Free Exercise cases and jurisprudence and sherbert v. verner and south carolina and compelling interest

This case, in which the Court overruled the South Carolina Supreme Court (7-2), is probably one of the more significant Free Exercise cases because it established the rule, in place until Smith v. Employment Division (1990), and then put back in place a few years later, that state burdens on religious practice were unconstitutional unless the state could show a compelling interest in so burdening the individual in his/her practice. The two dissenters (Harlan and White) argued, however, that the Court's new rule in this instance both controverted previous decisions (Braunfeld v. Brown in 1961) and seemed to place the Free Exercise (FE) and Establishment Clause interpretation on a collision course (this was also noted by Stewart in his concurrence). Thus, there is a lot of ground to cover here.

Relevant Facts

Appellant, a Seventh-Day Adventist from South Carolina (SC), was discharged by her employer because of her unwillingness to work on Saturday, the Adventists' Sabbath. When she was unable to find suitable replacement work, she applied for unemployment compensation benefits. She was denied these benefits, and that decision was upheld all the way to the SC Supreme Court. The ground for denial was that her termination and the requirements of SC law (that choosing not to work for religious reasons was not being "available for work" within the language of the unemployment compensation statute) didn't prevent her from exercising her religion, and thus did not violate the FE clause of the 1st Amendment. In a surprisingly short opinion by the most voluble of Justices, William Brennan, the Court reversed the SC court 7-2 and held that the denial of benefits was an impermissible burden on her religion.

Brennan's Argument

Justice Brennan framed the issue as follows. "If...the decision of the SC Supreme Court is to withstand appellant's constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's religion may be justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate...'" (last half quoting NAACP v. Button). This will set the pattern for how the Court will consider Free Exercise claims for a quarter century. (1) Does the (state) practice burden religion? (2) Is the burden justified by a compelling state interest? A third question will be added along the way, though not expressly in Sherbert: (3) Has the state chosen the least restrictive means of exercising its compelling interest?

Brennan thus turns to the first question and concludes, with the conviction that Brennan could easily muster on lots of issues, "it is clear that it does." He goes on: "Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the parctice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." Brennan likened this kind of burden on the free exercise of religion to a fine imposed against appellant for Saturday worship.

Then on the question of whether the state had a compelling interest in doing this, Brennan first emphasized that the proper test is the compelling interest and not the rational basis test. Such a conclusion is "basic" for him. But does SC have such a compelling interest? The only interest advanced in the briefing was SC's concern in making sure that malingerers do not, under the guise of religion, say they are unavailable for work and thus fraudulently obtain unemployment benefits. But Brennan quickly brushes that objection aside. For "even if the possibility of spurious claims did threaten to dilute the fund...it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights." This is a form of the third "test" listed above. Thus, benefits to Ms. Sherbert.

Dissenting Voices

Though there were two thoughtful concurrences (from Douglas, who framed the issue as a freedom of conscience case, and from Stewart, who warned about the clash between this case and the court's EC jurisprudence), the dissent carefully pointed out that this decision implicitly overruled the 1961 Braunfeld case, which upheld Sunday closing laws in Maryland because of the state's interest in having a day of rest for its citizens, and then mentioned that the case also seemed to contradict the Court's evolving EC jurisprudence. This latter point deserves mention, because it lies at the heart of the Court's problems with the EC in 2005.

Harlan argued that the rather "wooden" (Stewart's word) reading of the EC in its school prayer cases earlier in the 1960s, where the state had to be "neutral," meant that no religious practice could be favored by the state because it would be tantamount to an unlawful establishment of religion. However, in this instance the state (SC) is forced to carve out an exception to its general rule of eligibility on the basis of religion. Therefore, Ms. Sherbert is being favored precisely because of her religion. Harlan would hold that a state could, under the doctrine of accommodation, provide for an exception to its unemployment rules in the circumstances of this case, but that it wouldn't be permitted under the present (1963) Court's jurisprudence.

This will not be the last we hear of this important issue.

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