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A Delicate Balance: The Free Exercise Clause and the Supreme Court

Warren Court

Expansion of Free Exercise Rights

During the 1950s and 1960s, the Supreme Court, under the leadership of Chief Justice Warren, issued a series of groundbreaking rulings that overturned long-standing precedents and policies in civil rights and other areas, including the free exercise of religion.

The court’s opinion in Braunfeld v. Brown (1961) was an indication that the standards set out in Reynolds and subsequent cases might change. In Braunfeld, the court decided a legal challenge by several Orthodox Jewish store owners to a Pennsylvania law that required most retail stores to close on Sundays. The Jewish businessmen argued that the law disadvantaged people like themselves who closed on Saturdays to observe their Sabbath and that the Free Exercise Clause should be construed to exempt them from the requirement to close on Sundays.

In the court’s majority opinion, Warren noted that the burden of the law on the businessmen was “indirect,” because it did not force them to violate their own Sabbath. But even in a case of indirect burdens, Warren wrote, the government might not be justified in enforcing the law if it could accomplish its purpose “by means which do not impose such a burden.” In this instance, however, Warren concluded that the government lacked an easily administered alternative to achieve its purpose – a uniform day of rest. Accordingly, the court rejected the businessmen’s argument. Nevertheless, the ruling suggested a new receptiveness on the part of the court to the use of the Free Exercise Clause to protect religiously motivated behavior.

Sherbert v. Verner (1963)

Majority: Minority:
Black Harlan
Brennan White

Two years later, in Sherbert v.Verner (1963), the implications of Braunfeld became clear. Adele Sherbert was a Seventh-day Adventist and thus observed Saturday as the Sabbath. Her employer fired her for refusing to work on Saturdays, and she was unable to obtain other work because other jobs she sought also required Saturday work. Public officials in South Carolina rejected her application for unemployment compensation on the grounds that she had failed, without good cause, to accept “suitable work when offered.” The government argued that this policy protected its interest in preventing people from making false claims of religious observance in order to qualify for unemployment benefits, and the state Supreme Court agreed.


Having determined that the law imposed a burden on Sherbert’s religious liberty, the court went on to establish an important doctrine for future cases. When the state refuses to accommodate religiously motivated conduct, Brennan wrote, it must show that it has a “compelling interest” for denying such claims. In other words, the government cannot interfere with someone’s sincere religious practice unless it can show that the interference furthers a clear and important public interest.

Applying the compelling interest requirement to free exercise cases was a marked departure from the 1879 Reynolds polygamy decision. Indeed, before Sherbert, the requirement of compelling interest had appeared only in cases that involved freedom of speech and racial discrimination. In Sherbert, the court concluded that the government had offered no proof to support its alleged interest in preventing workers from making fraudulent claims of Saturday religious observance in order to qualify for unemployment benefits. The court therefore ordered the state to pay Sherbert unemployment benefits.

In his dissent, Justice John Marshall Harlan, joined by Justice Byron White, argued that the court’s opinion carved out a special exemption for religious observance from the general requirement that employees must be available for work. In doing so, he wrote, the court compelled the state to subsidize Sherbert’s religious practices. Although the state was free to choose such a course, Harlan asserted, the Constitution did not require it.

Many saw the Sherbert decision as a victory for the principle that all religions should be treated equally in the eyes of the law. In this case, South Carolina had a Sunday closing law (similar to the Pennsylvania law noted above) that favored workers who observed Sunday as the Sabbath and protected them against the hard choice imposed on Sherbert and those of other faiths (like the Jewish businessmen in Braunfeld) whose Sabbath falls on another day. But others saw the ruling as a path to granting special privileges for religion. In particular, they worried that the compelling interest test would tip the balance in favor of religious exercise and would lead to more and broader claims for special religiously based exemptions from legal requirements generally imposed on all citizens.


Photo credit: Oswald Eckstein/Corbis

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