SHERBERT v. VERNER, (1963)
374 U.S. 398, 83 S. Ct. 1790; 10 L. Ed. 2d 965
Argued: April 24, 1963 Decided: June 17,
1963
MR. 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.1 When she
was unable to obtain other employment because from conscientious scruples she
would not take Saturday work,2 she filed a claim for [374 U.S. 398,
400] unemployment compensation benefits
under the South Carolina Unemployment Compensation Act.3 That law
provides that, to be eligible for benefits, a claimant must be "able to
work and . . . available for work"; and, further, [374 U.S. 398, 401] 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, which
rejected appellant's contention that, as applied to her, the disqualifying
provisions of the South Carolina statute abridged her right to the free
exercise of her religion secured under the Free Exercise Clause of the First
Amendment through the Fourteenth Amendment. 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." 240 S. C. 286,
303-304, 125 S. E. 2d 737, 746.4 We noted probable [374 U.S. 398,
402] jurisdiction of appellant's
appeal. 371 U.S. 938 . 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, Cantwell v. Connecticut, 310
U.S. 296, 303 . Government may neither compel
affirmation of a repugnant belief, Torcaso v. Watkins,
367 U.S. 488 ; nor penalize or discriminate against
individuals or groups because they hold religious views abhorrent to the
authorities, Fowler v. Rhode Island,
345 U.S. 67 ; nor employ the taxing power to inhibit the dissemination of
particular religious views, Murdock v.
Pennsylvania, 319 U.S. 105 ; Follett
v. McCormick, 321 U.S. 573 ; cf. Grosjean v. American
Press Co., 297 U.S. 233 . On the other hand, [374 U.S. 398, 403] 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." Braunfeld v. Brown, 366 U.S. 599, 603 . The conduct or actions so regulated have invariably
posed some substantial threat to public safety, peace or order. See, e. g., Reynolds v. United States, 98
U.S. 145 ; Jacobson v. Massachusetts, 197 U.S. 11 ; Prince v. Massachusetts, 321 U.S. 158 ; Cleveland v. United States,
329 U.S. 14 .
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 . . . ."
NAACP v. Button, 371 U.S. 415, 438 .
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 [374 U.S.
398, 404] inquiry.5 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." Braunfeld v. Brown, supra, at 607. 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.6 American [374 U.S. 398, 405]
Communications Assn. v. Douds, 339 U.S.
382, 390 ; Wieman v. Updegraff, 344 U.S. 183, 191 -192; Hannegan v. Esquire, Inc., 327 U.S. 146, 155 -156. For example, in Flemming v. Nestor, 363 U.S. 603, 611 , the Court recognized with respect to Federal Social
Security benefits that "[t]he interest of a covered employee under the Act
is of sufficient substance to fall within the protection from arbitrary
governmental action afforded by the Due Process Clause." In Speiser v. Randall, 357 U.S. 513
, we emphasized that conditions upon public benefits cannot be sustained
if they so operate, whatever their purpose, as to inhibit or deter the exercise
of First Amendment freedoms. We there struck down a condition which limited the
availability of a tax exemption to those members of the exempted class who
affirmed their loyalty to the state government granting the exemption. While
the State was surely under no obligation to afford such an exemption, we held
that the imposition of such a condition upon even a gratuitous benefit
inevitably deterred or discouraged the exercise of First Amendment rights of
expression and thereby threatened to "produce a result which the State
could not command directly." 357 U.S., [374 U.S. 398, 406] at 526. "To deny an exemption to
claimants who engage in certain forms of speech is in effect to penalize them
for such speech." Id., at 518. Likewise, 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." S. C. Code, 64-4. 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," Thomas v. Collins,
323 U.S. 516, 530 . [374 U.S. 398, 407] 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.
But that possibility is not apposite here because no such objection appears to
have been made before the South Carolina Supreme Court, and we are unwilling to
assess the importance of an asserted state interest without the views of the
state court. Nor, if the contention had been made below, would the record
appear to sustain it; there is no proof whatever to warrant such fears of
malingering or deceit as those which the respondents now advance. Even if
consideration of such evidence is not foreclosed by the prohibition against
judicial inquiry into the truth or falsity of religious beliefs, United States v. Ballard, 322 U.S. 78—a
question as to which we intimate no view since it is not before us==it is
highly doubtful whether such evidence would be sufficient to warrant a
substantial infringement of religious liberties. For 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.7 Cf. Shelton
v. Tucker, 364 U.S. 479 , [374 U.S. 398, 408] 487-490; Talley
v. California, 362 U.S. 60, 64; Schneider
v. State, 308 U.S. 147, 161; Martin
v. Struthers, 319 U.S. 141, 144 -149.
In these respects, then, the state
interest asserted in the present case is wholly dissimilar to the interests
which were found to justify the less direct burden upon religious practices in Braunfeld v. Brown, supra. The Court recognized
that the Sunday closing law which that decision sustained undoubtedly served
"to make the practice of [the Orthodox Jewish merchants'] . . . religious
beliefs more expensive," 366 U.S., at 605. But the statute was
nevertheless saved by a countervailing factor which finds no equivalent in the
instant case—a strong state interest in providing one uniform day of rest for
all workers. That secular objective could be achieved, the Court found, only by
declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically possible, appeared to
present an administrative [374 U.S. 398, 409] problem of such magnitude, or to
afford the exempted class so great a competitive advantage, that such a
requirement would have rendered the entire statutory scheme unworkable.8
In the present case no such justifications underlie the determination of the
state court that appellant's religion makes her ineligible to receive benefits.9
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. See School District of
Abington Township v. Schempp, ante, p. 203. 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 [374 U.S. 398, 410] 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. See
note 2, supra. 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. This
holding but reaffirms a principle that we announced a decade and a half ago,
namely that no State may "exclude individual Catholics, Lutherans,
Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the
members of any other faith, because of their faith, or lack of it, from
receiving the benefits of public welfare legislation." Everson v. Board of Education, 330 U.S.
1, 16 .
In view of the result we have reached
under the First and Fourteenth Amendments' guarantee of free exercise of
religion, we have no occasion to consider appellant's claim that the denial of
benefits also deprived her of the equal protection of the laws in violation of
the Fourteenth Amendment.
The judgment of the South Carolina
Supreme Court is reversed and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
Justice Douglas’s concurrence and Justices Harlan and White’s
dissent omitted.
MR. 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.
Twenty-three years ago in Cantwell v. Connecticut, 310 U.S. 296,
303, the Court said that both the Establishment Clause and the Free Exercise
Clause of the First Amendment were made wholly applicable to the States by the
Fourteenth Amendment. In the intervening years several cases involving claims
of state abridgment of individual religious freedom have been decided here—most
recently Braunfeld v. Brown, 366 U.S. 599
, and Torcaso v. Watkins, 367 U.S. 488 . During the
same period "cases dealing with the specific problems arising under the
`Establishment' Clause which have reached this Court are few in number."1
The most recent are last Term's Engel v.
Vitale, 370 U.S. 421 , and this Term's Schempp and Murray cases, ante, p. 203.
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 [374 U.S. 398, 414] occasion,
and specifically in Braunfeld v. Brown, supra, 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 on occasion, and specifically in Engel, Schempp
and Murray, 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.2 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.
If the appellant's refusal to work on Saturdays [374 U.S. 398, 415] were based on indolence, or on a compulsive
desire to watch the Saturday television programs, no one would say that South
Carolina could not hold that she was not "available for work" within
the meaning of its statute. That being so, the Establishment Clause as
construed by this Court not only permits but affirmatively requires South
Carolina equally to deny the appellant's claim for unemployment compensation when
her refusal to work on Saturdays is based upon her religious creed. For, as
said in Everson v. Board of Education,
330 U.S. 1, 11, the Establishment Clause bespeaks "a government . . .
stripped of all power . . . to support, or otherwise to assist any or all religions
. . .," and no State "can pass laws which aid one religion . . . ." Id., at 15. In Mr. Justice Rutledge's words,
adopted by the Court today in Schempp, ante, p.
217, the Establishment Clause forbids "every form of public aid or support
for religion." 330 U.S., at 32 . In the words of
the Court in Engel v. Vitale, 370
U.S., at 431 , reaffirmed today in the Schempp case,
ante, p. 221, the Establishment Clause forbids the "financial support of
government" to be "placed behind a particular religious belief."
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. I think the process of
constitutional decision in the area of the relationships between government and
religion demands considerably more than the invocation of broad-brushed
rhetoric of the kind I have quoted. And I think that the guarantee of religious
liberty embodied in the Free Exercise Clause affirmatively requires government
to create an atmosphere of hospitality and accommodation [374 U.S. 398,
416] to individual belief or disbelief.
In short, I think our Constitution commands the positive protection by
government of religious freedom - not only for a minority, however small - not
only for the majority, however large - but for each of us.
South Carolina would deny unemployment
benefits to a mother unavailable for work on Saturdays because she was unable
to get a babysitter.3 Thus, we do not have before us a situation
where a State provides unemployment compensation generally, and singles out for
disqualification only those persons who are unavailable for work on religious
grounds. This is not, in short, a scheme which operates so as to discriminate
against religion as such. But the Court nevertheless holds that the State must
prefer a religious over a secular ground for being unavailable for work—that
state financial support of the appellant's religion is constitutionally
required to carry out "the governmental obligation of neutrality in the
face of religious differences. . . ."
Yet in cases decided under the
Establishment Clause the Court has decreed otherwise. It has decreed that
government must blind itself to the differing religious beliefs and traditions
of the people. With all respect, I think it is the Court's duty to face up to
the dilemma posed by the conflict between the Free Exercise Clause of the
Constitution and the Establishment Clause as interpreted by the Court. It is a
duty, I submit, which we owe to the people, the States, and the Nation, and a
duty which we owe to ourselves. For so long as the resounding but fallacious
fundamentalist rhetoric of some of our Establishment Clause opinions remains on
our books, to be disregarded at will as in the present case, [374 U.S. 398,
417] or to be undiscriminatingly
invoked as in the Schempp
case, ante, p. 203, so long will the
possibility of consistent and perceptive decision in this most difficult and
delicate area of constitutional law be impeded and impaired. And so long, I
fear, will the guarantee of true religious freedom in our pluralistic society
be uncertain and insecure.
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, supra. 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, simply as a
matter of fact. The Braunfeld
case involved a state criminal statute. The undisputed effect of that statute,
as pointed out by MR. JUSTICE BRENNAN in his dissenting opinion in that case,
was that "`Plaintiff, Abraham Braunfeld, will be
unable to continue in his business if he may not stay open on Sunday and he
will thereby lose his capital investment.' In other words, the issue in this
case—and we do not understand either appellees or the Court to contend
otherwise—is whether a State may put an individual to a choice between his
business and his religion." 366 U.S., at 611 .
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. Even upon the unlikely assumption
that the appellant could not find suitable non-Saturday employment,4
the appellant at the worst would be denied [374 U.S. 398, 418] a maximum of 22
weeks of compensation payments. 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.
Footnotes for Justice Brennan’s Opinion
1Appellant became a
member of the Seventh-day Adventist Church in 1957, at a time when her
employer, a textile-mill operator, permitted her to work a five-day week. It
was not until 1959 that the work week was changed to six days, including Saturday,
for all three shifts in the employer's mill. No question has been raised in
this case concerning the sincerity of appellant's religious beliefs. Nor is
there any doubt that the prohibition against Saturday labor is a basic tenet of
the Seventh-day Adventist creed, based upon that religion's interpretation of
the Holy Bible.
2After her discharge,
appellant sought employment with three other mills in the Spartanburg area, but
found no suitable five-day work available at any of the mills. In filing her
claim with the Commission, she expressed a willingness to accept employment at
other mills, or even in another industry, so long as Saturday work was not
required. The record indicates that of the 150 or more Seventh-day Adventists
in the Spartanburg area, only appellant and one other have been unable to find
suitable non-Saturday employment.
3The pertinent sections
of the South Carolina Unemployment Compensation Act (S. C. Code, Tit. 68, 68-1
to 68-404) are as follows:
" 68-113.
Conditions of eligibility for benefits. - An unemployed insured worker shall be
eligible to receive benefits with respect to any week only if the Commission
finds that: . . .
"(3) He is able
to work and is available for work, but no claimant shall be considered
available for work if engaged in self-employment of such nature as to return or
promise remuneration in excess of the weekly benefit amounts he would have
received if otherwise unemployed over such period of time. .
. .
" 68-114.
Disqualification for benefits. - Any insured worker shall be ineligible for
benefits: . . .
"(2) Discharge
for misconduct. - If the Commission finds that he has been discharged for
misconduct connected with his most recent work prior to filing a request for
determination of insured status or a request for initiation of a claim series
within an established benefit year, with such ineligibility beginning with the
effective date of such request, and continuing not less than five nor more than
the next twenty-two consecutive weeks (in addition to the waiting period), as
determined by the Commission in each case according to the seriousness of the
misconduct . . . .
"(3) Failure to
accept work. - (a) If the Commission finds that he has failed, without good
cause, (i) either to apply for available suitable
work, when so directed by the employment office or the Commission, (ii) to
accept available suitable work when offered him by the employment office or the
employer or (iii) to return to his customary self-employment (if any) when so
directed by the Commission, such ineligibility shall continue for a period of
five weeks (the week in which such failure occurred and the next four weeks in
addition to the waiting period) as determined by the Commission according to
the circumstances in each case . . . .
"(b) In
determining whether or not any work is suitable for an individual, the
Commission shall consider the degree of risk involved to his health, safety and
morals, his physical fitness and prior training, his experience and prior earnings,
his length of unemployment and prospects for securing local work in his
customary occupation and the distance of the available work from his
residence."
4It has been suggested
that appellant is not within the class entitled to benefits under the South
Carolina statute because her unemployment did not result from discharge or
layoff due to lack of work. It is true that unavailability for work for some
personal reasons not having to do with matters of conscience or religion has
been held to be a basis of disqualification for benefits. See, e. g., Judson Mills v. South Carolina Unemployment
Compensation Comm'n, 204 S. C. 37, 28 S. E. 2d
535; Stone Mfg. Co. v. South Carolina
Employment Security Comm'n, 219 S. C. 239, 64 S.
E. 2d 644. But appellant claims that the Free Exercise Clause prevents the
State from basing the denial of benefits upon the "personal reason"
she gives for not working on [374 U.S. 398, 402] Saturday. Where the consequence of
disqualification so directly affects First Amendment rights, surely we should
not conclude that every "personal reason" is a basis for
disqualification in the absence of explicit language to that effect in the
statute or decisions of the South Carolina Supreme Court. Nothing we have found
in the statute or in the cited decisions, cf.
Lee v. Spartan Mills, 7 CCH Unemployment Ins. Rep. S. C. § 8156 (C. P.
1944), and certainly nothing in the South Carolina Court's opinion in this case
so construes the statute. Indeed, the contrary seems to have been that court's
basic assumption, for if the eligibility provisions were thus limited, it would
have been unnecessary for the court to have decided appellant's constitutional
challenge to the application of the statute under the Free Exercise Clause.
Likewise, the decision
of the State Supreme Court does not rest upon a finding that appellant was
disqualified for benefits because she had been "discharged for
misconduct" - by reason of her Saturday absences - within the meaning of
68-114 (2). That ground was not adopted by the South Carolina Supreme Court,
and the appellees do not urge in this Court that the disqualification rests
upon that ground.
5In a closely analogous
context, this Court said:
". . . the fact
that no direct restraint or punishment is imposed upon speech or assembly does
not determine the free speech question. Under some circumstances, indirect
`discouragements' undoubtedly have the same coercive effect upon the exercise
of First Amendment rights as imprisonment, fines, injunctions or taxes. A
requirement that adherents of particular religious
faiths or political parties wear identifying arm-bands, for example, is
obviously of this nature." American
Communications Assn. v. Douds, 339 U.S. 382, 402 . Cf. Smith v.
California, 361 U.S. 147, 153 -155.
6See for examples of
conditions and qualifications upon governmental privileges and benefits which
have been invalidated because of their tendency to inhibit constitutionally
protected activity, Steinberg v. United
States, 143 Ct. Cl. 1, 163 F. Supp. 590; Syrek v. California [374 U.S. 398, 405]
Unemployment Ins. Board, 54
Cal. 2d 519, 354 P.2d 625; Fino v. Maryland
Employment Security Board, 218 Md. 504, 147 A. 2d 738; Chicago Housing Authority v. Blackman, 4 Ill. 2d 319, 122 N. E. 2d
522; Housing Authority of Los Angeles v.
Cordova, 130 Cal. App. 2d 883, 279 P.2d 215; Lawson v. Housing Authority of Milwaukee, 270 Wis. 269, 70 N. W. 2d
605; Danskin v. San Diego Unified School District,
28 Cal. 2d 536, 171 P.2d 885; American
Civil Liberties Union v. Board of Education, 55 Cal. 2d 167, 359 P.2d 45;
cf. City of Baltimore v. A. S. Abell Co., 218 Md. 273, 145 A. 2d 111. See also Willcox, “Invasions of the First Amendment Through
Conditioned Public Spending,” 41 Cornell L. Q. 12 (1955); Emerson, “Toward a
General Theory of the First Amendment,” 72 Yale L. J. 877, 942-943 (1963); 36
N. Y. U. L. Rev. 1052 (1961); 9 Kan. L. Rev. 346 (1961); Note, “Unconstitutional
Conditions," 73 Harv. L. Rev. 1595, 1599-1602
(1960).
7We note that before
the instant decision, state supreme courts had, without exception, granted
benefits to persons who were physically available for work but unable to find
suitable employment solely because of a religious prohibition against Saturday
work. E. g., In re Miller, 243 N.C.
509, 91 S. E. 2d 241; Swenson v. Michigan
Employment Security Comm'n, 340 Mich. 430, 65 N.
W. 2d 709; Tary v. Board of Review, 161 Ohio St. 251,
119 N. E. 2d 56. Cf. Kut v. Albers Super Markets, Inc., 146 Ohio
St. 522, 66 N. E. 2d 643, appeal dismissed sub nom. Kut v. Bureau of Unemployment Compensation, 329 U.S. 669. One author
has observed, "the law was settled that [374 U.S. 398, 408] conscientious objections to work on the
Sabbath made such work unsuitable and that such objectors were nevertheless
available for work. . . . A contrary opinion would
make the unemployment compensation law unconstitutional, as a violation of
freedom of religion. Religious convictions, strongly held, are so impelling as
to constitute good cause for refusal. Since availability refers to suitable
work, religious observers were not unavailable because they excluded Sabbath
work." Altman, “Availability for Work: A Study in Unemployment
Compensation” (1950), 187. See also Sanders, “Disqualification for Unemployment
Insurance,” 8 Vand. L. Rev. 307, 327-328 (1955); 34
N.C. L. Rev. 591 (1956); cf. Freeman, “Able To Work
and Available for Work,” 55 Yale L. J. 123, 131 (1945). Of the 47 States which
have eligibility provisions similar to those of the South Carolina statute,
only 28 appear to have given administrative rulings concerning the eligibility
of persons whose religious convictions prevented them from accepting available
work. Twenty-two of those States have held such persons entitled to benefits,
although apparently only one such decision rests exclusively upon the federal
constitutional ground which constitutes the basis of our decision. See 111 U.
of Pa. L. Rev. 253, and n. 3 (1962); 34 N.C. L. Rev. 591, 602, n. 60 (1956).
8See Note, “State Sunday
Laws and the Religious Guarantees of the Federal Constitution,” 73 Harv. L. Rev. 729, 741-745 (1960).
9These considerations
also distinguish the quite different case of Flemming v. Nestor, supra, upon which appellees rely. In that case the
Court found that the compelling federal interests which underlay the decision
of Congress to impose such a disqualification justified whatever effect the
denial of social security benefits may have had upon the disqualified class.
See 363 U.S., at 612. And compare Torcaso v. Watkins,
supra, in which an undoubted state interest in ensuring the veracity and
trustworthiness of Notaries Public was held insufficient to justify the
substantial infringement upon the religious freedom of applicants for that position
which resulted from a required oath of belief in God. See 74 Harv. L. Rev. 611, 612-613 (1961); 109 U. of Pa. L. Rev.
611, 614-616 (1961).
Footnotes for Justice Stewart’s Opinion
1McGowan v. Maryland, 366 U.S. 420, 442.
2The obvious
potentiality of such collision has been studiously ignored by the Court, but has
not escaped the perception of commentators. See, e. g., Katz, “Freedom of
Religion and State Neutrality,” 20 U. of Chi. L. Rev. 426, 428 (1953); Kauper, “Prayer, Public Schools and the Supreme Court,” 61
Mich. L. Rev. 1031, 1053 (1963).
3See Judson Mills v. South Carolina Unemployment
Compensation Comm'n, 204 S. C. 37, 28 S. E. 2d
535; Hartsville Cotton Mill v. South
Carolina Employment Security Comm'n, 224 S. C.
407, 79 S. E. 2d 381.
4As noted by the Court,
"The record indicates that of the 150 or more Seventh-day Adventists in
the Spartanburg area, only appellant and one other have been unable to find
suitable non-Saturday employment." Ante,
P. 399, n. 2.