Majority Opinion

a.    Yes.  The Court first test with whether the disqualification for benefits imposes any burden on the Free Exercise Clause of religion.  There was no direct burden in this case (i.e., the was not an Act that required P to work Saturdays), but there was an indirect burden.  The fact that the burden was indirect was “only the beginning not the end of analysis.”  The Court has consistently held that an indirect burden is just as unconstitutional as a direct burden.  Here, D’s ruling forces P to choose between the precepts of her religion (attending church on Saturday) and forfeiting benefits, on the one hand, or abandoning one of the precepts of her religion in order to accept work, on the other.  This imposition puts the same burden on P as a fine if she did not attend Saturday church.  Plus, the Constitution—unlike some other freedoms—specifically prohibits the feds or state from infringing upon the free exercise of religion.

b.    South Carolina’s argument that providing compensation benefits is a “privilege,” not a “right,” is irrelevant.  Religion and expression can be infringed by the denial of benefits.

c.    The S.C. Unemployment Compensation Act’s unconstitutionality is compounded by the fact that S.C. expressly saves the Sunday worshipper, in another statute, from having to make the kind of choice that the Sabbatarian in this case has to make.  That other statute says that if an employee does not work Sundays for religious reasons, he cannot be terminated.  Not so in this case.  If the Sabbatarian does not work Saturdays, she can be terminated.

d.    Having found that there is a burden on P, the next step is to see if the state can justify this burden by meeting “strict scrutiny”—the state must show that there is a “compelling state interest” for the law and the law was “narrowly tailored” (there were no alternative forms of regulation that would combat such abuses).  The state argues that, if they allow for religious groups to meet the “good faith” requirement of the Act, then lots of people will file fraudulent claims feigning religious objections to Saturday work.  But the state has produced no evidence of this.  Even if the state did, there would be alternative forms of regulation (i.e., fraud-prevention techniques) that could combat such abuses.

1.  Dave says to remember that just because there is a burden on P, that is not the end of the story!  You next step is to apply strict scrutiny to see if the statute meets that scrutiny.  If it does, then no Free Exercise Clause violation.

e.    This case is distinguishable from Braunfeld v Brown.  In Braunfeld, orthodox Jewish merchants argued that a state Sunday closing law violated the Free Exercise Clause.  Specifically, they argued that they could not work on Saturday (for religious beliefs), and that forcing businesses to close on Sunday’s hurt their ability to make a living.  The Court held that that this law did put some burden on Ps.  But it held that the law did not violate the Free Exercise Clause because granting an exemption to Jews (on Sunday) would have undermined the state’s secular purpose—the purpose of assuring a uniform day of rest—which passes “strict scrutiny.”

In Sherbert, there was more of a burden on the Free Exercise of religion and less of a state interest than in Braunfeld.

f.    Finally, the Court holds that, with its holding, it is not fostering the “establishment” of the Seventh-day Adventist in S.C.  If anything, it accomplishes religious neutrality.  The Adventist can now get his pay if he does not work on Saturday, just like Sunday worshippers can.

1.  Dave says that this is yet another example of the Establishment Clause and Free Exercise Clause conflicting.  Look out for this on the exam, and deal with the issue.  The Court says the proper accommodation is to give more weight the Free Exercise Clause than the Establishment Clause.  Why?  Because the “exercise” issue in this case is much stronger than the “establishment” issue.  It is the difference between the Adventist being forced either to worship or work (“exercise”) versus a few more cents the taxpayer would have to pay in order that the Adventist have Saturday off (“establishment”).  Dave says the Court was right in letting the Free Exercise Clause win the day (is he succumbing to a cost-benefit analysis).