725 REHNQUIST, J., dissenting lem is accentuated in this case because it falls within our original and exclusive jurisdiction, which means that similar cases not only can be but must be brought here. In conclusion I can do no better than quote from a dissent Justice Frankfurter penned under similar circumstances: "Jurisdictional doubts inevitably lose force once leave has been given to file a bill, a master has been appointed, long hearings have been held, and a weighty report has been submitted. And so, were this the last as well as the first assumption of jurisdiction by this Court of a controversy like the present, even serious doubts about it might well go unexpressed. But if experience is any guide, the present decision will give momentum to kindred litigation and reliance upon it beyond the scope of the special facts of this case. [L]egal doctrines have, in an odd kind of way, the faculty of self-generating extension. Therefore, in pricking out the lines of future development of what is new doctrine, the importance of these issues may make it not inappropriate to indicate difficulties which I have not been able to overcome and potential abuses to which the doctrine is not unlikely to give rise." Texas v. Florida, 306 U. S. 398, 434 (1939). . issue of appropriateness in an original action between States must be determined on a case-by-case basis." Ante, at 743. 8 Because of my views on the jurisdictional question I find it unnecessary to address the merits of this case, beyond noting that the pressure in original actions to avoid factual inquiries which this Court of course cannot make may go far to explain the entry of judgment on the pleadings over the ruling by the Special Master that further factual development is necessary to a proper resolution of the issues. ST. MARTIN EVANGELICAL LUTHERAN CHURCH ET AL. v. SOUTH DAKOTA CERTIORARI TO THE SUPREME COURT OF SOUTH DAKOTA No. 80-120. Argued March 3, 1981-Decided May 26, 1981 Petitioner Church, located in South Dakota, is a member of the Wisconsin Evangelical Lutheran Synod. It operates an elementary Christian day school that is not a separate legal entity from the Church, but is financed by the Church's congregation and controlled by a Board elected from the congregation. Petitioner Academy is a secondary school in South Dakota owned, supported, and controlled by the Synod, and it also is not separately incorporated. Petitioners claim exemption with respect to their school employees from unemployment compensation taxes imposed by the Federal Unemployment Tax Act (FUTA) and South Dakota's complementary statutes. Title 26 U. S. C. § 3309 (b) provides an exemption with respect to, inter alia, "service performed (1) in the employ of (A) a church or convention or association of churches, or (B) an organization . . . which is operated, supervised, controlled, or principally supported by a church or a convention or association of churches." A previous exemption under § 3309 (b) (3) for service performed in the employ of a school that is not an institution of higher education was repealed in 1976 when FUTA was amended. After petitioners' unsuccessful administrative appeal from South Dakota's imposition of the taxes upon them and a successful appeal to a state court, the South Dakota Supreme Court held petitioners subject to the taxes. Held: Petitioners are exempt from unemployment compensation taxes under § 3309 (b)(1)(A). Pp. 780-788. (a) Section 3309 (b)(1)(A), as enacted in 1970, applies to schools, like petitioners', that have no separate legal existence from a church, or as in the Academy's case, from a "convention or association of churches." The employees working within these schools plainly are "in the employ of . . . a church or convention or association of churches" within the meaning of § 3309 (b) (1) (A). And instead of construing the term "church" in § 3309 (b) as being limited to the actual house of worship, a construction that would contradict the phrasing of FUTA, such term must be construed as referring to the congregation or the hierarchy itself, that is, the church authorities who conduct the business of hiring, discharging, and directing church employees. Pp. 781-785. (b) The legislative history, including the repeal of § 3309 (b) (3), discloses no intent by Congress to alter the scope or meaning of § 3309 (b) (1). Pp. 785-788. 290 N. W. 2d 845, reversed and remanded. BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 788. Edward Thomas Schilling argued the cause for petitioners. With him on the briefs was Ernst J. von Briesen. Mark V. Meierhenry, Attorney General of South Dakota, argued the cause for respondent. With him on the brief was Judith A. Atkinson, Assistant Attorney General. Allen R. Snyder argued the cause for the State of Alabama et al. as amici curiae urging reversal. With him on the brief were Charles A. Graddick, Attorney General of Alabama, Richard H. Bryan, Attorney General of Nevada, Stuart Philip Ross, Peter W. Tredick, George Cocoris, and John A. Flangas. Barry Sullivan argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General McCree, Acting Assistant Attorney General Martin, Deputy Solicitor General Wallace, Alan I. Horowitz, Mark C. Rutzick, F. James Foley, Nathaniel Baccus III, Lois G. Williams, and Joseph M. Woodward.* *Briefs of amici curiae urging reversal were filed by George Deukmejian, Attorney General, Arthur C. deGoede, Assistant Attorney General, and Lawrence K. Keethe and Jefferey M. Vesely, Deputy Attorneys General, for the State of California; by Lee Boothby and Robert W. Nixon for Americans United for Separation of Church and State; by William B. Ball, Philip J. Murren, and Robert L. Toms for the Association of Christian Schools International et al.; by Henry W. Sawyer III for the Germantown Friends School et al.; by David C. Gibbs, Jr., and Charles E. Craze for the Grace Baptist Temple et al.; and by Wilfred R. Caron, Charles M. Whelan, George E. Reed, Gerald C. Tobin, and John A. Liekweg for the United States Catholic Conference. Briefs of amici curiae were filed by Nathan Z. Dershowitz for the JUSTICE BLACKMUN delivered the opinion of the Court. Petitioners, St. Martin Evangelical Lutheran Church (St. Martin), at Watertown, S. D., and Northwestern Lutheran Academy (Academy), at Mobridge in that State, claim exemption with respect to their school employees from taxes imposed by the Federal Unemployment Tax Act (FUTA), 26 U. S. C. §§ 3301–3311 (1976 ed. and Supp. III), and by South Dakota's statutes complementary thereto, S. D. Codified Laws § 61-1-1 et seq. (1978 and Supp. 1980). The exemption is claimed on both statutory and First Amendment grounds. The provisions primarily at issue are FUTA's § 3309 (b) and South Dakota's § 61-1-10.4.' American Jewish Congress and by Charles Alan Siegel for the Lutheran 1 Title 26 U. S. C. § 3309 (b) reads in pertinent part: "This section shall not apply to service performed— "(1) in the employ of (A) a church or convention or association of churches, or (B) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches; "(2) by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order. . . .” 2 This South Dakota statute provides: "For the purposes of §§ 61-1-10.2 and 61-1-10.3 the term 'employment' does not apply to service performed: "(1) In the employ of "(a) a church or convention or association of churches, or "(b) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches; or "(2) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order; or "(3) In the employ of a school which is not an institution of higher education prior to January 1, 1978. . . . FUTA appeared originally as Title IX of the Social Security Act of 1935, 49 Stat. 639, and was enacted in response to the widespread unemployment that accompanied the Great Depression. It called for a cooperative federal-state program of benefits to unemployed workers." The Act has undergone a series of amendments that progressively have expanded coverage of the Nation's work force.* This case concerns one of the more recent of those amendments, namely, that effected by § 115 (b)(1) of the Unemployment Compensation Amendments of 1976, Pub. L. 94566, 90 Stat. 2670. The Secretary of Labor has determined that this statute rendered nonprofit church-related primary and secondary schools subject to FUTA. The South Dakota authorities went along with that ruling in their interpretation of the State's amended statute. Petitioners are among those religiously affiliated schools so claimed to be required to pay the FUTA and South Dakota taxes. They contest this construction of the statutes. They argue also, however, that holding them subject to the taxes would violate both FUTA imposes an excise tax on "wages" paid by an "employer" in covered "employment," 26 U. S. C. § 3301, as these terms are statutorily defined. § 3306 (1976 ed. and Supp. III). An employer, however, is allowed a credit of up to 90% of the federal tax for "contributions" paid to a state fund established under a federally approved state unemployment compensation law. § 3302 (1976 ed. and Supp. III). The requirements for federal approval are contained in §§ 3304 and 3309 (1976 ed. and Supp. III), and the Secretary of Labor must annually review and certify the state plan. §§ 3304 (a) and (c) (1976 ed. and Supp. III). All 50 States have employment security laws implementing the federal mandatory minimum standards of coverage. A State, of course, is free to expand its coverage beyond the federal minimum without jeopardizing its federal certification. In response to each federal amendment, the States correspondingly have amended their statutes to retain their federal certifications. |