Susan EPPERSON et al., Appellants,
v.
ARKANSAS.
No. 7.
Supreme Court of the United States
Argued Oct. 16, 1968.
Decided Nov. 12, 1968.
(98, 267) Eugene R. Warren, Little
Rock, Ark., for appellants.
Don Langston, Little Rock, Ark., for appellee.
Mr. Justice FORTAS delivered the opinion of the Court.
I.
This appeal challenges the constitutionality of the 'anti-evolution' statute
which the State of Arkansas adopted in 1928 to prohibit the teaching in
its public schools and universities of the theory that man evolved from
other species of life. The statute was a product of the upsurge of 'fundamentalist'
religious fervor of the twenties. The Arkansas statute was an adaption
of the famous Tennessee 'monkey law' which that State adopted in 1925.
See
footnote 1 1
The constitutionality of the Tennessee law was upheld by the Tennessee
Supreme Court in the celebrated Scopes case in 1927. See
footnote 2 2
The Arkansas law makes it unlawful for a teacher in any state-supported
school or university 'to teach the (99) theory or doctrine that
mankind ascended or descended from a lower order of animals,' or 'to adopt
or use in any such institution a textbook that teaches' this theory. Violation
is a misdemeanor and subjects the violator to dismissal from his position.
See
footnote 3 3
(268) The present case concerns the teaching of biology in a
high school in Little Rock. According to the testimony, until the events
here in litigation, the official textbook furnished for the high school
biology course did not have a section on the Darwinian Theory. Then, for
the academic year 1965--1966, the school administration, on recommendation
of the teachers of biology in the school system, adopted and prescribed
a textbook which contained a chapter setting forth 'the theory about the
origin * * * of man from a lower form of animal.'
(100) Susan Epperson, a young woman who graduated from Arkansas' school system and then obtained her master's degree in zoology at the University of Illinois, was employed by the Little Rock school system in the fall of 1964 to teach 10th grade biology at Central High School. At the start of the next academic year, 1965, she was confronted by the new textbook (which one surmises from the record was not unwelcome to her). She faced at least a literal dilemma because she was supposed to use the new textbook for classroom instruction and presumably to teach the statutorily condemned chapter; but to do so would be a criminal offense and subject her to dismissal.
She instituted the present action in the Chancery Court of the State, seeking
a declaration that the Arkansas statute is void and enjoining the State
and the defendant officials of the Little Rock school system from dismissing
her for violation of the statute's provisions. H. H. Blanchard, a parent
of children attending the public schools, intervened in support of the
action.
The Chancery Court, in an opinion by Chancellor Murray O. Reed, held
that the statute violated the Fourteenth Amendment to the United States
Constitution. See
footnote 4 4
The court noted that this Amendment encompasses the prohibitions upon
state interference with freedom of speech and thought which are contained
in the First Amendment. Accordingly, it held that the challenged statute
is unconstitutional because, in violation of the First Amendment, it 'tends
to hinder the quest for knowledge, restrict the freedom to learn, and restrain
the freedom to teach.' See
footnote 5 5
In this perspective, the Act, (101) it held, was an unconstitutional
and void restraint upon the freedom of speech guaranteed by the Constitution.
On appeal, the Supreme Court of Arkansas reversed. See footnote 6 6 Its two-sentence opinion is set forth in the margin. See footnote 7 7 It (269) sustained the statute as an exercise of the State's power to specify the curriculum in public schools. It did not address itself to the competing constitutional considerations.
Appeal was duly prosecuted to this Court under 28 U.S.C. s 1257(2).
Only Arkansas and Mississippi have such 'anti-evolution' or 'monkey' laws
on their books. See
footnote 8 8
There is no record of any prosecutions in Arkansas (102) under
its statute. It is possible that the statute is presently more of a curiosity
than a vital fact of life in these States. See
footnote 9 9
Nevertheless, the present case was brought, the appeal as of right
is properly here, and it is our duty to decide the issues presented.
II.
At the outset, it is urged upon us that the challenged statute is vague
and uncertain and therefore within the condemnation of the Due Process
Clause of the Fourteenth Amendment. The contention that the Act is vague
and uncertain is supported by language in the brief opinion of Arkansas'
Supreme Court. That court, perhaps reflecting the discomfort which the
statute's quixotic prohibition necessarily engenders in the modern mind,
See
footnote 10 10
stated that it 'expressed no opinion' as to whether the Act prohibits
'explanation' of the theory of evolution or merely forbids 'teaching that
the theory is true.' Regardless of this uncertainty, the court held that
the statute is constitutional.
On the other hand, counsel for the State, in oral argument in this Court,
candidly stated that, despite the State Supreme Court's equivocation, Arkansas
would interpret the statute 'to mean that to make a student aware of the
theory * * * just to teach that there was (103) such a theory' would
be grounds for dismissal and for prosecution under the statute; and he
said 'that the Supreme Court of Arkansas' opinion should be interpreted
in that manner.' He said: 'If Mrs. Epperson would tell her students that
'Here is Darwin's theory, that man ascended or descended from a lower form
of being,' then I think she would be under this statute liable for prosecution.'
In any event, we do not rest our decision upon the asserted vagueness of
the statute. On either interpretation of its language, Arkansas' statute
cannot stand. It is of no moment whether the law is deemed to prohibit
mention of Darwin's theory, or to forbid any or all (270) of the
infinite varieties of communication embraced within the term 'teaching.'
Under either interpretation, the law must be stricken because of its conflict
with the constitutional prohibition of state laws respecting an establishment
of religion or prohibiting the free exercise thereof. The overriding fact
is that Arkansas' law selects from the body of knowledge a particular segment
which it proscribes for the sole reason that it is deemed to conflict with
a particular religious doctrine; that is, with a particular interpretation
of the Book of Genesis by a particular religious group. See
footnote 11 11
III.
The antecedents of today's decision are many and unmistakable.
They are rooted in the foundation soil of our Nation. They are fundamental
to freedom.
Government in our democracy, state and national, must be neutral in
matters of religious theory, doctrine, (104) and practice. It may
not be hostile to any religion or to the advocacy of noreligion; and it
may not aid, foster, or promote one religion or religious theory against
another or even against the militant opposite. The First Amendment mandates
governmental neutrality between religion and religion, and between religion
and nonreligion. See
footnote 12 12
As early as 1872, this Court said: 'The law knows no heresy, and is
committed to the support of no dogma, the establishment of no sect.' Watson
v. Jones, 13 Wall. 679, 728, 20 L.Ed. 666. This has been the interpretation
of the great First Amendment which this Court has applied in the many and
subtle problems which the ferment of our national life has presented for
decision within the Amendment's broad command.
Judicial interposition in the operation of the public school system of
the Nation raises problems requiring care and restraint. Our courts, however,
have not failed to apply the First Amendment's mandate in our educational
system where essential to safeguard the fundamental values of freedom of
speech and inquiry and of belief. By and large, public education in our
Nation is committed to the control of state and local authorities. Courts
do not and cannot intervene in the resolution of conflicts which arise
in the daily operation of school systems and which do not directly and
sharply implicate basic constitutional values. See
footnote 13 13
On the other hand, '(t)he vigilant protection of constitutional freedoms
is nowhere more vital than in the community of American schools,' Shelton
v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960).
As this (105) Court said in Keyishian v. Board of Regents, the First
Amendment 'does not tolerate laws that cast a pall of orthodoxy over the
classroom.' 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967).
The earliest cases in this Court on the subject of the impact of constitutional
guarantees upon the classroom were (271) decided before the Court
expressly applied the specific prohibitions of the First Amendment to the
States. But as early as 1923, the Court did not hesitate to condemn under
the Due Process Clause 'arbitrary' restrictions upon the freedom of teachers
to teach and of students to learn. In that year, the Court, in an opinion
by Justice McReynolds, held unconstitutional an Act of the State of Nebraska
making it a crime to teach any subject in any language other than English
to pupils who had not passed the eighth grade. See
footnote 14 14
The State's purpose in enacting the law was to promote civic cohesiveness
by encouraging the learning of English and to combat the 'baneful effect'
of permitting foreigners to near and educate their children in the language
of the parents' native land. The Court recognized these purposes, and it
acknowledged the State's power to prescribe the school curriculum, but
it held that these were not adequate to support the restriction upon the
liberty of teacher and pupil. The challenged statute it held, unconstitutionally
interfered with the right of the individual, guaranteed by the Due Process
Clause, to engage in any of the common occupations of life and to acquire
useful knowledge. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed.
1042 (1923). See also Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed.
1047 (1923).
For purposes of the present case, we need not re-enter the difficult
terrain which the Court, in 1923, traversed without apparent misgivings.
We need not take advantage of the broad premise which the Court's decision
(106) in Meyer furnishes, nor need we explore the implications of
that decision in terms of the justiciability of the multitude of controversies
that beset our campuses today. Today's problem is capable of resolution
in the narrower terms of the First Amendment's prohibition of laws respecting
an establishment of religion or prohibiting the free exercise thereof.
There is and can be no doubt that the First Amendment does not permit the
State to require that teaching and learning must be tailored to the principles
or prohibitions of any religious sect or dogma. In Everson v. Board of
Education, this Court, in upholding a state law to provide free bus service
to school children, including those attending parochial schools, said:
'Neither (a State nor the Federal Government) can pass laws which aid one
religion, aid all religions, or prefer one religion over another.' 330
U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947).
At the following Term of Court, in People of State of Ill. ex rel. McCollum
v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948),
the Court held that Illinois could not release pupils from class to attend
classes of instruction in the school buildings in the religion of their
choice. This, it said, would involve the State in using tax-supported property
for religious purposes, thereby breaching the 'wall of separation' which,
according to Jefferson, the First Amendment was intended to erect between
church and state. Id., at 211, 68 S.Ct., at 465. See also Engel v. Vitale,
370 U.S. 421, 428, 82 S.Ct. 1261, 1265, 8 L.Ed.2d 601 (1962); Abington
School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844
(1963). While study of religions and of the Bible from a literary and historic
viewpoint, presented objectively as part of a secular program of education,
need not collide with the First Amendment's prohibition, the State may
not adopt programs or practices in its public schools or colleges which
'aid or oppose' any religion. Id., at 225, 83 S.Ct., at 1573. This prohibition
is absolute. It forbids alike the (272) preference of a religious
doctrine or the prohibition (107) of theory which is deemed antagonistic
to a particular dogma. As Mr. Justice Clark stated in Joseph Burstyn, Inc.
v. Wilson, 'the state has no legitimate interest in protecting any or all
religions from views distasteful to them * * *.' 343 U.S. 495, 505, 72
S.Ct. 777, 782, 96 L.Ed. 1098 (1952). The test was stated as follows in
Abington School District v. Schempp, supra, 374 U.S. at 222, 83 S.Ct. at
1571: '(W)hat are the purpose and the primary effect of the enactment?
If either is the advancement or inhibition of religion then the enactment
exceeds the scope of legislative power as circumscribed by the Constitution.'
These precedents inevitably determine the result in the present case. The
State's undoubted right to prescribe the curriculum for its public schools
does not carry with it the right to prohibit, on pain of criminal penalty,
the teaching of a scientific theory or doctrine where that prohibition
is based upon reasons that violate the First Amendment. It is much too
late to argue that the State may impose upon the teachers in its schools
any conditions that it chooses, however restrictive they may be of constitutional
guarantees. Keyishian v. Board of Regents, 385 U.S. 589, 605--606, 87 S.Ct.
675, 684-- 685, 17 L.Ed.2d 629 (1967).
In the present case, there can be no doubt that Arkansas has sought to
prevent its teachers from discussing the theory of evolution because it
is contrary to the belief of some that the Book of Genesis must be the
exclusive source of doctrine as to the origin of man. No suggestion has
been made that Arkansas' law may be justified by considerations of state
policy other than the religious views of some of its citizens. See
footnote 15 15
It is clear (108) that fundamentalist sectarian conviction was
and is the law's reason for existence. See
footnote 16 16
(273) Its antecedent, Tennessee's 'monkey law,' candidly stated
its purpose: to make it unlawful 'to teach any theory that denies the story
of the Divine Creation of man as taught in the Bible, and to teach instead
that man has descended from a (109) lower order of animals.' See
footnote 17 17
Perhaps the sensational publicity attendant upon the Scopes trial induced
Arkansas to adopt less explicit language. See
footnote 18 18
It eliminated Tennessee's reference to 'the story of the Divine Creation
of man' as taught in the Bible, but there is no doubt that the motivation
for the law was the same: to suppress the teaching of a theory which, it
was thought, 'denied' the divine creation of man.
Arkansas' law cannot be defended as an act of
religious neutrality. Arkansas did not seek to excise from the curricula
of its schools and universities all discussion of the origin of man. The
law's effort was confined to an attempt to blot out a particular theory
because of its supposed conflict with the Biblical account, literally read.
Plainly, the law is contrary to the mandate of the First, and in violation
of the Fourteenth, Amendment to the Constitution.
The judgment of the Supreme Court of Arkansas is reversed.
Reversed.
Mr. Justice BLACK, concurring.
I am by no means sure that this case presents a genuinely justiciable case or controversy.
Although Arkansas Initiated Act No. 1, the statute alleged to be unconstitutional,
was passed by the voters of Arkansas in 1928, we are informed that there
has never been even a single attempt by the State to enforce it. And the
pallid, unenthusiastic, even apologetic defense of the Act presented by
the State in this Court indicates that the State would make no attempt
to enforce the law (110) should it remain on the books for the next
century. Now, nearly 40 years after the law has slumbered on the books
as though dead, a teacher alleging fear that the State might arouse from
its lethargy and try to punish her has asked for a declaratory judgment
holding the law unconstitutional. She was subsequently joined by a parent
who alleged his interest in seeing that his two then schoolage sons 'be
informed of all scientific theories and hypotheses * * *.' But whether
this Arkansas teacher is still a teacher, fearful of punishment under the
Act, we do not know. It may be, as has been published in the daily press,
that she has long since given up her job as a teacher and moved to a distant
city, thereby escaping the dangers she had imagined might befall her under
this lifeless Arkansas Act. And there is not one iota of concrete evidence
to show that the parent-intervenor's sons have not been or will not be
taught about evolution. The textbook adopted for use in biology classes
in Little Rock includes an entire chapter dealing with evolution. There
is no evidence that this chapter is not being freely taught in the schools
that use the textbook and no evidence that the intervenor's sons, who were
15 and 17 years old when this suit was brought three years ago, are still
in high school or yet to take biology. Unfortunately, however, the State's
languid interest in the case has not prompted it to keep this Court informed
concerning facts that might easily justify dismissal of this alleged lawsuit
as moot or as lacking the qualities of a genuine case or controversy.
Notwithstanding my own doubts as to whether the case presents a justiciable
(274) controversy, the Court brushes aside these doubts and leaps
headlong into the middle of the very broad problems involved in federal
intrusion into state powers to decide what subjects and schoolbooks it
may wish to use in teaching state pupils. While I hesitate to enter into
the consideration and decision (111) of such sensitive state-federal
relationships, I reluctantly acquiesce. But, agreeing to consider this
as a genuine case or controversy, I cannot agree to thrust the Federal
Government's long arm the least bit further into state school curriculums
than decision of this particular case requires. And the Court, in order
to invalidate the Arkansas law as a violation of the First Amendment, has
been compelled to give the State's law a broader meaning than the State
Supreme Court was willing to give it. The Arkansas Supreme Court's opinion,
in its entirety, stated that: 'Upon the principal issue, that of constitutionality,
the court holds that Initiated Measure No. 1 of 1928, Ark.Stat.Ann. s 80--1627
and s 80--1628 (Repl.1960), is a valid exercise of the state's power to
specify the curriculum in its public schools. The court expresses no opinion
on the question whether the Act prohibits any explanation of the theory
of evolution or merely prohibits teaching that the theory is true; the
answer not being necessary to a decision in the case, and the issue not
having been raised.'
It is plain that a state law prohibiting all teaching of human development
or biology is constitutionally quite different from a law that compels
a teacher to teach as true only one theory of a given doctrine. It would
be difficult to make a First Amendment case out of a state law eliminating
the subject of higher mathematics, or astronomy, or biology from its curriculum.
And, for all the Supreme Court of Arkansas has said, this particular Act
may prohibit that and nothing else. This Court, however, treats the Arkansas
Act as though it made it a misdemeanor to teach or to use a book that teaches
that evolution is true. But it is not for this Court to arrogate to itself
the power to determine the scope of Arkansas statutes. Since the highest
court of (112) Arkansas has deliberately refused to give its statute
that meaning, we should not presume to do so.
It seems to me that in this situation the statute is too vague for us to
strike it down on any ground but that: vagueness. Under this statute as
construed by the Arkansas Supreme Court, a teacher cannot know whether
he is forbidden to mention Darwin's theory, at all or only free to discuss
it as long as he refrains from contending that it is true. It is an established
rule that a statute which leaves an ordinary man so doubtful about its
meaning that he cannot know when he has violated it denies him the first
essential of due process. See, e.g., Connally v. General Construction Co.,
269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Holding the
statute too vague to enforce would not only follow long-standing constitutional
precedents but it would avoid having this Court take unto itself the duty
of a State's highest court to interpret and mark the boundaries of the
State's laws. And, more important, it would not place this Court in the
unenviable position of violating the principle of leaving the States absolutely
free to choose their own curriculums for their own schools so long as their
action does not palpably conflict with a clear constitutional command.
The Court, not content to strike down this Arkansas Act on the unchallengeable
ground of its plain vagueness, chooses rather to invalidate it as a violation
of the Establishment of Religion Clause of the First Amendment. I would
not decide this case on such a sweeping ground for the following reasons,
among others.
1. In the first place I find it difficult to agree
with the Court's statement that 'there can be no doubt that Arkansas has
sought to prevent its teachers from discussing (275) the theory
of evolution because it is contrary to the belief of some that the Book
of Genesis must be the exclusive source of doctrine as to the origin of
man.' It may be instead that the people's motive was merely that it would
be best to remove this controversial (113) subject from its schools;
there is no reason I can imagine why a State is without power to withdraw
from its curriculum any subject deemed too emotional and controversial
for its public schools. And this Court has consistently held that it is
not for us to invalidate a statute because of our views that the 'motives'
behind its passage were improper; it is simply too difficult to determine
what those motives were. See, e.g., United States v. O'Brien, 391 U.S.
367, 382--383, 88 S.Ct. 1673, 1681--1682, 20 L.Ed.2d 672 (1968).
2. A second question that arises for me is whether
this Court's decision forbidding a State to exclude the subject of evolution
from its schools infringes the religious freedom of those who consider
evolution an anti- religious doctrine. If the theory is considered anti-religious,
as the Court indicates, how can the State be bound by the Federal Constitution
to permit its teachers to advocate such an 'anti-religious' doctrine to
schoolchildren? The very cases cited by the Court as supporting its conclusion
that the State must be neutral, not favoring one religious or anti-religious
view over another. The Darwinian theory is said to challenge the Bible's
story of creation; so too have some of those who believe in the Bible,
along with many others, challenged the Darwinian theory. Since there is
no indication that the literal Biblical doctrine of the origin of man is
included in the curriculum of Arkansas schools, does not the removal of
the subject of evolution leave the State in a neutral position toward these
supposedly competing religious and anti-religious doctrines? Unless this
Court is prepared simply to write off as pure nonsense the views of those
who consider evolution an anti-religious doctrine, then this issue presents
problems under the Establishment Clause far more troublesome than are discussed
in the Court's opinion.
3. I am also not ready to hold that a person hired
to teach school children takes with him into the classroom a constitutional
right to teach sociological, economic, (114) political, or religious
subjects that the school's managers do not want discussed. This Court has
said that the rights of free speech 'while fundamental in our democratic
society, still do not mean that everyone with opinions or beliefs to express
may address a group at any public place and at any time.' Cox v. State
of Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471; Cox
v. State of Louisiana, 379 U.S. 559, 574, 85 S.Ct. 476, 485--486, 13 L.Ed.2d
487. I question whether it is absolutely certain, as the Court's opinion
indicates, that 'academic freedom' permits a teacher to breach his contractual
agreement to teach only the subjects designated by the school authorities
who hired him.
Certainly the Darwinian theory, precisely like the Genesis story of the
creation of man, is not above challenge. In fact the Darwinian theory has
not merely been criticized by religionists but by scientists, and perhaps
no scientist would be willing to take an oath and swear that everything
announced in the Darwinian theory is unquestionably true. The Court, it
seems to me, makes a serious mistake in bypassing the plain, unconstitutional
vagueness of this statute in order to reach out and decide this troublesome,
to me, First Amendment question. However wise this Court may be or may
become hereafter, it is doubtful that, sitting in Washington, it can successfully
supervise and censor the curriculum of every public school in every hamlet
and city in the United States. I doubt that our wisdom is so nearly infallible.
I would either strike down the Arkansas Act as too vague to enforce, or
remand (276) to the State Supreme Court for clarification of its
holding and opinion.
Mr. Justice HARLAN, concurring.
I think it deplorable that this case should have come to us with such an
opaque opinion by the State's highest court. With all respect, that court's
handling of the (115) case savors of a studied effort to avoid coming
to grips with this anachronistic statute and to 'pass the buck' to this
Court. This sort of temporizing does not make for healthy operations between
the state and federal judiciaries. Despite these observations, I am in
agreement with this Court's opinion that, the constitutional claims having
been properly raised and necessarily decided below, resolution of the matter
by us cannot properly be avoided. * See, e.g.,
Chicago Life Insurance Co. v. Needles, 113 U.S. 574, 579, 5 S.Ct. 681,
683, 28 L.Ed. 1084 (1885).
I concur in so much of the Court's opinion as holds that the Arkansas statute
constitutes an 'establishment of religion' forbidden to the States by the
Fourteenth Amendment. I do not understand, however, why the Court finds
it necessary to explore at length appellants' contentions that the statute
is unconstitutionally vague and that it interferes with free speech, only
to conclude that these issues need not be decided in this case. In the
process of not deciding them, the Court obscures its otherwise straightforward
holding, and opens its opinion to possible implications from which I am
constrained to disassociate myself.
Mr. Justice STEWART, concurring in the result.
The States are most assuredly free 'to choose their own curriculums for
their own schools.' A State is entirely (116) free, for example,
to decide that the only foreign language to be taught in its public school
system shall be Spanish. But would a State be constitutionally free to
punish a teacher for letting his students know that other languages are
also spoken in the world? I think not.
It is one thing for a State to determine that 'the subject of higher mathematics,
or astronomy, or biology' shall or shall not be included in its public
school curriculum. It is quite another thing for a State to make it a criminal
offense for a public school teacher so much as to mention the very existence
of an entire system of respected human thought. That kind of criminal law,
I think, would clearly impinge upon the guarantees of free communication
contained in the First Amendment, and made applicable to the States by
the Fourteenth.
The Arkansas Supreme Court has said that the statute before us may or may
not be just such a law. The result, as Mr. Justice BLACK points out, is
that 'a teacher cannot know whether he is forbidden to mention Darwin's
theory at all.' Since I believe that no State could constitutionally forbid
a teacher 'to mention Darwin's theory at all,' and since Arkansas may,
or may not, have done just that, I conclude that the statute before us
is so vague as to be invalid under the Fourteenth Amendment. See Cramp
v. Board of Pub. Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285.
on its axis brings the day and night, in spite of all opposition.' The Story of My Life 247 (1932).
Footnote: * Short of reading the Arkansas Supreme Court's opinion to have proceeded on the premise that it need not consider appellants' 'establishment' contention, clearly raised in the state courts and here, in view of its holding that the State possesses plenary power to fix the curriculum in its public schools, I can perceive no tenable basis for remanding the case to the state court for an explication of the purpose and meaning of the statute in question. I am unwilling to ascribe to the Arkansas Supreme Court any such quixotic approach to constitutional adjudication. I take the first sentence of its opinion (ante, at 268, n. 7) to encompass an overruling of appellants' 'establishment' point, and the second sentence to refer only to their 'vagueness' claim.