U.S. Supreme Court Sherbert v. Verner, 374
U.S. 398 (1963) Sherbert v. Verner No. 526 Argued April 24, 1963 Decided June 17, 1963 374
U.S. 398 APPEAL FROM THE SUPREME COURT OF
SOUTH CAROLINA Syllabus Appellant, a member of the Seventh-Day Adventist Church, was
discharged by her South Carolina employer because she would not
work on Saturday, the Sabbath Day of her faith. She was unable to
obtain other employment because she would not work on Saturday, and
she filed a claim for unemployment compensation benefits under the
South Carolina Unemployment Compensation Act, which provides that a
claimant is ineligible for benefits if he has failed, without good
cause, to accept available suitable work when offered him. The
State Commission denied appellant's application on the ground that
she would not accept suitable work when offered, and its action was
sustained by the State Supreme Court. Held: As so applied, the South Carolina statute
abridged appellant's right to the free exercise of her religion, in
violation of the First Amendment, made applicable to the states by
the Fourteenth Amendment. Pp. 374 U. S.
399 -410.

															(a) Disqualification of appellant for unemployment compensation
benefits, solely because of her refusal to accept employment in
which she would have to work on Saturday contrary to her religious
belief, imposes an unconstitutional burden on the free exercise of
her religion. Pp. 374 U. S.
403 -406.

															(b) There is no compelling state interest enforced in the
eligibility provisions of the South Carolina statute which
justifies the substantial infringement of appellant's right to
religious freedom under the First Amendment. Pp. 374 U. S.
406 -409.

															(c) This decision does not foster the "establishment" of the
Seventh-Day Adventist religion in South Carolina contrary to the
First Amendment. Pp. 374 U. S.
409 -410.

															240 S.C. 286, 125 S.E.2d
737 , reversed. Page 374 U. S. 399 MR. JUSTICE BRENNAN delivered the opinion of the Court.

															Appellant, a member of the Seventh-day Adventist Church, was
discharged by her South Carolina employer because she would not
work on Saturday, the Sabbath Day of her faith. [ Footnote 1 ] When she was unable to obtain
other employment because, from conscientious scruples, she would
not take Saturday work, [ Footnote
2 ] she filed a claim for Page 374 U. S. 400 unemployment compensation benefits under the South Carolina
Unemployment Compensation Act. [ Footnote 3 ] That law provides that, to be eligible for
benefits, a claimant must be "able to work and . . . available for
work"; and, further, Page 374 U. S. 401 that a claimant is ineligible for benefits

															"[i]f . . . The has failed, without good cause . . . to accept
available suitable work when offered him by the employment office
or the employer. . . ."

															The appellee Employment Security Commission, in administrative
proceedings under the statute, found that appellant's restriction
upon her availability for Saturday work brought her within the
provision disqualifying for benefits insured workers who fail,
without good cause, to accept "suitable work when offered . . . by
the employment office or the employer. . . ." The Commission's
finding was sustained by the Court of Common Pleas for Spartanburg
County. That court's judgment was, in turn, affirmed by the South
Carolina Supreme Court, which rejected appellant's contention that,
as applied to her, the disqualifying provisions of the South
Carolina statute abridged her right to the free exercise of her
religion secured under the Free Exercise Clause of the First
Amendment through the Fourteenth Amendment. The State Supreme Court
held specifically that appellant's ineligibility infringed no
constitutional liberties because such a construction of the
statute

															"places no restriction upon the appellant's freedom of religion,
nor does it in any way prevent her in the exercise of her right and
freedom to observe her religious beliefs in accordance with the
dictates of her conscience."

															240 S.C. 286, 303-304, 125 S.E.2d
737 , 746. [ Footnote 4 ] We
noted probable Page 374 U. S. 402 jurisdiction of appellant's appeal. 371 U.S. 938. We reverse the
judgment of the South Carolina Supreme Court and remand for further
proceedings not inconsistent with this opinion. I The door of the Free Exercise Clause stands tightly closed
against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 .
Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U. S. 488 ; nor
penalize or discriminate against individuals or groups because they
hold religious views abhorrent to the authorities, Fowler v.
Rhode Island, 345 U. S. 67 ; nor
employ the taxing power to inhibit the dissemination of particular
religious views, Murdock v. Pennsylvania, 319 U.
S. 105 ; Follett v. McCormick, 321 U.
S. 573 ; cf. Grosjean v. American Press Co., 297 U. S. 233 . On
the other hand, Page 374 U. S. 403 the Court has rejected challenges under the Free Exercise Clause
to governmental regulation of certain overt acts prompted by
religious beliefs or principles, for "even when the action is in
accord with one's religious convictions, [it] is not totally free
from legislative restrictions." Braunfeld v. Brown, 366 U. S. 599 , 366 U. S. 603 .
The conduct or actions so regulated have invariably posed some
substantial threat to public safety, peace or order. See, e.g.,
Reynolds v. United States, 98 U. S. 145 ; Jacobson v. Massachusetts, 197 U. S.
11 ; Prince v. Massachusetts, 321 U.
S. 158 ; Cleveland v. United States, 329 U. S. 14 .

															Plainly enough, appellant's conscientious objection to Saturday
work constitutes no conduct prompted by religious principles of a
kind within the reach of state legislation. If, therefore, the
decision of the South Carolina Supreme Court is to withstand
appellant's constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the
State of her constitutional rights of free exercise, or because any
incidental burden on the free exercise of appellant's religion may
be justified by a "compelling state interest in the regulation of a
subject within the State's constitutional power to regulate. . . ." NAACP v. Button, 371 U. S. 415 , 371 U. S.
438 . II We turn first to the question whether the disqualification for
benefits imposes any burden on the free exercise of appellant's
religion. We think it is clear that it does. In a sense, the
consequences of such a disqualification to religious principles and
practices may be only an indirect result of welfare legislation
within the State's general competence to enact; it is true that no
criminal sanctions directly compel appellant to work a six-day
week. But this is only the beginning, not the end, of our Page 374 U. S. 404 inquiry. [ Footnote 5 ]
For

															"[i]f the purpose or effect of a law is to impede the observance
of one or all religions or is to discriminate invidiously between
religions, that law is constitutionally invalid even though the
burden may be characterized as being only indirect." Braunfeld v. Brown, supra, at 366 U. S. 607 .
Here, not only is it apparent that appellant's declared
ineligibility for benefits derives solely from the practice of her
religion, but the pressure upon her to forego that practice is
unmistakable. The ruling forces 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. Governmental imposition of such a
choice puts the same kind of burden upon the free exercise of
religion as would a fine imposed against appellant for her Saturday
worship.

															Nor may the South Carolina court's construction of the statute
be saved from constitutional infirmity on the ground that
unemployment compensation benefits are not appellant's "right," but
merely a "privilege." It is too late in the day to doubt that the
liberties of religion and expression may be infringed by the denial
of or placing of conditions upon a benefit or privilege. [ Footnote 6 ] American Page 374 U. S. 405 Communications Assn. v. Douds, 339 U.
S. 382 , 339 U. S. 390 ; Wieman v. Updegraff, 344 U. S. 183 , 344 U. S.
191 -192; Hannegan v. Esquire, Inc., 327 U. S. 146 , 327 U. S.
155 -156. For example, in Flemming v. Nestor, 363 U. S. 603 , 363 U. S. 611 ,
the Court recognized with respect to Federal Social Security
benefits that

															"[t]he interest of a covered employee under the Act is of
sufficient substance to fall within the protection from arbitrary
governmental action afforded by the Due Process Clause."

															In Speiser v. Randall, 357 U.
S. 513 , we emphasized that conditions upon public
benefits cannot be sustained if they so operate, whatever their
purpose, a to inhibit or deter the exercise of First Amendment
freedoms. We there struck down a condition which limited the
availability of a tax exemption to those members of the exempted
class who affirmed their loyalty to the state government granting
the exemption. While the State was surely under no obligation to
afford such an exemption, we held that the imposition of such a
condition upon even a gratuitous benefit inevitably deterred or
discouraged the exercise of First Amendment rights of expression,
and thereby threatened to "produce a result which the State could
not command directly." 357 U.S. Page 374 U. S. 406 at 357 U. S. 526 .
"To deny an exemption to claimants who engage in certain forms of
speech is, in effect, to penalize them for such speech." Id. at 357 U. S. 518 .
Likewise, to condition the availability of benefits upon this
appellant's willingness to violate a cardinal principle of her
religious faith effectively penalizes the free exercise of her
constitutional liberties.

															Significantly, South Carolina expressly saves the Sunday
worshipper from having to make the kind of choice which we here
hold infringes the Sabbatarian's religious liberty. When, in times
of "national emergency," the textile plants are authorized by the
State Commissioner of Labor to operate on Sunday,

															"no employee shall be required to work on Sunday . . . who is
conscientiously opposed to Sunday work, and if any employee should
refuse to work on Sunday on account of conscientious . . .
objections, he or she shall not jeopardize his or her seniority by
such refusal or be discriminated against in any other manner."

															S.C.Code, § 64-4. No question of the disqualification of a
Sunday worshipper for benefits is likely to arise, since we cannot
suppose that an employer will discharge him in violation of this
statute. The unconstitutionality of the disqualification of the
Sabbatarian is thus compounded by the religious discrimination
which South Carolina's general statutory scheme necessarily
effects. III We must next consider whether some compelling state interest
enforced in the eligibility provisions of the South Carolina
statute justifies the substantial infringement of appellant's First
Amendment right. It is basic that no showing merely of a rational
relationship to some colorable state interest would suffice; in
this highly sensitive constitutional area, "[o]nly the gravest
abuses, endangering paramount interests, give occasion for
permissible limitation," Thomas v. Collins, 323 U.
S. 516 , 323 U. S.
530 . Page 374 U. S. 407 No such abuse or danger has been advanced in the present case.
The appellees suggest no more than a possibility that the filing of
fraudulent claims by unscrupulous claimants feigning religious
objections to Saturday work might not only dilute the unemployment
compensation fund, but also hinder the scheduling by employers of
necessary Saturday work. But that possibility is not apposite here,
because no such objection appears to have been made before the
South Carolina Supreme Court, and we are unwilling to assess the
importance of an asserted state interest without the views of the
state court. Nor, if the contention had been made below, would the
record appear to sustain it; there is no proof whatever to warrant
such fears of malingering or deceit as those which the respondents
now advance. Even if consideration of such evidence is not
foreclosed by the prohibition against judicial inquiry into the
truth or falsity of religious beliefs, United States v.
Ballard, 322 U. S. 78 -- a
question as to which we intimate no view, since it is not before us
-- it is highly doubtful whether such evidence would be sufficient
to warrant a substantial infringement of religious liberties. For
even if the possibility of spurious claims did threaten to dilute
the fund and disrupt the scheduling of work, it would plainly be
incumbent upon the appellees to demonstrate that no alternative
forms of regulation would combat such abuses without infringing
First Amendment rights. [ Footnote
7 ] Cf. 364 U. S. Tucker, 364 U.S. Page 374 U. S. 408 479, 364 U. S.
487 -490; Talley v. California, 362 U. S.
60 , 362 U. S. 64 ; Schneider v. State, 308 U. S. 147 , 308 U. S. 161 ; Martin v. Struthers, 319 U. S. 141 , 319 U. S.
144 -149.

															In these respects, then, the state interest asserted in the
present case is wholly dissimilar to the interests which were found
to justify the less direct burden upon religious practices in Braunfeld v. Brown, supra. The Court recognized that the
Sunday closing law which that decision sustained undoubtedly served
"to make the practice of [the Orthodox Jewish merchants'] . . .
religious beliefs more expensive," 366 U.S. at 366 U. S. 605 .
But the statute was nevertheless saved by a countervailing factor
which finds no equivalent in the instant case -- a strong state
interest in providing one uniform day of rest for all workers. That
secular objective could be achieved, the Court found, only by
declaring Sunday to be that day of rest. Requiring exemptions for
Sabbatarians, while theoretically possible, appeared to present an
administrative Page 374 U. S. 409 problem of such magnitude, or to afford the exempted class so
great a competitive advantage, that such a requirement would have
rendered the entire statutory scheme unworkable. [ Footnote 8 ] In the present case, no such
justifications underlie the determination of the state court that
appellant's religion makes her ineligible to receive benefits.
[ Footnote 9 ] IV In holding as we do, plainly we are not fostering the
"establishment" of the Seventh-day Adventist religion in South
Carolina, for the extension of unemployment benefits to
Sabbatarians in common with Sunday worshippers reflects nothing
more than the governmental obligation of neutrality in the face of
religious differences, and does not represent that involvement of
religious with secular institutions which it is the object of the
Establishment Clause to forestall. See School District of
Abington Township v. Schempp, ante, p. 374 U. S. 203 . Nor
does the recognition of the appellant's right to unemployment
benefits under the state statute serve to abridge any other
person's religious liberties. Nor do we, by our decision today,
declare the existence of a constitutional right to unemployment
benefits on the part Page 374 U. S. 410 of all persons whose religious convictions are the cause of
their unemployment. This is not a case in which an employee's
religious convictions serve to make him a nonproductive member of
society. See note 2 supra. Finally, nothing we say today constrains the States
to adopt any particular form or scheme of unemployment
compensation. Our holding today is only that South Carolina may not
constitutionally apply the eligibility provisions so as to
constrain a worker to abandon his religious convictions respecting
the day of rest. This holding but reaffirms 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 public welfare legislation." Everson v. Board of Education, 330 U. S.
1 , 330 U. S. 16 .

															In view of the result we have reached under the First and
Fourteenth Amendments' guarantee of free exercise of religion, we
have no occasion to consider appellant's claim that the denial of
benefits also deprived her of the equal protection of the laws in
violation of the Fourteenth Amendment.

															The judgment of the South Carolina Supreme Court is reversed,
and the case is remanded for further proceedings not inconsistent
with this opinion. It is so ordered. [ Footnote 1 ]

															Appellant became a member of the Seventh-day Adventist Church in
1957, at a time when her employer, a textile mill operator,
permitted her to work a five-day week. It was not until 1959 that
the work week was changed to six days, including Saturday, for all
three shifts in the employer's mill. No question has been raised in
this case concerning the sincerity of appellant's religious
beliefs. Nor is there any doubt that the prohibition against
Saturday labor is a basic tenet of the Seventh-day Adventist creed,
based upon that religion's interpretation of the only Bible.

															[ Footnote 2 ]

															After her discharge, appellant sought employment with three
other mills in the Spartanburg area, but found no suitable five-day
work available at any of the mills. In filing her claim with the
Commission, she expressed a willingness to accept employment at
other mills, or even in another industry, so long as Saturday work
was not required. The record indicates that of the 150 or more
Seventh-day Adventists in the Spartanburg area, only appellant and
one other have been unable to find suitable non-Saturday
employment.

															[ Footnote 3 ]

															The pertinent sections of the South Carolina Unemployment
Compensation Act (S.C.Code, Tit. 68, §§ 68-1 to 68-404) are as
follows:

															"§ 68-113. Conditions of eligibility for benefits. -- An
unemployed insured worker shall be eligible to receive benefits
with respect to any week only if the Commission finds that: . .
."

															"(3) He is able to work and is available for work, but no
claimant shall be considered available for work if engaged in self
employment of such nature as to return or promise remuneration in
excess of the weekly benefit amounts he would have received if
otherwise unemployed over such period of time. . . ."

															"§ 68-114. Disqualification for benefits. -- Any insured worker
shall be ineligible for benefits: . . ."

															"(2) Discharge for misconduct. -- If the Commission
finds that he has been discharged for misconduct connected with his
most recent work prior to filing a request for determination of
insured status or a request for initiation of a claim series within
an established benefit year, with such ineligibility beginning with
the effective date of such request, and continuing not less than
five nor more than the next twenty-two consecutive weeks (in
addition to the waiting period), as determined by the Commission in
each case according to the seriousness of the misconduct. . .
."

															"(3) Failure to accept work. --(a) If the Commission
finds that he has failed, without good cause, (i) either to apply
for available suitable work, when so directed by the employment
office or the Commission, (ii) to accept available suitable work
when offered him by the employment office or the employer or (iii)
to return to his customary self employment (if any) when so
directed by the Commission, such ineligibility shall continue for a
period of five weeks (the week in which such failure occurred and
the next four weeks in addition to the waiting period) as
determined by the Commission according to the circumstances in each
case. . . ."

															"(b) In determining whether or not any work is suitable for an
individual, the Commission shall consider the degree of risk
involved to his health, safety and morals, his physical fitness and
prior training, his experience and prior earnings, his length of
unemployment and prospects for securing local work in his customary
occupation and the distance of the available work from his
residence."

															[ Footnote 4 ]

															It has been suggested that appellant is not within the class
entitled to benefits under the South Carolina statute because her
unemployment did not result from discharge or layoff due to lack of
work. It is true that unavailability for work for some personal
reasons not having to do with matters of conscience or religion has
been held to be a basis of disqualification for benefits. See,
e.g., Judson Mills v. South Carolina Unemployment Compensation
Comm'n, 204 S.C. 37, 28 S.E.2d 535; Stone Mfg. Co. v.
South Carolina Employment Security Comm'n, 219 S.C. 239, 64 S.E.2d
644 . But appellant claims that the Free Exercise Clause
prevents the State from basing the denial of benefits upon the
"personal reason" she gives for not working on Saturday. Where the
consequence of disqualification so directly affects First Amendment
rights, surely we should not conclude that every "personal reason"
is a basis for disqualification in the absence of explicit language
to that effect in the statute or decisions of the South Carolina
Supreme Court. Nothing we have found in the statute or in the cited
decisions, cf. Lee v. Spartan Mills, 7 CCH Unemployment
Ins.Rep. S.C. � 8156 (C.P. 1944), and certainly nothing in the
South Carolina Court's opinion in this case so construes the
statute. Indeed, the contrary seems to have been that court's basic
assumption, for if the eligibility provisions were thus limited, it
would have been unnecessary for the court to have decided
appellant's constitutional challenge to the application of the
statute under the Free Exercise Clause.

															Likewise, the decision of the State Supreme Court does not rest
upon a finding that appellant was disqualified for benefits because
she had been "discharged for misconduct" -- by reason of her
Saturday absences -- within the meaning of § 68-114(2). That ground
was not adopted by the South Carolina Supreme Court, and the
appellees do not urge in this Court that the disqualification rests
upon that ground.

															[ Footnote 5 ]

															In a closely analogous context, this Court said:

															". . . the fact that no direct restraint or punishment is
imposed upon speech or assembly does not determine the free speech
question. Under some circumstances, indirect 'discouragements'
undoubtedly have the same coercive effect upon the exercise of
First Amendment rights as imprisonment, fines, injunctions or
taxes. A requirement that adherents of particular religious faiths
or political parties wear identifying arm-bands, for example, is
obviously of this nature." American Communications Assn. v. Douds, 339 U.
S. 382 , 339 U. S. 402 . Cf. Smith v. California, 361 U. S. 147 , 361 U. S.
153 -155.

															[ Footnote 6 ] See, for examples of conditions and qualifications upon
governmental privileges and benefits which have been invalidated
because of their tendency to inhibit constitutionally protected
activity, Steinberg v. United States, 143 Ct.Cl. 1, 163 F.
Supp. 590; Syrek v. California Unemployment Ins.
Board, 54 Cal. 2d
519 , 354 P.2d 625; Fino v. Maryland Employment Security
Board, 218 Md. 504, 147 A.2d 738; Chicago Housing
Authority v. Blackman, 4 Ill. 2d
319 , 122 N.E.2d
522 ; Housing Authority of Los Angeles v. Cordova, 130
Cal. App. 2d 883, 279 P.2d 215; Lawson v. Housing Authority of
Milwaukee, 270 Wis. 269, 70 N.W.2d 605; Danskin v. San
Diego Unified School District, 28 Cal. 2d
536 , 171 P.2d 885; American Civil Liberties Union v. Board
of Education, 55 Cal. 2d
167 , 359 P.2d 45; cf. City of Baltimore v. A. S. Abell
Co., 218 Md. 273, 145 A.2d 111. See also Willcox,
Invasions of the First Amendment Through Conditioned Public
Spending, 41 Cornell L.Q. 12 (1955); Emerson, Toward a General
Theory of the First Amendment, 72 Yale L.J. 877, 942-943 (1963); 36
N.Y.U.L.Rev. 1052 (1961); 9 Kan.L.Rev. 346 (1961); Note,
Unconstitutional Conditions, 73 Harv.L.Rev. 1595, 1599-1602
(1960).

															[ Footnote 7 ]

															We note that, before the instant decision, state supreme courts
had, without exception, granted benefits to persons who were
physically available for work but unable to find suitable
employment solely because of a religious prohibition against
Saturday work. E.g., In re Miller, 243 N.C. 509, 91 S.E.2d
241 ; Swenson v. Michigan Employment Security Comm'n, 340 Mich. 430, 65 N.W.2d
709 ; Tary v. Board of Review, 161 Ohio St. 251, 119
N.E.2d 56. Cf. Kut v. Albers Super Markets, Inc., 146 Ohio
St. 522, 66 N.E.2d 643, appeal dismissed sub nom. Kut v. Bureau
of Unemployment Compensation, 329 U.S. 669. One author has
observed,

															"the law was settled that conscientious objections to work on
the Sabbath made such work unsuitable, and that such objectors were
nevertheless available for work. . . . A contrary opinion would
make the unemployment compensation law unconstitutional as a
violation of freedom of religion. Religious convictions, strongly
held, are so impelling as to constitute good cause for refusal.
Since availability refers to suitable work, religious observers
were not unavailable because they excluded Sabbath work."

															Altman, Availability for Work: A Study in Unemployment
Compensation (1950), 187. See also Sanders,
Disqualification for Unemployment Insurance, 8 Vand.L.Rev. 307,
327-328 (1955); 34 N.C.L.Rev. 591 (1956); cf. Freeman,
Able To Work and Available for Work, 55 Yale L.J. 123, 131 (1945).
Of the 47 States which have eligibility provisions similar to those
of the South Carolina statute, only 28 appear to have given
administrative rulings concerning the eligibility of persons whose
religious convictions prevented them from accepting available work.
Twenty-two of those States have held such persons entitled to
benefits, although apparently only one such decision rests
exclusively upon the federal constitutional ground which
constitutes the basis of our decision. See 111 U. of
Pa.L.Rev. 253, and n. 3 (1962); 34 N.C.L.Rev. 591, 602, n. 60
(1956).

															[ Footnote 8 ] See Note, State Sunday Laws and the Religious
Guarantees of the Federal Constitution, 73 Harv.L.Rev. 729, 741-745
(1960).

															[ Footnote 9 ]

															These considerations also distinguish the quite different case
of Flemming v. Nestor, supra, upon which appellees rely.
In that case, the Court found that the compelling federal interests
which underlay the decision of Congress to impose such a
disqualification justified whatever effect the denial of social
security benefits may have had upon the disqualified class. See 363 U.S. at 363 U. S. 612 . And compare Torcaso v. Watkins, supra, in which an
undoubted state interest in ensuring the veracity and
trustworthiness of Notaries Public was held insufficient to justify
the substantial infringement upon the religious freedom of
applicants for that position which resulted from a required oath of
belief in God. See 74 Harv.L.Rev. 611, 612-613 (1961); 109
U. of Pa.L.Rev. 611, 614-616 (1961).

															MR. JUSTICE DOUGLAS, concurring.

															The case we have for decision seems to me to be of small
dimensions, though profoundly important. The question is whether
the South Carolina law which denies unemployment compensation to a
Seventh-day Adventist who, because of her religion, has declined to
work on her Sabbath, is a law "prohibiting the free exercise" of
religion as those words are used in the First Amendment. Page 374 U. S. 411 It seems obvious to me that this law does run afoul of that
clause.

															Religious scruples of Moslems require them to attend a mosque on
Friday and to pray five times daily. [ Footnote 2/1 ] Religious scruples of a Sikh require him
to carry a regular or a symbolic sword. Rex v. Sinh, 39
A.I.R. 53 (Allahabad, 1952). Religious scruples of a Jehovah's
Witness teach him to be a colporteur, going from door to door, from
town to town, distributing his religious pamphlets. See Murdock
v. Pennsylvania, 319 U. S. 105 .
Religious scruples of a Quaker compel him to refrain from swearing
and to affirm, instead. See King v. Fearson, Fed.Cas. No.
7,790, 14 Fed.Cas. 520; 1 U.S.C. § 1; Federal Rules of Civil
Procedure, Rule 43(d); United States v. Schwimmer, 279 U. S. 644 , 279 U. S. 655 (dissenting opinion). Religious scruples of a Buddhist may require
him to refrain from partaking of any flesh, even of fish. [ Footnote 2/2 ]

															The examples could be multiplied, including those of the
Seventh-day Adventist, whose Sabbath is Saturday and who is advised
not to eat some meats. [ Footnote
2/3 ]

															These suffice, however, to show that many people hold beliefs
alien to the majority of our society -- beliefs that are protected
by the First Amendment but which could easily be trod upon under
the guise of "police" or "health" regulations reflecting the
majority's views.

															Some have thought that a majority of a community can, through
state action, compel a minority to observe their particular
religious scruples so long as the majority's rule can be said to
perform some valid secular function. Page 374 U. S. 412 That was the essence of the Court's decision in the Sunday Blue
Law Cases ( Gallagher v. Crown Kosher Market, 366 U.
S. 617 ; Braunfeld v. Brown, 366 U.
S. 599 ; McGowan v. Maryland, 366 U.
S. 420 ), a ruling from which I then dissented
( McGowan v. Maryland, supra, pp. 366 U. S.
575 -576) and still dissent. See Arlan's Dept. Store
v. Kentucky, 371 U. S. 218 .

															That ruling of the Court travels part of the distance that South
Carolina asks us to go now. She asks us to hold that, when it comes
to a day of rest, a Sabbatarian must conform with the scruples of
the majority in order to obtain unemployment benefits.

															The result turns not on the degree of injury, which may indeed
be nonexistent by ordinary standards. The harm is the interference
with the individual's scruples or conscience -- an important area
of privacy which the First Amendment fences off from government.
The interference here is as plain as it is in Soviet Russia, where
a churchgoer is given a second-class citizenship, resulting in
harm, though perhaps not in measurable damages.

															This case is resolvable not in terms of what an individual can
demand of government, but solely in terms of what government may
not do to an individual in violation of his religious scruples. The
fact that government cannot exact from me a surrender of one iota
of my religious scruples does not, of course, mean that I can
demand of government a sum of money, the better to exercise them.
For the Free Exercise Clause is written in terms of what the
government cannot do to the individual, not in terms of what the
individual can exact from the government.

															Those considerations, however, are not relevant here. If
appellant is otherwise qualified for unemployment benefits,
payments will be made to her not as a Seventhday Adventist, but as
an unemployed worker. Conceivably these payments will indirectly
benefit her church, Page 374 U. S. 413 but no more so than does the salary of any public employee.
Thus, this case does not involve the problems of direct or indirect
state assistance to a religious organization -- matters relevant to
the Establishment Clause, not in issue here.

															[ Footnote 2/1 ] See Shorter Encyclopaedia of Islam (Cornell Press,
1953), 336, 493.

															[ Footnote 2/2 ] See Narasu, The Essence of Buddhism (3d ed.1948),
52-55; 6 Encyclopaedia of Religion and Ethics (1913), 63-65.

															[ Footnote 2/3 ] See Seventh-day Adventists Answer Questions on Doctrine
(1957), 149-153, 622-624; Mitchell, Seventh-Day Adventists (1st
ed.1958), 127, 176-178.

															MR. JUSTICE STEWART, concurring in the result.

															Although fully agreeing with the result which the Court reaches
in this case, I cannot join the Court's opinion. This case presents
a double-barreled dilemma which, in all candor, I think the Court's
opinion has not succeeded in papering over. The dilemma ought to be
resolved. I Twenty-three years ago, in Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 ,
the Court said that both the Establishment Clause and the Free
Exercise Clause of the First Amendment were made wholly applicable
to the States by the Fourteenth Amendment. In the intervening
years, several cases involving claims of state abridgment of
individual religious freedom have been decided here -- most
recently, Braunfeld v. Brown, 366 U.
S. 599 , and Torcaso v. Watkins, 367 U.
S. 488 . During the same period, "cases dealing with the
specific problems arising under the Establishment' Clause which
have reached this Court are few in number." [ Footnote 3/1 ] The most recent are last Term's Engel
v. Vitale, 370 U. S. 421 , and
this Term's Schempp and Murray cases, ante, p. 374 U. S.
203 . I am convinced that no liberty is more essential to the
continued vitality of the free society which our Constitution
guarantees than is the religious liberty protected by the Free
Exercise Clause explicit in the First Amendment and imbedded in the
Fourteenth. And I regret that, on Page 374 U. S. 414 occasion, and specifically in Braunfeld v. Brown,
supra, the Court has shown what has seemed to me a distressing
insensitivity to the appropriate demands of this constitutional
guarantee. By contrast, I think that the Court's approach to the
Establishment Clause has, on occasion, and specifically in Engel, Schempp and Murray, been not only
insensitive but positively wooden, and that the Court has accorded
to the Establishment Clause a meaning which neither the words, the
history, nor the intention of the authors of that specific
constitutional provision even remotely suggests.

															But my views as to the correctness of the Court's decisions in
these cases are beside the point here. The point is that the
decisions are on the books. And the result is that there are many
situations where legitimate claims under the Free Exercise Clause
will run into head-on collision.with the Court's insensitive and
sterile construction of the Establishment Clause. [ Footnote 3/2 ] The controversy now before us is
clearly such a case.

															Because the appellant refuses to accept available jobs which
would require her to work on Saturdays, South Carolina has declined
to pay unemployment compensation benefits to her. Her refusal to
work on Saturdays is based on the tenets of her religious faith.
The Court says that South Carolina cannot, under these
circumstances, declare her to be not "available for work" within
the meaning of its statute, because to do so would violate her
constitutional right to the free exercise of her religion.

															Yet what this Court has said about the Establishment Clause must
inevitably lead to a diametrically opposite result. If the
appellant's refusal to work on Saturdays Page 374 U. S. 415 were based on indolence, or on a compulsive desire to watch the
Saturday television programs, no one would say that South Carolina
could not hold that she was not "available for work" within the
meaning of its statute. That being so, the Establishment Clause, as
construed by this Court, not only permits but affirmatively
requires South Carolina equally to deny the appellant's claim for
unemployment compensation when her refusal to work on Saturdays is
based upon her religious creed. For, as said in Everson v.
Board of Education, 330 U. S. 1 , 330 U. S. 11 , 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. . . ." Id. at 330 U. S. 15 . In
Mr. Justice Rutledge's words, adopted by the Court today in Schempp, ante, p. 374 U. S. 217 , the Establishment Clause forbids "every
form of public aid or support for religion." 330 U.S. at 330 U. S. 32 . In
the words of the Court in Engel v. Vitale, 370 U.S. at 370 U. S. 431 ,
reaffirmed today in the Schempp case, ante, p. 374 U. S. 221 ,
the Establishment Clause forbids the "financial support of
government" to be "placed behind a particular religious
belief."

															To require South Carolina to so administer its laws as to pay
public money to the appellant under the circumstances of this case
is thus clearly to require the State to violate the Establishment
Clause as construed by this Court. This poses no problem for me,
because I think the Court's mechanistic concept of the
Establishment Clause is historically unsound and constitutionally
wrong. I think the process of constitutional decision in the area
of the relationships between government and religion demands
considerably more than the invocation of broadbrushed rhetoric of
the kind I have quoted. And I think that the guarantee of religious
liberty embodied in the Free Exercise Clause affirmatively requires
government to create an atmosphere of hospitality and
accommodation Page 374 U. S. 416 to individual belief or disbelief. In short, I think our
Constitution commands the positive protection by government of
religious freedom -- not only for a minority, however small -- not
only for the majority, however large -- but for each of us.

															South Carolina would deny unemployment benefits to a mother
unavailable for work on Saturdays because she was unable to get a
babysitter. [ Footnote 3/3 ] Thus, we
do not have before us a situation where a State provides
unemployment compensation generally, and singles out for
disqualification only those persons who are unavailable for work on
religious grounds. This is not, in short, a scheme which operates
so as to discriminate against religion as such. But the Court
nevertheless holds that the State must prefer a religious over a
secular ground for being unavailable for work -- that state
financial support of the appellant's religion is constitutionally
required to carry out "the governmental obligation of neutrality in
the face of religious differences. . . ."

															Yet in cases decided under the Establishment Clause, the Court
has decreed otherwise. It has decreed that government must blind
itself to the differing religious beliefs and traditions of the
people. With all respect, I think it is the Court's duty to face up
to the dilemma posed by the conflict between the Free Exercise
Clause of the Constitution and the Establishment Clause as
interpreted by the Court. It is a duty, I submit, which we owe to
the people, the States, and the Nation, and a duty which we owe to
ourselves. For so long as the resounding but fallacious
fundamentalist rhetoric of some of our Establishment Clause
opinions remains on our books, to be disregarded at will, as in the
present case, Page 374 U. S. 417 or to be undiscriminatingly invoked, as in the Schempp case, ante, p. 374 U. S. 203 , so
long will the possibility of consistent and perceptive decision in
this most difficult and delicate area of constitutional law be
impeded and impaired. And so long, I fear, will the guarantee of
true religious freedom in our pluralistic society be uncertain and
insecure. II My second difference with the Court's opinion is that I cannot
agree that today's decision can stand consistently with Braunfeld v. Brown, supra. The Court says that there was a
"less direct burden upon religious practices" in that case than in
this. With all respect, I think the Court is mistaken, simply as a
matter of fact. The Braunfeld case involved a state
criminal statute. The undisputed effect of that statute, as pointed
out by MR. JUSTICE BRENNAN in his dissenting opinion in that case,
was that

															"'Plaintiff, Abraham Braunfeld, will be unable to continue in
his business if he may not stay open on Sunday, and he will thereby
lose his capital investment.' In other words, the issue in this
case -- and we do not understand either appellees or the Court to
contend otherwise -- is whether a State may put an individual to a
choice between his business and his religion."

															366 U.S. at 366 U. S.
611 .

															The impact upon the appellant's religious freedom in the present
case is considerably less onerous. We deal here not with a criminal
statute, but with the particularized administration of South
Carolina's Unemployment Compensation Act. Even upon the unlikely
assumption that the appellant could not find suitable non-Saturday
employment, [ Footnote 3/4 ] the
appellant, at the worst, would be denied Page 374 U. S. 418 a maximum of 22 weeks of compensation payments. I agree with the
Court that the possibility of that denial is enough to infringe
upon the appellant's constitutional right to the free exercise of
her religion. But it is clear to me that, in order to reach this
conclusion, the Court must explicitly reject the reasoning of Braunfeld v. Brown. I think the Braunfeld case
was wrongly decided, and should be overruled, and accordingly I
concur in the result reached by the Court in the case before
us.

															[ Footnote 3/1 ] McGowan v. Maryland, 366 U. S. 420 , 366 U. S.
442 .

															[ Footnote 3/2 ]

															The obvious potentiality of such collision has been studiously
ignored by the Court, but has not escaped the perception of
commentators. See, e.g., Katz, Freedom of Religion and
State Neutrality, 20 U. of Chi.L.Rev. 426, 428 (1953); Kauper,
Prayer, Public Schools and the Supreme Court, 61 Mich.L.Rev. 1031,
1053 (1963).

															[ Footnote 3/3 ] See Judson Mills v. South Carolina Unemployment Compensation
Comm'n, 204 S.C. 37, 28 S.E.2d 535; Hartsville Cotton Mill
v. South Carolina Employment Security Comm'n, 224 S.C. 407, 79 S.E.2d
381 .

															[ Footnote 3/4 ]

															As noted by the Court,

															"The record indicates that of the 150 or more Seventh-day
Adventists in the Spartanburg area, only appellant and one other
have been unable to find suitable non-Saturday employment." Ante, p. 374 U. S. 399 ,
n. 2.

															MR. JUSTICE HARLAN, whom MR. JUSTICE WHITE joins,
dissenting.

															Today's decision is disturbing both in its rejection of existing
precedent and in its implications for the future. The significance
of the decision can best be understood after an examination of the
state law applied in this case.

															South Carolina's Unemployment Compensation Law was enacted in
1936 in response to the grave social and economic problems that
arose during the depression of that period. As stated in the
statute itself:

															"Economic insecurity due to unemployment is a serious menace to
health, morals and welfare of the people of this State; involuntary unemployment is therefore a subject of general
interest and concern . . . ; the achievement of social security
requires protection against this greatest hazard of our economic
life; this can be provided by encouraging the employers to provide more stable employment and by the systematic
accumulation of funds during periods of employment to provide
benefits for periods of unemployment, thus maintaining
purchasing power and limiting the serious social consequences of
poor relief assistance."

															§ 68-38. (Emphasis added.) Page 374 U. S. 419 Thus, the purpose of the legislature was to tide people over,
and to avoid social and economic chaos, during periods when work was unavailable. But, at the same time, there was
clearly no intent to provide relief for those who, for purely
personal reasons, were or became unavailable for work. In
accordance with this design, the legislature provided, in § 68-113,
that

															"[a]n unemployed insured worker shall be eligible to receive
benefits with respect to any week only if the Commission finds that
. . . [h]e is able to work and is available for work. . . ."

															(Emphasis added.)

															The South Carolina Supreme Court has uniformly applied this law
in conformity with its clearly expressed purpose. It has
consistently held that one is not "available for work" if his
unemployment has resulted not from the inability of industry to
provide a job, but rather from personal circumstances, no matter
how compelling. The reference to "involuntary unemployment" in the
legislative statement of policy, whatever a sociologist,
philosopher, or theologian might say, has been interpreted not to
embrace such personal circumstances. See, e.g., Judson Mills v.
South Carolina Unemployment Compensation Comm'n, 204 S.C. 37,
28 S.E.2d 535 (claimant was "unavailable for work" when she became
unable to work the third shift, and limited her availability to the
other two, because of the need to care for her four children); Stone Mfg. Co. v. South Carolina Employment Security
Comm'n, 219 S.C. 239, 64 S.E.2d
644 ; Hartsville Cotton Mill v. South Carolina Employment
Security Comm'n, 224 S.C. 407, 79 S.E.2d
381 .

															In the present case, all that the state court has done is to
apply these accepted principles. Since virtually all of the mills
in the Spartanburg area were operating on a six-day week, the
appellant was "unavailable for work," and thus ineligible for
benefits, when personal considerations Page 374 U. S. 420 prevented her from accepting employment on a full-time basis in
the industry and locality in which she had worked. The fact that
these personal considerations sprang from her religious convictions
was wholly without relevance to the state court's application of
the law. Thus, in no proper sense can it be said that the State
discriminated against the appellant on the basis of her religious
beliefs or that she was denied benefits because she was a
Seventh-day Adventist. She was denied benefits just as any other
claimant would be denied benefits who was not "available for work"
for personal reasons. [ Footnote
4/1 ]

															With this background, this Court's decision comes into clearer
focus. What the Court is holding is that, if the State chooses to
condition unemployment compensation on the applicant's availability
for work, it is constitutionally compelled to carve out an
exception -- and to provide benefits -- for those whose
unavailability is due to their religious convictions. [ Footnote 4/2 ] Such a holding has particular
significance in two respects. Page 374 U. S. 421 First, despite the Court's protestations to the
contrary, the decision necessarily overrules Braunfeld v.
Brown, 366 U. S. 599 ,
which held that it did not offend the "Free Exercise" Clause of the
Constitution for a State to forbid a Sabbatarian to do business on
Sunday. The secular purpose of the statute before us today is even
clearer than that involved in Braunfeld. And just as in Braunfeld -- where exceptions to the Sunday closing laws
for Sabbatarians would have been inconsistent with the purpose to
achieve a uniform day of rest and would have required case-by-case
inquiry into religious beliefs -- so here, an exception to the
rules of eligibility based on religious convictions would
necessitate judicial examination of those convictions and would be
at odds with the limited purpose of the statute to smooth out the
economy during periods of industrial instability. Finally, the
indirect financial burden of the present law is far less than that
involved in Braunfeld. Forcing a store owner to close his
business on Sunday may well have the effect of depriving him of a
satisfactory livelihood if his religious convictions require him to
close on Saturday as well. Here we are dealing only with temporary
benefits, amounting to a fraction of regular weekly wages and
running for not more than 22 weeks. See §§ 68-104, 68-105.
Clearly, any differences between this case and Braunfeld cut against the present appellant. [ Footnote 4/3 ] Page 374 U. S. 422 Second, the implications of the present decision are
far more troublesome than its apparently narrow dimensions would
indicate at first glance. The meaning of today's holding, as
already noted, is that the State must furnish unemployment benefits
to one who is unavailable for work if the unavailability stems from
the exercise of religious convictions. The State, in other words,
must single out for financial assistance those whose
behavior is religiously motivated, even though it denies such
assistance to others whose identical behavior (in this case,
inability to work on Saturdays) is not religiously motivated. It
has been suggested that such singling out of religious conduct for
special treatment may violate the constitutional limitations on
state action. See Kurland, Of Church and State and The
Supreme Court, 29 U. of Chi.L.Rev. l; cf. Cammarano v. United
States, 358 U. S. 498 , 358 U. S. 515 (concurring opinion). My own view, however, is that, at least under
the circumstances of this case, it would be a permissible
accommodation of religion for the State, if it chose to do so, to
create an exception to its eligibility requirements for persons
like the appellant. The constitutional obligation of "neutrality," see School District of Abington Township v. Schempp, ante, p. 374 U. S. 222 ,
is not so narrow a channel that the slightest deviation from an
absolutely straight course leads to condemnation. There are too
many instances in which no such course can be charted, too many
areas in which the pervasive activities of the State justify some
special provision for religion to prevent it from being submerged
by an all-embracing secularism. The State violates its obligation
of neutrality Page 374 U. S. 423 when, for example, it mandates a daily religious exercise in its
public schools, with all the attendant pressures on the school
children that such an exercise entails. See Engel v.
Vitale, 370 U. S. 421 ; School District of Abington Township v. Schempp, supra. But there is, I believe, enough flexibility in the Constitution to
permit a legislative judgment accommodating an unemployment
compensation law to the exercise of religious beliefs such as
appellant's.

															For very much the same reasons, however, I cannot subscribe to
the conclusion that the State is constitutionally compelled to
carve out an exception to its general rule of eligibility in the
present case. Those situations in which the Constitution may
require special treatment on account of religion are, in my view,
few and far between, and this view is amply supported by the course
of constitutional litigation in this area. See, e.g., Braunfeld
v. Brown, supra; Cleveland v. United States, 329 U. S.
14 ; Prince v. Massachusetts, 321 U.
S. 158 ; Jacobson v. Massachusetts, 197 U. S.
11 ; Reynolds v. United States, 98 U. S.
145 . Such compulsion in the present case is particularly
inappropriate in light of the indirect, remote, and insubstantial
effect of the decision below on the exercise of appellant's
religion and in light of the direct financial assistance to
religion that today's decision requires.

															For these reasons I respectfully dissent from the opinion and
judgment of the Court. [ Footnote
4/4 ]

															[ Footnote 4/1 ]

															I am completely at a loss to understand note 4 of the Court's opinion Certainly the Court is
not basing today's decision on the unsupported supposition that, some day, the South Carolina Supreme Court may conclude
that there is some personal reason for unemployment that
may not disqualify a claimant for relief. In any event, I submit it
is perfectly clear that South Carolina would not compensate persons
who became unemployed for any personal reason, as
distinguished from layoffs or lack of work, since the State Supreme
Court's decisions make it plain that such persons would not be
regarded as "available for work" within the manifest meaning of the
eligibility requirements. Nor can I understand what this Court
means when it says that,

															"if the eligibility provisions were thus limited, it would have
been unnecessary for the [South Carolina] court to have decided
appellant's constitutional challenge. . . ."

															[ Footnote 4/2 ]

															The Court does suggest, in a rather startling disclaimer, ante, pp. 374 U. S.
409 -410, that its holding is limited in applicability to
those whose religious convictions do not make them "nonproductive"
members of society, noting that most of the Seventh-day Adventists
in the Spartanburg area are employed. But surely this disclaimer
cannot be taken seriously, for the Court cannot mean that the case
would have come out differently if none of the Seventh-day
Adventists in Spartanburg had been gainfully employed, or if the
appellant's religion had prevented her from working on Tuesdays,
instead of Saturdays. Nor can the Court be suggesting that it will
make a value judgment in each case as to whether a particular
individual's religious convictions prevent him from being
"productive." I can think of no more inappropriate function for
this Court to perform.

															[ Footnote 4/3 ]

															The Court's reliance on South Carolina Code § 64, ante, p. 374 U. S. 406 ,
to support its conclusion with respect to free exercise, is
misplaced. Section 64-4, which is not a part of the Unemployment
Compensation Law, is an extremely narrow provision that becomes
operative only during periods of national emergency, and thus has
no bearing in the circumstances of the present case. And plainly,
under our decisions in the "Sunday law" cases, appellant can derive
no support for her position from the State's general statutory
provisions setting aside Sunday as a uniform day of rest.

															[ Footnote 4/4 ]

															Since the Court states, ante, p. 374 U. S. 410 ,
that it does not reach the appellant's "equal protection" argument,
based upon South Carolina's emergency Sunday work provisions, §§
64-4, 64-6, I do not consider it appropriate for me to do so.

Summary: In Sherbert v. Verner, the US Supreme Court ruled that South Carolina's denial of unemployment benefits to someone who refused Saturday work due to religious beliefs violated the Free Exercise Clause of the First Amendment. The Court held that the state's interest in enforcing eligibility requirements for unemployment benefits did not justify infringing on the appellant's religious freedom. This decision upheld the right to free exercise of religion without state interference.


U.S. Supreme Court Stone v. Graham, 449 U.S.
39 (1980) Stone v. Graham No. 80-321 Decided November 17,
1980 449 U.S.
39 ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF
KENTUCKY Syllabus Held: A Kentucky statute requiring the posting of a
copy of the Ten Commandments, purchased with private contributions,
on the wall of each public school classroom in the State has no
secular legislative purpose, and therefore is unconstitutional as
violating the Establishment Clause of the First Amendment. While
the state legislature required the notation in small print at the
bottom of each display that

															"[t]he secular application of the Ten Commandments is clearly
seen in its adoption as the fundamental legal code of Western
Civilization and the Common Law of the United States,"

															such an "avowed" secular purpose is not sufficient to avoid
conflict with the First Amendment. The preeminent purpose of
posting the Ten Commandments, which do not confine themselves to
arguably secular matters, is plainly religious in nature, and the
posting serves no constitutional educational function. Cf.
Abington School District v. Schempp, 374 U.
S. 203 . That the posted copies are financed by voluntary
private contributions is immaterial, for the mere posting under the
auspices of the legislature provides the official support of the
state government that the Establishment Clause prohibits. Nor is it
significant that the Ten Commandments are merely posted, rather
than read aloud, for it is no defense to urge that the religious
practices may be relatively minor encroachments on the First
Amendment

															Certiorari granted; 599
S.W.2d 157 , reversed.

															PER CURIAM.

															Kentucky statute require the posting of a copy of the Ten
Commandments, purchased with private contributions, on the wall of
each public classroom in the State. [ Footnote 1 ] Petitioners, Page 449 U. S. 40 claiming that this statute violates the Establishment and Free
Exercise Clauses of the First Amendment, [ Footnote 2 ] sought an injunction against its
enforcement. The state trial court upheld the statute, finding that
its "avowed purpose" was "secular and not religious," and that the
statute would "neither advance nor inhibit any religion or
religious group" nor involve the State excessively in religious
matters. App. to Pet. for Cert. 38-39. The Supreme Court of the
Commonwealth of Kentucky affirmed by an equally divided court. 599
S.W.2d 157 (1980). We reverse.

															This Court has announced a three-part test for determining
whether a challenged state statute is permissible under the
Establishment Clause of the United States Constitution:

															"First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither
advances nor inhibits religion . . . ; finally the statute must not
foster 'an excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S.
612 -613 (1971) (citations omitted). If a statute
violates any of these three principles, it must be Page 449 U. S. 41 struck down under the Establishment Clause. We conclude that
Kentucky's statute requiring the posting of the Ten Commandments in
public school rooms has no secular legislative purpose, and is
therefore unconstitutional.

															The Commonwealth insists that the statute in question serves a
secular legislative purpose, observing that the legislature
required the following notation in small print at the bottom of
each display of the Ten Commandments:

															"The secular application of the Ten Commandments is clearly seen
in its adoption as the fundamental legal code of Western
Civilization and the Common Law of the United States."

															1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978),
Ky.Rev.Stat. § 158.178 (1980).

															The trial court found the "avowed" purpose of the statute to be
secular, even as it labeled the statutory declaration
"self-serving." App. to Pet. for Cert. 37. Under this Court's
rulings, however, such an "avowed" secular purpose is not
sufficient to avoid conflict with the First Amendment. In Abington School District v. Schempp, 374 U.
S. 203 (1963), this Court held unconstitutional the
daily reading of Bible verses and the Lord's Prayer in the public
schools, despite the school district's assertion of such secular
purposes as

															"the promotion of moral values, the contradiction to the
materialistic trends of our times, the perpetuation of our
institutions and the teaching of literature." Id. at 374 U. S.
223 .

															The preeminent purpose for posting the Ten Commandments on
schoolroom walls is plainly religious in nature. The Ten
Commandments are undeniably a sacred text in the Jewish and
Christian faiths, [ Footnote 3 ]
and no legislative recitation of a supposed secular purpose can
blind us to that fact. The Commandments do not confine themselves
to arguably secular matters, such as honoring one's parents,
killing or murder, Page 449 U. S. 42 adultery, stealing, false witness, and covetousness. See Exodus 20:12-17; Deuteronomy 5:16-21. Rather, the
first part of the Commandments concerns the religious duties of
believers: worshipping the Lord God alone, avoiding idolatry, not
using the Lord's name in vain, and observing the Sabbath Day. See Exodus 20:1-11; Deuteronomy 5:6-15.

															This is not a case in which the Ten Commandments are integrated
into the school curriculum, where the Bible may constitutionally be
used in an appropriate study of history, civilization, ethics,
comparative religion, or the like. Abington School District v.
Schempp, supra at 374 U. S. 225 .
Posting of religious texts on the wall serves no such educational
function. If the posted copies of the Ten Commandments are to have
any effect at all, it will be to induce the schoolchildren to read,
meditate upon, perhaps to venerate and obey, the Commandments.
However desirable this might be as a matter of private devotion, it
is not a permissible state objective under the Establishment
Clause.

															It does not matter that the posted copies of the Ten
Commandments are financed by voluntary private contributions, for
the mere posting of the copies under the auspices of the
legislature provides the "official support of the State . . .
Government" that the Establishment Clause prohibits. 374 U.S. at 374 U. S. 222 ; see Engel v. Vitale, 370 U. S. 421 , 370 U. S. 431 (1962). [ Footnote 4 ] Nor is it
significant that the Bible verses involved in this case are merely
posted on the wall, rather than read aloud as in Schempp and Engel, for "it is no defense to urge that the
religious practices here may be relatively minor encroachments on
the First Amendment." Abington School District v. Schempp,
supra, at 374 U. S. 225 .
We conclude that Ky.Rev.Stat. Page 449 U. S. 43 § 158.178 (1980) violates the first part of the Lemon v.
Kurtzman test, and thus the Establishment Clause of the
Constitution. [ Footnote 5 ]

															The petition for a writ of certiorari is granted, and the
judgment below is reversed. It is so ordered. THE CHIEF JUSTICE and JUSTICE BLACKMUN dissent. They would grant
certiorari and give this case plenary consideration.

															JUSTICE STEWART dissents from this summary reversal of the
courts of Kentucky, which, so far as appears, applied wholly
correct constitutional criteria in reaching their decisions.

															[ Footnote 1 ]

															The statute provides in its entirety:

															"(1) It shall be the duty of the superintendent of public
instruction, provided sufficient funds are available as provided in
subsection (3) of this Section, to ensure that a durable, permanent
copy of the Ten Commandments shall be displayed on a wall in each
public elementary and secondary school classroom in the
Commonwealth. The copy shall be sixteen (16) inches wide by twenty
(20) inches high."

															"(2) In small print below the last commandment shall appear a
notation concerning the purpose of the display, as follows: 'The
secular application of the Ten Commandments is clearly seen in its
adoption as the fundamental legal code of Western Civilization and
the Common Law of the United States.'"

															"(3) The copies required by this Act shall be purchased with
funds made available through voluntary contributions made to the
state treasurer for the purposes of this Act."

															1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978),
Ky.Rev.Stat. § 158.178 (1980).

															[ Footnote 2 ]

															The First Amendment provides in relevant part: "Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof. . . ." This prohibition is applicable to
the States through the Fourteenth Amendment. Abington School
District v. Schempp, 374 U. S. 203 , 374 U. S.
215 -216 (1963).

															[ Footnote 3 ]

															As this Court commented in Abington School District v.
Schempp, supra at 374 U. S. 224 :
"Surely the place of the Bible as an instrument of religion cannot
be gainsaid. . . . "

															[ Footnote 4 ]

															Moreover, while the actual copies of the Ten Commandments were
purchased through private contributions, the State nevertheless
expended public money in administering the statute. For example,
the statute requires that the state treasurer serve as a collecting
agent for the contributions. Ky.Rev.Stat. § 158.178(3) (1980).

															[ Footnote 5 ]

															The Supreme Court cases cited by the dissenting opinion as
contrary, Committee for Public Education v. Nyquist, 413 U. S. 756 (173); Sloan v. Lemon, 413 U. S. 825 (1973); Lemon v. Kurtzman, 403 U.
S. 602 (1971); Board of Education v. Allen, 392 U. S. 236 (1968), are easily distinguishable: all are cases involving state
assistance to private schools. Such assistance has the obvious
legitimate secular purpose of promoting educational opportunity.
The posting of the Ten Commandments on classroom walls has no such
secular purpose.

															JUSTICE REHNQUIST, dissenting.

															With no support beyond its own ipse dixit, the Court
concludes that the Kentucky statute involved in this case "has no secular legislative purpose," ante at 449 U. S. 41 (emphasis supplied), and that "[t]he preeminent purpose for posting
the Ten Commandments on schoolroom walls is plainly religious in
nature," ibid. This even though, as the trial court found,
"[t]he General Assembly thought the statute had a secular
legislative purpose, and specifically said so." App. to Pet. for
Cert. 37. The Court's summary rejection of a secular purpose
articulated by the legislature and confirmed by the state court is
without precedent in Establishment Clause jurisprudence. This Court
regularly looks to legislative articulations of a statute's purpose
in Establishment Clause cases Page 449 U. S. 44 and accords such pronouncements the deference they are due. See, e.g., Committee for Public Education v. Nyquist, 413 U. S. 756 , 413 U. S. 773 (1973) ("we need touch only briefly on the requirement of a secular legislative purpose.' As the recitation of legislative
purposes appended to New York's law indicates, each measure is
adequately supported by legitimate, nonsectarian state interests"); Lemon v. Kurtzman, 403 U. S. 602 , 403 U. S. 613 (1971) ("the statutes themselves clearly state they are intended to
enhance the quality of the secular education"); Sloan v.
Lemon, 413 U. S. 825 , 413 U. S.
829 -830 (1973); Board of Education v. Allen, 392 U. S. 236 , 392 U. S. 243 (1968). See also Florey v. Sioux Falls School District, 619 F.2d 1311, 1314 (CA8) (upholding rules permitting public school
Christmas observances with religious elements as promoting the
articulated secular purpose of "advanc[ing] the student's knowledge
and appreciation of the role that our religious heritage has played
in the social, cultural and historical development of
civilization"), cert. denied, post, p. 987. The fact that
the asserted secular purpose may overlap with what some may see as
a religious objective does not render it unconstitutional. As this
Court stated in McGowan v. Maryland, 366 U.
S. 420 , 366 U. S. 445 (1961), in upholding the validity of Sunday closing laws, "the present purpose and effect of most of [these laws] is to
provide a uniform day of rest for all citizens; the fact that this
day is Sunday, a day of particular significance for the dominant
Christian sects, does not bar the state from achieving its secular
goals." Abington School District v. Schempp, 374 U.
S. 203 (1963), repeatedly cited by the Court, is not to
the contrary. No statutory findings of secular purpose supported
the challenged enactments in that case. In one of the two cases
considered in Abington School District, the trial court
had determined that the challenged exercises were intended by the
State to be religious exercises. Id. at 374 U. S. 223 .
A contrary finding is presented here. In the other case, no
specific finding had been Page 449 U. S. 45 made, and "the religious character of the exercise was admitted
by the State," id. at 374 U. S. 224 .
[ Footnote 2/1 ]

															The Court rejects the secular purpose articulated by the State
because the Decalogue is "undeniably a sacred text," ante at 449 U. S. 41 . It
is equally undeniable, however, as the elected representatives of
Kentucky determined, that the Ten Commandments have had a
significant impact on the development of secular legal codes of the
Western World. The trial court concluded that evidence submitted
substantiated this determination. App. to Pet. for Cert. 38. See also Anderson v. Salt Lake City Corp., 475 F.2d 29, 33
(CA10 1973) (upholding construction on public land of monument
inscribed with Ten Commandments because they have "substantial
secular attributes"). Certainly the State was permitted to conclude
that a document with such secular significance should be placed
before its students, with an appropriate statement of the
document's secular import. See id. at 34 ("It does not
seem reasonable to require removal of a passive monument, involving
no compulsion, because its accepted precepts, as a foundation for
law, reflect the religious nature of an ancient era"). [ Footnote 2/2 ] See also Opinion of the
Justices, 108 N.H. 97, 228 A.2d 161 (1967) (upholding
placement of plaques with the motto "In God We Trust" in public
schools).

															The Establishment Clause does not require that the public sector
be insulated from all things which may have a religious Page 449 U. S. 46 significance or origin. This Court has recognized that "religion
has been closely identified with our history and government," Abington School District, supra at 374 U. S. 212 ,
and that "[t]he history of man is inseparable from the history of
religion," Engel v. Vitale, 370 U.
S. 421 , 370 U. S. 434 (1962). Kentucky has decided to make students aware of this fact by
demonstrating the secular impact of the Ten Commandments. The words
of Justice Jackson, concurring in McCollum v. Board of
Education, 333 U. S. 203 , 333 U. S.
235 -236 (1948), merit quotation at length:

															"I think it remains to be demonstrated whether it is possible,
even if desirable, to comply with such demands as plaintiff's
completely to isolate and cast out of secular education all that
some people may reasonably regard as religious instruction. Perhaps
subjects such as mathematics, physics or chemistry are, or can be,
completely secularized. But it would not seem practical to teach
either practice or appreciation of the arts if we are to forbid
exposure of youth to any religious influences. Music without sacred
music, architecture minus the cathedral, or painting without the
scriptural themes would be eccentric and incomplete, even from a
secular point of view. . . . I should suppose it is a proper, if
not an indispensable, part of preparation for a worldly life to
know the roles that religion and religions have played in the
tragic story of mankind. The fact is that, for good or for ill,
nearly everything in our culture worth transmitting, everything
which gives meaning to life, is saturated with religious
influences, derived from paganism, Judaism, Christianity -- both
Catholic and Protestant -- and other faiths accepted by a large
part of the world's peoples. One can hardly respect the system of
education that would leave the student wholly ignorant of the
currents of religious thought that move the world society for a
part in which he is being prepared. " Page 449 U. S. 47 I therefore dissent from what I cannot refrain from describing
as a cavalier summary reversal, without benefit of oral argument or
briefs on the merits, of the highest court of Kentucky.

															[ Footnote 2/1 ]

															The Court noted that even if the State's purpose were not
strictly religious, "it is sought to be accomplished through
readings, without comment, from the Bible." 374 U.S. at 374 U. S. 224 .
Here, of course, there was no compelled reading, and there was
comment accompanying the text of the Commandments, mandated by
statute and focusing on their secular significance.

															[ Footnote 2/2 ]

															The Court's emphasis on the religious nature of the first part
of the Ten Commandments is beside the point. The document as a
whole has had significant secular impact, and the Constitution does
not require that Kentucky students see only an expurgated or
redacted version containing only the elements with directly
traceable secular effects.

Summary: The Supreme Court of the United States ruled that a Kentucky statute requiring public schools to display the Ten Commandments with private funding violates the Establishment Clause of the First Amendment. The Court held that the statute had no secular legislative purpose and its primary effect was to advance religion. The Court also noted that the mere posting of the Ten Commandments, rather than reading them aloud, did not make it constitutional. The Court reversed the Kentucky Supreme Court's decision and ruled that the statute was unconstitutional.