Frazee v. Illinois Department of Employment Security – Oral Argument – March 01, 1989

Media for Frazee v. Illinois Department of Employment Security

Audio Transcription for Opinion Announcement – March 29, 1989 in Frazee v. Illinois Department of Employment Security

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William H. Rehnquist:

We’ll hear argument next in No. 87-1945, William A. Frazee v. The Illinois Department of Employment Security.

Mr. French, you may proceed whenever you’re ready.

David A. French:

Thank you.

Mr. Chief Justice, and may it please the Court.

Does the Free Exercise Clause extend protection only to persons who are members of established religious organizations and who exercise the beliefs of those organizations?

That’s the issue this case presents.

William A. Frazee believes it’s wrong to perform nonessential work on Sunday.

His beliefs are based on his religious convictions as a Christian.

Now, nonessential to Mr. Frazee means any work that does not directly relate to the preservation of human life.

In 1984, he worked for the State of Illinois and was laid off, and during that time he remained on call to return to his position.

In addition, he performed temporary employment through Kelly Services, Incorporated, and performed all assignments that were given to him until April of 198–

Did he very many?

David A. French:

–Well, the record shows that he had… he testified during the hearing that he had one assignment previous to the job that came up in April of 1984, and then there was one afterwards.

So, in fact, the… he had two assignments.

In… on April of 1984, he was given a five… an offer of a five-day position beginning, he was told, Wednesday, May 9, and going through Sunday, May 13, 1984.

The position was a retail clothing position, salesman.

When he was informed that the work included Sunday work, he inquired as to whether the work could be limited from Wednesday through Saturday, and was informed that unless the… he was available for Sunday work, he wouldn’t be considered for the position.

At that time, he declined the employment, citing his religious belief against Sunday labor.

Now, after that, Mr. Frazee attempted to obtain continuing unemployment benefits from the Department of Employment Security.

During the proceedings, he at all times acted pro se.

The first… and I should say the Illinois statute that we have before the Court today is very similar to the statutes that this Court considered in the Sherbert and the Thomas cases.

In order to remain eligible for unemployment benefits under the Illinois statute, a person must not refuse an offer of suitable work without good cause.

It’s almost the exact language of the statute in Thomas.

Mr. French, I’m afraid we’re going to have a very disappointing argument here today.

As I read the briefs, I’m not sure your opponent wants to argue about the question as you so well expressed it.

You did, indeed, express the question that was presented in the petition for cert at the outset of your brief, whether you have to be a member of an organized religion in order to claim the benefit of these cases.

But as I understand the position being… being taken here by… by the Appellees, they concede that point.

And all they want to argue about is whether… whether, indeed, your client adequately established the sincerity of his religious conviction as opposed to whether it was part of an organized religion or not.

David A. French:

That’s correct, Justice Scalia.

I would make two points in response to that.

David A. French:

First of all, this was the first time the Department has raised this issue.

Throughout the lower court proceedings, they urged the lower courts to take the position that the Illinois appellate court ultimately took, first of all.

And secondly, I would say… and I’d like to address this more completely as I get into the argument, but for now I would say that their position both mischaracterizes the record in this case and confuses the issues of the fact and law that are before this Court for determination.

But that’s the short answer to your question, and I would like to explore it more fully.

I would hate to think we took this case just… just to decide whether… whether your client proved with adequate… with adequate force the sincerity of his conviction.

That’s really not the kind of–

David A. French:

Well–

–we usually take up here, is it?

David A. French:

–That’s right, but I would say that, first of all, there’s… and I’ll reach that directly.

The fact of the matter is that… that this Court would not have to overturn any factual determination that was made by the administrative agency in order to overturn the… the decision of the Illinois appellate court.

The courts… the agency and the… the Illinois appellate court both made clear that Mr. Frazee’s belief were… beliefs were religious in nature and that they were sincere.

And I will demonstrate that as we proceed.

And that gets directly to the point that throughout the administrative proceedings, Mr. Frazee’s sincerity was never questioned in this case.

The first person that he presented his claim to under… under the statute was the claims adjudicator, and that claims adjudicator made this express finding that was the determination he was required to make under the Illinois statute.

“On April 30, 1984, the claimant refused an offer of work with Kelly Services, Incorporated, because he did not want to work on Sunday due to his religious conviction. “

The claims adjudicator didn’t have any problem identifying Mr. Frazee’s beliefs as being religiously based.

And when Mr. Frazee’s claim was rejected by the claims adjudicator, he appealed to the referee and had a hearing before the referee.

The referee affirmed the decision of the claims adjudicator on all issues.

And at that hearing Mr. Frazee responded to the questions of the referee without benefit of counsel.

Now, the transcript will show that the referee wasn’t concerned about Mr. Frazee’s sincerity at all.

He was only concerned about two issues: first, whether Mr. Frazee was a member of an established religious organization; and secondly, whether he was exercising the beliefs of an established religious organization.

That was the entire focus of the referee’s questioning during the hearing about Mr. Frazee’s religious beliefs.

When that was… when the… or excuse me… when the referee upheld the decision of the claims adjudicator, Mr. Frazee appealed to the Board of Review, and once again his sincerity was not at issue.

The board specifically ruled that Mr. Frazee’s beliefs were not protected no matter how strong or sincerely held.

And I’d emphasize here that what the board had in front of it at the time it made its determination was more than just the testimony that Mr. Frazee presented at the… at the hearing.

It had two written statements that Mr. Frazee presented during the course of the administrative proceedings.

And contrary to the claims of the Department here, what that evidence showed is a lot more than Mr. Frazee just saying I’m a Christian and… and I can’t work on Sunday.

In fact, the two written statements showed that his beliefs were derived from his own personal reading of the Bible, relying first on the Commandments contained in the Decalogue and secondly on the actions of Christ in the New Testament.

There is no–

But, Mr. French, it… it is true that the Board of Review ended up its opinion saying,

“however, other than his own self-serving testimony, the claimant has presented no corroborative evidence to establish that working on a Sunday was unsuitable for him. “

David A. French:

–That’s correct, Justice Stevens.

And actually that’s kind of a puzzling statement.

Until… I think when you read it in context, what it’s referring to when they’re saying there he didn’t produce any evidence corroborating his beliefs, it’s referring… the corroboration that they were asking for and were looking for was that… the corroboration of the… of a established religious organization that that tenet was found in an established organization didn’t refer specifically to the evidence he was presenting in my… in my judgment.

I think that’s the fair reading of… of the decision.

Or, otherwise, if in fact that was the basis of the board’s decision, there would have been no need for the board to… to say whatsoever that in order to… for a claimant to get the protection of the First Amendment, that you have to show that you’re a member of… of a denomination or church organization.

And they made that ruling specifically and expressly that when a refusal to work is based on religious convictions, it must be based solely on the fact that the person is exercising the beliefs of an established religious organization.

So, I think when… when read properly in context, what that statement by the board is referring to is the fact that Mr. Frazee didn’t establish that he was exercising the belief of an established religious organization.

But this was the evidence, the evidence that I’ve mentioned, the evidence contained in the transcript and the two written statements of Mr. Frazee is what the board had in front of it when it passed on Mr. Frazee’s beliefs.

And certainly the Board of Review didn’t have any problem identifying the religious basis of Mr. Frazee’s beliefs.

It termed them “religious convictions”.

The sole ground for denial, as I mentioned, was that Mr. Frazee did not show that he was exercising a belief of an established religious organization.

We’ll resume there at 1:00 o’clock, Mr. French.

David A. French:

Thank you.

Mr. French, you may resume your argument.

David A. French:

Thank you Mr. Chief Justice.

Justice Scalia… excuse me… I’d like to just respond a little more fully to your question about what the issue in this case is.

I’m not so sure that the Department here has conceded for the purpose of this oral argument that the position of the Illinois appellate court was wrong.

In their motion to dismiss and… dismiss or affirm, the Department took the position on the question presented as follows: whether a state agency violates the Free Exercise Clause of the First Amendment by denying an… an individual unemployment benefits due to his refusal to work on a Sunday when that refusal is not based upon any specific religious or church tenet, but rather upon his allegation of a personal feeling that as a Christian it was wrong for him to work on Sundays.

Now, the first time that the… the Department had changed the focus of its argument at all in this case was after we submitted our brief on the merits.

But I’m not so sure even in their brief on the merits that they’ve taken the position that the… that they’ve conceded that the test adopted by the Illinois appellate court is wrong.

On page 20 of their brief they say,

“Congress cannot know and the courts cannot measure a statute’s impact on religion unless the salient points of the religion are objectively measurable. “

“The need to identify some tangible evidence of a religion and its beliefs leads both courts and legislative bodies into invoking “dogma and tenets” as a shorthand way to measure the breadth and scope of religious beliefs. “

I’d like to know myself from the Department whether they are defending, in fact, the test adopted by the Illinois and if so, what the… what the basis of that is because I don’t think it’s contained in their brief.

Let me ask about your position.

You would not have any problem with a state saying one of the indicia of sincerity is that you belong to a religious group which, as a whole, supports this position dogmatically.

David A. French:

That’s correct.

The only position that we’re taking in this Court is that that factor by itself is not a necessary–

Necessary.

David A. French:

–condition, but it may be, in fact, a relevant factor in determining whether a belief is religious under the Free Exercise Clause.

Mr. French, how far does your theory take you?

Suppose someone had a sincere religious belief that he shouldn’t work at all, Monday through Friday.

David A. French:

Well, I think that that would certainly–

Are there any limits?

David A. French:

–be different from… there would certainly be differences from… in that, in the example that you’ve posed, from our case first… firstly.

But, secondly, I would note that the Court… this Court itself in Sherbert indicated that the denial in that case… or that there was no indication that by granting unemployment benefits, the claimant would be made an unproductive member of society.

And I would submit that that’s certainly an appropriate factor in determining whether there are in fact limits here.

And that would… that would come in, however, not in defining whether the belief is religious under the First Amendment, but rather in the government interest in denying the benefit in this particular case.

And they have… they have not–

The extent to which the state has a compelling interest?

David A. French:

–That’s correct.

But the state in this case has not advanced such… such an argument as the justification for denying the benefits here to Mr. Frazee.

You… suppose the Department gets up and say, no, we don’t defend the decision below.

We just want to support it on another ground.

Wouldn’t we… we wouldn’t necessarily have to agree with… with either one of you that the court below erred.

We would still have to decide that it did.

David A. French:

That’s correct, but I would… would submit that the grounds offered by the Department in this case are not sufficient to sustain either the determination of the Board of Review or the Illinois appellate court.

I think in either instance, the… the decision of that court, based on the findings that the agency itself made and the court made, necessarily must be overturned as… as a matter of construction under the Free Exercise Clause.

What beliefs are protected under that… under that clause and what beliefs are not?

That’s a constitutional question.

But the… but the stipulation or agreement of the parties doesn’t conclude this Court on a question at law.

David A. French:

That’s correct.

Now, just getting back briefly to what transpired in this case, as I mentioned, the Board of Review did, in fact, pass on a broad range of evidence that was before it, not just the transcript that was presented by Mr. Frazee.

They had the two statements and on the basis of that testimony, determined that his belief was not protected because he was not exercising a belief or tenet of a… of a church or denomination.

That was the sole ground given for the decision.

When Mr. Frazee… when that decision was given, he filed a complaint then for administrative review in the Illinois circuit court and that court affirmed the decision of the Board of Review.

Mr. Frazee then appealed to the Illinois appellate court and once again, that court had no problem determining either the sincerity of Mr. Frazee’s belief or the religious nature of that belief.

First of all, the court specifically stated:

“We do not question the sincerity of plaintiff. “

David A. French:

Secondly, the court also discussed in detail the historic Christian practice against Sunday labor.

So, there’s no question they were understanding that this was a… a belief based on religious conviction.

And, in fact, they termed Mr. Frazee’s belief a personal professed religious belief.

The sole ground for the rejection of Mr. Frazee’s claim that the Illinois appellate court gave was that that court believed that the Constitution extended protection to individuals only, number one, when they’re a member of an established religious organization and, number two, when they’re exercising a tenet of that organization.

That was the sole ground given by that court.

Now, it must be emphasized that the Illinois court’s understanding of the scope of the Free Exercise Clause is not isolated.

Recently four state courts in Vermont, New Jersey, Arkansas and Indiana have rejected Free Exercise Clause claims on very similar grounds to that advanced by the Illinois appellate court.

But that court’s understanding of the scope of the Free Exercise Clause is inconsistent with important principles of the First Amendment.

Firstly, on its face, the test grants an unconstitutional preference to established religious organizations and disadvantages religious dissenters and adherence of emerging new sects.

The court’s test by its own terms makes protection for individual belief dependent on the acceptance of that belief by others.

That’s precisely what this Court said in Thomas the Free Exercise Clause did not require.

In addition, that… the test would operate to create a de facto preference to certain religions that are highly organized in credo.

For instance, a Buddhist or a Hindu would not qualify for protection under this test no matter what their beliefs they advance because neither Buddhism nor Hinduism, as a matter of fact, maintain a uniform body or practices of beliefs… a uniform body of practices or beliefs.

So, none of those claim… adherence to those religions would qualify for protection under this test.

In addition, the test requires the court to scrutinize both the individual religious belief and compare it to the tenets of an established religious organization, and that would involve courts in questions of religious doctrine which is what the… what the First Amendment also does not permit.

The test by its own terms requires courts to determine who members of established religious sects are and also what is the relevant established religious organization.

Both of those questions often involve issues of religious doctrine and would present the problem of excessive… courts’ excessive entanglement in religion.

It appears that the Illinois appellate court believed that Sherbert, Thomas and Hobble required that an individual be a member of an established sect in order to obtain the protection of the First Amendment.

But that goes far beyond what this Court’s holdings in… in those cases and other cases have required for a belief to qualify for protection under the First Amendment.

Instead of requiring an individual to be a member of such a sect, what this Court has said in those cases is the only thing is required that the individual have an honest conviction that the work is forbidden by his religion.

So, in short, we have two requirements: first, that the belief is sincerely held by the individual and, secondly, that the belief must be rooted in religion as opposed to purely philosophical or secular concerns.

On… on this record, once it was established that he was sincere, did the state… could the state legitimately have probed further into the nature of the religious beliefs?

Or should it… must it as a matter of law simply have accepted his excuse as valid based on the testimony that’s in this record?

David A. French:

Well, I think it depends, Justice Kennedy, on what you mean by probe.

They certainly could ascertain what… could have ascertained properly what the basis of those beliefs are and what the beliefs themselves were.

I think there’s… there’s no problem with the court inquiring in that regard.

They could have supplemented and amplified the record in that regard?

David A. French:

That’s correct.

Even… even once it was established or conceded that he was sincere?

David A. French:

That’s correct because I think there’s a… you can distinguish for… for the purposes of the Free Exercise Clause sincerity, number one, and secondly, the religious nature of a person’s belief.

David A. French:

I think they are–

Well, he said… he said it’s because I’m a Christian.

Isn’t that enough?

David A. French:

–I think it’s enough in this case, yes.

Well, what purpose would be served by further probing?

David A. French:

Well, they could have… if they wanted to find out where he got the belief, for instance, to determine whether it’s… really was an honest religious belief.

I guess if they made the initial determination that he was sincere and then in this case he said I’m a Christian and am against Sunday labor, and they believed that he was sincere in that assertion, I think that would be sufficient on this record for… for–

I know it’s sufficient.

Would there be any further justification under your view for inquiry?

David A. French:

–Well, I don’t think that a court or an agency would be precluded by the First Amendment to go… from going further.

But, on the other hand, I don’t think there would be any… any need to.

I… the only point in going further… there are only two relevant questions: first, the sincerity of the individual and, secondly, whether the belief itself is religious.

If they asked just two or three questions and they… from those questions, they can ascertain that the belief is… is religious and the individual sincere, I don’t think they need to go further.

But what if he said he was not a Christian.

He just said I don’t believe in Sunday work.

I think it’s wrong.

I’ve always felt that way since I was a child.

David A. French:

Well, I don’t think that would–

xxx.

David A. French:

–be sufficient.

I mean, admittedly we have here a record just based on the testimony.

I mean, there is more than… more than that in… on this record, but if you have just a record where someone says I’m against Sunday work, I wouldn’t say that that’s sufficient in and of itself to determine whether the belief was based on–

What if you just added to that that when he was a child his… his guardian or one of his parents read him a passage from the Bible that said something about not working on the seventh day or something like that.

David A. French:

–Well, it would depend on how he viewed the Bible I would suppose.

He… that’s the only thing.

That’s the only… that’s the only tenet he has, but he believes it very deeply that working on Sunday is wrong.

He has always felt that way throughout his life.

Never done any work on Sunday just because he thinks that is something of some fundamental importance.

Would that be–

David A. French:

I think that’s a close question.

David A. French:

If the Court were to adopt a functional test of religion in short, like in the Seeger case, it probably would be enough that… if the belief was important enough to an individual that it occupied a place of central importance in his or her life–

–No, it was important enough so he never worked on Sunday.

That’s–

David A. French:

–Pardon?

–It was important enough so that he never worked on Sunday.

David A. French:

Well, that I think would just depend on how religion is defined.

We don’t know anything really more about this… this person’s belief than that.

David A. French:

Yes, we do.

We know, first of all, that he’s relying on the fact that he is a Christian, number one.

And, number two, we know that he’s basing it on his belief and his own personal reading of the Bible in relying on specific passages in the Decalogue and in Christ’s example in the New Testament.

Plus, what we have as… as corroborative evidence is the long history of Christian belief and practice which the Illinois appellate court itself took note of.

I think all those factors are more than sufficient to meet what I would consider a low threshold that’s… that’s required.

Well, you’re suggesting that it was a tenet of his religion not to work on Sunday.

David A. French:

No, I’m not suggesting–

xxx.

Well, not in the sense that the Illinois appellate court used the word “tenet”.

The Illinois appellate court was using the… employed the term “tenet” in a formal sense, something formally adopted by a religious organization.

In that sense, clearly it wasn’t a tenet.

And a tenet, if you use the… define the word “tenet” in just an informal sense as… as a belief that a person possesses, then yes, it was a tenet of… of his religious belief.

And I think that is sufficient on this record what we have before the Court to… to determine that his belief was in fact religious.

Do you have to have the word “Christian” there?

David A. French:

–Excuse me, Justice–

Do you have to have “Christian”?

David A. French:

–Well, Justice Marshall, I would say that–

A man says I’m a religious man, and I don’t believe in working on Sunday.

And that’s the only… that’s all I give you.

Is that enough?

David A. French:

–Well, that’s a close case.

I would say that probably not unless you determined that–

Well–

David A. French:

–He discusses… he discusses further and talks about what he means.

–No, no.

In mine, that’s all he says.

David A. French:

Well, I don’t think from that–

Now–

David A. French:

–On that statement alone, I wouldn’t say that you would be able to determine either the place of the… of the belief in the individual’s life or where it was derived from.

–Well, the next one is he says that and he says also I’m a Christian and nothing else.

Is that enough?

David A. French:

I… I’m religious and don’t believe in work on Sunday and I’m a Christian?

Yes.

David A. French:

Yes.

In this–

So that the word “Christian” is the key word.

David A. French:

–In this case, yes, it would be.

I’m not saying that’s–

Well, that–

David A. French:

–a test across the board.

If he says–

–That doesn’t give you–

David A. French:

–If he said I’m a Christian and I want to–

–That doesn’t give you any problem with the other religions, does it?

David A. French:

–No, not… not… well, it would depend.

Well, it does to some people.

David A. French:

It would depend on… on the facts, Justice Marshall.

I would suggest if he said I’m a Christian and therefore I believe in playing golf on Wednesday, I would say that by itself would not be sufficient because there’s no… there’s no corroboration that has ever been a religious belief that has been held by anyone in the history of Christianity.

But we have much more than that here.

Conversely, if he had said, I’m a Jew and I don’t believe in working on Saturday, that would be sufficient–

David A. French:

That’s correct.

–would it not?

David A. French:

That’s… that would be clearly analogous to… to the case we have before us.

David A. French:

But if someone says I’m a Wiccan, for instance, one of the cases cited by the… by the Department here and… and therefore I don’t… I have to twiddle my thumbs, well, then I would suggest that we would need more.

But what we have here is a belief that has been recognized by this Court in the McGowan case in 1961 as a… as a religious belief.

It’s not… it’s not something that anyone common… who has common knowledge on religion would question as a religious belief unless… unless the sincerity of the claimant is being questioned.

Then you would have an issue, but we don’t have that case.

Because it’s a… it’s a fairly standard religious belief for many people.

What… what if he… what if he did say, though, you know, God has appeared to me and told me to play golf on Wednesdays and I can’t take any job that won’t let me play golf on Wednesdays.

David A. French:

Well–

And I’m persuaded that this fellow is very sincere about it.

Does the state have to set up its system so it would allow him to play golf on Wednesdays?

David A. French:

–I would say not on these facts… or not on… on that statement alone.

He would have to show more to show that… that–

He sincerely believes it.

Put in whatever additional information you need to establish that he is sincere about that.

David A. French:

–All right.

It… well, it depends on what you mean by sincere.

I mean, as… if you mean by sincere that he truly believes it to be a religious belief–

Uh-hum.

David A. French:

–that’s one question.

Yes.

David A. French:

Well, I think in that sense that confiates the… the issue of what is a religious belief with what is sincerity.

And I… I would say that under the cases, although they’re… they’re related, I think they’re distinct.

But if you… if you employ it in the sense that… that you’re using it, I would say that he then would probably still have to have more, although maybe not a lot more.

The reason I… I say that is that–

Now, well, listen.

What I’m getting at is… you know, I agree with you totally.

Indeed, I think the other side may agree with you totally that… that you can’t require that the person be a member of an organized religion.

But I wonder whether the kind of… the kind of excuses that you allow the person to put forward do not have to be excuses that are within the range of things that not any particular organized religion, but at least some organized religion have… have used in the past.

David A. French:

–Well, I think there are many… I think that’s correct.

I wouldn’t disagree with that at all.

I think there are many factors that a court can… can look at to determine whether a belief is religious, and one of the best… one of the best factors or one of a number of factors could be whether specific religious denominations have formalized that religious belief in a… in a formal creed of some sort.

So, you say even if it doesn’t go to sincerity, it can go to whether it’s a religious belief–

David A. French:

That’s correct.

But here what we have in this case, the… the only question that we have is whether Mr. Frazee’s belief was not so bizarre as to be clearly non-religious in motivation.

And I would submit on this record he clearly… his belief clearly satisfies that standard.

And I think I would like to reserve the rest of my time for rebuttal.

–Very well, Mr. French.

Mr. Ruiz?

Robert J. Ruiz:

Mr. Chief Justice, and may it please the Court.

In response to an issue raised by counsel, I would like to point out that it has been the consistent position of the state that this is a matter that relates strictly to the factual determination made by the courts below as well as by the Board of Review throughout its administrative proceeding.

The case does not involve the constitutional issue raised, but simply involves the issue of whether Mr. Frazee was properly denied his unemployment insurance benefits based on his refusal to accept suitable work and whether that refusal was based on a personal desire not to work on Sunday or as part of a religious tenet that he held.

The simple statement that he asserts, that I am a Christian, we assert is insufficient as a matter of… of religious belief, as we understand it, and insufficient to trigger the protections of the Free Exercise Clause.

Are you defending the opinion below or just the judgment?

Robert J. Ruiz:

We assert that what the court held below is correct and proper, and that is that based on the record and administrative review that it had, it had to uphold the decision below unless it found it against the manifest weight of the evidence.

Well, didn’t it say that… didn’t it say that this was a religious belief?

Robert J. Ruiz:

The administrative body?

No.

Robert J. Ruiz:

No, it did not.

The court.

Robert J. Ruiz:

The court did not at any time say that this was a religious belief.

It did not question Mr. Frazee’s sincerity, but I think it upheld the board’s determination and the hearing referee’s determination that his refusal to work was a matter of personal preference and not religious belief.

You don’t think it decided on the basis that this was a religious belief, but that it wasn’t shown to be a part of any ritual of a church?

Robert J. Ruiz:

It’s our position that what the court did in talking about tenets and dogma was simply a way of dealing with the fact that it was dealing with a very scant record concerning Mr. Frazee’s–

Well, if… if we think the decision turned on… on the fact that it wasn’t shown that this was part… was a formal part of some church dogma, if we think the… the case turned on that you, would agree we should reverse I guess.

Robert J. Ruiz:

–No, that would not be our… our position.

Well, what is you position about that?

Robert J. Ruiz:

Our… our position is, first of all, that we don’t agree that that’s what the–

Well, I know that.

Robert J. Ruiz:

–holding below is.

I know that.

Robert J. Ruiz:

Secondly, that this Court, if it were to determine that this were, in fact, a matter of law and not of fact, could under its de novo powers review the entire record and make its own determination as to whether or not there was a denial of constitutional right.

Well–

Robert J. Ruiz:

However, we would submit that even under that de novo review standard… first of all, there are not sufficient facts here to support the contention that the Free Exercise Clause has been violated.

–Well, do you think it’s a… do you think it’s the rule in cases like this that the asserted religious belief be shown to be a formal dogma of a particular church?

Robert J. Ruiz:

No, we do not.

I don’t think that is a proper statement of the law.

Well, isn’t that what the court below held?

I’m looking at its opinion and it says,

“the injunction against Sunday labor must be found in a tenet or a dogma of an establish religious sect. “

“The plaintiff in this case does not profess to be a member of any such sect. “

“Affirmed. “

I mean, it… it looks pretty clear, doesn’t it?

Robert J. Ruiz:

Well, our reading of that… of that language is simply dicta in the case because it was not determinative of the record that the court had before it.

And I think–

Suppose that’s not our reading of the case.

Then do we reverse?

Robert J. Ruiz:

–No, I don’t think you… you need to reverse.

You may still uphold the finding.

In other words, we… we affirm a decision which is based on a patently erroneous statement of constitutional law.

Robert J. Ruiz:

Well, it’s not our position that… that the decision is patently in error–

Suppose… suppose… suppose we conclude that the decision is based on the sentence that Justice O’Connor read.

And suppose further we conclude it’s wrong.

Then we must reverse.

Robert J. Ruiz:

–No, I think you can still uphold the determination that Mr. Frazee–

Well, I’d like to hear why.

Robert J. Ruiz:

–Pardon me?

I’d like to hear why.

Robert J. Ruiz:

That Mr. Frazee was not entitled to benefits given the… the factual presentation he made to support his claim of religious belief.

Well, you want us to redetermine the facts.

Robert J. Ruiz:

I don’t think you need to redetermine the facts.

If you determine that… that the decision was wrongly decided by the appellate court, you may review the facts and make your own determination of what those–

Well, why should we do that?

We normally don’t.

We took it to decide an issue of law, the issue presented in the cert petition.

And you apparently don’t even want to talk about that issue.

Robert J. Ruiz:

–Well, it has been our position consistently that that’s not the issue that these facts present.

We did it throughout the course–

xxx whether you think that that statement that Justice O’Connor read is a correct statement of constitutional law.

Robert J. Ruiz:

–That you need to be a member of an organized religion and–

Yes.

Robert J. Ruiz:

–have tenets and dogma?

Do you think that’s a correct statement of the law?

Robert J. Ruiz:

In order to get constitutional protection?

Absolutely not.

Well, so you–

Robert J. Ruiz:

And I don’t think the appellate court–

–So, you do not defend that… that statement in the opinion.

Robert J. Ruiz:

–No.

We do not believe that that’s what the court said.

You just say… you just say that wasn’t the basis for… for the decision, or even if it was, we can decide it another way.

Robert J. Ruiz:

Yes.

Uh-hum.

The court below also said, in addition to what Justice O’Connor quoted,

“we do not question the sincerity of the plaintiff. “

You want us to decide this case on the basis of the fact that sincerity was not demonstrated when… when the court below was satisfied about sincerity?

Robert J. Ruiz:

We have I think conceded the point that this gentleman may have had some sincere beliefs.

What we are unwilling to concede is whether he presented sufficient evidence to support his claim that on the basis of the record that he made, he could support a claim of… of religious exemption.

And you want us to do that for the first time even though the state court didn’t even do it.

Robert J. Ruiz:

I think the state court did do it by affirming the holding below that he was not entitled–

No.

The state court said we don’t question the sincerity of the plaintiff.

Robert J. Ruiz:

–We have conceded that… that nowhere along the line has his sincerity been questioned.

Our contention is that there are not enough facts in this scant record to support the fact that he put forth a religious claim.

So, your… your position really is although his belief was sincere, it was not religiously based?

Robert J. Ruiz:

That’s correct.

Because?

And the reason being?

Robert J. Ruiz:

Oh, the reason is because I think that under any sort of constitutional analysis to determine whether or not you have the protection of the Equal Protection Clause attaching, you need to look at what the assertions are of the plaintiff.

What has constitutional analysis got to do with right or wrong, yes or no?

Robert J. Ruiz:

The–

It doesn’t have anything to do with it.

Robert J. Ruiz:

–No, it does not.

It does not.

Are you… are you saying there was a failure of proof?

Robert J. Ruiz:

I think in this instance he failed to prove that he had anything other than a personal belief, a personal preference.

It could have been as sincere as the courts have pointed out that he was perhaps sincere.

But the issue is that you cannot raise the claims even though he asserts them as being religious simply on the basis of his representations.

Even though he’s sincere, he’s not so.

Robert J. Ruiz:

He has not shown that what he has presented is a sincere religious belief.

What could he show?

Robert J. Ruiz:

What could he have shown?

Yes.

Robert J. Ruiz:

I think–

If anything.

Robert J. Ruiz:

–I think that he could have done any number of things to provide additional information to–

I warn you in advance my next question would be did you show anything to the contrary.

So, go right ahead.

Robert J. Ruiz:

–The things that he could have done… he was offered enough of an opportunity.

If his particular religious orientation was not of the institutional variety, as has been indicated, then he could have taken the opportunity to expound more on where he got the religious direction for his life, how long he has had it, what kinds of practices does he do–

Could you have asked him that question?

Robert J. Ruiz:

–Pardon me, Your Honor?

Could you have asked him those questions on cross?

Robert J. Ruiz:

I… I think–

Well, of course, you could.

Robert J. Ruiz:

–Well, this was not–

And you didn’t.

Robert J. Ruiz:

–an adversarial proceeding.

And you didn’t.

Robert J. Ruiz:

This was not an adversarial proceeding, Your Honor, at… at the hearing level where the record was made.

He was brought in to respond to the fact that his benefits were going to be discontinued.

And he was asked for the reason for his refusal to work–

Well, could that person who asked ask these other questions?

Well, he did–

Robert J. Ruiz:

–I think… pardon me.

–He did say… in answer to one of those questions what’s the basis, he said my personal Christian faith in the Lord.

Robert J. Ruiz:

I think that was his response exactly.

And isn’t that sufficient?

Robert J. Ruiz:

It is our position that it is not simply–

What more does one need than faith in the Lord and being a Christian and therefore thinking Sunday work is wrong?

And you don’t question the sincerity of that either.

Robert J. Ruiz:

–We do not question his sincerity simply because the… the record doesn’t show that he was in any way insincere about it.

Our… our position is that simply saying that I have these personal preferences or I have these preferences and–

Based on a faith in the Lord.

Robert J. Ruiz:

–[inaudible] religious–

Let him answer the question.

I’m sorry.

Robert J. Ruiz:

–That… that they are religious doesn’t make them so, that the person seeking the exemption, seeking the protection of the First Amendment bears the responsibility of illustrating that what he holds and believes as his own is, in fact, what would be recognized under the Free Exercise Clause.

The… the fact of the matter is, the reality is that the farther one gets away from what could easily be recognized as an identifiable religion, I think as a practical matter requires that the individual illustrate more how those beliefs, that body of beliefs, not a single one, somehow is the controlling factor in his life and holds the same position as an orthodox belief in God would hold in someone else.

Mr. Ruiz, was this the argument that was made by the state to the Illinois appellate court, the argument you’re making to us today?

Or did the state simply argue that the board’s decision should be affirmed?

Robert J. Ruiz:

The argument made at the state level was that the decision below should have been affirmed.

So, we’re hearing this entirely for the first time.

It’s something that wasn’t presented below.

Robert J. Ruiz:

No, it was not.

I guess I’m still not sure what you’re… what you’re asking us to hold, Mr. Ruiz.

If I understand what you’re saying, a person can say God does not want… I… I am a religious person.

God does not want me to work on Sunday.

And I can… I can say, yes, you think that, and I’m sure you’re sincere.

And yet, I’m still not sure that that’s a religious belief.

Right?

Is that what you’re asking us to… to believe?

Robert J. Ruiz:

I think that you can make the… the assumption that simply because someone says I don’t want to work on Sunday and attaches a religious label to it, that that immediately means that… that the fact finder–

Yes, but I don’t question his sincerity.

I acknowledge.

Yes, I understand that you believe that God does not want you to work on Sunday.

That’s what this court means when it says it doesn’t question his sincerity.

He says God does not want me to work on Sunday.

And the court says, yes, I believe you believe that, but that’s not a religious belief.

Well, what more… what more do you possibly have to prove to show it’s a religious belief except that you think that God commands it and you sincerely believe that?

Once you’ve shown those two things, it seems to me you’ve established your religious belief, haven’t you?

Robert J. Ruiz:

–I think you’ve established a religious belief in Your Honor’s example, but I don’t think that’s the set of facts we had here.

I think that he was asked to identify either an organized religion, which he said there was none, or to identify something that we could look at and say, okay, this is comparable to what we would identify as a religious belief.

I think the state in this instance has the right to make the determination as to the sincerity and also as to whether or not it is dealing with something religious, and simply having it labeled as a religion does not make it so.

I think you need a lot more.

That runs contrary to our notion that anyone can simply set up a set of standards and expect that society will know what those standards are, under the label of Christianity in this case, and then ask society to abide by one’s wishes as to the exercise of that whether or not it means society has to bestow benefits on it.

I think that our notion of… of ordered liberty says that you can’t do that, and that this Court can’t be asked to simply, on the basis of this record, provide a protection of the First Amendment.

But under your theory… and I’m still not quite sure how to articulate it, but under your theory, was the state required to deny the employment exemption?

Robert J. Ruiz:

Was the state?

Based on this record, was the state required to deny the application for benefits?

Robert J. Ruiz:

Simply on the basis of his religious beliefs?

No.

On the basis of what’s… all that’s in this record.

If the hearing officer had granted the exemption, could you have taken him to your state court and had a reversal as a matter of law?

Robert J. Ruiz:

I think we probably could have done that if… because we would contend that it neither approves nor diminishes his… his record.

He does not illustrate any sort of religious belief.

And if the hearing officer had so found, I think that that could have been reversed as well.

It’s our position that the history and purpose and intent of the Free Exercise Clause, if it is to be preserved, then we must undertake the rather delicate task of distinguishing between those things that are religious and those that are non-religious.

The receipt of unemployment insurance benefits in Illinois is a constitutional… or pardon me… a conditional right and not an absolute right.

The right to receive those is dependent upon the claimant, in this case Mr. Frazee, showing his initial eligibility for those benefits and a continuing eligibility.

That burden was his from the beginning and it continued to be his throughout the process.

It never shifted.

His decision to decline Sunday employment and thereby claim a religious exemption was dependent on his ability to demonstrate that the refusal was more than a sincere personal belief, that it was, in fact, religious.

Simply labeling his preference as religious didn’t make it so.

At the hearing, as I have illustrated before, he had made… there were a number of attempts made to draw out the nature of his beliefs with very little information gathered.

He was asked what his faith was.

He simply said it was Christian.

He asked what church he belonged to, to which he didn’t respond.

He asked if there were tenets of the church that prohibited it.

He said, no, that just as a Christian, I feel it’s wrong.

When asked to add his own thoughts about the record… to add anything before the hearing was closed, he declined and simply left.

I think that based on the evidence, there was nothing else that the hearing officer could do but to deny him his claim of benefits because he had simply declined an offer of suitable employment and that he had failed to show that for either a religious reason or any other reason that the job was unsuitable for him.

Well, all that sounds very good to me, but… but I think what you’re questioning with that is his sincerity.

I think what you’re saying is this fellow… he didn’t really even belong to an organized religion.

He didn’t show he ever goes to church, but he comes in here and says I’ve always felt it’s wrong to go… you know, to work on Sunday because I’m a Christian.

If you want to question his sincerity, that’s fine.

But here you have a court that says, oh, no, I believe he’s sincere that he really believes that God doesn’t want him to work on Sunday, but nonetheless that’s not a religious belief.

I think once you admit he sincerely believes that God does not want him to work on Sunday, you have a religious belief.

I don’t know what… what more you have to prove.

Robert J. Ruiz:

Well, I think… I think the attempt here that was made to try and point out whether he was a member of a religious organization… I think membership in an organization not only would point to the religious nature of the beliefs, but also to the sincerity.

So, I think it’s… it’s a two-part thing.

And I think that you can say simply because someone sincerely holds a belief doesn’t make it religious, and simply labeling the belief as religious also doesn’t make it religious.

And… and that the belief is… is… is thought by the individual holding it to be imposed by God, that does not necessarily make it religious.

Robert J. Ruiz:

If that is a religious belief beyond simply saying that it’s… it’s a religious belief, then you then look to the sincerity.

Here we have a claim that… that was sincere.

What we don’t have is why was he told that.

Where does this particular belief hold a place in his life?

What activities would be proper?

Religion is sort of measured against the standards of… of either beliefs, certain tenets that say certain conduct is proper, other is prohibited, other is better and worse or whatever.

There is no explanation here of his declining to work on Sunday other than his single statement, I think it’s wrong.

Much of an explanation as to why he believes that.

What… what place does he hold?

How long has he held it?

All these go to point to whether or not we’re dealing with something that is really religious or whether it’s something else.

I think they go to sincerity.

I’m sorry.

I guess I just cannot understand you.

I think… it seems to me you’re questioning whether he’s sincere.

Robert J. Ruiz:

I would apologize to Justice Scalia, but I think that the… the record here illustrates–

Well, let’s put it another way.

What do you mean other than sincere?

Other than sincere.

Robert J. Ruiz:

–Another way to measure sincerity?

Or–

What are you arguing other than that he was not sincere?

Robert J. Ruiz:

–Our argument is basically that whether or not one accepts the notion that he was sincere, which has not been brought into question, that this record fails to establish that there was a religious belief.

xxx not important.

Are you saying sincerity is not important?

Robert J. Ruiz:

In measuring a religious belief?

No, it is very important.

I’m just saying that under these facts, sincerity wasn’t questioned.

But the sincerity of a personal belief is not the same as the sincerity of a religiously held belief, and that the courts below have not determined that on the record here we have sufficient evidence to support his claim of a religious belief.

xxx first raised the sincerity point?

Robert J. Ruiz:

The sincerity point?

When was it first raised?

Robert J. Ruiz:

I think there was a determination at the Board of Review level saying while we don’t question his sincerity–

That was when it was first raised.

And it was raised continually.

Robert J. Ruiz:

–His sincerity?

Yes.

Robert J. Ruiz:

I think the… Mr. Frazee claims his sincerity.

And… and every place you lost.

Robert J. Ruiz:

Sincerity?

The sincerity point.

Robert J. Ruiz:

I think it was conceded throughout–

You lost in every step, didn’t you?

And now you want to get it here.

Robert J. Ruiz:

–We have not raised the sincerity issue.

We have illustrated–

Well, why did the court below say that we don’t doubt his sincerity?

Robert J. Ruiz:

–The court below did say that they didn’t doubt his sincerity.

So, you didn’t raise it.

Robert J. Ruiz:

We did not raise it, no.

They just reached out in the air and grabbed it.

Robert J. Ruiz:

I think the court was making comments about his sincerity just in the same way that the court delved into the… the sort of historical evolution of the place that Sunday has historically.

We are trying not to delve into that for the purpose of this argument.

We would like to sort of take a moment and ask the Court to consider the fact that this and other courts have in a variety of contexts undertaken the task of determining whether or not given a particular set of facts they were looking at a religious claim, whether it was–

Well, this Court rarely does something like that when the lower courts have not tackled it.

It seems to me that in your position you would have confessed error on the point of law and asked that the case be remanded to the appellate court so that you could make this argument where it belongs, not here.

I… I don’t understand why you’re making this argument to us, frankly.

Robert J. Ruiz:

–Well, we… we raise before this Court in our motion to dismiss the notion that given this set of facts, there was not a constitutional question that was… that was raised.

And we still believe that this Court can support the holding below and, if it wishes, make a determination that the court erred in the way that it arrived at its determine as to constitutional question.

Robert J. Ruiz:

I think that would be a… an appropriate holding if the Court so wishes.

We would suggest that applying several of the tests that this Court and other courts have used to determine the presence or the existence of a religious belief, that it can be determined that in this particular set of facts, Mr. Frazee did not raise claim that implicates the First Amendment.

If the belief must be stated in a manner that can be objectively understood to be religious, what we have in this instance is Mr. Frazee claiming a mantle of Christianity and simply saying that he expects the finder of fact to make a determination that the certain body of beliefs associated with that and that his sincerity as to those beliefs should go unquestioned.

It’s incumbent upon the fact finder in that instance to be presumed to have a certain body of knowledge as to what all of the… the rights, responsibilities and duties of an adherent to Christianity are and, number one, what this particular individual holds as his own.

Secondly, that the belief must be relevant to the purpose that it is invoked.

All that we would suggest is that one recognizes that there are a variety of beliefs that may be suggested under the term “Christianity”.

Not all sects to Christianity hold the sabbath or the Sunday sacred.

We must look to see whether or not this particular individual claims to have that as his important tenet of religion.

Thirdly, and this is in response perhaps to something raised earlier, that if you don’t have something that is identifiable as a religious organization familiar to the Judeo-Christian ethic, that you look at what place this body of beliefs holds in the life of this individual, whether it occupies a place that would be similar to the belief in God in someone else, and make a determination that there is a religious belief even though it does not look like the familiar religions that we may be accustomed to seeing, thereby allowing minority religions to have the same evenhanded treatment as majority religions.

If the Free Exercise Clause is to be preserved, then one must accept the notion that it is not self-executing.

Those seeking free exercise protection are not burdened, nor their rights diminished if they are asked that they assert those rights in terms that are sufficiently clear and in a context consistent with their established purpose.

What Frazee would like the fact finder to do in this instance on the basis of an insufficient record is to infer facts, assume beliefs and then apply his subjective understanding to the terms “I am a Christian”.

This result should be avoided.

To do so would mean that it would deprive individuals who are entitled to First Amendment protection of that protection and wrongfully bestow it on others who would not qualify for it.

Thank you.

Thank you, Mr. Ruiz.

Mr. French, do you have rebuttal?

You have two minutes remaining.

David A. French:

Yes.

Thank you, Mr. Chief Justice.

Just briefly, first of all, the Department’s statement that the Illinois appellate court couldn’t identify Mr. Frazee’s beliefs as religious is just flatly erroneous.

On page 790 of 512 Northeastern Reporter, the… the court specifically stated we have presented for determination in this appeal the question of whether the plaintiff’s personal, professed religious belief that he could not work on Sundays constituted good cause for his refusal of work.

All they were doing was accepting the finding that began in the administrative agency, the very first finding that was made by the claims adjudicator that said Mr. Frazee would not accept work because of his religious convictions.

This Court doesn’t need to make an independent review of the record to determine–

Did the… did the board or agency… did they argue in the appellate court to the effect that it… that his belief must be… represent a dogma of a particular church?

David A. French:

–Yes, in fact, they did.

In their… in their brief, they cited the decision out of Arkansas that… that accorded in–

Which now… which they now say is an erroneous statement of constitutional law.

David A. French:

–That’s correct.

And I would just say that what… the question of what is a religious belief is a hard question.

David A. French:

But the Court does not have to define what is a religious belief in this case on this record.

We’re not presented with an issue on the periphery.

On this record we clearly have a religious belief.

The Illinois appellate court made that determination.

So did the agency.

Therefore, all the Court has to determine is whether under the Free Exercise Clause, the… the… an individual has to have a belief of an established religious organization that’s held as a tenet by that organization.

And I would submit clearly under the Free Exercise Clause, that’s not required and clearly the decision of the Illinois appellate court should be reversed and the case remanded to the Illinois circuit court for a determination of the amount of benefits owing to Mr. Frazee in this case.

Thank you.

William H. Rehnquist:

Thank you, Mr. French.

The… the case is submitted.