U.S. Supreme Court Thomas v. Review Bd., Ind. Empl. Sec.
Div., 450
U.S. 707 (1981) Thomas v. Review Board of the
Indiana Employment Security
Division No. 79-952 Argued October 7,
1980 Decided April 6, 1981 450
U.S. 707 CERTIORARI TO THE SUPREME COURT OF
INDIANA Syllabus Petitioner, a Jehovah's Witness, was initially hired to work in
his employer's roll foundry, which fabricated sheet steel for a
variety of industrial uses, but when the foundry was closed, he was
transferred to a department that fabricated turrets for military
tanks. Since all of the employer's remaining departments to which
transfer might have been sought were engaged directly in the
production of weapons, petitioner asked to be laid off. When that
request was denied, he quit, asserting that his religious beliefs
prevented him from participating in the production of weapons. He
applied for unemployment compensation benefits under the Indiana
Employment Security Act, and testified at an administrntive hearing
that he believed that contributing to the production of arms
violated his religion, although he could, in good conscience,
engage indirectly in the production of materials that might be used
ultimately to fabricate arms. The hearing referee found that
petitioner had terminated his employment because of his religious
convictions, but held that petitioner was not entitled to benefits
because his voluntary termination was not based upon a "good cause
[arising] in connection with [his] work," as required by the
Indiana statute. Respondent Review Board affirmed, but the Indiana
Court of Appeals reversed, holding that the Indiana statute, as
applied, improperly burdened petitioner's right to the free
exercise of his religion. The Indiana Supreme Court vacated the
Court of Appeals' decision and denied petitioner benefits, holding
that he had quit voluntarily for personal reasons, his belief being
more "personal philosophical choice" than religious belief. The
court also concluded that, in any event, a termination motivated by
religion is not for "good cause" objectively related to the work,
as required by the Indiana statute, and that denying benefits
created only an indirect burden on petitioner's free exercise
right, which burden was justified by legitimate state
interests. Held: The State's denial of unemployment compensation
benefits to petitioner violated his First Amendment right to free
exercise of religion under Sherbert v. Verner, 374 U. S. 398 . Pp. 450 U. S.
713 -720.

															(a) The Indiana Supreme Court improperly relied on the facts
that petitioner was "struggling" with his beliefs and that he was
not able Page 450 U. S. 708 to "articulate" his belief precisely. Courts should not
undertake to dissect religious beliefs on such grounds. The Indiana
court also erred in apparently giving significant weight to the
fact that another Jehovah's Witness with whom petitioner consulted
had no scruples about working on tank turrets. The guarantee of
free exercise is not limited to beliefs which are shared by all of
the members of a religious sect. The narrow function of a reviewing
court in this context is to determine whether there was an
appropriate finding that petitioner terminated his work because
such work was forbidden by his religion. The record shows that
petitioner terminated his employment for religious reasons. Pp. 450 U. S.
713 -716.

															(b) A person may not be compelled to choose between the exercise
of a First Amendment right and participation in an otherwise
available public program. It is true that the Indiana law does not
compel a violation of conscience, but where the state conditions
receipt of an important benefit upon conduct proscribed by a
religious faith, or where it denies such a benefit because of
conduct mandated by religious belief, thereby putting substantial
pressure on an adherent to modify his behavior and to violate his
beliefs, a burden upon religion exists. While the compulsion may be
indirect, the infringement upon free exercise is nonetheless
substnntial. Pp. 450 U. S.
716 -718.

															(c) The state may justify an inroad on religious liberty by
showing that it is the least restrictive means of achieving some
compelling state interest. However, when the inquiry is properly
narrowed to focus only on the threat to state interests, neither of
the purposes urged to sustain the disqualifying provision of the
Indiana statute -- to avoid the widespread unemployment and
consequent burden on the fund resulting if people were permitted to
leave jobs for "personal" reasons and to avoid a detailed probing
by employers into job applicants' religious beliefs -- is
sufficiently compelling to justify the burden upon petitioner's
religious liberty. Pp. 450 U. S.
718 -719.

															(d) Payment of benefits to petitioner would not involve the
State in fostering a religious faith in violation of the
Establishment Clause. The extension of benefits reflects no more
than the governmental obligation of neutrality, and does not
represent that involvement of religious with secular institutions
which it is the object of the Establishment Clause to forestall.
Pp. 450 U. S.
719 -720.

															271 Ind. ___, 391 N.E.2d
1127 , reversed.

															BURGER, C. J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and STEVENS, JJ.,
joined, and in Parts I, II, and III of which BLACKMUN, J., joined.
BLACKMUN, J., Page 450 U. S. 709 filed a statement concurring in part and concurring in the
result, post, p. 450 U. S. 720 .
REHNQUIST, J., filed a dissenting opinion, post, p. 450 U. S.
720 .

															CHIEF JUSTICE BURGER delivered the opinion of the Court.

															We granted certiorari to consider whether the State's denial of
unemployment compensation benefits to the petitioner, a Jehovah's
Witness who terminated his job because his religious beliefs
forbade participation in the production of armaments, constituted a
violation of his First Amendment right to free exercise of
religion. 444 U.S. 1070 (1980). I Thomas terminated his employment in the Blaw-Knox Foundry &
Machinery Co. when he was transferred from the roll foundry to a
department that produced turrets for military tanks. He claimed his
religious beliefs prevented him from participating in the
production of war materials. The respondent Review Board denied him
unemployment compensation benefits by applying disqualifying
provisions of the Indiana Employment Security Act. [ Footnote 1 ] Page 450 U. S. 710 Thomas, a Jehovah's Witness, was hired initially to work in the
roll foundry at Blaw-Knox. The function of that department was to
fabricate sheet steel for a variety of industrial uses. On his
application form, he listed his membership in the Jehovah's
Witnesses, and noted that his hobbies were Bible study and Bible
reading. However he placed no conditions on his employment, and he
did not describe his religious tenets in any detail on the
form.

															Approximately a year later, the roll foundry closed, and
Blaw-Knox transferred Thomas to a department that fabricated
turrets for military tanks. On his first day at this new job,
Thomas realized that the work he was doing was weapons related. He
checked the bulletin board where in-plant openings were listed, and
discovered that all of the remaining departments at Blaw-Knox were
engaged directly in the production of weapons. Since no transfer to
another department would resolve his problem, he asked for a
layoff. When that request was denied, he quit, asserting that he
could not work on weapons without violating the principles of his
religion. The record does not show that he was offered any
nonweapons work by his employer, or that any such work was
available.

															Upon leaving Blaw-Knox, Thomas applied for unemployment
compensation benefits under the Indiana Employment Security Act.
[ Footnote 2 ] At an
administrative hearing where he was Page 450 U. S. 711 not represented by counsel, he testified that he believed that
contributing to the production of arms violated his religion. He
said that, when he realized that his work on the tank turret line
involved producing weapons for war, he consulted another Blaw-Knox
employee -- a friend and fellow Jehovah's Witness. The friend
advised him that working on weapons parts at Blaw-Know was not
"unscriptural." Thomas was not able to "rest with" this view,
however. He concluded that his friend's view was based upon a less
strict reading of Witnesses' principles than his own.

															When asked at the hearing to explain what kind of work his
religious convictions would permit, Thomas said that he would have
no difficulty doing the type of work that he had done at the roll
foundry. He testified that he could, in good conscience, engage
indirectly in the production of materials that might be used
ultimately to fabricate arms -- for example, as an employee of a
raw material supplier or of a roll foundry. [ Footnote 3 ]

															The hearing referee found that Thomas' religious beliefs
specifically precluded him from producing or directly aiding in the
manufacture of items used in warfare. [ Footnote 4 ] He also found that Thomas had terminated his
employment because of these religious convictions. The referee
reported:

															"Claimant continually searched for a transfer to another
department which would not be so armament related; Page 450 U. S. 712 however, this did not materialize, and prior to the date of his
leaving, claimant requested a layoff, which was denied; and on
November 6, 1975, claimant did quit due to his religious
convictions. [ Footnote
5 ]"

															The referee concluded nonetheless that Thomas' termination was
not based upon a "good cause [arising] in connection with [his]
work," as required by the Indiana unemployment compensation
statute. Accordingly, he was held not entitled to benefits. The
Review Board adopted the referee's findings and conclusions, and
affirmed the denial of benefits. [ Footnote 6 ]

															The Indiana Court of Appeals, accepting the finding that Thomas
terminated his employment "due to his religious convictions,"
reversed the decision of the Review Board, and held that § 2215-1,
as applied, improperly burdened Thomas' right to the free exercise
of his religion. Accordingly, it ordered the Board to extend
benefits to Thomas. 178 Ind.App. , 381 N.E.2d
888 (1978).

															The Supreme Court of Indiana, dividing 3-2, vacated the decision
of the Court of Appeals, and denied Thomas benefits. 271 Ind. ___,
391 N. E2d 1127 (1979). With reference to the Indiana unemployment
compensation statute, the court said:

															"It is not intended to facilitate changing employment or to
provide relief for those who quit work voluntarily for personal
reasons. Voluntary unemployment is not compensable under the
purpose of the Act, which is to provide benefits for persons
unemployed through no fault of their own."

															"Good cause which justifies voluntary termination must Page 450 U. S. 713 be job-related and objective in character." Id. at 391 N.E.2d at 1129 (footnotes omitted). The
court held that Thomas had quit voluntarily ,for personal reasons,
and therefore did not qualify for benefits. Id. at ___,
391 N.E.2d at 1130.

															In discussing the petitioner's free exercise claim, the court
stated: "A personal philosophical choice, rather than a religious
choice, does not rise to the level of a first amendment claim." Id. at ___, 391 N.E.2d at 1131. The court found the basis
and the precise nature of Thomas' belief unclear -- but it
concluded that the belief was more "personal philosophical choice"
than religious belief. Nonetheless, it held that, even assuming
that Thomas quit for religious reasons, he would not be entitled to
benefits: under Indiana law, a termination motivated by religion is
not for "good cause" objectively related to the work.

															The Indiana court concluded that denying Thomas benefits would
create only an indirect burden on his free exercise right, and that
the burden was justified by the legitimate state interest in
preserving the integrity of the insurance fund and maintaining a
stable workforce by encouraging workers not to leave their jobs for
personal reasons.

															Finally, the court held that awarding unemployment compensation
benefits to a person who terminates employment voluntarily for
religious reasons, while denying such benefits to persons who
terminate for other personal but nonreligious reasons, would
violate the Establishment Clause of the First Amendment.

															The judgment under review must be examined in light of our prior
decisions, particularly Sherbert v. Verner, 374 U.
S. 398 (1963). II Only beliefs rooted in religion are protected by the Free
Exercise Clause, which, by its terms, gives special protection to
the exercise of religion. Sherbert v. Verner, supra; 406 U. S. S.
714� v. Yoder,@ 406 U. S. 205 , 406 U. S.
215 -216 (1972). The determination of what is a
"religious" belief or practice is more often than not a difficult
and delicate task, as the division in the Indiana Supreme Court
attests. [ Footnote 7 ] However,
the resolution of that question is not to turn upon a judicial
perception of the particular belief or practice in question;
religious beliefs need not be acceptable, logical, consistent, or
comprehensible to others in order to merit First Amendment
protection.

															In support of his claim for benefits, Thomas testified:

															"Q. And then when it comes to actually producing the tank
itself, hammering it out; that you will not do. . . ."

															"A. That's right, that's right when . . . I'm daily faced with
the knowledge that these are tanks. . . ."

															" * * * *" "A. I really could not, you know, conscientiously continue to
work with armaments. It would be against all of the . . religious
principles that . . I have come to learn. . . ."

															271 Ind. at ___, 391 N.E.2d at 1132. Based upon this and other
testimony, the referee held that Thomas "quit due to his religious
convictions." [ Footnote 8 ] The
Review Board adopted that finding, [ Footnote 9 ] and the finding is not challenged in this
Court.

															The Indiana Supreme Court apparently took a different view of
the record. It concluded that,

															"although the claimant's reasons for quitting were described as
religious, it was unclear what his belief was, and what the
religious basis of his belief was. [ Footnote 10 ]"

															In that court's view, Thomas had made a merely "personal
philosophical choice, rather than a religious choice." [ Footnote 11 ] Page 450 U. S. 715 In reaching its conclusion, the Indiana court seems to have
placed considerable reliance on the facts that Thomas was
"struggling" with his beliefs, and that he was not able to
"articulate" his belief precisely. It noted, for example, that
Thomas admitted before the referee that he would not object to

															"working for United States Steel or Inland Steel . . .
produc[ing] the raw product necessary for the production of any
kind of tank . . . [because I] would not be a direct party to
whoever they shipped it to [and] would not be . . . chargeable in .
. . conscience. . . ."

															271 Ind. at ___, 391 N.E.2d at 1131. The court found this
position inconsistent with Thomas' stated opposition to
participation in the production of armaments. But Thomas'
statements reveal no more than that he found work in the roll
foundry sufficiently insulated from producing weapons of war. We
see, therefore, that Thomas drew a line, and it is not for us to
say that the line he drew was an unreasonable one. Courts should
not undertake to dissect religious beliefs because the believer
admits that he is "struggling" with his position or because his
beliefs are not articulated with the clarity and precision that a
more sophisticated person might employ.

															The Indiana court also appears to have given significant weight
to the fact that another Jehovah's Witness had no scruples about
working on tank turrets; for that other Witness, at least, such
work was "scripturally" acceptable. Intrafaith differences of that
kind are not uncommon among followers of a particular creed, and
the judicial process is singularly ill-equipped to resolve such
differences in relation to the Religion Clauses. One can, of
course, imagine an asserted claim so bizarre, so clearly
nonreligious in motivation, as not to be entitled to protection
under the Free Exercise Clause; but that is not the case here, and
the guarantee of free exercise is not limited to beliefs which are
shared by all of the members Page 450 U. S. 716 of a reljgious sect. Particularly in this sensitive area, it is
not within the judicial function and judicial competence to inquire
whether the petitioner or his fellow worker more correctly
perceived the commands of their common faith. Courts are not
arbiters of scriptural interpretation.

															The narrow function of a reviewing court in this context is to
determine whether there was an appropriate finding that petitioner
terminated his work because of an honest conviction that such work
was forbidden by his religion. Not surprisingly, the record before
the referee and the Review Board was not made with an eye to the
microscopic examination often exercised in appellate Judicial
review. However, judicial review is confined to the facts as found
and conclusions drawn. On this record, it is clear that Thomas
terminated his employment for religious reasons. III A More than 30 years ago, the Court held that a person may not be
compelled to choose between the exercise of a First Amendment right
and participation in an otherwise available public program. A state
may not

															"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 (1947) (emphasis deleted).

															Later, in Sherbert, the Court examined South Carolina's
attempt to deny unemployment compensation benefits to a Sabbatarian
who declined to work on Saturday. In sustaining her right to
receive benefits, the Court held:

															"The ruling [disqualifying Mrs. Sherbert from benefits because
of her refusal to work on Saturday in violation of her faith]
forces her to choose between following the Page 450 U. S. 717 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 [her] for her Saturday
worship."

															374 U.S. at 374 U. S.
404 .

															The respondent Review Board argues, and the Indiana Supreme
Court held, that the burden upon religion here is only the indirect
consequence of public welfare legislation that the State clearly
has authority to enact. "Neutral objective standards must be met to
qualify for compensation." 271 Ind. at ___, 391 N.E.2d at 1130.
Indiana requires applicants for unemployment compensation to show
that they left work for "good cause in connection with the work." Ibid. A similar argument was made and rejected in Sherbert, however. It is true that, as in Sherbert, the Indiana law
does not compel a violation of conscience. But "this is
only the beginning, not the end, of our inquiry." 374 U.S. at 374 U. S.
403 -404. In a variety of ways, we have said that

															"[a] regulation neutral on its face may, in its application,
nonetheless offend the constitutional requirement for governmental
neutrality if it unduly burdens the free exercise of religion." Wisconsin v. Yoder, 406 U.S. at 406 U. S. 220 . Cf. Walz v. Tax Comm'n, 397 U. S. 664 (1970).

															Here as in Sherbert, the employee was put to a choice
betweell fidelity to religious belief or cessation of work; the
coercive impact on Thomas is indistinguishable from Sherbert, where the Court held:

															"[N]ot 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."

															374 U.S. at 374 U. S. 404 .
Where the state conditions receipt of an important benefit upon
conduct proscribed by a religious faith, or where it denies Page 450 U. S. 718 such a benefit because of conduct mandated by religious belief,
thereby putting substantial pressure on an adherent to modify his
behavior and to violate his beliefs, a burden upon religion exists.
While the compulsion may be indirect, the infringement upon free
exercise is nonetheless substantial.

															The respondents also contend that Sherbert is
inapposite because, in that case, the employee was dismissed by the
employer's action. But we see that Mrs. Sherbert was dismissed
because she refused to work on Saturdays after the plant went to a
6-day workweek. Had Thomas simply presented himself at the
Blaw-Knox plant turret line but refused to perform any assigned
work, it must be assumed that he, like Sherbert, would
have been terminated by the employer's action, if no other work was
available. In both cases, the termination flowed from the fact that
the employment, once acceptable, became religiously objectionable
because of changed conditions. B The mere fact that the petitioner's religious practice is
burdened by a governmental program does not mean that an exemption
accommodating his practice must be granted. The state may justify
an inroad on religious liberty by showing that it is the least
restrictive means of achieving some compelling state interest.
However it is still true that

															"[t]he essence of all that has been said and written on the
subject is that only those interests of the highest order . . . can
overbalance legitimate claims to the free exercise of
religion." Wisconsin v. Yoder, supra, at 406 U. S.
215 .

															The purposes urged to sustain the disqualifying provisio of the
Indiana unemployment compensation scheme are twofold: (1) to avoid
the widespread unemployment and the consequent burden on the fund
resulting if people were permitted to leave jobs for "personal"
reasons; [ Footnote 12 ] and
(2) to Page 450 U. S. 719 avoid a detailed probing by employers into job applicants'
religious beliefs. These are by no means unimportant
considerations. When the focus of the inquiry is properly narrowed,
however, we must conclude that the interests advanced by the State
do not justify the burden placed on free exercise of religion.

															There is no evidence in the record to indicate that the number
of people who find themselves in the predicament of choosing
between benefits and religious beliefs is large enough to create
"widespread unemployment," or even to seriously affect unemployment
-- and no such claim was advanced by the Review Board. Similarly,
although detailed inquiry by employers into applicants' religious
beliefs is undesirable, there is no evidence in the record to
indicate that such inquiries will occur in Indiana, or that they
have occurred in any of the states that extend benefits to people
in the petitioner's position. Nor is there any reason to believe
that the number of people terminating employment for religious
reasons will be so great as to motivate employers to make such
inquiries.

															Neither of the interests advanced is sufficiently compelling to
justify the burden upon Thomas' religious liberty. Accordingly,
Thomas is entitled to receive benefits unless, as the respondents
contend and the Indiana court held, such payment would violate the
Establishment Clause. IV The respondents contend that to compel benefit payments to
Thomas involves the State in fostering a religious faith. There is,
in a sense, a "benefit" to Thomas deriving from his religious
beliefs, but this manifests no more than the tension between the
two Religious Clauses which the Court resolved in Sherbert: "In holding as we do, plainly we are not fostering the
'establishment' of the Seventh-day Adventist religion Page 450 U. S. 720 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." Sherbert v. Verner, 374 U.S. at 374 U. S. 409 . See also Wisconsin v. Yoder, 406 U.S. at 406 U. S.
220 -221; Walz v. Tax Comm'n, 397 U.S. at 397 U. S.
668 -669; O'Hair v. Andrus, 198 U.S.App.D.C.198,
201-204, 613 F.2d 931, 934-937 (1979) (Leventhal, J.) .

															Unless we are prepared to overrule Sherbert, supra, Thomas cannot be denied the benefits due him on the basis of the
findings of the referee, the Review Board, and the Indiana Court of
Appeals that he terminated his employment because of his religious
convictions. Reversed. JUSTICE BLACKMUN joins Parts I, II, and III of the Court's
opinion. As to Part IV thereof, he concurs in the result.

															[ Footnote 1 ]

															Indiana Code § 22-4-15-1 (Supp. 1978) provides:

															"With respect to benefit periods including extended benefit
periods established subsequent to July 6, 1974, and before July 3,
1977, an individual who has voluntarily left his employment without
good cause in connection with the work or who was discharged from
his employment for just cause shall be ineligible for waiting
period or benefit rights for the week in which the disqualifying
separation occurred and until he has subsequently earned
remuneration in employment equal to or exceeding the weekly benefit
amount of his claim in each of ten (10) weeks. The weeks of a
disqualification period remaining at the expiration of an
individual's benefit period will be carried forward to an extended
benefit period or to the benefit period of a subsequent claim only
if the first week of such extended benefit period or subsequent
benefit period falls within ten (10) consecutive weeks from the
beginning of the disqualification period imposed on the prior
claim."

															[ Footnote 2 ]

															Ind.Code § 22-4-1-1 et seq. (1976 and Supp. 1978).

															[ Footnote 3 ]

															It is reasonable to assume that some of the sheet steel
processed in the roll foundry may have found its way into tanks or
other weapons; the record, however, contains no evidence or finding
on this point.

															[ Footnote 4 ]

															The referee indicated, App. to Pet. for Cert. 2a:

															"The evidence reveals that approximate [ sic ] two to
three weeks prior to claimant's date of leaving, the 'Roll Foundry'
was closed permanently and claimant was transferred to the terret
[ sic ] line. [He], at this time, real [ sic ]
realized that all of the other functions at The Blaw-Knox company
were engaged in producing arms for the Armament Industry.
Claimant's religious beliefs specifically exempts [ sic ]
claimants from producing or aiding in the manufacture of items used
in the advancement of war."

															[ Footnote 5 ] Id. at 2a-3a (emphasis added by petitioner).

															[ Footnote 6 ]

															The Review Board, like the referee, found that Thomas had left
his job for religious reasons, id. at 5a:

															"The evidence of record indicates that claimant . . . left his
employment voluntarily because his religious beliefs . . . would
not allow him to continue to work producing arms. . . ."

															[ Footnote 7 ] See, e.g., Torcaso v. Watkins, 367 U.
S. 488 , 367 U. S. 495 (1961); United States v. Ballard, 322 U. S.
78 (1944).

															[ Footnote 8 ] See n 4, and text
at n 5, supra. [ Footnote 9 ] See n 6, supra. [ Footnote 10 ]

															271 Ind. at ___, 391 N.E.2d at 1133.

															[ Footnote 11 ] Id. at ___, 391 N.E.2d at 1131.

															[ Footnote 12 ]

															A similar interest -- the integrity of the insurance fund -- was
advanced and rejected in Sherbert v. Verner, 374 U.
S. 398 , 374 U. S. 407 (1963).

															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. I 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 Page 450 U. S. 721 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 (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 Page 450 U. S. 722 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. II 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 Page 450 U. S. 723 make unlawful the religious practice itself, would radically
restrict the operating latitude of the legislature."

															366 U.S. at 366 U. S. 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 374 U. S. 423 .
Like him, I believe that, although a State could choose to grant
exemptions to religious persons from state unemployment
regulations, [ Footnote 2/1 ] a State
is not constitutionally compelled to do so. Id. at 374 U. S.
422 -423. [ Footnote
2/2 ] Page 450 U. S. 724 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 450 U. S. 719 .
I would agree that the Establishment Clause, properly interpreted,
would not be violated if Indiana voluntarily Page 450 U. S. 725 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 374 U. S.
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 330 U. S. 11 , 330 U. S. 15 . In Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 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 , 374 U. S. 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 , 370 U. S. 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 , 413 U. S.
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). Page 450 U. S. 726 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 374 U. S. 314 . See McCollum v. Board of Education, 333 U.
S. 203 , 333 U. S. 248 (1948) (Reed, J., dissenting) Page 450 U. S. 727 (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.

															[ Footnote 2/1 ]

															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 450 U. S. 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 374 U. S. 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.

															[ Footnote 2/2 ]

															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 403 U. S. 665 (opinion of WHITE, J.); Nyquist, supra, at 413 U. S.
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.

Summary: The Indiana Supreme Court denied unemployment benefits to a Jehovah's Witness who quit his job due to religious beliefs, but the US Supreme Court reversed this decision, citing a violation of the First Amendment right to free exercise of religion. The court held that the state's denial of benefits was unconstitutional under Sherbert v. Verner, and that religious beliefs should not be dissected or judged by courts. This case sets a precedent for protecting religious freedom in employment decisions.