court permanently enjoin the defendants from denying bonus points to otherwise qualified veterans who were not residents of New York at the time they entered the military service. We noted probable jurisdiction of this appeal of the Attorney General of New York. 473 U. S. 903 (1985). We affirm.

II

" `[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.' " Dunn v. Blumstein, 405 U. S. 330, 338 (1972) (quoting United States v. Guest, 383 U. S. 745, 758 (1966)). See, *902 e. g., Passenger Cases, 7 How. 283, 492 (1849) (Taney, C. J., dissenting); Crandall v. Nevada, 6 Wall. 35, 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 180 (1869); Edwards v. California, 314 U. S. 160 (1941); Kent v. Dulles, 357 U. S. 116, 126 (1958); Shapiro v. Thompson, 394 U. S. 618, 629-631, 634 (1969); Oregon v. Mitchell, 400 U. S. 112, 237 (1970) (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.); id., at 285-286 (Stewart, J., concurring in part and dissenting in part, with whom BURGER, C. J., and BLACKMUN, J., joined); Memorial Hospital v. Maricopa County, 415 U. S. 250, 254 (1974). And, it is clear that the freedom to travel includes the " `freedom to enter and abide in any State in the Union.' " Dunn, supra, at 338 (quoting Mitchell, supra, at 285).

The textual source of the constitutional right to travel, or, more precisely, the right of free interstate migration, though, has proved elusive. It has been variously assigned to the Privileges and Immunities Clause of Art. IV, see, e. g., Zobel, supra, at 71 (O'CONNOR, J., concurring in judgment), to the Commerce Clause, see Edwards v. California, 314 U. S., at 173-174, and to the Privileges and Immunities Clause of the Fourteenth Amendment, see, e. g., id., at 177-178 (Douglas, J., concurring). The right has also been inferred from the federal structure of government adopted by our Constitution. Zobel, supra, at 67 (BRENNAN, J., concurring); Shapiro, supra, at 631; United States v. Guest, supra, at 757-758. However, in light of the unquestioned historic acceptance of the principle of free interstate migration, and of the important role that principle has played in transforming many States into a single Nation, we have not felt impelled to locate this right definitively in any particular constitutional provision.^[2]Shapiro, supra, at 630. *903 Whatever its origin, the right to migrate is firmly established and has been repeatedly recognized by our cases. See, e. g., Hooper v. Bernalillo County Assessor, 472 U. S. 612, 618, n. 6 (1985); Zobel, supra, at 60, n. 6; Jones v. Helms, 452 U. S. 412, 418 (1981); Memorial Hospital v. Maricopa County, supra; Dunn, supra; Shapiro, supra; United States v. Guest, supra, at 757-759.

A state law implicates the right to travel when it actually deters such travel, see, e. g., Crandall v. Nevada, supra, at 46; see also Shapiro, supra, at 629, when impeding travel is its primary objective, see Zobel, supra, at 62, n. 9; Shapiro, supra, at 628-631, or when it uses " `any classification which serves to penalize the exercise of that right.' " Dunn, supra, at 340 (quoting Shapiro, supra, at 634). Our right-to-migrate cases have principally involved the latter, indirect manner of burdening the right. More particularly, our recent cases have dealt with state laws that, by classifying residents according to the time they established residence, resulted in the unequal distribution of rights and benefits among otherwise qualified bona fide residents.^[3]Hooper, *904 supra; Zobel v. Williams, 457 U. S. 55 (1982); Sosna v. Iowa, 419 U. S. 393 (1975); Memorial Hospital, supra; Dunn v. Blumstein, 405 U. S. 330 (1972); Shapiro, supra.

Because the creation of different classes of residents raises equal protection concerns, we have also relied upon the Equal Protection Clause in these cases. Whenever a state law infringes a constitutionally protected right, we undertake intensified equal protection scrutiny of that law. See, e. g., Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 440 (1985); Martinez v. Bynum, 461 U. S. 321, 328, n. 7 (1983); Plyler v. Doe, 457 U. S. 202, 216-217, and n. 15 (1982); Memorial Hospital, supra, at 258, 262; San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 16, and n. 39, 30-32, 40 (1973); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 101 (1972); Dunn, supra, at 335, 342; Shapiro, supra, at 634. Thus, in several cases, we asked expressly whether the distinction drawn by the State between older and newer residents burdens the right to migrate. Where we found such a burden, we required the State to come forward with a compelling justification. See, e. g., Shapiro v. Thompson, supra; Dunn, supra; Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974). In other cases, where we concluded that the contested classifications did not survive even rational-basis scrutiny, we had no occasion to inquire whether enhanced scrutiny was appropriate. Hooper, supra; Zobel, supra. The analysis in all of these cases, however, is informed by the same guiding principle — the right to migrate protects residents of a State from being disadvantaged, or from being treated differently, simply because of the timing of their migration, from other similarly situated residents.^[4]Hooper, *905 supra, at 618, n. 6; Zobel, supra, at 60, n. 6; Memorial Hospital, supra, at 261; Shapiro, supra, at 629-631.

New York's eligibility requirements for its civil service preference conditions a benefit on New York residence at a particular past time in an individual's life. It favors those veterans who were New York residents at a past fixed point over those who were not New York residents at the same point in their lives. Our cases have established that similar methods of favoring "prior" residents over "newer" ones, such as limiting a benefit to those who resided in the State by a fixed past date, Hooper, supra; granting incrementally greater benefits for each year of residence, Zobel, supra; and conditioning eligibility for certain benefits on completion of a fixed period of residence, see, e. g., Memorial Hospital, supra; Dunn v. Blumstein, supra; Shapiro, supra, warrant careful judicial review.^[5] But, our cases have also established that only where a State's law " `operates to penalize those persons . . . who have exercised their constitutional right of interstate migration' " is heightened scrutiny triggered. Memorial Hospital, supra, at 258, quoting Oregon *906 v. Mitchell, 400 U. S., at 238 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.).

Our task in this case, then, is first to determine whether New York's restriction of its civil service preference to veterans who entered the Armed Forces while residing in New York operates to penalize those persons who have exercised their right to migrate. If we find that it does, appellees must prevail unless New York can demonstrate that its classification is necessary to accomplish a compelling state interest. Memorial Hospital, supra, at 262; Dunn, supra, at 342; Shapiro, 394 U. S., at 634.^[6]

*907 III

A

In previous cases, we have held that even temporary deprivations of very important benefits and rights can operate to penalize migration. For example, in Shapiro and in Memorial Hospital, we found that recently arrived indigent residents were deprived of life's necessities by durational residence requirements for welfare assistance and for free, nonemergency medical care, respectively, which were available to other poor residents. In Dunn, we held that new residents were denied a basic right by a durational residence requirement for establishing eligibility to vote. The fact that these deprivations were temporary did not offset the Court's conclusions that they were so severe and worked such serious inequities among otherwise qualified residents that they effectively penalized new residents for the exercise of their rights to migrate.

More recently, in Hooper v. Bernalillo, 472 U. S. 612 (1985), and Zobel v. Williams, 457 U. S. 55 (1982), we struck down state laws that created permanent distinctions among residents based on the length or timing of their residence in the State. At issue in Hooper was a New Mexico statute that granted a tax exemption to Vietnam veterans who resided in the State before May 8, 1976. Zobel concerned an Alaska statute granting residents one state mineral income dividend unit for each year of residence subsequent to 1959. Because we employed rational-basis equal protection analysis in those cases, we did not face directly the question whether *908 the contested laws operated to penalize interstate migration. Nonetheless, the conclusion that they did penalize migration may be inferred from our determination that "the Constitution will not tolerate a state benefit program that `creates fixed, permanent distinctions . . . between . . . classes of concededly bona fide residents, based on how long they have been in the State.' " Hooper, supra, at 623 (quoting Zobel, supra, at 59). See also Zobel, supra, at 64.

Soto-Lopez and Baez-Hernandez have been denied a significant benefit that is granted to all veterans similarly situated except for State of residence at the time of their entry into the military. While the benefit sought here may not rise to the same level of importance as the necessities of life and the right to vote, it is unquestionably substantial. The award of bonus points can mean the difference between winning or losing civil service employment, with its attendant job security, decent pay, and good benefits.^[7] Brief for Appellees 27-28. See also Guardians Assn. of New York City *909 Police Dept., Inc. v. Civil Service Comm'n, 630 F. 2d 79, 85 (CA2 1980), cert. denied, 452 U. S. 940 (1981); Andrade v. Nadel, 477 F. Supp. 1275, 1279 (SDNY 1979). Furthermore, appellees have been permanently deprived of the veterans' credits that they seek. As the Court of Appeals observed: "The veteran's ability to satisfy the New York residence requirement is . . . fixed. He either was a New York resident at the time of his initial induction or he was not; he cannot earn a change in status." 755 F. 2d, at 275. Such a permanent deprivation of a significant benefit, based only on the fact of nonresidence at a past point in time, clearly operates to penalize appellees for exercising their rights to migrate.

B

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

As we held in Dunn: "[I]f there are other, reasonable ways to achieve [a compelling state purpose] with a lesser burden on constitutionally protected activity, a State may not choose *910 the way of greater interference. If it acts at all, it must choose `less drastic means.' " 405 U. S., at 343 (quoting Shelton v. Tucker, 364 U. S. 479, 488 (1960)). See also Memorial Hospital, 415 U. S., at 263. Because New York could accomplish its purposes without penalizing the right to migrate by awarding special credits to all qualified veterans, the State is not free to promote its interests through a preference system that incorporates a prior residence requirement.

Two of New York's asserted interests have additional weaknesses. First, the availability of the preference to inductees as well as enlistees undercuts the State's contention that one of the most important purposes of the veterans' credit is to encourage residents to enlist in the services. Second, the fact that eligibility for bonus points is not limited to the period immediately following a veteran's return from war casts doubt on New York's asserted purpose of easing the transition from wartime military conditions to civilian life,^[8] for, presumably, a veteran of the Korean War could take a civil service examination and receive the bonus points tomorrow, 30 years after his homecoming. Cf. Hooper, 472 U. S., at 621. The State's failure to limit the credit to enlistees recently returned to New York from war strongly suggests that the State's principal interest is simply in rewarding its residents for service to their country.

Compensating veterans for their past sacrifices by providing them with advantages over nonveteran citizens is a long-standing policy of our Federal and State Governments. See, e. g., Hooper, supra; Regan v. Taxation with Representation of Washington, 461 U. S. 540, 551 (1983); Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256, 279, n. 25 *911 (1979). Nonetheless, this policy, even if deemed compelling, does not support a distinction between resident veterans based on their residence when they joined the military. Members of the Armed Forces serve the Nation as a whole. While a service person's home State doubtlessly derives indirect benefit from his or her service, the State benefits equally from the contributions to our national security made by other service personnel. "Permissible discriminations between persons" must be correlated to "their relevant characteristics." Zobel, 457 U. S., at 70 (BRENNAN, J., concurring). Because prior residence has only a tenuous relation, if any, to the benefit New York receives from all Armed Forces personnel, the goal of rewarding military service offers no support for New York's fixed point residence requirement.

IV

In sum, the provisions of New York's Constitution, Art. V, § 6, and Civil Service Law § 85, which limit the award of a civil service employment preference to resident veterans who lived in New York at the time they entered the Armed Forces, effectively penalize otherwise qualified resident veterans who do not meet the prior residence requirement for their exercise of the right to migrate. The State has not met its heavy burden of proving that it has selected a means of pursuing a compelling state interest which does not impinge unnecessarily on constitutionally protected interests. Consequently, we conclude that New York's veterans' preference violates appellees' constitutionally protected rights to migrate and to equal protection of the law.

Once veterans establish bona fide residence in a State, they "become the State's `own' and may not be discriminated against solely on the basis of [the date of] their arrival in the State." Hooper, supra, at 623. See also Vlandis v. Kline, 412 U. S. 441, 449-450, and n. 6 (1973); Shapiro, 394 U. S., at 632-633; Passenger Cases, 7 How., at 492 (Taney, C. J., dissenting). For as long as New York chooses to offer its *912 resident veterans a civil service employment preference, the Constitution requires that it do so without regard to residence at the time of entry into the services.^[9] Accordingly, the judgment of the Court of Appeals is

Affirmed.

CHIEF JUSTICE BURGER, concurring in the judgment.

In this case the Court of Appeals held that New York's civil service veterans' preference violated both equal protection and the right to travel, relying on Zobel v. Williams, 457 U. S. 55 (1982). Shortly after the Court of Appeals' decision was issued, we struck down New Mexico's property tax veterans' preference in Hooper v. Bernalillo County Assessor, 472 U. S. 612 (1985). Both Zobel and Hooper held that the classifications used by the States to award preferences to certain citizens failed to pass a rational-basis test under the Equal Protection Clause. As a result, we had no occasion to reach the issues whether the classifications would survive heightened scrutiny or whether the right to travel was violated. See Hooper, supra, at 618, and n. 6; Zobel, supra, at 60-61, and n. 6.

The classification held invalid on equal protection grounds in Hooper was remarkably similar to the one at issue here; Hooper, therefore, would appear to be controlling. The plurality opinion, however, instead begins the analysis by addressing the "right to migrate." Ante, at 901-905. Moreover, heightened scrutiny is employed without first determining whether the challenged New York classification would survive even rational-basis analysis. Ante, at 907-909. But as we observed in Zobel, supra, at 60, n. 6, and reiterated only last Term in Hooper, supra, at 618, n. 6, "[r]ight to travel cases have examined, in equal protection terms, state distinctions between newcomers and longer term residents." This follows because "[i]n reality, right to *913 travel analysis refers to little more than a particular application of equal protection analysis." Zobel, supra, at 60, n. 6.

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

The State proffers four justifications for the challenged classification. First, it claims that the preference system encourages New York residents to enlist during times of war. This justification rests entirely on the State's characterization of the preference as being prospective and self-executing in nature. But plainly the preference is granted only retrospectively following definitive action by the legislature; legislative action is necessary to fix both the period when "war" is deemed to have commenced and when that war has ended.

In many cases a New York resident entering military service will have no idea whether he or she will be entitled to the preference following a successful tour of duty and honorable discharge. For example, the beginning of the Vietnam era was established by legislation as a "time of war" some three years after hostilities commenced. The legislature in 1973 later declared the "end" of that "war" (which was never declared a "war" by Congress) for purposes of the preference as March 29, 1973, but in 1983 it amended that finding to expand coverage retroactively again until May 7, 1975. See Brief for Appellant 9-10. The same happened in the Korean Conflict, *914 and indeed, the provision at issue was adopted after the end of World War II with the clear intent to grant the benefit retroactively to veterans of that war. Id., at 7-8.

Moreover, the preference applies to all servicemen entering the military during the legislatively defined period, regardless of whether they enlisted voluntarily or were inducted as a result of the draft. Providing a "bonus" to draftees is hardly a boon intended or necessary to "encourage" them to enlist. Hence, this "encouragement to enlist" sharply "differs from the local `bounty' laws enacted during the Civil War era, through which States paid residents cash bonuses for enlisting." Hooper, 472 U. S., at 622, n. 12.

Second, the State argues that the preference provides partial compensation to residents for service during time of war. But our holding in Hooper clearly rejected any such retroactive rewards targeting only past residents. While we acknowledged that a "State may award certain benefits to all its bona fide veterans," id., at 620, just as in that case "it is difficult to grasp how [New York] residents serving in the military suffered more than residents of other States who served, so that the latter would not deserve the benefits a State bestows for national military service." Id., at 621.

Third, the State contends that it is permissible to encourage past-resident veterans to settle in New York after their military service ends. While such a preference might indeed encourage such veterans to return, it simultaneously has the effect of discouraging other veterans from settling in New York who are aware that civil service appointments will be hard to obtain. As we observed in Zobel and reiterated in Hooper, supra, at 619-620, "[t]he separation of residents into classes hardly seems a likely way to persuade new [residents] that the State welcomes them and wants them to stay." Zobel, supra, at 62, n. 9. Moreover, Hooper made it clear that a "selective incentive" such as New York provides here "would encounter the same constitutional barrier faced *915 by the [New Mexico] statute's distinction between past and newly arrived residents." Hooper, supra, at 619, n. 8.

Finally, the State asserts that the preference is targeted at a very special group of veterans who have both knowledge of local affairs and valuable skills learned in the military, and who therefore would make exceptional civil servants. But these "special attributes" are undeniably possessed by all veterans who are currently residents of New York.

Indeed, the irrationality of the New York scheme is highlighted by appellee Baez-Hernandez' experiences. The current provision would grant a civil service hiring preference to a serviceman entering the military while a resident of New York even if he was a resident only for a day. But Baez-Hernandez, who was a resident of New York for over 10 years before applying for a civil service position — and who therefore has considerably more "local knowledge" than many returning veterans — can never receive the preference. Moreover, Baez-Hernandez was a resident of New York for two years when he was called from reserve status to active duty, where he remained until he was discharged as partially disabled. He therefore served "in time of war" after obtaining New York residency. Yet he still cannot qualify despite his being endowed with all the desired "special attributes."

Just as in Hooper, "[s]tripped of its asserted justifications, the [New York] statute suffers from the same constitutional flaw as the Alaska statute in Zobel." 472 U. S., at 622. Given our reasons for granting review, our admonition in