Sherbert v. Verner has been rightly termed a ‘‘high water mark’’ in the constitutional protection of minority religious beliefs against state laws not targeted at specific religious practices. Sherbert served as the Supreme Court’s standard test in Free Exercises cases from 1963 to 1990, when it was effectively overruled for most cases by Employment Division, Dept. of Human Resources of Oregon v. Smith. In Sherbert, the Supreme Court held that strict scrutiny would be extended to state laws that applied uniformly to all persons but imposed a substantial burden on minority religious adherents whose religious practice conflicted with those laws.
In 1957, Adell H. Sherbert, a textile mill worker in Spartanburg, South Carolina, became a member of the Seventh-Day Adventist Church, a Christian denomination that requires members to observe Saturdays as the Sabbath and a day of rest. Two years later, the workweek at the mill where she was employed changed to six days; and Sherbert was discharged when she refused to work on Saturday. Sherbert looked for Monday-to-Friday work with the other three mills in Spartanburg but could not find any suitable employment. She filed a claim with the South Carolina Unemployment Commission, indicating that she would be willing to accept work at other mills or in other industries so long as she was not required to work Saturdays. However, she was denied unemployment compensation because she ‘‘failed without good cause . . . to accept available suitable work when offered [her] by the employment office or the employer . . .’’ as required by the South Carolina unemployment law.
In Sherbert, the Supreme Court restated the free exercise clause prohibition against ‘‘governmental regulation of religious beliefs’’ but rejected the view that individuals’ actions in accordance with their religious convictions could not be regulated by the state. This ruling recalled the so-called belief-action distinction announced in Reynolds v. United States, a major Free Exercise case that had upheld a Mormon’s conviction for the religious practice of polygamy in the late nineteenth century.
Although it acknowledged that legislatures can regulate religious conduct, the Sherbert Court imposed a higher standard on state regulation of such conduct than in previous cases, holding the state could not disqualify Adell Sherbert from unemployment benefits unless it justified any incidental burden on her free exercise of religion by a compelling state interest.
As a threshold requirement, the Sherbert Court required that a reviewing court determine whether a religious claimant’s Free Exercise rights had actually been infringed before applying strict scrutiny. Rejecting a distinction between direct and indirect state burdens, the Court held that the burden on Sherbert constituted a constitutional infringement because it ‘‘force[d] her 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 work, on the other hand.’’ In the Court’s view, to impose such a choice on Sherbert burdened her as much as if the state had fined her for worshipping on Saturday.
This burden was more significant than the burden imposed on Orthodox Jews who had to close their businesses on Saturday for their Sabbath and also under Sunday closing laws, thereby losing an extra day of income, in Braunfeld v. Brown.
Applying strict scrutiny to the statute, the Court held that in the proceedings below the state had not offered any compelling interest for its regulation or evidence that such an interest was endangered, such as proof that fraudulent religious claims threatened the unemployment fund or South Carolina employers’ ability to schedule their workforce. Moreover, the Court held, even if such proof was available, the state had the burden of demonstrating that it could not find alternative regulations to combat such abuses without infringing on religious freedom rights, applying the second prong of the strict scrutiny test.
Although Sherbert held out the promise of extraordinary protection for religious minorities forced into a religious Hobson’s choice by state legislatures unaware or unconcerned about their plight, subsequent cases did not bear out that promise. In some cases, the Court directly applied the Sherbert test to invalidate the state law, such as in Wisconsin v. Yoder, overruling Wisconsin’s demand that Amish children attend school after the eighth grade; and in Thomas v. Review Bd. of Indiana Employment Security Div and Hobbie v. Unemployment Appeals Comm’n of Florida, cases invalidating unemployment compensation denials to workers whose religious views conflicted with their jobs.
However, in many other cases, the Court refused to extend protection under the Sherbert rule, while not discarding it as the constitutional standard. In some cases, the Court did not extend protection to religious claimants because they had not shown a constitutionally sufficient burden on their Free Exercise rights. See, for example, Lyng v. Northwest Indian Cemetery Protection Ass’n (federal government not required to use its lands in manner that would protect American Indian religious practices; its action did not coerce or penalize Free Exercise rights); Bowen v. Roy (federal government not required to administer Social Security system to respond to religious beliefs of Native Americans who believed that assignment of a social security number would rob their daughter of her spirit; its action did not involve coercion); and United States v. Gillette (failure to extend federal conscientious objector exemptions to religious claimants who wishes to object to particular wars imposed only ‘‘an incidental burden’’ on them).
In other cases, involving religious claimants in prison and in the military, the Court simply carved out exceptions to Sherbert, holding that deferential review or ‘‘reasonableness’’ standard would be applied in such settings. See, for example, Goldman v. Weinberger (rejecting challenge to military dress regulations that forbade the wearing of yarmulkes) and O’Lone v. Estate of Shabazz (upholding prison’s refusal to excuse inmates from work requirements to attend worship services). In still other cases, such as United States v. Lee, involving the religious challenge of an Amish employer to the requirement that he pay Social Security taxes for his employee, the Court held that the state had met the strict scrutiny test.
In 1990, religious freedom advocates were stunned by the dramatic reversal in the Court’s doctrine in Employment Division, Dept. of Human Services of Oregon v. Smith. In Smith, the Court held that Sherbert would not be applicable to challenges to neutral, generally applicable criminal laws that were not targeted at particular religious beliefs. The Court appeared to carve out two exceptions for cases in which Sherbert would continue to apply: first, it remains viable law for government programs such as unemployment compensation where the state provides individual exemptions from the rules for others and may not refuse those exemptions to persons with ‘‘religious hardships’’ without a compelling reason. Second, the Court will continue to exercise strict scrutiny in cases such as Yoder, where a religious freedom claim is joined with other constitutional rights, such as freedom of speech or the rights of parents to raise their children, so-called hybrid rights cases. Smith also continued the practice exercising strict scrutiny to review laws that are not ‘‘neutral’’ and ‘‘generally applicable’’ but are targeted at particular religions or aimed at conduct because it is religious.
After a public firestorm in the wake of the Smith decision, Congress attempted to reinstate the Sherbert standard in the Religious Freedom Restoration Act (RFRA.) However, in City of Boerne v. Flores, the Supreme Court held that RFRA was unconstitutional at least as applied to state laws, because it exceeded Congressional power granted by section 5 of the Fourteenth Amendment to protect Free Exercise as a liberty under the due process clause.
Thus, the Sherbert decision has been supplanted by Smith in many, but not all, of the cases to which it formerly applied. Many courts have continued to find cases of ‘‘individualized assessment’’ and ‘‘hybrid rights’’ where Sherbert applies, and at least some cases have found that and City of Boerne does not prevent RFRA from being applied against the federal government. In addition, a number of states have adopted the Sherbert test to interpret their own state constitutional provisions guaranteeing free exercise of religion or passed ‘‘mini-RFRA’’ laws that provide heightened judicial protection for Free Exercise claims.
MARIE A. FAILINGER
References and Further Reading
Cases and Statutes Cited