Thomas v. Review Board
Bill Long 7/29/05
450 US 707 (Decided 4/6/81)
On the surface this was a "slam-dunk" case for the Court. By an 8-1 majority the Court held that the State of Indiana's denying Thomas unemployment benefits after he quit a job for religious reasons (he was a Jehovah's Witness who believed his religion didn't permit him to work in the armaments industry) violated his constitutional right of Free Exercise ("FE") of religion. It is a "slam dunk" case because the facts are slightly different than Sherbert (1963) but the legal analysis is almost identical. What is important in this case, more than two decades later, however, is that the sole dissenter, William Rehnquist, articulated a theory here which would become the dominant theory for the Court in the 1990s on FE issues. We see, then, that in constitutional law, as often in life, the race is not given to the swift nor the battle to the strong, even if it is does not necessarily follow that time and chance happen to them all (cf. Ecc. 9:11).
Relevant Facts from Below
Thomas initially worked in the roll foundry of Blaw-Knox Foundry & Machinery Co. but was transferred to a department that produced turrets for military tanks. He quit his job, applied for unemployment benefits, and was denied compensation because, under the IN statute, his termination was not based upon a "good cause [arising] in connection with work." Though reversed by the IN Court of Appeals, this holding was affirmed by the IN Supreme Court. The IN Sup. Ct held that Thomas had incorrectly defined his claim as a FE claim. In fact, it was a "personal philosophical choice," and " a personal philosophical choice, rather than a religious choice, does not rise to the level of a first amendment claim."
The US Supreme Court's Analysis
After concluding that, in fact, Thomas' claim was a religious one, the US Supreme Court settled in to the three-fold test developed in Sherbert and subsequent cases: (1) Did the government action burden religious expression?; (2) Was there a compelling government interest in so burdening religion? and (3) Was the burden placed on religious expression by government the least restrictive means that they could have used to burden religion? The Court precisely echoed the Sherbert rationale. It wrote:
"Where the state conditions receipt of an important benefit upon conduct proscribed by a religious fraith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists."
The Court then inquired whether the state had a compelling interest in so burdening religious exercise. Two justifications for denial of benefits to Thomas were advanced: (1) to prevent widespread unemployment by people who might also leave work for "personal" reasons and expect to receive unemployment compensation; and (2) to avoid a detailed probing by employers into job applicants' religious beliefs. The Court concluded that these interests did not justify the burden placed on FE.
Finally, though the Court gave lip service to the contention that by mandating unemployment benefits for Thomas they were fostering the establishment of his religion (Jehovah's Witness), they dismissed it by quoting the passage from Sherbert which said that they "plainly" were not fostering such an establishment [in that case of Seventh-day Adventism by giving similar benefits] and by saying that the decision in Thomas simply reflected the "tension" between the two Religion Clauses.
Rehnquist's Dissent
Justice William Rehnquist was not one to be put off by smooth references to "plain" truth or by dismissive words about necessary "tensions" between the two Clauses. The thesis behind his searching dissent is that the "tension" between the FE and EC clauses of the 1st Amendment was a tension of the Court's making rather than one inherent in the text itself. Indeed Sherbert had reached so far in affirming FE that it inevitably ran afoul of the court's EC jurisprudence. For example, had the South Carolina legislature passed a law requiring unemployment compensation for those who left employment for religious reasons, this law would have violated the Lemon test, because it would have been motivated by a religious purpose and would have entangled government and religion excessively. Yet, the decision in Sherbert required South Carolina to do this.
Thus, Rehnquist would build his First Amendment religion jurisprudence in the following way: for the free exercise clause, he would accept the majority opinion in Braunfeld (1961) and Harlan's dissent in Sherbert in 1963. For his EC jurisprudence, he would accept Stewart's dissent in Abington (1962). While space doesn't allow a development of these ideas, they can be stated in a nutshell. The former held that it wasn't an improper burden on free exercise of religion for a Jewish shopkeeper to be required to close his doors on Sunday because of the state's interest in having a day of rest for its workers. The latter would have provided that an accommodation of parents' and school children's beliefs through Bible reading at school, rather than an elimination of them, would be constitutional. Both of these points are important because the themes will emerge in later cases, and they must be dealt with, I believe, in any theory of the relationship of the two clauses in 2005.
Conclusion
The next logical case summary to read is Hobbie (1987).
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