15 The Accommodation Regime: 1963-1990

In the 19^th and first half of the 20^th century, neutrality was the dominant approach to interpreting the Free Exercise clause, though this was more a default stance than a carefully considered doctrine. As late as 1961, a majority of the Court upheld Sunday closing laws for businesses which burdened owners—here Jewish owners—whose sabbath day was not Sunday. The Court held these laws had a valid secular purpose (a day of rest for workers) and were not designed to target or harass those faiths with different Sabbath days. Despite the incidental burden such laws created on religious exercise (either working on one’s sabbath or only being open five days a week), they were thus held constitutional.

The liberal justices on the Court, however, chafed at such rulings. Sunday closing laws force religious minorities to make “a choice between [their] business and [their] religion,” wrote Justice Brennan in his dissenting opinion in Braunfeld v. Brown (1961). Allowing the creation of these burdens, Brennan wrote, should only be permissible when the state’s goals were compelling. Brennan purposefully employed the language of strict scrutiny here, arguing that the Court should require legislatures to grant accommodations for religious exercise when doing so did not harm the state’s pursuit of a compelling interest.

In 1963, Brennan’s position became the majority view, marking a dramatic shift in the interpretation and application of the Free Exercise Clause. The Court would now require states and the federal government to accommodate sincere religious beliefs if their laws burdened those beliefs, unless denying the accommodation was justified by a compelling state interest. In other words, states had to meet strict scrutiny if they denied a requested religious accommodation. This shift took place in Sherbert v. Verner, a case involving a woman who had been denied unemployment benefits by South Carolina because as a Seventh-day Adventist, she would not work on Saturdays. The Court ruled that South Carolina must accommodate her beliefs, as there was no compelling interest that justified the burden its rules had created.

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Sherbert v. Verner

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374 U.S. 398 (1963)

Facts: Sherbert belonged to the Seventh-day Adventist Church, a Christian denomination that held Saturday, rather than Sunday, as its Sabbath. She was fired when her employer—a textile mill—went to a six-day work schedule and she refused to work on Saturdays.

She was unable to find other work that did not pose similar scheduling problems and applied for unemployment. The state of South Carolina rejected her claim, noting that she had been offered work but refused to take it and that as such she was not eligible for unemployment under state law. Sherbert sued, arguing the state’s rules unconstitutionally burdened her religious exercise.

Question: Did South Carolina’s denial of Sherbert’s unemployment benefits violate the Free Exercise Clause?

Vote: Yes, 7-2

For the Court: Justice Brennan

Concurring opinion: Justice Douglas

Concurring opinion: Justice Stewart

Dissenting opinion: Justice Harlan

JUSTICE BRENNAN delivered the opinion of the Court.

Appellant, a member of the Seventh-day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. When she was unable to obtain other employment because, from conscientious scruples, she would not take Saturday work, she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act. That law provides that, to be eligible for benefits, a claimant must be “able to work and … available for work”; and, further, that a claimant is ineligible for benefits “[i]f … he has failed, without good cause… to accept available suitable work when offered him by the employment office or the employer…”

The appellee Employment Security Commission, in administrative proceedings under the statute, found that appellant’s restriction upon her availability for Saturday work brought her within the provision disqualifying for benefits insured workers who fail, without good cause, to accept “suitable work when offered … by the employment office or the employer…” The Commission’s finding was sustained by the Court of Common Pleas for Spartanburg County. That court’s judgment was, in turn, affirmed by the South Carolina Supreme Court… The State Supreme Court held specifically that appellant’s ineligibility infringed no constitutional liberties because such a construction of the statute “places no restriction upon the appellant’s freedom of religion, nor does it in any way prevent her in the exercise of her right and freedom to observe her religious beliefs in accordance with the dictates of her conscience.”

We noted probable jurisdiction of appellant’s appeal. We reverse the judgment of the South Carolina Supreme Court and remand for further proceedings not inconsistent with this opinion.

I

The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such. Government may neither compel affirmation of a repugnant belief; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities; nor employ the taxing power to inhibit the dissemination of particular religious views.

On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for “even when the action is in accord with one’s religious convictions, [it] is not totally free from legislative restrictions.” The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order.

Plainly enough, appellant’s conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina 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…”

II

We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant’s religion. We think it is clear that it does. In a sense, the consequences of such a disqualification to religious principles and practices may be only an indirect result of welfare legislation within the State’s general competence to enact; it is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry. For “[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.”

Here, not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice 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. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.

Nor may the South Carolina court’s construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant’s “right,” but merely a “privilege.” It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege… to condition the availability of benefits upon this appellant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.

Significantly, South Carolina expressly saves the Sunday worshipper from having to make the kind of choice which we here hold infringes the Sabbatarian’s religious liberty. When, in times of “national emergency,” the textile plants are authorized by the State Commissioner of Labor to operate on Sunday,

no employee shall be required to work on Sunday . . . who is conscientiously opposed to Sunday work, and if any employee should refuse to work on Sunday on account of conscientious . . . objections, he or she shall not jeopardize his or her seniority by such refusal or be discriminated against in any other manner.

No question of the disqualification of a Sunday worshipper for benefits is likely to arise, since we cannot suppose that an employer will discharge him in violation of this statute. The unconstitutionality of the disqualification of the Sabbatarian is thus compounded by the religious discrimination which South Carolina’s general statutory scheme necessarily effects.

III

We must next consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant’s First Amendment right. It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, “[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.”

No such abuse or danger has been advanced in the present case. The appellees suggest no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund, but also hinder the scheduling by employers of necessary Saturday work… there is no proof whatever to warrant such fears of malingering or deceit as those which the respondents now advance… even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, 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…

IV

In holding as we do, plainly we are not fostering the “establishment” of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.  Nor does the recognition of the appellant’s right to unemployment benefits under the state statute serve to abridge any other person’s religious liberties. Nor do we, by our decision today, declare the existence of a constitutional right to unemployment benefits on the part of all persons whose religious convictions are the cause of their unemployment. This is not a case in which an employee’s religious convictions serve to make him a nonproductive member of society. Finally, nothing we say today constrains the States to adopt any particular form or scheme of unemployment compensation. Our holding today is only that South Carolina may not constitutionally apply the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest…

JUSTICE DOUGLAS, concurring.

The case we have for decision seems to me to be of small dimensions, though profoundly important. The question is whether the South Carolina law which denies unemployment compensation to a Seventh-day Adventist who, because of her religion, has declined to work on her Sabbath, is a law “prohibiting the free exercise” of religion as those words are used in the First Amendment.

It seems obvious to me that this law does run afoul of that clause.

Religious scruples of Moslems require them to attend a mosque on Friday and to pray five times daily. Religious scruples of a Sikh require him to carry a regular or a symbolic sword.  Religious scruples of a Jehovah’s Witness teach him to be a colporteur, going from door to door, from town to town, distributing his religious pamphlets. Religious scruples of a Quaker compel him to refrain from swearing and to affirm, instead. Religious scruples of a Buddhist may require him to refrain from partaking of any flesh, even of fish.

The examples could be multiplied, including those of the Seventh-day Adventist, whose Sabbath is Saturday and who is advised not to eat some meats.

These suffice, however, to show that many people hold beliefs alien to the majority of our society — beliefs that are protected by the First Amendment but which could easily be trod upon under the guise of “police” or “health” regulations reflecting the majority’s views.

Some have thought that a majority of a community can, through state action, compel a minority to observe their particular religious scruples so long as the majority’s rule can be said to perform some valid secular function.

That was the essence of the Court’s decision in the Sunday Blue Law Cases, a ruling from which I then dissented…

That ruling of the Court travels part of the distance that South Carolina asks us to go now. She asks us to hold that, when it comes to a day of rest, a Sabbatarian must conform with the scruples of the majority in order to obtain unemployment benefits.

The result turns not on the degree of injury, which may indeed be nonexistent by ordinary standards. The harm is the interference with the individual’s scruples or conscience — an important area of privacy which the First Amendment fences off from government. The interference here is as plain as it is in Soviet Russia, where a churchgoer is given a second-class citizenship, resulting in harm, though perhaps not in measurable damages.

If appellant is otherwise qualified for unemployment benefits, payments will be made to her not as a Seventh-day Adventist, but as an unemployed worker. Conceivably these payments will indirectly benefit her church, but no more so than does the salary of any public employee. Thus, this case does not involve the problems of direct or indirect state assistance to a religious organization — matters relevant to the Establishment Clause, not in issue here.

JUSTICE STEWART, concurring in the result.

Although fully agreeing with the result which the Court reaches in this case, I cannot join the Court’s opinion. This case presents a double-barreled dilemma which, in all candor, I think the Court’s opinion has not succeeded in papering over. The dilemma ought to be resolved.

I

… I am convinced that no liberty is more essential to the continued vitality of the free society which our Constitution guarantees than is the religious liberty protected by the Free Exercise Clause explicit in the First Amendment and imbedded in the Fourteenth. And I regret that, on occasion, and specifically in Braunfeld v. Brown, the Court has shown what has seemed to me a distressing insensitivity to the appropriate demands of this constitutional guarantee. By contrast, I think that the Court’s approach to the Establishment Clause has … been not only insensitive but positively wooden, and that the Court has accorded to the Establishment Clause a meaning which neither the words, the history, nor the intention of the authors of that specific constitutional provision even remotely suggests.

But my views as to the correctness of the Court’s decisions in these cases are beside the point here. The point is that the decisions are on the books. And the result is that there are many situations where legitimate claims under the Free Exercise Clause will run into head-on collision with the Court’s insensitive and sterile construction of the Establishment Clause. The controversy now before us is clearly such a case.

Because the appellant refuses to accept available jobs which would require her to work on Saturdays, South Carolina has declined to pay unemployment compensation benefits to her. Her refusal to work on Saturdays is based on the tenets of her religious faith. The Court says that South Carolina cannot, under these circumstances, declare her to be not “available for work” within the meaning of its statute, because to do so would violate her constitutional right to the free exercise of her religion.

Yet what this Court has said about the Establishment Clause must inevitably lead to a diametrically opposite result… To require South Carolina to so administer its laws as to pay public money to the appellant under the circumstances of this case is thus clearly to require the State to violate the Establishment Clause as construed by this Court. This poses no problem for me, because I think the Court’s mechanistic concept of the Establishment Clause is historically unsound and constitutionally wrong…

II

My second difference with the Court’s opinion is that I cannot agree that today’s decision can stand consistently with Braunfeld v. Brown. The Court says that there was a “less direct burden upon religious practices” in that case than in this. With all respect, I think the Court is mistaken…

The impact upon the appellant’s religious freedom in the present case is considerably less onerous. We deal here not with a criminal statute, but with the particularized administration of South Carolina’s Unemployment Compensation Act…

I agree with the Court that the possibility of that denial is enough to infringe upon the appellant’s constitutional right to the free exercise of her religion. But it is clear to me that, in order to reach this conclusion, the Court must explicitly reject the reasoning of Braunfeld v. Brown. I think the Braunfeld case was wrongly decided, and should be overruled, and accordingly I concur in the result reached by the Court in the case before us.

JUSTICE HARLAN, whom JUSTICE WHITE joins, dissenting.

Today’s decision is disturbing both in its rejection of existing precedent and in its implications for the future…

… the purpose of the legislature was to tide people over, and to avoid social and economic chaos, during periods when work was unavailable. But, at the same time, there was clearly no intent to provide relief for those who, for purely personal reasons, were or became unavailable for work...

The South Carolina Supreme Court has uniformly applied this law in conformity with its clearly expressed purpose. It has consistently held that one is not “available for work” if his unemployment has resulted not from the inability of industry to provide a job, but rather from personal circumstances, no matter how compelling…

In the present case, all that the state court has done is to apply these accepted principles. Since virtually all of the mills in the Spartanburg area were operating on a six-day week, the appellant was “unavailable for work,” and thus ineligible for benefits, when personal considerations prevented her from accepting employment on a full-time basis in the industry and locality in which she had worked. The fact that these personal considerations sprang from her religious convictions was wholly without relevance to the state court’s application of the law. Thus, in no proper sense can it be said that the State discriminated against the appellant on the basis of her religious beliefs or that she was denied benefits because she was a Seventh-day Adventist. She was denied benefits just as any other claimant would be denied benefits who was not “available for work” for personal reasons.

With this background, this Court’s decision comes into clearer focus. What the Court is holding is that, if the State chooses to condition unemployment compensation on the applicant’s availability for work, it is constitutionally compelled to carve out an exception — and to provide benefits — for those whose unavailability is due to their religious convictions. Such a holding has particular significance in two respects.

First, despite the Court’s protestations to the contrary, the decision necessarily overrules Braunfeld v. Brown, which held that it did not offend the Free Exercise Clause of the Constitution for a State to forbid a Sabbatarian to do business on Sunday…

Second, the implications of the present decision are far more troublesome than its apparently narrow dimensions would indicate at first glance. The meaning of today’s holding, as already noted, is that the State must furnish unemployment benefits to one who is unavailable for work if the unavailability stems from the exercise of religious convictions. The State, in other words, must single out for financial assistance those whose behavior is religiously motivated, even though it denies such assistance to others whose identical behavior (in this case, inability to work on Saturdays) is not religiously motivated. It has been suggested that such singling out of religious conduct for special treatment may violate the constitutional limitations on state action…  My own view, however, is that, at least under the circumstances of this case, it would be a permissible accommodation of religion for the State, if it chose to do so, to create an exception to its eligibility requirements for persons like the appellant. The constitutional obligation of “neutrality,” is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation…

For very much the same reasons, however, I cannot subscribe to the conclusion that the State is constitutionally compelled to carve out an exception to its general rule of eligibility in the present case. Those situations in which the Constitution may require special treatment on account of religion are, in my view, few and far between, and this view is amply supported by the course of constitutional litigation in this area. Such compulsion in the present case is particularly inappropriate in light of the indirect, remote, and insubstantial effect of the decision below on the exercise of appellant’s religion and in light of the direct financial assistance to religion that today’s decision requires.

Like many landmark Supreme Court decisions, Sherbert was controversial, with critics generally focusing on the concern that the decision would “open the floodgates” to individuals seeking accommodations to civil and criminal laws, damaging the government’s ability to fairly administer the laws.

As we will see in the next chapter, the Court would effectively overturn Sherbert in 1990. While this would free states from being required to grant accommodations, many states—and the federal government—would afterward pass laws that more or less maintained Sherbert’s formulation within their own jurisdictions. Given this, it’s worthwhile to briefly go over the doctrinal framework the test creates.

Under Sherbert and most contemporary religious freedom statutes, plaintiffs must initially demonstrate that they have:

1. a sincerely held
2. religious belief that
3. is being substantially burdened by the state

These terms are assessed using the criteria discussed in the preceding chapter. As noted there, plaintiffs almost always meet these criteria, though judges have disagreed whether “substantial” is something that courts should independently assess or whether the believer’s sincere beliefs determine the substantiality of the burden the law creates.

Assuming this threshold test is met, the Court then applies more or less the same strict scrutiny test seen in the First Amendment speech clause context, using standard interest-means analysis. Here, states can only deny an accommodation if doing so:

1. advances a compelling state interest, and
2. the state can show that there are no other means of advancing this interest without infringing Free Exercise rights (which also implies narrow tailoring)

By requiring states to meet this test in order to deny an accommodation, Brennan and the Sherbert majority signaled that they wanted to elevate the protection of religious liberty—particularly for minority faiths unlikely to have the influence needed to impact the legislative process—to levels comparable to those seen in speech and anti-discrimination law.