The opinion
ON PETITION TO TRANSFER
DeBRULER, Justice,
dissenting.
Every working person who is covered by the Indiana Employment Security Act has it in his mind that he can expect either a paycheck or a benefit check to live on. Adell Sherbert’s decision to refuse to accept a new job which would have required her to work on Saturdays, the day she and the church she belonged to regarded as a day to be set aside for rest and worship, removed her from the class having this dual expectancy. Eddie Thomas’ decision to refuse to work at a new job for his employer which required him to participate directly in fabricating army tanks, because he and the church to which he belonged regarded such work as making one a direct party with those who would ultimately use the tanks, *1137 effectively removed him from the same class. Both were disqualified for benefits because of conduct dictated by their religious beliefs. The United States Supreme Court in Sherbert v. Verner, (1963) 374 U.S. 398 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 , held that Sherbert’s disqualification as a beneficiary represented an abridgement of her right to the free exercise of her religion secured under the Free Exercise Clause of the First Amendment through the Fourteenth Amendment. I find no reason to conclude that Thomas should not be accorded the same constitutional protection for the free exercise of his religious belief. Salient here is the limitation which the Supreme Court placed upon its holding in Sherbert in the following passage:
“Nor do we, by our decision today, declare the existence of a constitutional right to unemployment benefits on the part of all persons whose religious convictions are the cause of their unemployment. This is not a case in which an employee’s religious convictions serve to make him a nonproductive member of society.” 374 U.S. at 409-10 , 83 S.Ct. at 1797 .
Both Sherbert and Thomas following the conduct dictated by their religious beliefs, remained ready, willing and available to work at a multitude of jobs. Sherbert was available to work at jobs which did not require Saturday attendance. Thomas was available to work at jobs which did not involve the production of armaments. Both were only temporarily in need of unemployment compensation and therefore clearly come under the Constitution’s protective umbrella.