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Sherbert v. Verner
Supreme Court of the United States
Argued April 24, 1963 Decided June 17, 1963
Full case name: Sherbert v. Verner et al., Members of South Carolina Employment Security Commission, et al. Citations: 374 U.S. 398; 374 U.S. 398; 83 S. Ct. 1790; 10 L. Ed. 2d 965; 1963 U.S. LEXIS 976 Prior history: Employment Security Commission denied claim; affirmed by Court of Common Pleas for Spartanburg County; affirmed by South Carolina Supreme Court, 240 S. C. 286, 303-304, 125 S. E. 2d 737, 746; probably jurisdiction noted, 371 U.S. 938
Holding
The Free Exercise Clause mandates strict scrutiny for unemployment compensation claims.
Court membership
Chief Justice: Earl Warren Associate Justices: Hugo Black, William O. Douglas, Tom C. Clark, John Marshall Harlan II, William J. Brennan, Jr., Potter Stewart, Byron White, Arthur Goldberg
Case opinions
Majority by: Brennan Concurrence by: Douglas Concurrence by: Stewart Dissent by: Harlan Joined by: White
Laws applied
U.S. Const. amend. I, amend. XIV

Sherbert v. Verner, 374 U.S. 398 (1963),^[1] was a case in which the Supreme Court of the United States held that the Free Exercise Clause of the First Amendment required that government demonstrate a compelling government interest before denying unemployment compensation to someone who was fired because her job conflicted with her religion.

The case established the Sherbert Test, requiring demonstration of such a compelling interest in Free Exercise cases. This test was eventually all-but-eliminated in Employment Division v. Smith 494 U.S. 872 (1990). However, it was resurrected by Congress in the federal Religious Freedom Restoration Act (RFRA) of 1993, but the Court in City of Boerne v. Flores, 521 U.S. 507 (1997) and Gonzales v. UDV, 546 U.S. ___ (2006), limited its application to Federal laws only.

Contents 1 Background of the case 2 The Court's decision 2.1 Brennan's majority opinion 2.2 Douglas and Stewart's concurring opinions 2.3 Harlan's dissenting opinion 3 The Sherbert Test 4 Limiting of the Sherbert Test 5 See also 6 External links

Adeil Sherbert, a member of the Seventh-day Adventist Church, worked as a textile-mill operator. Two years after her conversion to that faith, her employer switched from a five-day to a six-day workweek, including Saturdays. Since God in Exodus 20:8-11 forbade working on Saturdays (seventh day is the Sabbath of the LORD thy God), she refused to work that day and was fired. Sherbert could not find any other work and applied for unemployment compensation. Her claim was denied and the Employment Security Commission's decision was affirmed by a state trial court and the South Carolina Supreme Court.

The Supreme Court in a 7-2 decision reversed the Commission and the lower courts, finding that denying Sherbert's claim was an unconstitutional burden on the free exercise of her religion. The majority opinion effectively created the Sherbert Test, determining whether government action runs afoul of the Free Exercise Clause.

Brennan, writing for the majority, stated that denial of Sherbert's unemployment claim represented a substantial burden upon her. Even if that burden took the form of denial of a privilege to unemployment compensation, instead of violating compensation she was entitled to by right, it still effectively impeded her free exercise of her religion. As Brennan wrote, "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." To justify such a burden would require that the state demonstrate a compelling state interest in not granting claims to conscientious objectors like Sherbert; such a state interest was absent in Sherbert's case. Brennan dismissed the claim that his decision violated the Establishment Clause, by establishing the Seventh-day Adventist religion. Finally, the majority opinion did not consider the Equal Protection argument, since it had already ruled in Sherbert's favor on First Amendment grounds.

Douglas wrote separately to explain that the issue was not the degree of injury to Sherbert, but South Carolina's denial of unemployment on the basis of her beliefs. The issue was not individual action, but government action, and under what basis government could deny someone benefits.

Stewart concurred in the result, but not in the majority's reasoning. He did not dismiss the Establishment Clause issue as the majority did. Instead, he identified as a "double-barreled dilemma" between Free Exercise Clause protection of Sherbert's actions and -- as it had been interpreted, wrongly in his view, by the court -- Establishment Clause prohibition of such protection. He also disagreed with the majority's claim that a cited precedent, Braunfeld v. Brown, was distinguishable from Sherbert.

Harlan, in a characteristically literal reading of the relevant law, argued that the Commission denied Sherbert unemployment based on the same reason they might any secular claimant, that she was not "available for work." More centrally, he rejected the majority opinion, arguing that the Free Exercise Clause only required neutrality toward religion in this case, which would not include exempting Sherbert, though the Constitution would permit a legislature to create such an exemption.

The Sherbert Test consists of four criteria that are used to determine if an individual's right to religious free exercise has been violated by the government. The test is as follows:

For the individual, the court must determine

• whether the person has a claim involving a sincere religious belief, and
• whether the government action is a substantial burden on the person’s ability to act on that belief.

If these two elements are established, then the government must prove

• that it is acting in furtherance of a "compelling state interest," and
• that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

The Supreme Court sharply curtailed the Sherbert Test in the 1980s, culminating in the 1990 landmark case Employment Division v. Smith. In Smith, the court held that free exercise exemptions were not permitted from generally applicable laws. In response to the Smith decision, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA) to reinstate the Sherbert Test.

Four years later, the court struck down RFRA as applied to Constitutional interpretation. In City of Boerne v. Flores, 521 U.S. 507 (1997), the court found that RFRA, as applied to the Free Exercise Clause, impermissibly interfered with the judiciary's sole power to interpret the Constitution. However, this ruling didn't necessarily limit RFRA's effect on interpretation of federal statutes. In fact, the court upheld RFRA as applied to other federal statutes in Gonzales v. UDV, 546 U.S. 418 (2006). In UDV, the court applied the statutory Sherbert Test created by RFRA and found that the action in question--use of a Schedule I drug in a religious ritual--was protected under the First Amendment.

• Free Exercise Clause of the First Amendment
• Strict scrutiny
• Lemon Test

• ^ 374 U.S. 398 Full text of the opinion courtesy of Findlaw.com.
• First Amendment Center
• Findlaw's page on Free Exercise exemptions