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OCTOBER TERM, 1962.
Syllabus. 374 U. S.
SHERBERT v. VERNER ET AL., MEMBERS OF
SOUTH CAROLINA EMPLOYMENT
SECURITY COMMISSION, ET^ AL.
APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA.
No. 526. Argued April (^) 24, 1963.-Decided June 17, 1963.
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. She was unable to obtain other employment (^) because she would not work on Sat- urday, and she filed a claim for unemployment (^) compensation bene- fits under the South Carolina Unemployment Compensation Act, which provides that a claimant is ineligible for benefits if he has failed, without good cause, to accept available suitable (^) work when offered him. The State Commission denied appellant's applica- tion on the ground (^) that she would not accept suitable work when offered, and its action was (^) sustained by the State Supreme Court. Held: As so applied, (^) the South Carolina statute abridged appel- lant's right to the free exercise of her religion, (^) in violation of the First Amendment, made applicable (^) to the states by the Fourteenth Amendment. Pp. 399-410. (a) Disqualification of appellant for unemployment compensa- tion benefits, solely because of her refusal to accept employment in which she would have to work on Saturday contrary to her religious belief, imposes an unconstitutional burden on the free exercise (^) of her religion. Pp. 403-406. (b) There is (^) no compelling state interest enforced in the eligibility provisions of the South Carolina statute which justifies the sub- stantial (^) infringement of appellant's right to religious freedom under the First Amendment. Pp. 406-409. (c) This decision does not foster the "establishment" (^) of the Seventh-Day Adventist (^) religion in South Carolina contrary to the First (^) Amendment. Pp. 409-410.
240 S. C. 286, 125 S. E. 2d 737, reversed.
William D. Donnelly argued the (^) cause and filed briefs for appellant.
SHERBERT v. VERNER.
398 Opinion of the Court.
Daniel (^) R. McLeod, Attorney General of South Carolina, argued the cause for appellees. With him on the brief was Victor S. Evans, Assistant Attorney General. Briefs of amici curiae, urging reversal, were filed by Morris B. Abram, (^) Edwin J. Lukas, Arnold Forster,Melvin L. Wulf, Paul Hartman, Theodore Leskes and Sol Rabkin for the American Jewish (^) Committee et al., and by Leo Pfeffer, Lewis H. (^) Weinstein, Albert Wald, Shad Polier, Ephraim S. London, Samuel Lawrence Brennglass and Jacob Sheinkman for the Synagogue Council of America et al.
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.' When she was unable to (^) obtain other employment because (^) from conscientious scruples she would not take Saturday work,^2 she filed a claim for
'Appellant 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. 2 After 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 Com- mission, 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.
SHERBERT v. VERNER.
398 Opinion of the Court.
ther, that^ a^ claimant^ is^ ineligible^ for^ benefits^ "[iIf^...^ he has failed, without^ good^ cause^...^ to^ accept^ available suitable work when offered him by the employment office or the employer.. ." The appellee Employment Secu- rity Commission, in^ administrative^ proceedings^ under^ the statute, found that appellant's^ restriction^ upon^ her^ avail- ability for Saturday work brought her within^ the^ pro- vision disqualifying for benefits insured workers who fail, without good cause,^ to accept^ "suitable^ work^ when^ of- fered ... 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 ac- cordance with the dictates of her conscience." 240 S. C. 286, 303-304, 125 S. E. 2d 737, 746.' We noted probable
4 It has been suggested that appellant (^) is not within the class en- titled to benefits under the South Carolina statute because her unem- ployment did not result from discharge or layoff due to lack of work. It is true that unavailability for work for^ some^ personal^ reason.s^ 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 Comnm'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
OCTOBER TERM, 1962.
Opinion of the Court. 374 U. S.
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,
- 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 author- ities, 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,
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 (^) appel- lant'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.
OCTOBER TERM. 1962.
Opinion of the Court. 374 U. S.
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." (^) 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 impo- sition 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.' American
In 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 wvear 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. 1 See for examples of conditions and qualifications (^) upon govern- mental privileges and benefits which have been invalidated (^) because of their tendency to inhibit constitutionally protected activity, Stein- berg v. United States, 143 Ct. Cl. 1, 163 F. Supp. 590; Syrek v. Cali-
SHERBERT v. (^) VERNER.
(^398) Opinion of the Court.
Communications Assn. v. Douds, (^339) U. S. 382, 390; Wieman v. Updegrafj, (^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 recog- nized 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 Proc- ess 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 (^) free- doms. 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 con- dition 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.,
fornia Unemployment Ins. Board, 54 Cal. (^) 2d1 519, 354 P. 2d 625; Fino v. Maryland Employment Security Board. 218 Md. 504, (^147) A. 2d 738; Chicago Housing Authority v. Blackman, 4 Il. 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. 2( 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).
SHERBERT v. VERNER.
398 Opinion^ of^ the^ Court.
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^ claim- ants 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 judi- cial 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 suffi- cient 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. 7 We note that before (^) the instant decision, state supreme (^) courts had, without exception, granted benefits to persons who were physi- cally 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 Employ- ment 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
OCTOBER TERM, 1962.
Opinion of the Court. 374 U. S.
479, 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 reli- gious practices in Braunfeld v. Brown, supra. The^ Court recognized that the Sunday closing law which that decision sustained undoubtedly served "to make the prac- tice 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 theo- retically possible, appeared to present an administrative
conscienticus 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 com- pensation 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, reli- gious 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); ef. 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 concern- ing 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).
OCTOBER TERM, 1962.
DOUGLAS, J., concurring. 374 U. S.
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 reli- gious convictions (^) respecting the day of rest. This hold- ing but (^) reaffirms a principle that we announced a decade and a (^) half ago, namely that no State may "exclude indi- vidual 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 legisla- tion." 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 Four- teenth 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. MR. (^) 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 Advent- ist, 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.
SHERBERT (^) v. VERNER.
398 DOUGLAS, (^) J., concurring.
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.^1 Religious scruples (^) of a Sikh require him to carry a reg- ular or a symbolic sword. Rex v. Singh, (^) 39 A. I. R. 53 (Allahabad, 1952). 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. See Murdock v. Pennsylvania, (^319) U. S. 105. Religious scruples of a (^) Quaker compel him to refrain from swearing and to (^) affirm instead. See King v. Fear- son, Fed. Cas. No. 7,790, (^14) Fed. Cas. 520; 1 U. S. C. § 1; Federal (^) Rules of Civil Procedure, Rule 43 (d); United States v. Schwimmer, 279 U. S. 644, (^655) (dissenting opinion). 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.^3 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.
'See Shorter Encyclopaedia of Islam (Cornell Press, 1953), 336,
2See Narasu, (^) The Essence of Buddhism (^) (3d ed. 1948), 52-55; 6 Encyclopaedia of Religion (^) and Ethics (1913), 63-65. 3 See Seventh-day Adventists Answer Questions on Doctrine (^) (1957), 149-153, (^) 622-624; Mitchell, Seventh-Day Adventists (1st ed. 1958), 127, 176-178.
SHERBERT v. VERNER.
398 STEWART, J., concurring in result.
but no more so than does the salary of any public em- ployee. Thus, this case does not involve the problems of direct or indirect state assistance (^) to a religious organi- zation-matters relevant to the Establishment Clause, not in issue here.
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 Estab- lishment 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 Tor- caso 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." ' 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 Constitu- tion 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
'McGowan v. Maryland, 366 U. S. 420, 442.
OCTOBER TERM, 1962.
STEWART, J., (^) concurring in result. 374 U. S.
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 consti- tutional 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 mean- ing 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 legiti- mate 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 con- troversy (^) 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 (^) compensa- tion 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 circum- stances 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 2 The obvious potentiality of such collision has been studiously ignored (^) by the Court, but has not escaped the perception of com- mentators. (^) See, e. g., Katz, Freedom of Religion and State Neutral- ity, 20 U. of Chi. L. Rev. 426, 428 (1953); Kauper, Prayer, Public Schools and the Supreme Court, 61 Mich. L. Rev. 1031, 1053 (1963).
OCTOBER TERM, 1962.
STEWART, ,J., concurring in result. 374 U. S.
tion 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.^8 Thus, we do not have before us a situation where a State provides unemploy- ment compensation generally, and singles (^) out for dis- qualification 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,
I See Judson Mills v. South Carolina Unemployment Compensation Comin'n, 204 S. C. 37, 28 S. E. 2d 535; Hartsville Cotton Mill v. South Carolina Employment Security Cornm'n. 224 S. C. 407, 79 S. E. 2d 381.
SHERBERT v. VERNER.
398 STEWART, J., concurring in result.
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 invest- ment.' In other words, the issue in this case-anld 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 particu- larized administration (^) of South Carolina's Unemployment Compensation Act. Even upon the unlikely assumption that the appellant could not find suitable non-Saturday employment, the appellant at the worst would be denied
I As noted by the Court, "The record indicates that of the 150 or more Seventh-day Adventists in the Spartanburg area, only appel- lant and one other have been unable to find suitable non-Saturday employment." Ante, p. 399, n. 2.
