Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 7 (1993)

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Cite as: 509 U. S. 1 (1993)

Opinion of the Court

a service would offend Art. II, 12, of the Arizona Constitution. Tr. of Oral Arg. 28.

It is a familiar principle of our jurisprudence that federal courts will not pass on the constitutionality of an Act of Congress if a construction of the Act is fairly possible by which the constitutional question can be avoided. See, e. g., United States v. Locke, 471 U. S. 84, 92 (1985), and cases cited therein. In Locke, a case coming here by appeal under 28 U. S. C. 1252 (1982 ed.), we said that such an appeal "brings before this Court not merely the constitutional question decided below, but the entire case." 471 U. S., at 92. "The entire case," we explained, "includes nonconstitutional questions actually decided by the lower court as well as nonconstitutional grounds presented to, but not passed on, by the lower court." Ibid. Therefore, in that case, we turned "first to the nonconstitutional questions pressed below." Ibid.

Here, in contrast to Locke and other cases applying the prudential rule of avoiding constitutional questions, only First Amendment questions were pressed in the Court of Appeals. In the opening paragraph of its opinion, the Court of Appeals noted that petitioners' appeal raised only First Amendment issues:

"The Zobrests appeal the district court's ruling that provision of a state-paid sign language interpreter to James Zobrest while he attends a sectarian high school would violate the Establishment Clause. The Zobrests also argue that denial of such assistance violates the Free Exercise Clause." 963 F. 2d, at 1191.

Respondent did not urge any statutory grounds for affirmance upon the Court of Appeals, and thus the Court of Appeals decided only the federal constitutional claims raised by petitioners. In the District Court, too, the parties chose to

that. The only concern that came up at the time was the Establishment Clause concern").

7

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