# Amicus Brief — Thomas v. Review Bd. of Indiana Employment Security Div. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1414%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1981 - **Citation:** 450 U.S. 707 ## Text 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/ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1414%3A07. Public record. Not legal advice.