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Dateline Sunday U. S. A.
Warren L. Johns
Issued with the author's permission
Chapter 16. THE RIGHT
Suppose every Christian seventh-day-Sabbath worshiper in the United States pulled up stakes, moved to Wyoming, and there became a religious majority. And suppose a realization of political power whetted the settlers' appetites, so that they proceeded to impose their convictions on the local public through civil law. Would you want to live there?
A hitherto religious minority would suddenly possess political power. The hypothetical "new majority" could eye with interest the McGoiran v. Maryland decision handed down by the Supreme Court of the United States in 1961. Using identical language, it could enact a "Sabbath" law making it a crime not to observe the seventh-day Sabbath and paraphrase the words of the chief justice to make them read, "Saturday is a day apart from all others. The cause is irrelevant; the fact exists."
The author who framed this question about life under a "new majority continued:
Inasmuch as Sabbath keepers believe that Sabbath keeping is one of the requirements of the Ten-Commandment law and that society itself would be greatly blessed if all people kept the Sabbath that Jesus kept, they could violate the God-given principle of individual choice and,
 a. Sponsor and pass by majority legislative vote, a strict Saturday-rest law. They could pattern this law after some of the blue laws already on the statute books of certain states by substituting the word "Saturday" for the word "Sunday."
b. There might be a vigorous protest against such an un-American law by those who believe in our Bill of Rights and the essential rightness of the First Amendment to the Constitution, but the political-minded Sabbath keepers could easily ignore this protest by calling this a health-and-welfare law. Surely the laboring man needs rest from toil and protection from those who would exploit him!
c. When some would say: "Give us a one-day-in-seven rest law but do not discriminate against us and our religious beliefs by enforcing a Saturday law," the Sabbath keepers could justify their designation of a particular day by declaring that this is merely a police measure, that there must be uniformity, and that the majority need not respect the rights of the minority on such questions.1
Christian keepers of the seventh day will never colonize Wyoming or any other state. Hopefully, if given the taste of political strength, they would never abandon an historic commitment to separation of church and state and resort to civil law to enforce observance of their day of worship. Ideally, concern would rather be directed to protecting the right of an individual to rest one day each week.
The Christian who is committed to voluntary seventh-day Sabbath observance acts without government compulsion. On the contrary, he often endures direct economic hardship because of his inner compulsion to "keep holy" the seventh day.
The 1961 Supreme Court Sunday-law decisions acknowledged the indirect economic disadvantage which confronted a Sabbath keeper forced to surrender his time on Sunday. The price the government demanded was 14.28 percent of his time – a high rate of interest to pay because personal religious practice did not conform to majority custom. But this was not all.  Hundreds have seen careers evaporate and lifelong security swept away, all because of a decision to unite with a religious persuasion which puts a premium on the literal observance of the fourth commandment.
Consider, for instance, the church elder relieved of his job with a railroad only a few years before retirement benefits were available, solely because he determined to honor a commitment to conscience. Add the aircraft industry executive; the telephone lineman; the oil company employee; and the maintenance man. Unavailable for work on Saturday, they lost their jobs. Emergencies, along with works of necessity and charity, yes. "It is lawful to do well on the Sabbath days." Matthew 12:12. Routine commerce or labor on the seventh day – no, regardless of damage to the pocketbook.
Remarkably, personal hardship and economic loss have been minimized because many employers have taken pains to respect conscientious convictions. Acting without compulsion of the state, employers often have adjusted schedules to honor individual need. But sometimes, through no fault of the employer, the very character of the job prevents such accommodation. Then the Sabbath keeper may find himself out of a job.
Adell Sherbert had to make this kind of decision in 1959. She had worked in the Spartan Mills in Spartanburg, South Carolina, for thirty-five years. In 1957 she joined the Seventh-day Adventist Church. At the time, the mill was operating five days a week, and there was no problem. But in 1959, all three shifts were pushed to a six-day week. Management asked Miss Sherbert to work Saturdays, and she respectfully declined .2
What about her right to rest? If Miss Sherbert had been a majority Christian who worshiped on Sunday, she would have had no problem. Not only did South Carolina have an ancient/ blue law restricting normal commercial activity on the first day of the week, which the United States Supreme Court let live unchallenged in 1961, but statutory protection guaranteed Sunday rest as a matter of conscience.  In the event the state authorized the mills to run on Sunday during "national emergencies, there was the assurance:
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.3
Miss Sherbert worshiped on Saturday and was thus excluded from this statutory protection. She was a sober, capable employee available for work six days a week. She lost her job at Spartan Mills. She tried to find employment in three other mills but failed.
At last she went to the state for unemployment compensation. She indicated a willingness to work in another mill, or even in another industry, as long as Saturday work was not required.
But the South Carolina Employment Security Commission refused her request for compensation. The state supreme court agreed with the commission and ruled against her, four to one. The lone dissenting voice, Justice Bussey, argued that it was "morally injurious" to require a strict Sabbath observer to work on the seventh day against religious principle.
If the state has a constitutional right as a matter of police power to force a citizen to rest on Sunday, what about the right of the individual to choose a day of religious worship for himself as a matter of free exercise of conscience? Did the denial of unemployment compensation to Miss Sherbert by the State of South Carolina constitute an infringement upon her free exercise of religion, in violation of the First Amendment?
The United States Supreme Court tackled the issue in 1963. State administrative agencies as well as state supreme courts had split on results time after time as individuals pursued claims for unemployment compensation when they lost their jobs for refusal to engage in "secular" activity on Saturday.  Denial of claims was usually based on the premise that the claimant was not truly "available for work" within the meaning of the compensation statutory scheme.
Did the State of South Carolina have a constitutional right to deny Miss Sherbert unemployment compensation when her conscience told her on what day of the week to rest? A seven-man majority of the United States Supreme Court decided that there had been an infringement of Miss Sherbert's free exercise of religion. Justices Harlan and White dissented, finding no constitutional violation.
Miss Sherbert was "available for work" six out of every seven days. Health and welfare interests of the state would not condone a seven-day work week. The 1961 court majority had gone on record approving an enforced observance of a state-selected day of rest. Still, the dissenting voices in Sherbert v. Verner took a position which denied the right of an individual to select the day of rest for himself without suffering financial hardship.
In the eyes of Harlan, as stated in his dissent,4 Miss Sherbert was in fact unavailable for work because of a "purely personal reason" and therefore outside the scope of statutory protection. He was not swayed by the fact that she was available for work six days a week in any industry where a job was available. According to Harlan, "She was denied benefits just as any other claimant would be denied benefits who was not 'available for work' for personal reasons" and not "because she was a Seventh-day Adventist."
He equated "religious conviction" with "personal consideration," declaring, "The fact that these personal considerations spring from her religious convictions was wholly without relevance to the state court's application of the law."
 Harlan was troubled with the majority result which he felt "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."
For one thing, he believed the secular purpose of the Sherbert case was even clearer than that of the Braunfeld decision. He also declared that "the indirect financial burden of the present law is far less than that involved in Braunfeld."
Two years after Braunfeld, Harlan candidly acknowledged that "forcing a store owner to close his business on Sunday may well have the effect of depriving him of a satisfactory livelihood if his religious convictions require him to close on Saturday as well." But far from backing away from the Braunfeld holding, Justice Harlan simply indicated that the loss to the individual minority was even smaller in the Sherbert case. "Here we are dealing only with temporary benefits, amounting to a fraction of regular weekly wages and running for not more than twenty-two weeks," he said.
Although the associate justice acknowledged that the state could accommodate religious conviction, if it wished, by granting exceptions to eligibility requirements for people like Miss Sherbert, he could not admit that the state was in any way constitutionally compelled to make such an accommodation.
Belittling the economic plight of Miss Sherbert, he saw only an "indirect, remote, and insubstantial effect . . . on the exercise of appellant's religion," and concluded that the compulsion on the state to provide this compensation was inappropriate and in fact threatened to give "direct financial assistance to religion."
Harlan and White ignored the fact that the majority in Braunfeld had subordinated free exercise of religion only under pressure from an alleged public interest which might be upset by a Sabbatarian exemption. In the Sherbert case there was little evidence of comparable pressure of public interest. There was only individual conscience which the Harlan-White view reduced to "purely personal reasons."
 The dissenting words contrasted sharply with the echoes of court opinions written in the forties which had exalted religious liberty and placed it on a pedestal along with other First Amendment guarantees – completely out of reach of mere public convenience or administrative whim.
United States Supreme Court Justice Frank Murphy, a Roman Catholic and one-time governor of Michigan, had become known as a leading exponent of ultimate religious liberty. Frequently he spoke for the court, and his words helped to carve a niche of special protection for First Amendment guarantees.
Justice William J. Brennan, a Roman Catholic, came to the Supreme Court in 1956. Like Justice Murphy, he put religious liberty on a pedestal. It was Brennan who enunciated the thinking of the seven-man majority in the 1963 Sherbert v. Verner decision.5 He began by quoting from the statute which declared a claimant ineligible for benefits where "he has failed, without good cause . . . to accept available suitable work when offered him by the employment office of the employer."
Did Miss Sherbert have "good cause"?
In order for the South Carolina decision to be valid, it was necessary to find no infringement on free exercise of religion. If infringement was found, some evidence of "compelling state interest" must justify it. According to William Brennan, the South Carolina holding failed on both counts. First of all, he found that the state had imposed a burden on Miss Sherbert's religion by exerting pressure upon her to forgo a religious practice. He insisted: "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." As a practical matter, this type of burden was equal to "a fine imposed against appellant for her Saturday worship." And here is where the court found the crux of the infringement, for "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."
 Yes, said the majority, the denial of unemployment compensation to Miss Sherbert was an infringement on her right to free exercise of religion. And the statutory protection given to those conscientiously opposed to Sunday work meant that "the unconstitutionality of the disqualification of the Sabbatarian is thus compounded by the religious discrimination which South Carolina's general statutory scheme necessarily effects."
Was there a compelling state interest which could justify this infringement? No, said the seven justices.
When the opposition brought out that the possibility of spurious claims for unemployment insurance might be, argued as "compelling state interest," Justice Brennan cast the argument aside, since a state should first show that alternative means of regulation were not available to avoid the infringement. The alleged valid secular interest that the majority had clung to in the Braunfeld decision did not cast enough of a shadow in Sherbert v. Verner even to make a good argument. Said the justice: "No such justifications underlie the determination of the state court that the appellant's religion makes her ineligible to receive benefits."
Brennan carefully pointed out that the majority holding would not be construed as "fostering the 'establishment' of the Seventh-day Adventist religion." Instead it reflected simply the governmental obligation of neutrality in the face of religious differences. Nor was it "a case in which an employee's religious convictions serve to make him a nonproductive member of society," since the court had noted that of all the Seventh-day Adventists in the Spartanburg area, only Miss Sherbert and one other had been unable to find work and still keep the seventh day holy.
"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."
 Both Justices Douglas and Stewart who, with Brennan, had gone on record two years before as believing that Sunday law violated the "free exercise clause," wrote concurring opinions in the Sherbert case.
Douglas cited a variety of minority religious beliefs and customs and noted: "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." Justice Douglas made it plain that this was the reasoning in the series of 1961 Sunday-law decisions and "a ruling from which I then dissented . . . and still dissent."
The Sunday-law ruling "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."
Justice Douglas compared the state's interference in matters of religious conviction to similar conditions in Soviet Russia, "where a churchgoer is given a second-class citizenship, resulting in harm though perhaps not in measurable damages." He brushed aside the suggestion that a payment of financial benefits to Miss Sherbert might indirectly benefit her church. Such payment would be of no more benefit to a church than would the salary of any employed individual. In reality, Justice Douglas saw the issue as not "what the individual can demand of government" but rather "what government may not do to an individual in violation of his religious scruples."
Justice Stewart concurred with the majority finding that Miss Sherbert's free exercise of religion had been infringed. He said:
 "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, supra, the Court has shown what has seemed to me a distressing insensitivity to the appropriate demands of this constitutional guarantee.
More than mere passive protection, "the guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and accommodation to individual belief or disbelief." The Constitution demands the positive government protection of religious freedom for small minority and large majority alike.
Under this view of "free exercise," Stewart had no difficulty in reaching a decision favorable for Miss Sherbert. But previous rulings by the majority that government-written prayers and sponsorship of Bible reading in public schools constituted establishments of religion, now impaled the majority on the horns of a dilemma. What Stewart deemed an insensitive and positively wooden approach to the "establishment clause" which "forbids the 'financial support of government' to be 'placed behind a particular religious belief'" now became an obstacle for a consistent finding which could approve compensation for Miss Sherbert.
The heart of the dilemma, as viewed by Stewart, was this: How could South Carolina pay public money to Miss Sherbert to protect her free exercise of religion without running at cross purposes to the court's mechanistic concept of the "establishment clause" which Stewart labeled as "historically unsound and constitutionally wrong"?
 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, or to be undiscriminatingly invoked as in the Schempp case. . . . 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.
In conclusion, Stewart leveled a blast at the Braunfeld decision, making it plain that a finding of infringement in Sherbert v. Verner should more than ever justify a finding of infringement in Braunfeld, for the sake of consistency.
The impact upon the individual's religious freedom in the Sherbert case was considerably less burdensome since there were no criminal sanctions involved and a maximum of twenty-two weeks of compensation was at stake. However, Justice Stewart found it difficult to believe there was any less of a burden upon religious practice in Braunfeld than in Sherbert. In fact, to find free exercise infringement in Sherbert, the associate justice was convinced that "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."
As a practical matter, a finding of free exercise infringement in the Sherbert case was monumental, but it could not match the sensational overtones that would have reverberated had similar finding by the majority come from the Braunfeld decision in 1961. Sherbert involved the power of a state to deny a citizen social welfare benefits created by a state. The blue law issue involved a religious tradition interwoven in social fabric, with criminal sanctions. To find curtailment of Sunday activity an infringement of Braunfeld's right to practice his religion, would likely have broken the back of Sunday laws in the United States.
Justices Brennan, Stewart, and Douglas had consistently found infringement of free exercise in both the Braunfeld and Sherbert cases. Justice Harlan had consistently seen no infringement in either case.
 Justice Goldberg, who saw infringement, and Justice White, who took the Harlan view of no infringement, had not been members of the court at the time of the Braunfeld case.
Only Chief justice Warren, Associate Justice Black, and Associate Justice Clark had seen infringement in Sherbert even though having gone on record as finding a public interest which outweighed any infringement of the free exercise of religion in Braunfeld. Had any two of these three members of the court seen violation of free exercise in Braunfeld, Sunday laws would have been dead, for all practical purposes, by the time of the Sherbert decision.
As it was, Miss Sherbert and her fellow church members were grateful for court recognition of a constitutional right to observe their chosen day of rest.
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Varner J. Johns, "A Sad State of Affairs," Liberty, Vol. 60 (1965), No. 1, pp. 27, 28.
Religious News Service, December 18, 1962.
South Carolina Code, Section 64-4. Quoted in Sherbert v. Verner, 374 U.S. 398 (1963).
Sherbert v. Verner, Op. cit.
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