SHERBERT v. VERNER 374 U.S. 398 (1963)

Sherbert, a Seventh-Day Adventist, lost her job after the mill at which she had been working went on a six-day work week and she refused Saturday work. She filed for unemployment compensation, was referred to a job, but declined it because it would have required Saturday work. By declining proffered employment she was no longer "available for work" under South Carolina's rules and hence no longer eligible for unemployment benefits.

Justice william j. brennan, speaking for the Supreme Court, concluded that the disqualification imposed a burden on Mrs. Sherbert's free exercise of religion. The first amendment, he declared, protected not only belief but observance. Even an incidental burdening of religion could be justified only if the state could show a compelling state interest in not granting an exemption.

This decision was a significant departure from the secular regulation approach to free exercise claims which had been affirmed by the Court as recently as Braunfeld v. Brown (1961). Brennan made little attempt to distinguish Sherbert from Braunfeld. Justice william o. douglas, concurring, rejected the secular regulation approach.

Justice potter stewart concurred in the result, disassociating himself from Brennan's reasoning. Stewart saw tension developing between the Court's interpretation of the free exercise and establishment clauses. To grant free exercise exemptions from otherwise valid secular regulations preferred religious over nonreligious people. In establishment clause cases, however, any governmental action that had the effect of advancing religion was forbidden. Stewart would have relieved the tension by relaxing the establishment clause rule.

Justice john marshall harlan, joined by Justice byron r. white, dissented. For Harlan, the notion of a constitutional compulsion to "carve out an exception" based on religious conviction was a singularly dangerous one.

Richard E. Morgan
(1986)