Hildebrand v. Unemployment Insurance Appeals Board

*773 MOSK, J.

I dissent.

Plaintiff was first employed seasonally by the real party in interest, the employer, in 1966. She worked Saturdays as required. Her services were at all times “very satisfactory.” In 1970 she became converted to the Worldwide Church of God, which prohibits work from sunset Friday until sundown Saturday and recognizes Saturday as the Sabbath, a day for religious services. Thereafter, during the 1970 and 1971 seasons plaintiff was excused from Saturday work in order to attend her religious obligations.

Prior to the 1972 season the employer advised plaintiff she would be required to perform Saturday duties, and she complied. Contraiy to the implication of voluntariness in the fact recitation of the majority, however, plaintiff did not “agree[d] to do so” (ante, p. 768). The trial court in its memorandum opinion found that she “did so under protest” and that she complained to her union about the Saturday work requirement. She also contacted the state Fair Employment Practices Commission, to no avail.

Plaintiff refused to work on Saturdays in 1973. Thus we have before us circumstances in which an employee is unable to work on her Sabbath because of religious conviction, adheres faithfully to her beliefs in 1970, 1971 and 1973, but deviates “under protest” during the 1972 season. The majority elevate this aberrant interruption of religious principle to “good cause” for the termination of her employment. I do not agree.

An inference is inescapable from the majority opinion that plaintiff’s Saturday work in 1972 significantly reflects upon the sincerity of her religious convictions. My learned colleagues give inadequate consideration to factual finding number 5 of the trial court: “Petitioner’s religious beliefs are genuinely held. There is no substantial evidence in the record to support respondents’ [California Unemployment Insurance Appeals Board and California Employment Development Department] finding that petitioner’s religious beliefs are not bona fide.” Under accepted principles of appellate review, that factual determination is binding upon us.

Therefore this case is controlled by Sherbert v. Verner (1963) 374 U.S. 398 [ 10 L.Ed.2d 965 , 83 S.Ct. 1790 ]. Here, as in Sherbert , “not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that *774 practice is unmistakable. 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. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.” {Id., p. 404.)

This case is also comparable to Montgomery v. Board of Retirement (1973) 33 Cal.App.3d 447 [ 109 Cal.Rptr. 181 ] (hg. den.). The petitioner there claimed disability retirement benefits; the county retirement board established that her disability could be eliminated by surgery, which petitioner refused to undergo because of religious faith in divine healing. The court held that “When considerations of conscience grounded upon religious beliefs are involved, the state interest in preserving health pales into insignificance.” The denial of benefits was reversed.

Similarly in Syrek v. California Unemployment Insurance Appeals Board (1960) 54 Cal.2d 519 [ 7 Cal.Rptr. 97 , 354 P.2d 625 ], this court reversed a denial of unemployment insurance benefits to an otherwise qualified applicant who maintained a conscientious objection to the then required loyalty oath. Stimpel v. State Personnel Bd. (1970) 6 Cal.App.3d 206 [ 85 Cal.Rptr. 797 ], upon which the state places reliance, is distinguishable. There the discharged employee sought reinstatement to employment in which Saturday work was necessary; he could, of course, seek other jobs more compatible with his religious beliefs. Here the plaintiff is not seeking reinstatement, but unemployment compensation because she is presently unemployed.

Though I would still have reservations, it might be arguably possible to justify the theory adopted by the majority in circumstances of one continuous employment relationship. Here, however, we have an atypical job structure. For all practical purposes each season constitutes a separate employment period. Seasonal conditions differ as the crop varies, and as a result working requirements are altered. Thus in the 1970 and 1971 seasons the employer was able to accommodate the plaintiff’s declination to work on Saturdays. The 1972 season apparently provided additional burdens and there were more onerous conditions of employment imposed. As indicated above, for that individual employment period, the plaintiff sacrificed her religious beliefs and worked Saturdays “under protest.”

*775 When the next distinct employment season arrived, 1973, and the employer imposed a Saturday working requirement, the plaintiff refused to accept the employment condition. That she did work several days—none of them a Saturday—does not dilute her steadfast refusal, because of religious scruples, to accept the employment as tendered by the employer. Whether between the 1972 and 1973 employment periods her religious dedication had become revived, strengthened or more fervent is a matter of speculation; 1 the relevant factor is the trial court’s finding that her beliefs were bona fide. {People v. Woody (1964) 61 Cal.2d 716, 726 [ 40 Cal.Rptr. 69 , 394 P.2d 813 ].)

Refusal to accept employment under conditions at odds with religious conviction was precisely what the Supreme Court upheld in Sherbert . That the plaintiff may have permitted economic necessity to conquer her conscience in a previous period of employment seems a slender rationale upon which to justify governmental compulsion to subordinate religious convictions in connection with the current seasonal job.

In effect, the state appears to decree that plaintiff now forfeits her right to adhere to religious practices without penalty because of a limited waiver in the past. As the majority concede, there is no authority upholding this novel justification for governmental intrusion into religious liberty. Indeed, the theory not. only clearly offends the Sherbert principle, it is contrary to the landmark case of Speiser v. Randall (1958) 357 U.S. 513 [ 2 L.Ed.2d 1460 , 78 S.Ct. 1332 ], which emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, to inhibit or deter the exercise of First Amendment freedoms.

The United States has been unique among nations of the world in its vindication of the right of individuality in religion. The practices of *776 religion, under our Constitution, are attributes of individual men and women, acting alone or in concert, not of the state or by the leave of the state. To preserve that principle not only should we tolerate no alliance between church and state, we must also be vigilant to prevent overt hostility between church and state. The only acceptable role of the state is to be totally benign in its attitude toward religion and to thus preserve “hospitality to religious diversity” (Trans World Airlines, Inc. v. Hardison (1977) — U.S. —, — [ 53 L.Ed.2d 113, 139 , 97 S.Ct. 2264 ], Marshall, J., dissenting).

The denial of benefits which are available to others because of this plaintiff’s religious practices constitutes overt hostility to religion and should not be upheld. I would affirm the judgment of the trial court.

The petition of the plaintiff and respondent for a rehearing was denied September 15, 1977. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.

The testimony suggests plaintiff’s conscience finally prevailed over economic necessity:

“REFEREE: Did you feel you were violating the tenets of your faith by [working Saturdays during 1972]?

“MRS. HILDEBRAND: Yes, yes, and I’m sorry about it. I guess we all break God’s commandments.

“REFEREE: Do [i/c] you have some sort of conversion there in ’73 or so that changed your mind?

“MRS. HILDEBRAND: I just made up my mind that I was going to keep it [the Sabbath],

“REFEREE: No special reason, hm?

“MRS. HILDEBRAND: Well, of course my conscience hurt me.

“REFEREE: Conscience?

“MRS. HILDEBRAND: Yes.”