Sherbert v. Verner/Concurrence Douglas

by William O. Douglas

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 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. ^[1] Religious scruples of a Sikh require him to carry a regular 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, 63 S.Ct. 870, 87 L.Ed. 1292. Religious scruples of a Quaker compel him to refrain from swearing and to affirm instead. See King v. Fearson, 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, 49 S.Ct. 448, 451, 73 L.Ed. 889 (dissenting opinion). Religious scruples of a Buddhist may require him to refrain from partaking of any flesh, even of fish. ^[2]

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. That was the essence of the Court's decision in the Sunday Blue Law Cases (Gallagher v. Crown Kosher Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536; Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563; McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393), a ruling from which I then dissented (McGowan v. Maryland, supra, 366 U.S. pp. 575-576, 81 S.Ct. pp. 1225-1226) and still dissent. See Arlan's Dept. Store v. Kentucky, 371 U.S. 218, 83 S.Ct. 277, 9 L.Ed.2d 264.

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.

This case is resolvable not in terms of what an individual can demand of government, but solely in terms of what government may not do to an individual in violation of his religious scruples. The fact that government cannot exact from me a surrender of one iota of my religious scruples does not, of course, mean that I can demand of government a sum of money, the better to exercise them. For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.

Those considerations, however, are not relevant here. 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.

Notes

1  See Shorter Encyclopaedia of Islam (Cornell Press, 1953), 336, 493.

2  See 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.