|Thomas v. Review Board of the Indiana Employment Security Division
[ Burger ]
[ Rehnquist ]
Thomas v. Review Board of the Indiana Employment Security Division
CERTIORARI TO THE SUPREME COURT OF INDIANA
JUSTICE REHNQUIST, dissenting.
The Court today holds that the State of Indiana is constitutionally required to provide direct financial assistance to a person solely on the basis of his religious beliefs. Because I believe that the decision today adds mud to the already muddied waters of First Amendment jurisprudence, I dissent.
The Court correctly acknowledges that there is a "tension" between the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution. Although the relationship of the two Clauses has been the subject of much commentary, the "tension" is of fairly recent [p721] vintage, unknown at the time of the framing and adoption of the First Amendment. The causes of the tension, it seems to me, are threefold. First, the growth of social welfare legislation during the latter part of the 20th century has greatly magnified the potential for conflict between the two Clauses, since such legislation touches the individual at so many points in his life. Second, the decision by this Court that the First Amendment was "incorporated" into the Fourteenth Amendment and thereby made applicable against the States, Stromberg v. California, 283 U.S. 359"]283 U.S. 359 (1931); 283 U.S. 359 (1931); Cantwell v. Connecticut, 310 U.S. 296 (1940), similarly multiplied the number of instances in which the "tension" might arise. The third, and perhaps most important, cause of the tension is our overly expansive interpretation of both Clauses. By broadly construing both Clauses, the Court has constantly narrowed the channel between the Scylla and Charybdis through which any state or federal action must pass in order to survive constitutional scrutiny.
None of these developments could have been foreseen by those who framed and adopted the First Amendment. The First Amendment was adopted well before the growth of much social welfare legislation and at a time when the Federal Government was, in a real sense, considered a government of limited delegated powers. Indeed, the principal argument against adopting the Constitution without a "Bill of Rights" was not that such all enactment would be undesirable, but that it was unnecessary because of the limited nature of the Federal Government. So long as the Government enacts little social welfare legislation, as was the case in 1791, there are few occasions in which the two Clauses may conflict. Moreover, as originally enacted, the First Amendment applied only to the Federal Government, not the government of the States. Barron v. Baltimore, 7 Pet. 243 (1833). The Framers could hardly anticipate Barron being superseded by the "selective incorporation" doctrine adopted by the Court, a decision which greatly expanded the number of statutes [p722] which would be subject to challenge under the First Amendment. Because those who drafted and adopted the First Amendment could not have foreseen either the growth of social welfare legislation or the incorporation of the First Amendment into the Fourteenth Amendment, we simply do not know how they would view the scope of the two Clauses.
The decision today illustrates how far astray the Court has gone in interpreting the Free Exercise and Establishment Clauses of the First Amendment. Although the Court holds that a State is constitutionally required to provide direct financial assistance to persons solely on the basis of their religious beliefs and recognizes the "tension" between the two Clauses, it does little to help resolve that tension or to offer meaningful guidance to other courts which must decide cases like this on a day-by-day basis. Instead, it simply asserts that there is no Establishment Clause violation here, and leaves the tension between the two Religion Clauses to be resolved on a case-by-case basis. As suggested above, however, I believe that the "tension" is largely of this Court's own making, and would diminish almost to the vanishing point if the Clauses were properly interpreted.
Just as it did in Sherbert v. Verner, 374 U.S. 398 (1963), the Court today reads the Free Exercise Clause more broadly than is warranted. As to the proper interpretation of the Free Exercise Clause, I would accept the decision of Braunfeld v. Brown, 366 U.S. 599 (1961), and the dissent in Sherbert. In Braunfeld, we held that Sunday closing laws do not violate the First Amendment rights of Sabbatarians. Chief Justice Warren explained that the statute did not make unlawful any religious practices of appellants; it simply made the practice of their religious beliefs more expensive. We concluded that
[t]o strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not [p723] make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature.
366 U.S. at 606. Likewise, in this case, it cannot be said that the State discriminated against Thomas on the basis of his religious beliefs or that he was denied benefits because he was a Jehovah's Witness. Where, as here, a State has enacted a general statute, the purpose and effect of which is to advance the State's secular goals, the Free Exercise Clause does not, in my view, require the State to conform that statute to the dictates of religious conscience of any group. As Justice Harlan recognized in his dissent in Sherbert v. Verner, supra: "Those situations in which the Constitution may require special treatment on account of religion are . . . few and far between." Id. at 423. Like him, I believe that, although a State could choose to grant exemptions to religious persons from state unemployment regulations, [n1] a State is not constitutionally compelled to do so. Id. at 422-423. [n2] [p724]
The Court's treatment of the Establishment Clause issue is equally unsatisfying. Although today's decision requires a State to provide direct financial asistance to persons solely on the basis of their religious beliefs, the Court nonetheless blandly assures us, just as it did in Sherbert, that its decision "plainly" does not foster the "establishment" of religion. Ante at 719. I would agree that the Establishment Clause, properly interpreted, would not be violated if Indiana voluntarily [p725] chose to grant unemployment benefits to those persons who left their jobs for religious reasons. But I also believe that the decision below is inconsistent with many of our prior Establishment Clause cases. Those cases, if faithfully applied, would require us to hold that such voluntary action by a State did violate the Establishment Clause.
JUSTICE STEWART noted this point in his concurring opinion in Sherbert, 374 U.S. at 414-417. He observed that decisions like Sherbert, and the one rendered today, squarely conflict with the more extreme language of many of our prior Establishment Clause cases. In Everson v Board of Education, 330 U.S. 1 (1949), the Court stated that the Establishment Clause bespeaks a "government . . . stripped of all power . . . to support, or otherwise to assist any or all religions . . . ," and no State "can pass laws which aid one religion . . . [or] all religions." Id. at 11, 15. In Torcaso v. Watkins, 367 U.S. 488, 495 (1961), the Court asserted that the government cannot "constitutionally pass laws or impose requirements which aid all religions as against non-believers." And in Abington School District v. Schempp, 374 U.S. 203, 217 (1963), the Court adopted Justice Rutledge's words in Everson that the Establishment Clause forbids "‘every form of public aid or support for religion.'" See also Engel v. Vitale, 370 U.S. 421, 431 (1962).
In recent years, the Court has moved away from the mechanistic "no aid to religion" approach to the Establishment Clause and has stated a three-part test to determine the constitutionality of governmental aid to religion. See Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Public Education v. Nyquist, 413 U.S. 756, 772-773 (1973). First, the statute must serve a secular legislative purpose. Second, it must have a "primary effect" that neither advances nor inhibits religion. And third, the State and its administration must avoid excessive entanglement with religion. Walz v. Tax Comm'n, 397 U.S. 664 (1970). [p726]
It is not surprising that the Court today makes no attempt to apply those principles to the facts of this case. If Indiana were to legislate what the Court today requires -- an unemployment compensation law which permitted benefits to be granted to those persons who quit their jobs for religious reasons -- the statute would "plainly" violate the Establishment Clause as interpreted in such cases as Lemon and Nyquist. First, although the unemployment statute as a whole would be enacted to serve a secular legislative purpose, the proviso would clearly serve only a religious purpose. It would grant financial benefits for the sole purpose of accommodating religious beliefs. Second, there can be little doubt that the primary effect of the proviso would be to "advance" religion by facilitating the exercise of religious belief. Third, any statute including such a proviso would surely "entangle" the State in religion far more than the mere grant of tax exemptions, as in Walz, or the award of tuition grants and tax credits, as in Nyquist. By granting financial benefits to persons solely on the basis of their religious beliefs, the State must necessarily inquire whether the claimant's belief is "religious" and whether it is sincerely held. Otherwise, any dissatisfied employee may leave his job without cause and claim that he did so because his own particular beliefs required it. It is unclear from the Court's opinion whether it has temporarily retreated from its expansive view of the Establishment Clause or wholly abandoned it. I would welcome the latter. Just as I think that Justice Harlan in Sherbert correctly stated the proper approach to free exercise questions, I believe that JUSTICE STEWART, dissenting in Abington School District v. Schempp, supra, accurately stated the reach of the Establishment Clause. He explained that the Establishment Clause is limited to
government support of proselytizing activities of religious sects by throwing the weight of secular authorit[ies] behind the dissemination of religious tenets.
Id. at 314. See McCollum v. Board of Education, 333 U.S. 203, 248 (1948) (Reed, J., dissenting) [p727] (impermissible aid is only "purposeful assistance directly to the church itself or to some religious group . . . performing ecclesiastical functions"). Conversely, governmental assistance which does not have the effect of "inducing" religious belief, but instead merely "accommodates" or implements an independent religious choice does not impermissibly involve the government in religious choices, and therefore does not violate the Establishment Clause of the First Amendment. I would think that, in this case as in Sherbert, had the State voluntarily chosen to pay unemployment compensation benefits to persons who left their jobs for religious reasons, such aid would be constitutionally permissible because it redounds directly to the benefit of the individual. Accord, Wolman v. Walter, 433 U.S. 229 (1977) (upholding various disbursements made to pupils in parochial schools).
In sum, my difficulty with today's decision is that it reads the Free Exercise Clause too broadly and it fails to squarely acknowledge that such a reading conflicts with many of our Establishment Clause cases. As such, the decision simply exacerbates the "tension" between the two Clauses. If the Court were to construe the Free Exercise Clause as it did in Braunfeld and the Establishment Clause as JUSTICE STEWART did in Schempp, the circumstances in which there would be a conflict between the two Clauses would be few and far between. Although I heartily agree with the Court's tacit abandonment of much of our rhetoric about the Establishment Clause, I regret that the Court cannot see its way clear to restore what was surely intended to have been a greater degree of flexibility to the Federal and State Governments in legislating consistently with the Free Exercise Clause. Accordingly, I would affirm the judgment of the Indiana Supreme Court.
1. Even if I were to agree that Sherbert was correctly decided, I still would dissent on the grounds that today's decision unjustifiably extends Sherbert. The Indiana Employment Security Act, Ind.Code § 2211 (Supp. 1978), provides that an "individual who has voluntarily left his employment without good cause in connection with his employment" is disqualified from receiving benefits. In this case, the Supreme Court of Indiana "found the basis and the precise nature of Thomas' belief unclear," and concluded that the belief was more "personal philosophical choice" than religious belief. Ante at 713. The Court's failure to make clear whether it accepts or rejects this finding by the Indiana Supreme Court, the highest court of the State, suggests that a person who leaves his job for purely "personal philosophical choices" will be constitutionally entitled to unemployment benefits. If that is true, the implications of today's decision are enormous. Persons will then be able to quit their jobs, assert they did so for personal reasons, and collect unemployment insurance. We could surely expect the State's limited funds allotted for unemployment insurance to be quickly depleted.
In addition, the Court's opinion in Sherbert, 374 U.S. at 401, n. 4, seems to suggest by negative implication that where a State makes every "personal reason" for leaving a job a basis for disqualification from unemployment benefits, the State need not grant an exemption to persons such as Sherbert who do quit for "personal reasons." In this case, the Indiana Supreme Court has construed the State's unemployment statute to make every personal subjective reason for leaving a job a basis for disqualification. E.g., Geckler v. Review Bd. of the Indiana Employment Security Div., 244 Ind. 473, 193 N.E.2d 357 (1963). This case is thus distinguishable from Sherbert. Because Thomas left his job for a personal reason, the State of Indiana should not be prohibited from disqualifying him from receiving benefits.
2. To the extent Sherbert was correctly decided, it might be argued that cases such as McCollum v. Board of Education, 333 U.S. 203 (1948); Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963); Lemon v. Kurtzman, 403 U.S. 602 (1971); and Committee for Public Education v. Nyquist, 413 U.S. 756 (1973), were wrongly decided. The "aid" rendered to religion in these latter cases may not be significantly different, in kind or degree, than the "aid" afforded Mrs. Sherbert or Thomas. For example, if the State in Sherbert could not deny compensation to one refusing work for religious reasons, it might be argued that a State may not deny reimbursement to students who choose for religious reasons to attend parochial schools. The argument would be that, although a State need not allocate any funds to education, once it has done so, it may not require any person to sacrifice his religious beliefs in order to obtain an equal education. See Lemon, supra, at 665 (opinion of WHITE, J.); Nyquist, supra, at 798-805 (opinion of BURGER, C.J.). There can be little doubt that, to the extent secular education provides answers to important moral questions without reference to religion or teaches that there are no answers, a person in one sense sacrifices his religious belief by attending secular schools. And even if such "aid" were not constitutionnlly compelled by the Free Exercise Clause, Justice Harlan may well have been right in Sherbert when he found sufficient flexibility in the Establishment Clause to permit the States to voluntarily choose to grant such benefits to individuals.