1. Free Exercise II (Sherbert-Yoder Test)
Lecture 7 Chapter 4
Free Exercise II
(Sherbert-Yoder Test)

2. This Lecture…
This lecture discusses much of the Warren and Burger Courts on the Free Exercise Clause
This covers pages
The Sherbert-Yoder Test

3. A move to the Compelling Interest Test
Braunfeld v. Brown (1961)
Challenge to a “blue law” by an Orthodox Jew, who observed the Sabbath on a different day than most Christians
He wanted to be able to operate on Sunday for financial reasons
The Court upholds the law
But this was a plurality opinion of a badly divided Court (it involved two other issues and was decided with another case)
But Warren, C.J. adds that the state must show that the legislation achieves a an important secular end that it cannot achieve with legislation that places less of a burden on religious freedom
He found that this law contained a “weekly respite from all labor”
So it applied uniformly to everyone
Stewart, J. dissented saying this was a “cruel choice”
He also found a violation of free exercise

4. Sherbert v. Verner (1963) Background
Plaintiff was a Seventh-Day Adventist, whose members must not work from sundown Friday to sundown on Saturday
Her textile mill then required her to work on Saturdays and she was fired after she didn’t come to work
She couldn’t get any other job that didn’t involve Saturday hours
The state employment office denied her jobless benefits claim on the basis that she failed to accept suitable work when offered
Religion was not a reason for refusal
The State Supreme Court of South Carolina ruled against her

5. Sherbert v. Verner- II Arguments For Sherbert
The ruling would essentially require her to give up her religious beliefs
Saturday work requirements are not essential to state policy
Requiring Saturday work but not Sunday work is discriminatory
For Verner (the agency in South Carolina)
Denying her benefits does not equal coercion
There is a secular objective of requiring those that can work to do so
Braunfeld v. Brown (1961) controls this is only a small economic burden

6. Sherbert v. Verner- III Brennan, J. writes for a 7-2 majority
The Court sets up a three prong test
Burden first on plaintiff
1) Does the burden the free exercise of religion?
Burden shifts to state
2) Was it justified by a compelling state interest?
3) Was it narrowly tailored? (no alternative could achieve the same ends-LRM)
On prong one, she wins
Forces her to choose between benefits and her religion
Even if this is a privilege or benefit, not a right to receive these benefits

7. Sherbert v. Verner- IV One the remaining prongs
Compelling state interest
She wins again since the state presented no evidence as to why they must enforce this
This essentially makes her religion a disqualification for benefits
Since the state failed on CSI, no need to consider the LRM

8. Sherbert v. Verner- V Concurrences William O. Douglas Douglas, J.
He mentions that he dissented in Braunfeld
Compares the law to the Soviet Union, by making churchgoers second-class citizens
Stewart, J.
He thinks the case is inconsistent with Braunfeld and would overrule it
He feels the burden in that case was more egregious than this one
William O. Douglas

9. Sherbert v. Verner- VI The Dissent Harlan, J, joined by White, J.
He finds this case did effectively overrule Braunfeld
Agrees with Stewart that this is less of a burden
The state will grant benefits to some that won’t work on Saturdays while denying it to others
He basically sees this as special treatment for “a few”

10. Wisconsin v. Yoder (1972) Background
Wisconsin had a compulsory education act, requiring attendance at a public or private school up to the age of 16
Old Order Amish only send children to public school to 8th grade and then home school them
Several groups formed a group to provide legal services to the Amish
Criminal complaints were brought against several Amish families for removing their children after the 8th grade
The Amish are convicted, but the convictions are overturned by the Wisconsin Supreme Court
Wisconsin appeals

11. Wisconsin v. Yoder- II Arguments For Wisconsin For The Amish parents
These laws have existed for centuries
It is for the children’s best interest
Prince v. Massachusetts (1943) applies
For The Amish parents
Sherbert is the applicable law here
This law interferes with the family’s free exercise of religion
The children still receive education, just not formally

12. Wisconsin v. Yoder- III
Burger, C.J. delivered the unanimous opinion of the Court
Amish society is different than others, and emphasizes different learning
Children get an education, but are not to be exposed to “worldly values”
The State’s interest in education is not absolute and must be weighed against free exercise
This is deeply rooted religious beliefs

13. Wisconsin v. Yoder- IV More from Burger, C.J.
A neutral regulation may be unconstitutional if it unduly burdens the free exercise
The state’s rationales (self-reliance/self- sufficiency and intelligently function in society) are rejected by the Court
Using Prince v. Massachusetts to these facts ignores parental rights
There is no harm

14. Wisconsin v. Yoder- V
Concurrence by White, J. joined by Stewart and Brennan, JJ.
They would be more limited in scope
Would rule the other way if involved no formal education
The Amish send children to school for several years
Special situation
Dissent (in part) by Douglas, J.
He thinks the Court put too much focus on parental rights
An Amish child that wished to continue to high school should have that request considered

15. Subsequent Burger Court cases
Thomas v. Review Board of Indiana Employment Security Division (1981)
A Jehovah’s Witness member was transferred to a steel mill that made tanks
He quit and filed for benefits
The Court rules in his favor, based on Sherbert
Bob Jones University v. United States (1983)
The school had a ban on interracial dating, and justified it by religion
The IRS took away their tax exemption
Ending racism was a compelling government interest and this could not be achieved by other means
They can still practice their religion, but don’t get a tax benefit

16. Next lecture We will finish the section on Free Exercise
The Court will adopt a new test in Smith
RFRA
Hobby Lobby excerpt
Pages