Amicus Brief — Thomas v. Review Bd. of Indiana Employment Security Div.

or” IN THE

* Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-952

—~-

EDDIE C. THOMAS,

Petitioner,

—_—V.—

THE REVIEW BOARD OF THE INDIANA

EMPLOYMENT SECURITY DIVISION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF INDIANA

MOTION OF THE AMERICAN CIVIL LIBERTIES

UNION FOR LEAVE TO FILE AND BRIEF,

AMICUS CURIAE

ToM GERETY

University of Pittsburgh

School of Law

Pittsburgh, PA. 15260

CHARLES S. SIMS

JUDITH LEVIN

clo American Civil Liberties

Union Foundation

132 West 43rd Street

New York, N.Y. 10036

(212) 944-9800

Attorneys for Amicus Curiae

i

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-952

EDDIE C. THOMAS,

Petitioner,

Vv.

THE REVIEW BOARD OF THE INDIANA

EMPLOYMENT SECURITY DIVISION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF INDIANA

MOTION OF THE AMERICAN CIVIL LIBERTIES UNION

FOR LEAVE TO FILE

BRIEF, AMICUS CURIAE

The American Civil Liberties Union

respectfully moves, pursuant to the Court's

Rules, for leave to file the within brief

amicus curiae. Counsel for the Petitioner

has consented to the filing of this brief;

counsel for the Respondents has refused

consent.

43

The ACLU is a nationwide, non-partisan

organization of over 200,000 members, dedi-

cated to preserving and vrotecting the civil

liberties guaranteed by the Constitution and

the Bill of Rights. Like others who have

studied the Religion Clauses of the First

Amendment, we have been forced to confront

the competing and conflicting claims of

Free Exercise and Non-establishment, and

our efforts to resolve those claims have led

to experience which we believe can assist

the Court.

Against the arguments of those who

argue that neutral, non-discriminatory

legislation infringing the Free Exercise of

religious belief is constitutional, the ACLU

has long concluded that such infringement is

barred by the First Amendment absent com-

pelling governmental necessity. We success-

fully pressed that argument upon the

Court as counsel for petitioner in Jones v.

Opelika, 319 U.S. 103 (1943) in a tax con-

text, and as amicus curiae in Sherbert v.

Verner, 374 U.S. 398 (1963), in the unemploy-

ment compensation context present here.

iii

Succeeding years have produced no reason

for the ACLU to retreat from its positions

in those cases, or for the Court to re-

verse those vital decisions. We submit

this brief amicus curiae to urge the Court

to reaffirm the constitutional commitment

to the spirit of toleration for religious

practice that the First Amendment was en-

acted to foster and protect.

Respectfully submitted,

eedut) keour

JUDITH LEVIN

c/o American Civil Liberties

Union Foundation

132 West 43rd Street

New York, N.Y. 10036

(212) 944-9800

Attorney for Amicus Curiae

i

TABLE OF CONTENTS

Pages

TODIS CF AUCHOCICICS...cccccvescsavhd

FREGESSC CE AMICUS... ccccleccceccvece'h

Questions Presented...cccccccccccece 2

REGU owe esc ce cesses sevceccossecs @

I. SHERBERT v. VERNER CONTROLS

THIS CASE IN ALL ESSENTIALS

OF FACT, LAW AND CONSTITU-

TIONAL PRINCIPLE... cccccsvece 3

Ra BOGGH ic 6ctas Peksescucsescees 2

B. th sao 6s 6 6h eee 8 ks ko 6 6a oO OO 8

C. Constitutional Principle....10

II. REASONABLE ACCOMMODATION TO

PETITIONER'S FREE EXERCISE

CLAIMS IS MANDATED BY THE

FIRST AMENDMENT......2+e+2-+-16

oo EE Ce ere ee ea re

ii

TABLE OF AUTHORITIES

Cases Pages

Braunfeld v. Brown, 366 U.S. 599

i. ER eee ee deesctsssseene

Cantwell v. Connecticut, 310

Cus See Lee eel «tsk ee eee a ee 4

Everson v. Board of Education,

p< Bo Pe Gee | ys en eee aveekes ae

Follett v. McCormick, 321

AR ok BG |S ) ee re eee 4

Fowler v. Rhode Island, 345

Melks 6 e Ress nen oe jas ee ee we 4

Geckler v. Review Bd. of the Ind.

Employ. Sec. Div., 244 Ind.

S735 393 BiB. AG SBT CE9GS) cwcvcce 9

Jones v. Opelika, 316 U.S. 584

(1942), reversed 319 U.S. 103

(1943) eeeeveeee eoeeeeee eoeeeeveeee ee 4

Martin v. Struthers, 319 U.S. 141

CREE hs wd eawek eee ‘pecan aek asus 4

Massengale v. Review Board, 132

Ind. App. 587, 178 N.E.2d

SSF ALOOS) cad cc aesseciadcactvese F

Murdock v. Pennsylvania, 319

U.S. 105 (1943)... evecare se 4

Niemetko v. Maryland, 340 U.S.

BOO TATA 6 6860 68 86 6 w 8 Oe 2eeeee 4

Cases

iii

Serbian Orthodox Diocese v.

Milivojevich,

(1976)

426 U.S. 696

Sherbert v. Verner, 374 U.S. 398

(1963)

TWA v. Hardison,

(1977)

423 U.S. 63

United States v. O'Brien, 391

U.8. 267 (aSSG) ceincs

United States v. Seeger,

U.8. 163 (A965) «ses

Walz v. Tax Commission,

U.S. 664: 129 7el see ees

Welsh v.

United States,

U.S. 333 (1970)......

380

398

West Virginia State Bd. of Educa-

tion v. Barnette, 319 U.S. 624

(1943)

Wisconsin

(1972)

Statutes:

Ind. Code

Ind. Code

S.C. Code

v. Yoder, 406 U.S. 205

§22-4-l-1.....

§22-4-15-1....

§68-114-3-a-i.

evxeensveseee#e#ee@

passim

13, 14

41, 22

16, 18

16, 20

16, 17,

passim

iv

Other Authorities: Pages

Beckford, The Trumpet of

Prophecy: A Sociological

Study of the Jehovah's

Witnesses (1975)......ceeeees toe 2

Ely, Democracy and Distrust

DEPTS hsb See SGP NCe eee ees ocoeoers 17

Ely, Legislative and Administra-

tive Motivation in Constitu-

tional Law, 79 Yale L.J.

RO) a ey Ye

Weiss, Privilege, Posture and

Protection: ‘'Religion' in

the Law, 73 Yale L.J. 593

Sih ees 6k <n 08 66 065-0 0 0 ers &

Kurland, Of Church and State

and the Supreme Court,

ae ae Ges bee MOV. 1 (1961). .ccee 17

Tribe, American Constitutional

Rae (25978) cc cce ee ee eS ee bee 6 16,

Watchtower Bible and Tract Society,

Make Sure of All Things (1965).. 5

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-952

EDDIE C. THOMAS,

Petitioner,

Vv.

THE REVIEW BOARD OF THE INDIANA

EMPLOYMENT SECURITY DIVISION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF INDIANA

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AMICUS CURIAE

Interest of Amicus

The interest of the Amicus appears in

the foregoing motion.

=.

QUESTIONS PRESENTED

This case presents two difficult ques-

tions of constitutional law and principle,

both of which depend, for their resolution,

upon the interpretation of Sherbert v. Verner,

374 U.S. 398, (1963) still the landmark de-

cision on the duty of the states to accommodate

the free exercise interests of their citizens

and residents:

First, does Sherbert apply to the case

at hand? Has Indiana, that is to say, a

constitutional duty, under its unemployment

compensation scheme, to treat the petition-

er's religiously motivated refusal to con-

tinue his employment in the production of

war material as tantamount to involuntary

dismissal? Sherbert held that South Carolina

had such an obligation in the case of a

Saturday Sabbatarian who refused to make

herself available for Saturday work.

Second, assuming its applicability,

is Sherbert's holding that there is such a

duty of accommodation defensible in the

face of criticism a) that the imposition

of that duty violates the Establishment

Clause by favoring religion over non-religion

and b) that in any case Sherbert goes further,

-3-

in finding a duty to accommodate, than the

principle of free exercise would seem to

require?

ARGUMENT

I. SHERBERT v. VERNER CONTROLS THIS

CASE IN ALL ESSENTIALS OF FACT,

LAW AND CONSTITUTIONAL PRINCIPLE

A. Facts

In its opinion, the Indiana Supreme

Court observes "that there are significant

differences between Thomas' situation and

that involved in Sherbert." See Appendix

at 35A. We disagree.

The Indiana Court incorrectly argues,

at 37a, that petitioner's "dilemma does

not equal a violation of the kind of

cardinal religious tenets at stake in

Sherbert, involving work on one's Sabbath

and the pressure to violate religious pre-

cepts or not to work at all."

It is inappropriate for courts to

determine which concededly religious

tenets are "cardinal" or more central to

exercise of religioas belief than others.

Serbian Orthodox Diocese v. Milivojevich,

426 U.S. 696 (1976). In any event, pe-

titioner's beliefs are of an importance

that is constitutionally indistinguish-

able from Sherbert's.

~ i

Like Sherbert, petitioner is a member

of a millennial Christian Protestant sect

that gives primacy to individual conscience

informed by scriptural interpretation.

As a Jehovah's Witness, petitioner must

look to his own "Bible-trained conscience”

for an absolute rule of conduct.

By a stubborn and insistent tradition

that has brought them into this and other

courts with some frequency, Jehovah's

Witnesses "pursue peace with all men." i/

As a group, they consistently eschew

military or political commitments that

compromise, or even appear to compromise,

their loyalty to a coming divine order.

1/ This Court has examined the religious

claims of Jehovah's Witnesses in a long

series of cases where state regulations

conflicted with the free exercise of re-

ligious belief. See, e.g., Cantwell] v.

Connecticut, 310 U.S. 296 (1940); Jones v.

Opelika, 316 U.S. 584 (1942), reversed 319

U.S. 103 (1943); Martin v. Struthers, 319

U.S. 141 (1943); Murdock v. Pennsylvania,

319 U.S. 105 (1943); West Virginia State

Board of Education v. Barnette, 319 U.S. 624

(1943); Follett v. McCormick, 321 U.S. 573

(1944); Niemetko v. Maryland, 340 U.S. 268

(1951); Fowler v. Rhode Island, 345 U.S. 67

(1953). In each of these cases, this Court

reversed the decision of the highest state

courts on the ground that state action had

disadvantaged the appellants because of

their religious beliefs.

aS

They do not call it pacifism but in secular

terms it comes to nothing less. "For the

weapons of our warfare are not fleshly..."

See under "war", Watchtower Bible and Tract

Society, Make Sure of All Things (1965).

Thus many Jehovah's Witnesses, during the

Second World War, refused not only military

service but alternative service as well -

even in civilian institutions. See Beckford,

The Trumpet of Prophecy: A Sociological

Study of the Jehovah's Witnesses, 22-38

(1975).

Non-participation in war and war-related

activities is, in short, a "cardinal" tenet

of petitioner's religious faith. His co-

religionists counseled him to apply this

dectrine to iiis work once transferred to

the turret line, and, consulting his own

faith and belief, he did so.

Although Indiana purports to find the

distinction between a general foundry and

a tank assembly line over-subtle and con-

fused in the context of a largely or even

exclusively war-related manufacturing plant,

the state's own assessment of the logic)

=-6=

of petitioner's beliefs is irrelevant. 2/

What is crucial is that the belief accord-

ing to which petitioner acted was reli-

gious, Pet. 35a and further that petitioner

made clear to his employe:rs and others who

needed to know his willingness and avail-

ability for work.

In this case the petitioner has con-

tended from the time of transfer that a

return to the foundry - now partially

2/ Any notion that the petitioner was fright-

ened by his work - and so asked for a trans-

fer out of fear rather than scruple - seems

to us to misconstrue his comments at Petition

for Certiorari at 34a [hereinafter cited as

"Pet. 34a"], on bomb scares and the like,

which, in his words "really imprinted on my

mind exactly where I was working..." The

Review Board itself, and the referee, made

no such mistake, finding as a fact - a find-

ing left intact by every court below - that

Thomas left work for religious reasons.

See Pet. 35a. The simple fact that another

Jehovah's Witness accepted the work peti-

tioner refused proves, at most, the highly

individualized nature of Jehovah's Witness

Christianity.

~*~

closed - would be acceptable to him.

Assuming, as we must, that Blaw-Knox

could not transfer him back, he had no

choice but to resign either his employ-

ment or his convictions.

Sherbert held herself out as avail-

able for work on any day of the week but

Saturday. The petitioner here holds him-

self out as available for work on any

production line not engaged directly in

the manufacture of weapons. The respective

conscientious reservations are closely

analogous in at least three respects:

first, they conform to a reasonable

standard of general availability for work;

second, they conform to the requirements

of the original employment in question;

and, third, while they occasion an elec-

tion between religious observance and

job performance, they do so through no

change in the employee's preferences or

convictions - but solely through changes

in the requirements of the respective

employers.

- 8-

B. Law

Indiana's scheme of unemployment com-

pensation disqualifies as ineligible,

among others, those insured and unemployed

persons who "voluntarily [left] employment

without good cause in connection with

work...." Ind. Code §22-4-15-1. Both the

referee and the Review Board itself found

that the petitioner left "due to his re-

ligious convictions" but "without good

cause in connection with the work...." See

Pet. 9a.

The South Carolina scheme in Sherbert

Similarly disqualified as ineligible, among

others, those insured and unemployed per-

sons who have "failed without good cause...

to accept available suitable work when

offered...by the employment officer or em-

ployer...." S.C.S., Tit. 68, §68-114-3-a-ii.

The South Carolina Employment Security

Commission found that, despite her religious

objection to Saturday work, Sherbert had, in

fact, failed without good cause to accept

"Suitable work when offered.... See

Sherbert v. Verner, 374 U.S. 398, at 401.

Indiana decisions in this area, while

emphasizing "liberal" construction of the

x.

statute, Massengale y. Review Board, 132

Ind. App. 587, 178 N.E. 2d 557 (1961),

Similarly insisted that "good cause," in

cases of "voluntary" termination, must be

"objective" and not "subjective," must

arise, that is, from the employment situa-

tion itself. Geckler v. Review Board of

the Indiana Employment Service Division,

244 Ind. 473, 193 N.E.2d 357 (1963).>/

South Carolina's decisions, prior to and

including Sherbert, put essentially the

same point in terms of "personal reasons"

for employment termination. In both cases,

the unemployed workers insisted on a con-

stitutional obligation in the State to treat

3/ Thus, the decision below cannot be de-

fended on the ground that Indiana accepts

Sherbert, and permits religiously-based

"good cause" for quitting, but that peti-

tioner simply failed properly to bring

himself within the exception.* The Indiana

Supreme Court expressly relied on the ground

that Sherbert did not apply "to those who

voluntarily [sic] quit work". Pet. 3la.

The Court held that "good cause which

justifies voluntary termination must be

job-related and objective in character."

Pet. 29a.

-10-

religious conviction, albeit subjective or

personal, as "good cause." Sherbert up-

held that claim.

In purpose, in terms, and in adminis-~-

tration, then, the two statutory schemes

in question would seem virtually indis-

tinguishable. Both seek to alleviate the

economic difficulties of "persons unemployed

through no fault of their own." Ind. Code

§22-4-1-1. In the interests of economies

of administration and cost both disqualify -

as voluntary, personal, and without good

cause - religiously compelled unemployment.

Both fall under the same constitutional

principle.

C. Constitutional Principle

The majority opinion in Sherbert is

explicit in its all-but-sole reliance upon

the free exercise clause of the First

Amendment: "In view of the result we have

reached under the...guarantee of free ex-

ercise of religion...” 374 U.S. at 410.

At several points the holding is stated

and restated in these terms:

oj i=

Our holding today is only that

South Carolina may not consti-

tutionally apply the eligibility

provisions so as to constrain a

worker to abandon his religious

convictions respecting the day

of rest. This holding but re-

affirms a principle that we

announced a decade and a half

ago, namely that no State may

‘exclude individual Catholics,

Lutherans, Mohammedans, Baptists,

Jews, Methodists, Non-believers,

Presbyterians, or the members

of any other faith, because of

their faith, or lack of it, from

receiving the benefits of pub-

lic welfare legislation.'

Everson v. Board of Education,

SIU Uses Ly: 20> 374 U.S. at

411 (emphasis in original).

kx kk k

Here not only is it apparent

that appellant's declared in-

eligibility for venefits de-

rives solely from the prac-

tice of her religion, but the

pressure upon her to forego

that practice is unmistakable.

The ruling [of South Carolina]

forces her to choose between

following the precepts of her

religion and forfeiting bene-

fits, on the one hand, and

abandoning one of the precepts

of her religion in order to

accept work, on the other

hand. Governmental imposition

-12-

of such a choice puts the

same kind of burden upon

the free exercise of reli-

gion as would a fine im-

posed against appellant for

her Saturday worship. 374

U.S. at 404.

Because the Court found the disqualifi-

cation from unemployment benefits to "im-

pose [a] burden on the free exercise of

appellant's religion," albeit an unintended

and indirect burden, ibid. at 403-4,it re-

quired of South Carolina a showing of some

countervailing and compelling state interest.

South Carolina was held to have made no such

showing. 4/ Indiana in this case has not

even attempted it, either below or in its

opposition to certiorari.

Although Justice Brennan's opinion for

the Court notes that the "unconstitution-

ality of the disqualification of the

4/ South Carolina suggested in Sherbert

a compelling state interest in maintain-

ing such disqualifying standards in order

to prevent fraudulent claims, and to in-

crease cost-saving and efficiency.

Sherbert found those interests, both as

applied and on their face, inadequate as

a justification of the denial of exemptions.

374 U.S. at 407. See also infra n.8.

-13-

Sabbatarian" on Free Exercise grounds is

"compounded" by a further religious dis-

crimination against Saturday worshippers

and in favor of Sunday worshippers,

Sherbert at 406-7, the various opinions

in Sherbert make clear that the decision

rested firmly, and independently, on the

5/

Free Exercise ground. =

5/ This is clear from the language re-

ferring to the relative disadvantaging of

Saturday worshippers as "compound[ing]"

the previously established "unconstitu-

tionality" under Free Exercise analysis

374 U.S. at 406-7. Neither Justice

Stewart's concurrence, nor Justice

Douglas', relied in any way on the estab-

lishment objection to the South Carolina

statutory scheme. The dissents of

Justices Harlan and White also took

Sherbert to rely solely on the Free Exer-

cise ground, and dissented because al-

though accommodation was in their view

permissible, they did not believe it was

compelled by the Free Exercise Clause.

Braunfeld vy. Brown, 366 U.S. 599, (1961)

decided not many terms earlier, also

makes implausible any interpretation of

Sherbert as resting solely on the ground

that South Carolina had improperly accom-

modated only Sunday worshippers. Sub-

sequent cases, e.g., Wisconsin v. Yoder,

406 U.S. 205 (1972) and TWA v. Hardison,

423 U.S. 63 (1977), make clear that state

(footnote cont'd next page)

-14-

In short, contrary to Indiana's attempt

at distinguishing Sherbert simply as an

equal-protection-free religions case, Opp.

to Cert. at 6, the more generous principle

on which Sherbert was plainly decided, and

for which it stands, is that a state,

absent a compelling countervailing interest,

has a duty to take reasonable steps to

accommodate the free exercise interests of

its religious citizens. Cf. Trans World

Airlines v. Hardison, 423 U.S. 63 (1977)

(footnote cont'd from previous page)

accommodation to Free Exercise claims pre-

sents no Establishment Clause difficulties

and that Sherbert's acceptance of the

accommodation principle is now firmly

embedded in First Amendment jurisprudence.

Our no doubt imperfect survey of district

and appeals court decisions citing

Sherbert, over some seventeen years,

yields not one citation for the proposi-

tion that the controlling principle in

Sherbert was South Carolina's negligible

"establishment" of Sunday Sabbatarianism.

«}%=

(42 U.S.C. §2000e). The rule of Sherbert

is that in a program of temporary insur-

ance benefits for periods of unemployment,

an otherwise willing and able insured

worker who through no fault of his own -

and indeed through no change in his own

convictions or practices - finds himself

put to a choice between conscientious

religious observance and satisfactory

job performance must at least be allowed

to argue, as "good cause," his religious

and conscientious incapacity. That prin-

ciple controls this case, and requires

reversal of the judgement below.

~j6<

II. REASONABLE ACCOMMODATION TO PETITIONER'S

FREE EXERCISE CLAIMS IS MANDATED BY THE

FIRST AMENDMENT.

Unless it is to be overruled, Sherbert

is firm authority for the proposition, cen-

tral to petitioner's case, that conflict be-

tween Free Exercise claims and state regula-

tory authority must be resolved by reasonable

state accommodation to free exercise of reli-

gious beliefs. See also Wisconsin v. Yoder,

406 U.S. 205 (1972); see generally Tribe,

American Constitutional Law, at 819-834

(1978) .2/

There has been some academic criticism

of Sherbert, some suggesting that the Sher-

bert exemption is an invalid establishment

of religion insofar as it favors, say, Sat-

urday Sabbatarians over Saturday football

fans--or even devoted parents who would spend

Saturdays with their children.

6/

— As previously noted, even Justices Harlan

and White, in dissent, thought that accommo-

dation was permitted by the First Amendment,

although they did not believe it was com-

pelled. Sherbert at 422. Justice Harlan,

at least, further believed that accommoda-

tion would have to broadly extend to con-

scientious beliefs. See, e.g., Welsh v.

United States, 398 U.S. at 333 (1970) (Harlan,

J., concurring); see also Walz v. Tax Commis-

sion, 397 U.S. 664, 694 (1970); United States

v. Seeger, 380 U.S. 163 (1965).

-17-

This was the position taken, even before

Sherbert, by Professor Kurland. See his Of

Church and State and the Supreme Court, 29

U.Chi.L.Rev. 1(1961). See also Weiss, Pri-

vilege, Posture and Protection: "Religion"

in the Law, 73 Yale L.J. 593 (1964). And,

more recently, it is the position consistent-

ly and vigorously advocated by Professor Ely.

See his Legislative and Administrative Moti-

‘vation in Constitutional Law, 79 Yale L.J.

1205, 1313 (1970), and also his Democracy and

Distrust (1980). Professor Ely proceeds

from the general proposition that disadvan-

tageous impact of state regulation and clas-

sification never warrants, by itself, judi-

cial invalidation. Only when such impact

permits an inference of invidious or discri-

minatory motivation, he argues, should it

trigger court scrutiny. Sherbert, he con-

cedes, 79 Yale L.J. at 1319, "plainly stands

for the contrary view, that a regulation's

unintended adverse impact upon persons of a

particular faith can invalidate it." But

"the course of action thus suggested by the

Court--granting exemption only to religious

persons--is supremely suspect under the es-

tablishment clause...." Welsh and its com-

panions, as Professor Ely reads them, are

the proof of his argument: Any exemption

«lGu

for free exercise, if it is to escape the

establishment critique, must be so broad as

to be unworkable - and would "in practice

inevitably favor religious objectors." Id.

at 1321.

We disagree.

A doctrine of neutrality as between reli-

gion and non-religion so austere and restric-

tive as that suggested by Professor Ely would

in fact suggest an incoherence in the First

Amendment itself, which, after all, gives a

special place to the free exercise not of con-

science simply, or personal preference, but

of religion. This is not to say that Welsh

and the like are wrong in broadening and ex-

tending the constitutionally permissible -

and indeed constitutionally requisite = hori-

zons of what we mean by the term "religion."

The logic of the Establishment Clause forces

us in fact to break away from any merely con-

ventional notion of what counts as religion.

But some core, notion of "religion" = such as

the Court elaborated in Seeger and Welsh -

is compelled by the very wording of the Reli-

gion Clauses of the First Amendment. Wiscon-

sin v. Yoder, 406 U.S. at 215. Without it,

constitutional analysis in this area would

founder even where an invidious regulatory

or administrative motivation is claimed,

=

Since the First Amendment argument must al-

ways have it that "I am discriminated against -

or unduly burdened - because of my religion."

Why, after all, did the Framers make spe-

cial provision for the free exercise of reli-

gion? The historical experience,no doubt, ac-

counts for it well enough: thosewho knew reli-

gious persecution wanted no more of it. See

generally Everson v. Board of Education, 330

U.S. 1, 27-74 (1947) (Rutledge, J.- dissenting).

But at the center of that historical exveri-

ence is an idea of the place of religious

conviction - and its analogue, deeply-held

moral principle - in human experience. To

put it quickly and simply: A believer can-

not argue with his God. What Holmes called

the "can't helps" - and religious pacifism

and Sabbatarianism are surely two of the

most compelling we know - simply cannot eas-

ily be evaded in the ordinary human scheme.

To ask Sherbert to work on Saturday, or Tho-

mas to assemble tanks, is to ask them to do

something of which they are in human fact

virtually incapable - not physically, of

course, but conscientiously and perhaps even

psychologically.

To insist upon the accommodation of such

conscientious incapacity, under the Free Exer-

cise Clause, is only in the most abstract

-20-

sense to establish one religion over another,

or religion over non-religion.

More concretely, and more plainly, it is

to respect an incapacity in human beings which,

however "subjective," lies very near the heart

of our moral and constitutional traditions.

Reasonable differences will remain, no doubt,

over what is or is not to be fostered and pro-

tected, particularly against unintended regu-

latory or classificatory burdens. But it is un-

reasonable to the point of fanaticism to in-

sist that no such exemptions can be granted

in any case. This would be to take what we

all acknowledge to be the dilemma of a Con-

stitution providing both for free exercise

and against establishment, and resolve it by

insisting, simply and almost magically, that

it go away - taking with it the protection

that surely both clauses were meant to afford

to the likes of Sherbert and Thomas. "The

course of constitutional neutrality," this

Court said in Walz, "cannot be an absolutely

straight line; rigidity could defeat the basic

purpose of these provisions...." 397 U.S. at 669.

And so, even while it has recognized the

tension between the Religion Clauses, the

Court nonetheless has properly followed Sher-

bert and has continued to accord constitu-

tional protection to Free Exercise claims

-21-

where they arise in the context of requests

for exemption from otherwise valid regulatory

statutes. See, e.g., Wisconsin v. Yoder; cf.

TWA v. Hardison. See generally Tribe, Ameri-

can Constitutional Law, at 851-853. The con-

stitutional rule is settled: where, as here,

a state has plainly interfered with the Free

Exercise of a religious belief - that is, pre-

vented a believer from applying his beliefs

to the conduct of his life - the state can

succeed only if it demonstrates interest of

sufficiently compelling magnitude to override

the Free Exercise claim. Wisconsin v. Yoder,

406 U.S. at 214; Sherbert, 374 U.S. at 402.2/

Were Thomas asking for an unreasonable

accommodation, an exemption that would seri-

ously impair substantial state interests - if,

for example, he claimed that his religious be-

liefs rendered him unavailable for any remu-

nerative work - then this would be a different

7/

— The interest that the state must assert is

not its general interest in maintaining the

underlying regulatory program for unexcep-

tional cases, but rather a particular inter-

est in denying a religious exemption. See,

e.g., Wisconsin v. Yoder, where the Court

accepted the strong state interest in ad-

vanced compulsory education but found insuf-

ficient reason to deny a religious exemption

claim. See generally Tribe, American Consti-

tutional Law, at 855-857.

-22-

case. For example, the court in Yoder implied

that a claim for exemption from all compulsory

education, rather than two additional years

beyond the eighth grade, might well have led

to a different result, and it had previously

emphasized that Sherbert was "not a case in

which an employee's convictions serve to make

him a non-productive member of society." 374

U.S. at 410. Different facts, as the Yoder

Court noted, may well lead to a different

balancing of free exercise and state inter-

ests. But unreasonable accommodation, as

Sherbert and Yoder make clear, has proven to

be a workable constitutional standara. 2/ The

states have lived with it and, generally, made

it work. And it has been adopted by Congress,

and applied by this Court, in a statutory con-

text. See TWA v. Hardison, supra (applying

Title VII of the Civil Rights Act of 1964,

42 U.S.C. 2000e).

8/

— Ina different context, the Court has de-

cided that facially neutral governmental regu-

lation incidentally infringing free speech

rights will be struck down where the "inci-

dental restriction is...greater than essen-

tial to the furtherance "of the governmental

interest. United States v. O’Brien, 391

U.S. 367, 377 (1968).

-2 3-

To those who find themselves at odds with

the conventional views of such things as war,

worship, and revelation, this rule is a shield

against the more or less daily threat of sub-

tle, or not so subtle, ostracism and discrimi-

nation. Those, like Thomas, Yoder, and Sher-

bert, who wager much of their lives on abso-

lutes unacceptable or unpersuasive to the

rest of us, have found in the rule at issue

the tolerance for religious belief and the

religiously-informed life that the Free Exer-

cise Clause was designed to foster and pro-

tect.

nD Mie

CONCLUSION

For the foregoing reasons, the judgment

of the Indiana Supreme Court should be re-

versed.

Respectfully submitted,

TOM GERETY

University of Pittsburgh

School of Law

Pittsburgh, Pa. 15260

CHARLES S. SIMS

JUDITH LEVIN

c/o American Civil

Liberties Union

Foundation

132 West 43rd St.

New York, N.Y. 10036

(212) 944-9800

Attorneys for Amicus

Curiae