Amicus Curiae Brief — Hobbie v. Unemployment Appeals Comm'n of Fla.

Supreme Court, U.S,

FILED

ay SEP 5 1908

7 No. 85-993 ~~“ JOSEPH F. SPANIOL, JR.

Pe a eee Ne ee ee COED Hy

_——————

In the Supreme Court of the United States

OCTOBER TERM, 1986

PAULA A. HOBBIE, APPELLANT

Vv.

UNEMPLOYMENT APPEALS CUMMISSION, ET AL.

ON APPEAL FROM THE DISTRICT COURT OF APPEALS

OF THE STATE OF FLORIDA, FIFTd DISTRICT

-BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING APPELLEES

CHARLES FRIED

Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

MICHAEL CARVIN

Deputy Assistani Attorney General

ROGER CLEGG

Assistant to the Solicitor General

LISA J. STARK

Attorney

Department of Justice

Washington, D.C. 20530

(202) €33-2217

QUESTION PRESENTED

Whether it violates the free exercise clause for a

state agency to deny unemployment benefits to some-

one who loses her job because she refuses to work

certain scheduled hours due to sincerely held religious

beliefs adopted after she became an employee.

(1)

TABLE OF CONTENTS

Page

Interest of the United States 0002.00.02... eee. 1

Statement ........... oo ceecc cece cece cece eee lassecseeeeencenaens . 2

Introduction and summary of argument _.............. 4

Argument:

The record offers no sufficient basis on which to

determine whether or not appellee has prohibited

the free exercise of religion .........0000000000...... 6

A. The denial of benefits under a facially neutral

statute, without more, is not a prohibition of

the free exercise of religion —..........0.o..... 7

B. A remand is appropriate because the application

of the Florida statute has not been explored 26

ID civ ccnccntenininienscissecccencn vatses sexronsnvevensocnencsvsssuaense 28

TABLE OF AUTHORITIES

Cases:

Abington School District v. Schempp, 374 U.S. 203.. 11, 19,

21, 24

Agutlar v. Felton, No. 84-237 (July 1, 1985) . 22

Ansonia Board cf Education vy. Philbrook, cert.

granted, No. 85-495 (Jan. 21, 1986) _... . 27

Bender v. Williamsport Area School District, No.

84-773 (Mar. 25, 1986) ........ 7 2

Bob Jones University v. United States, 461 US

574 0... 16

Bowen V. Roy, No. 84-780 (June 11, 1986) passim

Braunfeld v. Brown, 366 U.S. 599 . 12, 16, 24

Buckley v. Valeo, 424 U.S. 1 ..... 12

Cantwell v. Connecticut, 310 U.S. 296 _.. — 10

City of Los Angeles v. Preferred Communications,

Ine., No. 85-390 (June 2, 1986) _..... 28

Committee for Public Education v. Nyquist, 413

U.S. 756 . as (a

Engel v. Vitale, 370 U. s. 421° — 9,11

(TIT)

IV

Cases—Continued : Page

Estate of Thornton v. Caldor, Inc., No. 83-1158

OG Pee 22, 25, 26

Everson V. Board of Education, 330 U.S. 1........8, 9, 10, 19

Gallagher vy. Crown Kosher Market, 366 U.S. 617 24

Gillette v. United States, 401 U.S. 437 ..................12, 23, 24

Goldman v. Weinberger, No. 84-1097 (Mar. 25,

1986) ...... ETS ET SERENE TT ao = 1-2

Harris v. McRae, 448 U.S. 297 ............... 2,12, 13

Hartenstein v. Florida Dep’t of Labor & Employ-

ment Security, 383 So.2d 759 -.... nee 27

Johnson Vv. Louisiana, 406 U.S. 356 .- 10

Johnson V. Robison, 415 U.S. 361 etre 12,14, 15

Langley v. Unemployment Appeals Comm'n, 444

a eae 27

Lemon Vv. Kurtzman, 403 U.S. 602 -

Lynch Vv. Donnelly, 465 U.S. 668 _.. 21, 22, 23

Maher Vv. Roe, 432 U.S. 464 .... 12,13

Marsh v. Chambers, 463 U.S. 783 2 24

McCollum v. Board of Education, 333 U.S. 203 10

McDaniel v. Paty, 435 U.S. 618 .... 12, 23

McGowan Vv. Maryland, 366 U.S. 420 .. 9, 24

Mueller v. Allen, 463 U.S. 388 ..... . 23

NLRB vy. Catholic Bishop, 440 U.S. 490. . 23

Norwood v. Harrison, 413 U.S. 455 _.... 13

Ohio Civil Rights Comm’n vy. Dayton Christian

Schools, Inc., No. 85-488 (June 27, 1986) 28

Otten Vv. Baltimore & Ohio R.R., 205 F.2d 58 26

Parker vy. Department of Labor & Employment

Security, 440 So.2d 438 .......................... 27

Prince Vv. Massachusetts, 321 U.S. 158 ..... 12

Quick Bear v. Leupp, 210 U.S. 50. 24

Reynolds v. United States, 98 U.S. 145 9,12

Sherbert v. Verner:

371 U.S. 938 aaa eae a A

374 U.S. 398 ........... passim

St. Martin Evangelical Lutheran Church v. South

Dakota, 451 U.S. 772 ‘s 23

Thomas V. Review Beard, 450 U. S. 707 13, ‘17, i8, 19,

21, 25, 28

Tilton Vv. Richardson, 403 U.S. 672 —................ a 2

Cases—Continued : Page

Tony & Susan Alamo Foundation v. Secretary of

Labor, No. 83-1935 (Apr. 23, 1985) .......000000..... 2

Torcaso Vv. Watkins, 367 U.S. 488 2000000. 22

TWA V. Hardison, 432 U.S. 63 ..............0000...... 24, 25

United States v. Lee, 455 U.S. 252°=-.-.- 2, 14 18, 24

Wallace v. Jaffree, No. 83-812 (June 4, 1985) oa eae 2, 22,

24, 26

Walz v. Tax Commission, 397 U.S. 664 _.............20, 23, 24

Welsh v. United States, 398 U.S. 333 ..........000000........ 24

Widmar v. Vincent, 454 U.S. 263 ............................8, 20, 23

Wisconsin Vv. Yoder, 406 U.S. 205 _... =. 13. 21-22, 23

Witters v. Washington Dep’t of Services for the

Blind, No. 84-1070 (Jan. 27, 1986) 23

Zorach v. Clauson, 343 U.S. 306 ............... 22, 23

Constitution, statutes and rule:

U.S. Const. :

Amend. [ ...... satididiiiacatdnaneks 7, 8,9, 10, 19, 20, 24

Establishment Sunes seni _.. passim

Free exercise clause passim

Amend. XIV pane 10

Civil Rights Act of 1964, Tit. VII, 42 U.S.C.

2000e (j) 25

28 U.S.C. 1257(2) LS eS TT NS 4

Act for Establishing Religious Freedom, ch.

XXXIV, 1823 Va. Acts 86 (Hening) 10

Fla. Stat. Ann. (West 1981 & Supp. 1986) :

§ 443.036 (24) 3

3 eee 3,6

§ 443.131(3) (a) 26

Fla. R. App. P. 9.030(a) (2) (A) 4

Miscellaneous:

i Annals of Cong. 758 (J. Gales ed. 1834) 10

C. Antieau, A. Downey & E. Roberts, Freedom

From Federal Establishment (1964) +

Black’s Law Dictionary (5th ed. 1979) . 7,8

Choper, The Religion Clauses of the Fir st Amend-

ment: Reconciling the Conflict, 41 U. Pitt. L.

Rev. 673 (1980)

VI

Miscellaneous—Continued :

Ely, Legislative and Administrative Motivation in

Constitutional Law, 79 Yale L.J. 1205 (1970) ......

Garvey, Freedom and Equality in the Religion

Clauses, 1981 Sup. Ct. Rev. 198 ...........................-

Giannella, Religious Liberty, Nonestablishment,

and Doctrinal Development: The Religious

Liberty Guarantee and The Nonestablishment

Principle :

(Pt. 1), 80 Harv. L. Rev. 1881 (1967) —............

(Pt. 2), 81 Harv. L- Rev- 518 (1968) _...........

Kurland, The Irrelevance of the Constitution: The

Religion Clauses of the First Amendment and

the Supreme Court, 24 Vill. L. Rev. 3 (1978-

SN a eed eoatecnaan

Marshall, Sulving the Free Exercise Dilemma: Free

Exercise as Expression, 67 Minn. L. Rev. 545

aa aa

McConnell, Accommodation of Religion, 1985 Sup.

RR eR es Ra eA aan EN ORO eR Re aN

Pfeffer, Freedom and/or Separation: The Constitu-

tional Dilemma of the First Amendment, 64

eer

L. Pfeffer, Church, State, and Freedom (1964) ........

R. Stern, E. Gressman & S. Shapiro, Supreme

Court Practices (1GG6 @6.) ............-cccccccececeoeeese-..--..

Webster’s Third New International Dictionary

I i

Page

20

14

21

21

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-993

PAULA A. HOBBIE, APPELLANT

Vv.

UNEMPLOYMENT APPEALS COMMISSION, ET AL.

ON APPEAL FROM THE DISTRICT COURT OF APPEALS

OF THE STATE OF FLORIDA, FIFTH DISTRICT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING APPELLEES

INTEREST OF THE UNITED STATES

This case involves the validity of a Florida statute

which has been interpreted in this case to deny un-

employment benefits to someone who lost her job be-

cause she refused to work certain scheduled hours

due to sincerely held religious beliefs adopted after

she became an employee.

The United States has a great interest in the scope

given the free exercise clause and the establishment

clause of the First Amendment, both of which are at

issue here. Questions similar to those in this case

were raised last Term in Bowen v. Roy, No. 84-780

(June 11, 1986); Goldman vy. Weinberger, No. 84-

(1)

2

1097 (Mar. 25, 1986); and Bender v. Williamsport

Area School District, No. 84-773 (Mar. 25, 1986),

in which the United States participated as a party

or as an amicus. The United States has partici-

pated in cases involving the religion clauses from

earlier terms as well, either as a party (e.g., Tony

& Susan Alamo Foundation v. Secretary of Labor, No.

83-1935 (Apr. 23, 1985); United States v. Lee, 455

U.S. 252 (1982); Harris v. McRae, 448 U.S. 297

(1980); Tilton v. Richardson, 403 U.S. 672 (1971) )

or as an amicus (e.g., Estate of Thornton v. Caldor,

Inc., No. 83-1158 (June 26, 1985) ; Wallace v. Jajfree,

No. 83-812 (June 4, 1985) ).

STATEMENT

In April 1984, after two-and-one-half years as a

trainee and assistant manage of a retail jewelry

store, appellant Paula Hobbie informed her manager

that she was being baptised into the Seventh-Day

Adventist Church and, for religious reasons, would no

longer be able to work between sundown Friday and

sundown Saturday. Notwithstanding the employer’s

policy prohibiting management personnel from taking

Friday evenings and Saturdays as permanent days-

off,’ the store manager worked out an arrangement

with appellant whereby she agreed to work evenings

and Sundays and he agreed to work for her whenever

she was scheduled to work on a Friday evening or a

Saturday. This exchange of shifts occurred several

times, though on other occasions appellant worked

her scheduled Friday night or Saturday shift (J.A.

2).

1 The Unemployment Appeals Commission noted in its deci-

sion that these are traditionally the heaviest retail sales days

(J.A. 2).

3

On May 28, 1984, after a meeting with appellant

and her minister, the general manager advised appel-

lant that she could not be allowed special scheduling

privileges. On June 1, 1984, appellant was told that

she would either work her scheduled shifts or the

company would accept her resignation. When she

refused to resign, appellant’s employment was termi-

nated.

On June 4, 1984, appellant filed a claim for un-

employment compensation with the Florida Depart-

ment of Labor and Employment Security. Florida law

provides (Fla. Stat. Ann. § 443.101 (West Supp.

1986) ):

An individual shall be disqualified for benefits:

(1)(a) For the week in which he has volun-

tarily left his employment without good cause

attributable to his employer or in which he has

been discharged by his employing unit for mis-

conduct connected with his work * * *.

Appellant’s employer contested the payment of bene-

fits on the ground that appellant had been discharged

for misconduct connected with her work,’ and a claims

2 Fla. Stat. Ann. § 443.036(24) (West 1981) provides:

“Misconduct” includes, but is not limited to, the follow-

ing, which shall not be construed in pari materia with

each other:

(a) Conduct evincing such willful or wanton disre-

gard of an employer’s interests as is found in delib-

erate violation or disregard of standards of behavior

which the employer has the right to expect of his

employee; or

(b) Carelessness or negligence of such a degree or

recurrence as to manifest culpability, wrongful in-

tent, or evil design or to show an intentional and sub-

stantial disregard of the employer’s interests or of the

employee’s duties and obligations to his employer.

examiner of the Bureau of Unemployment Compensa-

tion denied her claim for benefits. On appeal of that

determination, following a hearing before a referee,

appellee Unemployment Appeals Commission affirmed

the denial of the claims (J.A. 5), approving the two-

page opinion of the referee holding that appellant’s

refusal to work scheduled shifts was misconduct con-

nected with her work (J.A. 1-3).

Appellant appealed the Commission’s order to the

Florida Fifth District Court of Appeals, and that

court issued an order stating “PER CURIAM. AF-

FIRMED.” Because, under Florida law, a per curiam

affrmance without an opinion cannot be appealed to

the state supreme court, appellant appealed directly

to this Court.*®

INTRODUCTION AND SUMMARY OF ARGUMENT

Appellant seeks reversal of a judicial order, affirm-

ing without opinion an administrative decision which

did not discuss the free exercise issue presented here

for review. Hers is the extreme claim that any state

action having the effect of disadvantaging an individ-

ual’s choice to adhere to a religious practice must

meet the high standards of necessity required for

actions which would otherwise violate the Free Exer-

cise Clause. The text and history of the clause as

* See Fla. R. App. P. 9.030(a) (2) (A). There was an initial

dispute among the parties about whether an appeal was proper

under 28 U.S.C. 1257(2). See Mot. to Dis. or Aff. 7-11. The

parties now agree that an appeal is proper. Br. for Appellant

8-12; Br. for Appellee 4-6. See Sherbert v. Verner, 371 U.S.

938 (1962) (noting probable jurisdiction) ; R. Stern, E. Gress-

man & S. Shapiro, Supreme Court Practice 112 (1968 ed.)

(appeal lies under 28 U.S.C. 1257(Z) even though state court

is not explicit in rejection of constitutional claim raised).

5

/

well as the general course of this Court’s decisions,

far from supporting such a theory, suggest a more

nuanced approach. Nor should this Court’s decision

in Sherbert v. Verner, 374 U.S. 398 (1963), be taken

to compel acceptance of appellant’s contention.

The text of the free exercise clause, when compared

to the speech, press, assembly, petitior, and establish-

ment clauses, appears to be directed at precluding a

narrower and more focused kind of state action. And

the Court’s decisions dealing with claims to subsidies

for constitutionally protected choices support this in-

ference. Accordingly, we suggest that free exercise

ciaims should generally not be entertained when the

state’s actions, rather than prohibiting or directly

seeking to discourage a religious practice, have an in-

direct and unintended disadvantaging impact on an

individual’s choice to engage in a particular religious

practice. Even in such cases of indirect disadvantag-

ing, a free exercise claim may be made out, however,

if (a) the state’s action is not neutral between reli-

gious practices, or between religious and other anal-

ogous personal choices, or (b) the action bears so

heavily on an individual’s choice as to have virtuaily

the preclusive effect of a direct prohibition.

This formulation not only harmonizes the general

course of the Court’s free exercise clause decisions,

but also makes the best sense of the relation of that

clause to the establishment clause. By recognizing

some breathing space for the optional accommodation

of religious practice by the state, there is avoided the

situation that a particular accommodation is either

required by the free exercise clause or forbidden by

the establishment clause, with no tertiwm quid ir be-

tween. This breathing space is desirable for a num-

ber of reasons, not the least of which is the danger—

6

if the two clauses are brought into contact—that a

particular state accommodation might appear at dif-

ferent times to be both required and prohibited.

The lack of any explicit attention to these or any

constitutional issues in the decisions below denying

appellant’s claim merits remand by this Court. The

state’s scheme may, for instance, lack the neutrality

which is a necessary if not a sufficient condition for

the validity of its denial of benefits here. Nor is it

clear what the impact and duration of the denial

was in this particular case, a factor which may bear

on appeilant’s constitutional claim even if the state’s

scheme satisfies the test of neutrality.

ARGUMENT

THE RECORD OFFERS NO SUFFICIENT BASIS ON

WHICH TO DETERMINE WHETHER OR NOT AP-

PELLEE HAS PROHIBITED THE FREE EXERCISE

OF RELIGION

This case comes to the Court on a record contain-

ing virtually no consideration of the free exercise is-

sue which it presents. While appellant’s counsel

briefly raised the issue at the hearing before the

rereree of the Unemployment Appeals Commission

and both parties briefed the issue before the Florida

appellate court, neither the referee’s opinion, which

was affirmed by order of the commission, nor the

state appellate court’s per curiam affirmance, touches

upon it. As a result, this Court is invited to deter-

mine whether appellee has vioiated appellant’s right

to free exercise of religion by reference to a record

which lacks the critical facts bearing on this issue.‘

* There is nothing in the record, for example, about the way

in which Fla. Stat. Ann. § 443.101 (West 1981 & Supp. 1986),

7

A. The Deniai Of Benefits Under A Facially Neutral

Statute, Without More, Is Not A Prohibition Of The

Free Exercise Of Religion

The thrust of appellant’s argument—a necessary

thrust given the state of the record—is that the state

may never, absent a compelling interest and no other

way of advancing it, deny receipt of benefits under a

facially neutral statute where the applicant is in-

eligible because of performance (or non-performance )

of an act prescribed (or proscribed) by is religion.

We submit that this theory of the free exercise clause

is inconsistent with the language and origins of the

clause, and with this Court’s decisions under it.

1. The First Amendment provides:

Congress shall make no law respecting an es-

tablishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the peo-

ple peaceably to assemble, and to petition the

Government for a redress of grievances.

To begin with, it is significant that it is not laws

“respecting” the free exercise of religion or “abridg-

ing’ it that are proscribed, but only those “prohibit-

ing’ it. And this is a considerably narrower pro-

scription. Abridging means “[t]o reduce or contract”

(Black’s Law Dictionary 8 (5th ed. 1979)) and re-

and especially the language disqualifying applicants when dis-

charged for work-related misconduct, has been applied in other

contexts. There has been no argument and no judicial discus-

sion about whether it has been applied in a nondiscriminatory

manner to religious as opposed to nonreligious conduct, or to

the conduct of some religions as opposed to others. Nor has

there been consideration of the nature and amount of the

benefits being denied, of the permanent vr temporary duration

of the denial, or of any additional consequences attendant to

tne refusal of b2nefits. See pages 26-28, infra.

8

specting means only “with regard to” (Webster's

Third New International Dictionary 1934 (1976

ed.)); but prohibit means “[t]o forbid by law; to

prevent” (Black’s Law Dictionary 1091 (5th ed.

1979) ).° The contrast between the use of “prohibit-

ing” in the free exercise clause and “respecting” or

“abridging” elsewhere in the First Amendment indi-

cates that the Framers did not propose identical

limits on Congress’s authority to enact laws. Thus,

while the Framers may have been concerned with a

relatively broader array of laws regarding the estab-

lishment of religion and assembly and speech, they

were troubled in the free exercise clause only with

prohibitory laws that forbid or prevent the practice

of religion. Consequently, so long as a law does not

with relative directness proscribe a religious practice

or require behavior contrary to a religious belief, it is

not in evident conflict with the express terms of thi

free exercise clause.

The origins of the clause bear this out. “‘No pr

vision of the Constitution is more closely tied to o1

given content by its generating history than the reli-

gious clause of the First Amendment.” Everson vy.

Board of Education, 330 U.S. 1, 33 (1947) (Rut-

ledge, J., dissenting). During the early days of the

colonies, religious belie: ers were often persecuted and

forced to engage in practices which violated their

beliefs. Laws were enacted requiring attendance at

approved services, expulsion of religious nonconform-

®° We do not question that “free exercise’’ means more than

mere advocacy or belief; the phrase itself denotes action or

activity. Fur. ermore, if the free exercise of religion were

only a right to express religious beliefs, then the clause would

be mere surplusage, since that right is already protected by

the right to assemble, speak, and publish. See Widmar vy.

Vincent, 454 U.S. 263, 269 n.6 (1981).

9

ists, support for the established church, and impris-

onment of those who preached unpopular doctrine.

See C. Antieau, A. Downey & E. Roberts, Freedom

From Federal Establishment 16-29 (1964); L. Pfef-

fer, Church, State, and Freedom 71-90 (1964). “Cath-

olics found themselves hounded and proscribed be-

cause of their faith; Quakers who followed their con-

science went to jail; Baptists were peculiarly obnox-

ious to certain dominant Protestant sects; men and

women of varied faiths who happened to be in a

minority in a particular locality were persecuted be-

cause they steadfastly persisted in worshipping God

only as their own consciences dictated.” Everson v.

Board of Education, 330 U.S. at 10 (footnote omit-

ted). It was an abhorrence of such conduct which

gave birth to the religion clauses of the First Amend-

ment. Bowen v. Roy, No. 84-780 (June 11, 1986),

slip op. 10 (opinion of Burger, C.J., joined by Powell

and Rehnquist, JJ.); Engel v. Vitale, 370 U.S. 421,

432-433 (1962); McGowan v. Maryland, 366 U.S.

420, 464 (1961) (Frankfurter, J., concurring) ;

Everson v. Board of Education, 330 U.S. at 11. In

this regard, the Court has repeatedly recognized the

role of Thomas Jefferson’s Virginia Bill for Religious

Liberty as an earlier formulation of the ideas em-

bodied in the religion clauses of the First Amendment.

McGowan v. Maryland, 366 U.S. at 437; Everson v.

Board of Education, 330 U.S. at 12-13; Reynolds vy.

United States, 98 U.S. 145, 163-164 (1878). it pro-

vided im part:

That no man shall be compelled to frequent or

support any religious worship, place, or ministry

whatsoever, nor shall be enforced, restrained,

molested, or burthened in his body or goods, nor

shall otherwise suffer on account of his religious

opinions or belief [.]

10

Act for Establishing Religious Freedom, ch. XXXIV,

1823 Va. Acts 86 (Hening) (emphasis added)

(quoted in Everson, 330 U.S. at 13). Similarly,

James Madison, the Amendment’s principal sponsor,

described it as ensuring “that Congress should not

establish a religion, and enforce the legal observa-

tion of it by law, nor compel men to worship God

in any manner contrary to their conscience.” 1

Annals of Cong. 758 (J. Gales ed. 1834) (emphasis

added‘. It was, in short, “the historical instances of

religious persecution and intolerance that gave con-

cern to those who drafted the Free Exercise Clause

of the First Amendment. See generally M. Malbin,

Religion and Politics: The Intentions of the Authors

of the First Amendment (1978). Bowen v. Roy, slip

op. 10 (opinion of Burger, C.J.).

Thus, the origins of the First Amendment confirm

what is apparent in its language: that only relatively

direct prohibiitons of the free exercise of religion are

proscribed.

2. Similarly, while this Court has recognized that

state actions short of direct prohibitions may violate

the free exercise clause, those decisions generally re-

flect that the language and origins of the clause re-

quire something more than a tangential, indirect ef-

fect on the practice of religion. The Court has re-

peatedly focused on the nature of governmental °

“compulsion” when determining whether a statute, as

* The Court has recognized that the religion clauses apply

to state as well as federal action through the Fourteenth

Amendment. See McCollum v. Board of Education, 333 U.S.

203 (1948) (establishment clause) ; Cantwell v. Connecticut,

310 U.S. 296 (1940) (free exercise clause). The clauses’ pro-

hibitions are at least as narrow as applied to the states, how-

ever. Cf. Johnson v. Louisiana, 406 U.S. 356, 369-377 (1972)

(opinion of Powell, J.).

11

applied, violates a religious observer’s free exercise

rights. See Bowen vy. Roy, slip op. 9-14 (opinion of

Burger, C.J.) ; Abington School District v. Schempp,

374 U.S. 203, 22 1963). See also Wisconsin v.

Yoder, 406 U.S. 2.5. 21s (1972) (noting the pres-

ence = signi? n); Engel v. Vitale,

370 U.S. at 4 {t]he Establish-

ment Cla se clause, does not

depend o ect governmental

comp ils -nactment of laws

which esta vhether those laws

operate -rving individuals or

not’”’)

The questi: ‘his case is whether a

governmental decision, which has not been shown to

be discriminatory in intent but has the unintended

effect of creating a financial] disincentive to a reli-

gious practice, can be said for that reason alone to

“prohibit” the free exercise of religion. An affirma-

tive answer proposes an extreme doctrine which is

inconsistent not only with the text and intent of the

free exercise clause, but the dominant course of the

Court’s decisions."

a. It is well established that a person is not pro-

tected from every incidental burden on the exercise

of his religion that may result from the implementa-

tion of a neutral, secular governmental interest. ‘“To

strike down, without the most critica! scrutiny, legis-

lation which imposes only an indirect burden on the

exercise of religious practice itself, would radically

restrict the operating latitude of the legislature.”

* This case thus does not present the issue whether a

“prohibitory” law which is neutrally written, motivated, and

applied has violated the Free Exercise Clause. See Wisconsin

Vv. Yoder, supra.

12

Braunfeld vy. Brown, 366 U.S. 599, 606 (1961) (plu-

rality opinion). See, e.g., McDaniel v. Paty, 435 U.S.

618, 635 n.8 (1978) (Brennan, J., concurring) ;

Johnson v. Robison, 415 U.S. 361, 383-386 (1974);

Gillette vy. United States, 401 U.S. 437, 461-462

(1971); see also Prince v. Massachusetts, 321 U.S.

158 (1944); Reynolds v. United States, supra.

Thus, for instance, it would seem to be a clear

implication of the extreme interpretation of the free

exercise clause expressed by appellant ™ that the

failure of government to subsidize a constitutionally

protected choice is equivalent to placing a forbidden

impediment on the exercise of that choice. This has

not been the doctrine of this Court, even in cases in-

volving constitutional rights where the limitation on

government action is not expressly limited to “pro-

hibitions.” For example, in response to a claim that

the failure to finance abortions constituted an in-

fringement of that constitutionally secured liberty,

the Court stated: “[I]t simply does not follow that

a woman’s freedom of choice carries with it a con-

stitutional entitlement to the financial resources to

avail herself of the full range of protected choices.”

Harris v. McRae, 448 U.S. 297, 316 (1980). See also

Maher v. Roe, 432 U.S. 464, 474 (1977) (the failure

to fund abortions “impose[s] no restriction on access

to abortions that was not already there’).

Similarly, this Court, in upholding restrictions on

the election funds available to minority and new

parties during a campaign (Buckley vy. Valeo, 424

U.S. 1, 94-95 (1976) (footnote omitted)), drew a

clear distinction between prohibiting the candidate

from running for office and merely making the can-

didacy more difficult by not subsidizing it:

13

[T]he denial of public financing to some Presiden-

tial candidates is not restrictive of voters’ rights

and less restrictive of ec ididates’. Subtitle H

does not prevent any canuidate from getting on

the ballot or any voter from casting a vote for

the candidate of his choice; the inability, if any,

of minor-party candidates to wage effective cam-

paigns will derive not from lack of public fund-

ing but from their inability to raise private con-

tributions.

In short, “[i]t is one thing to say that a State may

not prohibit [an activity] and quite another to say

that such [activity] must * * * receive state aid.”

Norwood v. Harrison, 413 U.S. 455, 462 (1973).

Accordingly, there is a clear difference between in-

terfering with a person’s ability to follow his religious

beliefs and not providing him with funds to make

such activity more comfortable or rewarding. Any

other conclusion would go well beyond the plain mean-

ing of the clause’s language and any purpose con-

templated by the Framers. For instance, the Amish

would have not only the free exercise right not to

attend public schools, Wisconsin v. Yoder, supra, but

also the right to have their own special schools funded

at public expense. Conversely, government would not

only be foreclosed from prohibiting attendance at re-

ligious schools, but would also be required to subsi-

dize them. Cf. Harris v. McRae, 448 U.S. at 318;

Maher v. Roe, 432 U.S. at 476-477; Norwood vy. Har-

rison, 413 U.S. at 462; Thomas v. Review Board, 450

U.S. 707, 724 n.2 (1981) (Rehnquist, J., dissenting).

It might be argued that the situation is different

where the state has in place a general program for

providing unemployment compensation. But this dif-

ference is of significance not with respect to whether

14

religious liberty has been restricted but only with

respect to whether government has departed from its

mandate of neutrality towards religion. If the ques-

tion whether religious freedom has been burdened

turns on whether an unemployment compensation

program exists, then there is no right to government

funds as such, but only to those government funds

which are provided to others similarly situated. Thus,

“manipulation of public benefits produces problems

of equality, not freedom.” Garvey, Freedom and

Equality in the Religion Clauses, 1981 Sup. Ct. Rev.

193, 206. See United States v. Lee, 455 U.S. 252,

263-264 n.3 (1982) (Stevens, J., concurring).

For example, while exempting a religiously-moti-

vated conscientious objector from military service fur-

thers free exercise values, the conscientious objector

who is excused from military service would not s: )-

sequently have any free exercise claim to veterans’

benefits. If other nonveterans are not entitled to such

benefits, then it is difficult to discern why a conscien-

tious objector must receive them simply because he

is a nonveteran for religious reasons (unless, of

course, the state provided veterans’ benefits to per-

sons who avoided military service for analogous, but

secular reasons). To be sure, the conscientious objector

in this situation would be forced 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 [military

service], on the other hand.” Sherbert v. Verner, 374

U.S. 398, 404 (1963). Nevertheless, when faced with

precisely this free exercise claim, the Court in John-

son v. Robison, 415 U.S. 361 (1974), ruled that the

denial of special veterans’ benefits to a conscienticus

objector was constitutionally permissible. In that

15

case, a conscientious objector ~vho had performed

alternative civilian service challenged the federal

funding scheme that granted educational benefits

only to veterans who had served in active duty on the

grounds that this denial of benefits “interferes with

his free exercise of religion by increasing the price

he must pay for adherence to his religious beliefs”

(415 U.S. at 383). The Court rejected this argument

in no uncertain terms (id. at 385-386) (footnote

omitted ) :

The withholding of educational benefits involves

only an incidental burden upon appellee’s free

exercise of religion—if, indeed, any burden ex-

ists at all. * * * Appellee and his class were not

included in this class of beneficiaries, not because

of any legislative design to interfere with their

free exercise of religion, but because to do so

would not rationally promote the Act’s purposes.

* * * [T]he Government’s substantial interest

in raising and supporting armies, Art. I, § 8,

is of “a kind and weight” clearly sufficient to

sustain the challenged legislation, for the burden

upon appellee’s free exercise of religion—the

denial of the economic value of veterans’ educa-

tional benefits under the Act—is not nearly of

the same order or magnitude as the infringe-

ment upon free exercise of religion suffered by

petitioners in Gillette. See also Wisconsin v.

Yoder, 406 U.S. 204, 214 (1972)."

Last Term, Chief Justice Burger’s opinion in Bowen

v. Roy, supra (joined by Powell and Rehnquist, JJ.),

drew the same distinction between prohibitory legis-

* Only Justice Douglas dissented. Relying on Sherbert, he

maintained that “|w]here Government places a price on the

free exerc’ of one’s religious scruples it crosses the forbid-

den line” , 15 U.S. at 389 (footnote omitted) ).

16

lation and other laws creating some incentive to com-

promise religious principles. “[A] mere denial of a

governmental benefit by a uniformly applicable stat-

ute does not constitute infringement of religious

liberty.” Slip op. 10. The three Justices emphasized

(id. at 9-10 (footnotes omitted) ) :

It may indeed confront some applicants for ben-

efits with choices, but in no sense does it affirm-

atively compel appellees, by threat of sanctions, to

refrain from religiously motivated conduct or to

engage in conduct that they find objectionable

for religious reasons. * * *

* * * [Whhile we do not believe that no gov-

ernment cumpulsion is involved, we cannot ig-

nore the reality that denial of such benefits by a

uniformly applicable statute neutral on its face

is of a wholly different, less intrusive nature

than affirmative compulsion or prohibition, by

threat of penal sanctions, for conduct that has

religious implications.

See also Bob Jones Univer ity v. United States, 461

U.S. 574, 603-604 (1983) (“[d]Jenial of tax benefits

will inevitably have a substantial impact on the op-

eration of private religious schools, but will not pre-

vent those schools from observing their religious ten-

ets”); Braunfeld v. Brown, 366 U.S. at 605-606

(plurality opinion) (the fact that some financial sac-

rifice is required in order to observe religious beliefs

“is wholly different than when the legislation attempts

to make a religious practice itself unlawful”).

Thus, this Court has repeatedly recognized the dis-

tinction between withholding benefits and compelling

or prohibiting conduct. It has held with respect to

the former that the free exercise clause does not re-

quire preferential treatment of religious adherents.

17

This is not to say that, in an extreme case, the denial

of a benefit might not be so onerous that it is tanta-

mount to a prohibition and thus runs afoul of the free

exercise clause. But the general principle is sound

and well-established.

b. Appellant relies on this Court’s decision in

Sherbert v. Verner, 374 U.S. 398 (1963), and Thomas

v. Review Board, 450 U.S. 707 (1981), a subsequent

and very similar case which relied heavily on it.

Both opinions, particularly Thomas, strongly sug-

gested that the government was required to provide

unemployment benefits to those who left their jobs or

could not find work for religious reasons, even if it

did not provide such benefits to persons who left their

jobs for anslogous secular reasons. An extreme view

of these cas. would have them impose the obligation

on the state, in the name of free exercise, of singling

out religious adherents for preferential treatment in

the provision of fiscal benefits—at least absent a com-

pelling interest not to do so.

We do not wish to minimize the difficulties which

these two cases present for appellee’s position here.

There is, however, much in Sherbert that supports a

reading that the opinion was simply intended to en-

force government neutrality among religions and be-

tween religion and non-religion. First, the South

Carolina statute there reflected a sectarian preference

because in one part of the statutory scheme Sunday

worshippers were expressly exempted from having to

make the kind of choice required of Mrs. Sherbert.

374 U.S. at 406. As the Court put it in its discussion

of the establishment clause, its holding requiring “ex-

tension of unemployment benefits to Sabbatarians in

common with Sunday worshippers reflects nothing

18

more than the governmental obligation of neutrality

in the face of religious differences.” 374 U.S. at 409.

Moreover, the opinien suggests that if the state had

disqualified from unemployment benefits all persons

who left their job for personal reasons (re.igious and

nonreligious), then it need not grant a special exemp-

tion for those who left for religious reasons. Id. at

401 n.4. See Thomas v. Review Board, 450 U.S. at

723-724 n.1 (Rehnquist, J., dissenting).

Further, the broader interpretation of Sherbert

urged by appellant would seem to conflict with sev-

eral other decisions of this Court, and has been ex-

pressly rejected by a number of Justices. In Roy,

for example, the Chief Justice’s opinion stated that

Sherbert and Thomas did not constitute a departure

from the principle that benefit programs which treat

religion evenhandedly need not be supported by a .

compelling government interest. Bowen v. Roy, slip

op. 14-15. Rather, it was precisely because the in-

dividualized “good cause” determinations made in

those cases “suggest[ed] a discriminatory intent” and

“exhibit[ed] hostility, not neutrality, towards reli-

gion” that the compelling governmental interest test

was appropriate there. Jbid. Similarly, Justice

Stevens has suggested that Sherbert and Thomas pro-

vided “protection against unequal treatment rather

than a grant of favored treatment for the members

of the religious sect.”” United States v. Lee, 455 USS.

252, 263-264 n.3 (1982) (Stevens, J., concurring ).

“In Thomas * * * and Sherbert * * *, the granting

of a religious exemption was necessary to prevent the

treatment of religious claims less favorably than

other claims.” Bowen v. Roy, slip op. 7 n.17 (Stevens,

J., eoneurring).., In his dissent in Thomas, Justice

19

Rehnquist wrote that Sherbert should at most be nar-

rowly read (450 U.S. at 723-724 n.1).

Accordingly, there is considerable ambiguity con-

cerning whether Sherbert and Thomas stand for the

extreme proposition that government must single out

religious observers for preferential provision of gov-

ernment benefits not provided to others similarly sit-

uated, rather than the more familiar rule that cov-

ernment must be neutral in the provision of such

benefits. In our view, for the reasons indicated, the

latter interpretation is the proper one.

3. Finally, we note that while we agree with ap-

pellee that appellant has failed to demonstrate that

the statute at issve here is unconstitutional, we do

not agree that the state would be forbidden from ac-

commodating appellant’s religious beliefs if it chose

to do so. See Br. for Appellee 31-38; Mot. to Dis.

or Aff. 21-25. But it is an additional argument

against the expansive reading of the free exercise

clause urged by appellant that it greatly increases the

risk of a collision with the establishment clause.

a. The First Amendment provides that ‘Congress

shall make no law respecting an establishment of reli-

gion or prohibiting the free exercise thereof * * *.”

While the establishment and free exercise clauses pro-

vide two distinct guarantees, they are ‘correlative

and coextensive ideas, representing only different

facets of the single great and fundamental freedom.”

Everson v. Board of Education, 330 U.S. at 40 (Rut-

ledge, J., dissenting). See also Abington School Dis-

trict v. Schempp, 374 U.S. at 232 (Brennan, J., con-

curring).

Nonetheless, there clearly has been a certain “ten-

sion between the two Religious Clauses.” Thomas v.

20

Review Board, 450 U.S at 719," and, as this Court

and its Members have acknowledged, this tension has

in difficult cases sometimes led to opinions which are

hard to square with one another. Walz v. Tax Com-

mission, 397 U.S. 664, 668 (1970). See also, €.9.;

Widmar v. Vincent, 454 U.S. 263, 282 (1981) (White,

J.. dissenting) (‘“[t]he majority's position will in-

evitably lead to * * * contradictions and tensions be-

tween the Establishment and Free Exercise Clauses’’) ;

Thomas v. Review Board, 450 U.S. at 720 (Rehn-

quist, J., dissenting) (“the decision today adds mud

to the already muddied waters of First Amendment

jurisprudence”) ; Sherbert v. Verner, 374 U.S. at 414

(Stewart. J.. concurring) (footnote omitted) (‘‘the

Free Exercise Clause will run into head-on collision

with the Court’s insensitive and sterile construction

of the Establishment Clause” ).™

® Commentators have also discussed this tension. Se

Marshall, Solving the Free Exercise Dilemma: Free E

as Expression, 67 Minn. L. Rev. 545, 548-549 (1985

The Religion Clauses of the First Amendment R

the Conflict, 41 U. Pitt. L. Rev. 673, 674-675 (198

Freedom and/or Separation: The Constit i I

the First Amendment, 64 Minn. L. Rev. 561, 567-57 .

Kurland, The Irrelevance of the Consfitut l

Clauses of the First Amendment and the S

Vill. L. Rev. 3, 15 (1978-1979). See also EF!

Administrative Motivation in Constitut

1205, 1313-1327 (1970).

19 Several explanations have been offer

in this area. See Thomas v. Review B

(Rehnquist, J., dissenting) (tension caused

social welfare legislation, the incorporat

Amendment, “and perhaps most important|iy) * * *

expansive interpretation of both Clauses” (em}

nal)): Walz v. Tax Commission, 397 U.S. at 66%

inconsistency in the opinions of the Court ai

¢ :

Zi

In no context has this tension been more striking

than in those instances where the Court has addressed

states’ efforts to accommodate religion for the pur-

pose of facilitating its free exercise. In this regard,

the Court has said that the government must “main-

tain an attitude of ‘neutrality,’ neither ‘advancing’

nor ‘inhibiting’ religion.””’ Committee for Public Edu-

cation v. Nyquist, 413 U.S. 756, 788 (1973) (footnote

omitted). See also Lynch v. Donnelly, 465 U.S. 668,

714 (1984) (Brennan, J., dissenting) (the govern-

ment must “remain scrupulously neutral in matters

of religious conscience”) ; Abington School District v.

Schempp, 374 U.S. at 226; id, at 296-299 (Brennan,

J., concurring). Yet the Court has sometimes indi-

cated that accommodation of an individual’s religious

beliefs is mandated by the free exercise clause (see,

e.g.. Thomas v. Review Board, supra; Wisconsin v.

too sweeping utterances on aspects of these clauses”) ;

Sherbert, 374 U.S. at 416-417 (Stewart, J., concurring)

(antagonism results from “‘faliacious fundamentalist rhetoric

f some of our Establishment Clause opinions”) ; McConnell,

-ommodation of Religion, 1985 Sup. Ct. Rev. 1, 1-2 (friction

to inappropriate application of the three-part test in

n v. Kurtzman, 403 U.S. 602, 612-613 (1971), and “sub-

jiary, instrumental, values”) ; Choper, The Religion Clauses

the First Amendment: Reconciling the Conflict, 41 U. Pitt.

673. 686-690 (1980) (disharmony attributable to an

rbroad reading of the establishment clause) ; Kurland, The

ince of the Constitution: The Religion Clauses of the

{mendment and the Supreme Court, 24 Vill. L. Rev. 3,

27 (1978-1979) (inconsistency ensues from a failure to

ilate and apply clear constitutional principles) ; Giannella,

is Liberty, Nonestablishment, and Doctrinal Develop-

The Religious Liberty Guarantee (pt. 1), 80 Harv. L.

12881 (1967), MH The Nonestablishment Principle (pt. 2),

21 Harv. L. Rev. 518 (1968) (tension exacerbated by the

vrowth of state regulation).

BEST AVAILABLE COPY

99

Yoder, supra; Sherbert v. Verner, supra), and other

times has said that it is at least desirable (see, e.”.,

Lynch vy. Donnelly, 456 U.S. at 672-678; Zorach v.

Clauson, 343 U.S. 306, 313-314 (1952) ). And where

the state has taken the initiative to effect accommoda-

tion, its efforts have often been held to violate the

establishment clause. See, e.g., Aguilar v. f elton, No.

84-237 (July 1, 1985); Estate of Thornton v. Caldor,

Inc., No. 83-1158 (June 26, 1985); Committee for

Public Education v. Nyquist, supra. The broader in-

terpretation of Sherbert would, in this regard, cer-

tainly seem to “impose [a] requirement[] which

aid[s] all religions as against non-believers” (7 orcaso

v. Watkins, 367 U.S. 488, 495 (1961) (footnote omit-

ted) ), and would have the “effect” of furthering reli-

gion (see Committee for Public Education v. Nyquist,

413 U.S. at 772-774; Lemon v. Kurtzman, 403 U.S.

602, 612 (1971) ).”

b. In our view, a measure of harmony may be

achieved in the interpretation of the religion clauses

by a rule which holds that states should be free to

ameliorate voluntarily the burdens that some of its

citizens suffer by virtue of their special religious

needs, but is not compelled to do so under the free

exercise clause. In broader terms, a state may not

promote religion but it may accommodate it.

11 We do not suggest that the establishment clause should be

interpreted in a way to condemn as “non-secular” the objective

of enlarging the scope for individual religious choice, or as

“advancing religion” the effect of removing obstacles to re-

ligious practice. The creation of a society in which people are

free to follow the tenets of their faiths is a truly secular pur-

pose to which many non-believers are devoted. See Wallace Vv.

Jaffree, No. 83-812 (June 4, 1985), slip op. 16-18 (O’Connor,

J., concurring).

23

This approach is strongly supported by those deci-

sions of this Court under the establishment clause,

which “reflect an appropriate accommodation of our

heritage as a religious people whose freedom to de-

velop and preach religious ideas and practices is pro-

tected by the Free Exercise Clause.” McDaniel v.

Paty, 435 U.S. 618, 638 (1978) (Brennan, J., con-

curring) (footnote omitted). The Court has repeat-

edly recognized the legitimacy of governmental ef-

forts to accommodate the practice of religion—that

is to help create conditions in which citizens are free

to decide whether to adopt a religious faith and to

practice it if that is their choice. See, e.g., Lynch v.

Donnelly, 465 U.S. at 672-678; Wisconsin v. Yoder,

406 U.S. at 234-235 n.22; Widmar v. Vincent, 454

U.S. at 282 (White, J., dissenting). It is well estab-

lished that it is permissible for states and the federal

government, in their discretion, to ease restrictions or

burdens that make it difficult for individuals to ob-

serve their faith or to expand opportunities for vol-

untary religious exercise. See, e.g., Witters v. Wash-

ington Dep’t of Services for the Blind, No. 84-1070

(Jan. 27, 1986) (extension of aid under state voca-

tional rehabilitation program to finance petitioner’s

theological training at a Christian college) ; Mueller

y. Allen, 463 U.S. 388 (1983) (tuition tax deduc-

tions); St. Martin Evangelical Lutheran Church v.

South Dakota, 451 U.S. 772 (1981) (exemption of

church-operated school employees from unemployment

taxes); NLRB vy. Catholic Bishop, 440 U.S. 490

(1979) (implied exemption of church-operated school

employees from NLRB _ jurisdiction); Cillette v.

United States, supra (exemption of religious objec-

tors from compulsory military service) ; Walz v. Tax

Commission, supra (property tax exemptions for re-

ligious organizations) ; Zorach v. Clauson, supra (off-

24

premises public school release time programs) ; Quick

Bear v. Leupp, 210 U.S. 50 (1908) (use of Indian

trust monies for sectarian education). This is not

surprising in light of the fact that the First Amend-

ment singles out religious liberty for specia! protec-

tions and “contains a religious classification.” Welsh

vy. United States, 398 U.S. 333, 372 (1970) (White,

J., dissenting).

In defining the boundaries of permissible accom-

modation, the Court and its Members have in fact

emphasized that states are not to be circumscribed

by what is constitutionally compelled by the free ex-

ercise clause. Walz v. Tax Commission, 397 U.S. at

673. See also Wallace v. Jaffree, slip op. 16 (O’Con-

nor, J., concurring); Marsh v. Chambers, 463 U.S.

783, 812 (1983) (Brennan, J., dissenting); TWA

vy. Hardison, 432 U.S. 63, 90 (1977) (Marshall, J.,

dissenting) ; Gillette v. United States, 401 U.S. at

453; Abington School District v. Schempp, 374 U.S.

at 299 (Brennan, J., concurring) ; McGowan v. Mary-

land, 366 U.S. at 520 (Frankfurter, J., concurring).

See generally McConnell, Accommodation of Religwn,

1985 Sup. Ct. Rev. 1, 29-34. Although in Braunfeld

v. Brown, 366 U.S. 599 (1961), and Gallagher v.

Crown Kosher Market, 366 U.S. 617 (1961), the

plurality rejected claims that Sunday closing laws im-

permissibly burdened Saturday religious observers,

it was careful, nevertheless, to note that exemptions

for persons worshipping on other days “may well be

the wiser solution.” Braunfeld v. Brown, 366 U.S.

at 608. Similarly, in United States v. Lee, 455 U.S.

at 260-261, the Court referred with apparent ap-

proval to the congressionally-granted exemption from

self-employment taxes for those with religious objec-

tions, while refusing to hold that the Constitution re-

quires extension of that exemption to similarly ob-

25

jecting employees of those persons. Most importantly,

in the unemployment benefits context, while there has

been disagreement about whether accommodation is

required under the free exercise clause, the majority

and those dissenting have recognized that voluntary

accommodation would have been permissible under

the establishment clause. See Thomas v. Review

Board, 450 U.S. at 719-720 (quoting Sherbert, 374

U.S. at 409); Thomas, 450 U.S. at 723 (Rehnquist,

J., dissenting); Sherbert, 374 U.S. at 422-423 (Har-

lan, J., dissenting) .”

12 The extreme interpretation of Sherbert in conjunction

with a broad reading of Estate of Thornton v. Caldor, Inc., No.

83-1158 (June 26, 1985), can suggest the following view of the

Constitution’s religion clauses: The state is forced to treat an

employer’s failure to accommodate an employee’s Sabbath

observance as ap un justified action for purposes of paying un-

employment compensation, but is unable to protect against the

ensuing financial drain by treating such a failure as an unlaw-

ful employment practice. Put another way, the government

may not “burden” an employee’s free exercise rights by failing

to accommodate his Sabbath observance, yet the same govern-

ment may be precluded from accommodating all employees’

Sabbath observance by the establishment clause. Moreover, as

a matter of Title VII law, state employers are seemingly not

required under that statute’s express “religious accommoda-

tion” provision, 42 U.S.C. 2000e(j), to grant in all cases the

religion-based “preferences” potentially mandated by Sher-

bert; and it could be argued that the Court has implied

that such preferences might even violate the nondiscrimination

mandate of that statute. TWA v. Hardison, 432 U.S. at 84-85.

But see Bowen v. Roy, slip op. 18 n.19 (opinion of Burger,

C.J.) ; Thornton, slip op. 2 (O’Connor, J., concurring) ; TWA

v. Hardison, 432 U.S. at 87-91 (Marshall, J., dissenting).

We submit that this reads Sherbert too broadly, for reasons

already discussed, and that it reads Thornton too broadly as

well. In Thornton, the Court held that a Connecticut statute

which required employers to provide Sabbath observers with

an “absolute and unqualified right not to work on whatever day

26

B. A Remand Is Appropriate Because The Application

Of The Florida Statute Has Not Been Explored

That the denial of unemployment benefits does not

necessarily infringe on free exercise rights, however,

does not mean that this could never be the case. Be-

cause the proceedings below did not develop the facts

relevant to this issue, indeed because there is no

statement or any consideration of the relevant con-

stitutional issues at all, we believe that a remand is

appropriate.

The Florida statute appears neutral on its face.

It does not by its terms discriminate among religions

or against religions generally. Cf. Bowen v. Roy,

slip op. 14 (opinion of Burger, C.J.). As in Sherbert,

however, it is possible that the statute is applied or

interpreted in such a way that certain religions (@.9.,

they designate as their Sabbath” violated the establishment

clause. Slip op. 5 (footnote omitted). In reaching its decision,

the Court stressed that the Connecticut statute necessarily

placed an impermissible burden on employers and fellow work-

ers since it provided no exceptions for special circumstances

regardless of the burden or inconvenience resulting from

accommodation. As such, the statute created an “unyielding

weighting in favor of Sabbath observers” which might require

others to “ ‘conform their conduct to [others’] religious neces-

sities.’ ” Id. at 6-7 (quoting Otten v. Baltimore & O.R.R., 205

F.2d 58, 61 (2d Cir. 1953) (L. Hand, J.)).

In contrast, if Florida were to provide unemployment com-

pensation to religious observers, nonobservers would not be

required to conform their conduct to accommodate Sabbath

observers; the economic burdens which employers would ap-

parently bear would be less onerous than the “absolute” and

“unyielding” burden in Thornton (see Mot. to Dis. or Aff. 25,

citing Fla. Stat. Ann. § 443.131(3) (a) (West Supp. 1986)).

Thus, appellee’s reliance (see Mot. to Dis. or Aff. 21-25) on

Thornton is misplaced. See Thornton, slip op. 1-2 (O’Connor,

J., concurring); see also Wallace v. Jaffree, slip op. 16-18

(O’Connor, J., concurring).

27

ones that worship on Sunday) are treated more favor-

ably than appellant’s or that religious impediments

to continued employment generally are treated less

favorably than other personal impediments." It does

not appear that either side has considered these issues

below, although an examination of the Florida case

law reveals this to be a possible issue."* Nor, appar-

ently, was there any discussion by the parties of the

degree of disincentive provided by the statute to reli-

gious practice. As we have said, there may come a

point where a disincentive, however neutrally con-

ceived, bears so heavily that it amounts to a prohibi-

tion and must be justified by a higher standard of

necessity applicable to such prohibitions. As con-

erete evidence of the statute’s application is devel-

oped, the tribunals below may identify additional

factors of constitutional relevance.”

13 Appellant concedes {Br. 25) that, “[u]ndeniably, the pur-

pose of the statute is wholly secular: ‘to lighten [unemploy-

ment’s] burden which now so often falls with crushing force

upon the uenmployed worker and his family.’ Fla. Stat. Ann.

§ 443.021.”

14 There appear to be no Florida court decisions applying the

statutes to other religious claims. Certain secular exemptions,

however, have been allowed by the courts. See Langley v. Un-

employment Appeals Comm’n, 444 So.2d 518 (Fla. Dist. Ct.

App. 1984) (failing to follow orders because of family emer-

gency not misconduct); Parker v. Department of Labor &

Employment Security, 440 So.2d 438 (Fla. Dist. Ct. App. 1983)

(employee absent because he was in jail granted benefits) ;

Hartenstein v. Florida Dep’t of Labor & Employment Secu-

rity, 383 So.2d 759 (Fla. Dist. Ct. App. 1980) (absence for

funeral not misconduct).

15 We have supported a remand in a case involving a similar

issue under Title VII in Ansonia Board of Education V.

Philbrook, cert. granted, No. 85-495 (Jan. 21, 1986). We have

sent that brief to counsel for the parties in the present case.

28

If this Court clarifies the scope and validity of

Sherbert and Thomas along the lines suggested in

this brief, then a remand should follow. The parties

have not had the opportunity to explicate the inter-

pretation and application of Florida law. That ex-

plication would certainly bear on the statute’s con-

stitutionality. See Ohio Civil Rights Comm'n v. Day-

ton Christian Schools, Inc., No. 85-488 (June 27,

1986), slip op. 5-9 (applying abstention doctrine in

free exercise clause challenge to state law) ; City of

Los Angeles v. Preferred Communications, Inc., No.

85-390 (June 2, 1986), slip op. 6 (declining to re-

solve free speech claim “without a fuller development

of the disputed issues in the case”); Bowen v. Roy,

slip op. 8 (Stevens, J., concurring) (supporting re-

mand where record was inadequate on other statutory

exceptions).

CONCLUSION

For the foregoing reasons, the judgment of the

court below should be vacated and the case should be

remanded.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

MICHAEL CARVIN

Deputy Assistant Attorney General

ROGER CLEGG

Assistant to the Solicitor General

LisA J. STARK

Attorney

SEPTEMBER 1986

Wr Uv. S&S. GOVERNMENT PRINTING OFFICE; 1966 491507 20323