Sherbert v. Verner

PETITIONER:Sherbert
RESPONDENT:Verner
LOCATION:Beaumont Mills

DOCKET NO.: 526
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 374 US 398 (1963)
ARGUED: Apr 24, 1963
DECIDED: Jun 17, 1963

Facts of the case

Adeil Sherbert, a member of the Seventh-day Adventist Church, was fired from her job after she refused to work on Saturday, the Sabbath Day of her faith. The South Carolina Employment Security Commission denied her benefits, finding unacceptable her religious justification for refusing Saturday work.

Question

Did the denial of unemployment compensation violate the First and Fourteenth Amendments?

Earl Warren:

Number 526, Adell H. Sherbert, petitioner or appellant, versus Charles V. Verner, et al., as members of South Carolina Employment Security Commission, and Spartan Mills.

Mr. Donnelly.

William D. Donnelly:

May it please the Court.

This case is here on appeal from the Supreme Court of South Carolina, probable jurisdiction was noted December 17, 1962.

The question presented in essence is whether a Seventh-day Adventist observing the Saturday Sabbath from Friday evening at sundown to Saturday evening at sundown maybe required to work on Saturday under penalty of loss upon employment compensation.

The basic question is whether the Free Exercise Clause of the First Amendment guaranteeing the free exercise of religion is violated by the South Carolina Unemployment Compensation Act as here construed and applied.

The pertinent facts are simple.

The appellant, age 57 had been employed as a school tender for about approximately 35 years, and since 1938 steadily in the plant of Spartan Mills at Spartanburg, South Carolina.

From World War II, its Saturday work had been on a voluntary basis and appellant was required to work only five days a week, Monday through Friday.

She worked on the first shift from 7 a.m. to 3 p.m.

On August 6, 1957, she became a member of the Seventh-day Adventist Church.

The religious teaching of that church is that the Sabbath for the worship of God commanded by him commences at sundown, Friday evening and ends at sundown, Saturday evening.

Without incident after her joining the Seventh-day Adventist Church and for approximately 22 months, she continued in the same regular employment until June 5, 1959, when the employer posted notice that thereafter work on Saturday would be mandatory as well.

After the notice was posted, she explained to her employer that her religion would not permit her to work on Saturday.

No relief was given to her and she was absent from work for six successive Saturdays and was then discharged.

She admittedly applied for unemployment compensation.

The pertinent sections of the state law are set out in our gray-covered brief at pages 3 and 4.

This statute is substantially the same as that found in most of the states.

Section 68-113 (3) requires it to be initially eligible for compensation benefits, the claimant must be able to work and available for work.

The claims examiner held her not available for work because she was unwilling to work on Saturday.

Section 68-114 provides that even though initially eligible for benefits, the claimant maybe disqualified for misconduct conduct — connected with her most recent work.

And on that further ground, the same examiner held her disqualified for five weeks because of her unexcused absences.

I might say that this as applied in this case means simply that the payment of the benefits which can total to 22 weeks or deferred was deferred for five weeks and the examiner did not purport to apply a forfeiture of the five weeks of pay unemployment benefits which might have been imposed in a case that he felt was flagrant enough.

It appears —

Arthur J. Goldberg:

[Inaudible]

William D. Donnelly:

That is correct.

Arthur J. Goldberg:

[Inaudible]

William D. Donnelly:

Connected with her work, that’s right, Your Honor.

It appeared that the appellant had applied at three other textile mills shortly after her discharge, but found that they were on a six-day basis.

The record shows that most of the textile plants operate on a six-day basis, but this record also shows a curious case of growth of that fraction most.

William D. Donnelly:

The referee on appeal said practically all of the textile plants operate on a six-day basis.

The Commission said all.

The Court of Common Pleas said all, and when it got to the Supreme Court of South Carolina, we having taken the specific exemption to that finding because of the record showing most, the Supreme Court said that the Commission had found all operate on a six-day basis.

I call the attention of that because it is significant in the light of the other circumstances of this case.

In any event, the applicant was on an apparently very little wage because the record shows that her benefits, if paid, would have been limited to $26 per week.

And under the South Carolina law, this is usually taken to approximate half of the average weekly wage.

She stated in the hearing before the referee that she was willing to work and able to work, in any mill or in any other industry so long as the job was a decent job, and so long as it did not require her to work on her Sabbath.

The evidence is also un-contradicted in this record that of the 150 members of the Seventh-day Adventist Church in Spartanburg, all are gainfully employed and none experience any particular difficulty in obtaining jobs.

We think the record is clear that the appellant did not remove herself from the labor market in that area by her refusal to work on the Sabbath.

Potter Stewart:

Is there any dispute at all between the litigants here as to the good faith of her religious beliefs?

William D. Donnelly:

None whatsoever, Your Honor as I understand it.

The claim examiner’s decision was affirmed by the referee by the State Unemployment Compensation Commission and by the Common Pleas Court of Spartanburg County.

The State Supreme Court apparently conceded that “available for work” the classic phrase means available for suitable work.

In 1955, the law of South Carolina had been amended to provide specifically in determining whether or not any work is suitable for an individual, the Commission shall consider the degree of risk involved to his health, safety, and morals.

The Court, however, held that this Amendment merely referred to work, the character of which would be morally objectionable to any employee, and therefore, excluded the contention there made by the appellant that consideration and application of that Amendment would require recognition that to require her to work on Saturday would be violative and — of her religion and carry with it a grave threat to her morals and by reason of that fact would exonerate her from this requirement.

Arthur J. Goldberg:

What would have been [Inaudible]

William D. Donnelly:

That appears in the middle of page 4 of my gray brief, and it quotes, “In determining whether or not any work is suitable for an individual, the Commission shall consider the degree of risk involved to his health, safety and morals.”

Arthur J. Goldberg:

What would be the rule [Inaudible] that is applied for the Commission to [Inaudible] —

William D. Donnelly:

Oh no, no, no, that is a — this is a negative statement.

You’re correct, Your Honor.

Arthur J. Goldberg:

[Inaudible]

William D. Donnelly:

That’s right.

There is no impairment of that rule at all.

Arthur J. Goldberg:

The theory – the theory behind that is, is it not, that if the she accepts this as suitable work, I mean, suitable work that she hasn’t been trained and experience and any [Inaudible], isn’t that correct?

William D. Donnelly:

I think that’s carried through in the general thinking in the application of this line, sir.

Arthur J. Goldberg:

Do you consider the court below in [Inaudible].

William D. Donnelly:

No, they did not consider as such.

It was for this reason that the decisions in the Supreme Court of Ohio in Tary against Board of Review and In re Miller in 243, North Carolina, later of which incidentally did involved mill work where it held not applicable by the state of — the Supreme Court of South Carolina.

n essence, the Court concluded, “the purpose of the available for work test is to determine whether the claimant is actually and currently attached to the labor market.

That is to say whether or not she was offering a service for which there was a demand and which was being supplied in that area, whether or not, that there was a job open that would require her services at that time because of course, the law contemplates the compensation for those who are unemployed.”

William D. Donnelly:

Curiously, the Court went on to say, however, that the test in determining whether or not she’s attached to the labor market is unrestricted availability.

Later on in opinion they said, but this doesn’t mean on Sunday, but I’ll come to that later.

Curiously, the Court made no further reference to the fact that there was a market for the appellant services.

The — it does not refer to the fact that all other Seventh-day Adventists were able to obtain positions without difficulty and were all gainfully employed and it ignores that point completely in the opinion.

The state court, instead, held that by adhering to the Seventh-day Adventist Decree, the appellant had rendered herself unable or unwilling to work in her usual trade or occupation for the usual and customary number of days or hours and had restricted her willingness to work to periods that fit her own personal circumstances.

The resort to both those phrases apparently was occasioned by the fact that they had been used in other circumstances by other state courts in rejecting claims to compensation.

Because of this, the Court concluded that she was not available for work.

As to the disqualification to which Mr. Justice Goldberg referred, they quite made a minor shift and said that she was disqualified not for misconduct connected with her work but failure to accept without good cause, available suitable work offered to her by her employer, referring to the fact that the employer was quite willing to keep her on if she were willing to work on Saturdays.

As to the constitutional right to the free exercise of religion, the Court held that the law had placed no restriction of right to observe her religious beliefs in accordance with her own conscience.

She was completely free to do as she pleased in other words.

The only trouble was, she would lose the right to the compensation benefits.

The dissent noted, as the record clearly shows, that she had made no change in the days or hours of her usual work and that her loss of the job was occasioned by the change of the employer in shifting over to the six-day week.

Of course, if we can refer back to what happened 22 months before and say that she changed her religion, then yes, indirectly and remotely, her change was occasioned for her being discharged.

Now, free exercise of religion, as we conceive it, means exercise free of sanctions or penalties that influence or compel the person to profess her belief or disbelief in any religion, or to do an act repugnant to his religion.

Relying on the language of Mr. Justice Jackson in the Barnett case, we first start with the proposition here that in requiring this applicant to express a willingness to work on Saturday, she was being required to express and profess an attitude of mind in conflict with her religious beliefs sincerely held.

Potter Stewart:

The difficulty with your argument so far as I’m concerned, Mr. Donnelly is that if the State had done anything other than what it did in this case, it would have violated the Establishment Clause because it would have favored one religion.

William D. Donnelly:

Well, I think that the — to say that that’s a violation of the Establishment Clause is to give undue weight to the state — statement that there is a wall of separation between church and state.

Potter Stewart:

I wholeheartedly agree with you but I’m talking about the Establishment Clause that has been construed by this Court.

William D. Donnelly:

I — I’m not aware of any case that says that to give effect to any person’s religious belief is to — and permit that person to exercise his religious belief is a violation of the Establishment Clause.

Potter Stewart:

The Everson — the Everson case says that any state which favors one religion violates the Establishment Clause.

William D. Donnelly:

And the Everson —

Potter Stewart:

And so the Act — the — the — if the State took the action which you say should have taken here would have favored the Seventh-day Adventist and therefore would have violated the Establishment Clause.

William D. Donnelly:

And the Everson case also said, “Neither the State nor the federal government can force or influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.”

Now, I submit that here —

Potter Stewart:

That — that’s — that’s the — that touches only Free Exercise Clause of which you are relying on.

William D. Donnelly:

Well, they’re both parts of the same Constitution.

Potter Stewart:

No, they’re not.

They’re two different clauses.

William D. Donnelly:

Of the same —

Potter Stewart:

They’re both —

William D. Donnelly:

— amendment and of the same Constitution under which we operate —

Potter Stewart:

Yes.

William D. Donnelly:

— that is correct.

This was reiterated in the more recent decision in the Braunfeld case.

If the purpose or effect of the law is to impede the observance of one or all religions or as to discriminate invidiously between religions, that law is constitutionally invalid even though the burden maybe characterized as being only indirect.

And of course, if your argument or your point is valid, Mr. Justice Stewart, I submit that to recognize any right of religious freedom in any particular individual, in any particular case, first, is not in derogation of the presumed right of other individuals having other religions to exercise that same right free of sanction or trammel.

Potter Stewart:

The State must not aid all religions or — and must not aid any one religion under the Establishment Clause —

William D. Donnelly:

This is correct.

Potter Stewart:

— as construed by this Court.

William D. Donnelly:

I submit that it aids no religion in permitting an individual to practice her or his religion.

This is the basic freedom.

This is the dignity of the individual on which I think the First Amendment was based and that in both the Establishment Clause as barring the right to permit the exercise of religion by the individual is an untoward extension of that Clause.

Potter Stewart:

Well, I agree with you but I’m just suggesting that these statutes are vague.

William D. Donnelly:

Now, continuing, this Court has of course recognized that in the welfare state, the sanctions that maybe imposed by withholding the numerous so-called privileges of compensation for unemployment and public housing and in most recently in the Spicer case, the tax exemption for veterans tantamount to sanctions equivalent to a penalty and I believe, it equate — with those, equate with a prohibition of law.

Now the appellee relies chiefly as I understand your argument upon the contention that in the Braunfeld case, the Sunday law cases, this question was already decided that this is an indirect burden and falls with it.

They lack the result in that case.

I still lack the language in the Braunfeld case because in this case, it cannot rightly be asserted that there is any indirect pressure because there, in distinguishing the Flag Salute case, this Court pointed out the statute before us does not make criminal, the holding of any religious belief or opinion nor does it force anyone to embrace any religious belief or to say or believe anything in conflict with these religious tenants.

Or as Mr. Justice Brennan considered in his dissent, the distinction was based on the fact the laws do not say that appellants must work on Saturday.

Now here, if we concede that the imposition of a criminal penalty or a fine as in the Sunday law cases is equivalent to or equaled by the penalty imposed by the withholding of the unemployment benefit, then I submit that here, we have a direct penalty and the direct burden because the individual is left with no intermediate choice such as it was brought in the Sunday law cases.

Here he has only two choices, two alternatives.

He works on Saturday, he expresses a willingness to work on Saturday or he sacrifices his right to compensation, and the Court of South Carolina suggests no alternative.

This Court further in the Braunfeld case says —

Potter Stewart:

Does the record show where these other — what is it, a 150 members of the Jehovah’s Witnesses based in Spartanburg, where they — where they employed?

William D. Donnelly:

No, it does not, Your Honor, and I think there’s something in this record and the appellee nurtures it in a certain extent of the idea that this is a mill town but Spartanburg as this Court may traditionally notice has a population of 47,000 and it has a surrounding county that is build up in a total area or the immediate surroundings are probably approximately 150,000, so that we’re not dealing with the one industry town.

This Court also recognized in the Braunfeld case, if the State regulates —

Potter Stewart:

Excuse me, I meant the Seventh-day Adventist.

William D. Donnelly:

Pardon me.

Potter Stewart:

Yes.

William D. Donnelly:

This Court also said that if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.

Even — this is a negative way of stating the Shelton against Tucker rule even though the Government’s purpose would be legitimate and stifled, that purpose cannot be pursued by means of broadly stifled fundamental personal liberties when the end could be more narrowly achieved.

William D. Donnelly:

The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the basic purpose.

In this case, the only suggestion made by the appellee to justify this rigid rule that excludes consideration is the possible of fraudulent — possibility of fraudulent representation that the individual entertains these particular beliefs.

The answer to that is two-fold.

In a number of the cases including the Schneider case, this Court has pointed out that there are laws against fraud that can be enforced.

Secondly, in our appendix, we have about 30 states’ administrative decisions, but most of which have recognized this right and none of which, so far as I can recall, referred to any difficulty in ascertaining whether the person was fraudulent or was sincere.

William J. Brennan, Jr.:

[Inaudible]

William D. Donnelly:

Practically, all of these laws provide for a hearing before a referee at which I believe there’s no limitation on what can be done into it.

William J. Brennan, Jr.:

[Inaudible]

William D. Donnelly:

Yes.

That’s correct Your Honor.

Daniel R. McLeod:

Mr. Chief Justice —

Earl Warren:

Attorney General McLeod.

Daniel R. McLeod:

— and members of the Court.

I may note initially that in response to the question posed by Mr. Justice Stewart that there’s no question made with respect to the bona fides of the conviction of the appellant in this matter.

Potter Stewart:

No question either that her bona fide religious belief does require her to observe the Sabbath on Saturday.

Daniel R. McLeod:

Exactly, no question about that, Your Honor.

If the Court please, the primary purpose, of course, unemployment compensation law is to take care of the effects of unemployment that is brought about not by the voluntary action of the employee, but by the involuntary action of the employee.

The unemployment laws recognize that there would be dislocation industrially and economically resulting in involuntary unemployment.

The line that has been drawn by the Supreme Court of South Carolina and by, I think a majority of the other states, with respect to questions similar to that presented here is this, that if the unemployment is brought about as a result of economic or industrial dislocation, then it is compensable, but it is brought about by something that is personal to the employee.

Some personal action that does not come within the scope of the statute or the administrative construction of the statute, then it is not compensable.

That can be illustrated by a number of cases, one of which has been before the Supreme Court of South Carolina.

For instance a workman or a worker having to care for children, having to care for sick husband, a very laudable purpose that one requires that she not be at her job, but nevertheless in circumstances such as that, compensation is denied.

That has been decided by the Supreme Court of South Carolina and by a number of all state courts.

Cases involving the cessation of work by a wife when her husband has been transferred away from the site of her employment; she may form religious or other reasons to be compelled to be by the side of her husband but nevertheless that is not held to be a suitable ground for ceasing work and in that case, unemployment benefits are withheld.

An exception is made to some extent administratively in South Carolina with respect to cessation of work by reason of pregnancy up through a certain stage of the pregnancy period benefits are payable, beyond that, there are none.

Arthur J. Goldberg:

General, may I ask you a question relating to the operation of the unemployment [Inaudible]

Daniel R. McLeod:

I do not —

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

Neither have an issue.

Arthur J. Goldberg:

You have Sunday law.

Daniel R. McLeod:

Yes, sir.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

Yes, sir.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

No —

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

Well —

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

— if I —

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

If I may interrupt the – Mr. Justice, this is not a part in the first place of the unemployment compensation law.

Arthur J. Goldberg:

It’s part of what?

Daniel R. McLeod:

The Sabbath Observance law.

Arthur J. Goldberg:

A law?

Daniel R. McLeod:

An entirely different title.

Arthur J. Goldberg:

Pardon, a different title for it?

Daniel R. McLeod:

That’s right.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

They’re unrelated from that standpoint.

Arthur J. Goldberg:

Let me ask you about the application, whether unemployment has [Inaudible], is that correct?

Daniel R. McLeod:

In certain industries.

Arthur J. Goldberg:

The effects of that as well?

Daniel R. McLeod:

In certain circumstances, national emergency and so forth.

Arthur J. Goldberg:

Now, if that is true, the [Inaudible] unemployment compensation.

Daniel R. McLeod:

I would think that would be correct.

Arthur J. Goldberg:

Now, [Inaudible]

Daniel R. McLeod:

The — the — that’s — this —

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

It does, Mr. Justice, yes sir.

Arthur J. Goldberg:

Well, [Inaudible] on the application of the Unemployment Compensation Act, [Inaudible]

Daniel R. McLeod:

My answer to that —

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

My answer to that, Mr. Justice, is this.

That that is an unusual limited circumstances.

It’s applicable only to textile employment and applicable only to mercantile establishments, I believe, is the other.

A limited field of industrial activity —

Arthur J. Goldberg:

But what does he get on the application of the Unemployment Compensation Act concerning the availability, [Inaudible]

Daniel R. McLeod:

In the —

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

My answer to that is this.

Sunday is universally accepted under the common statute as a day of rest.

We have the same beacon statute.

This is an exemption from that old religion statute and that is I say, is a limited field, limited industrially and limited also to those who have national defense contracts.

Moreover, the status of the —

Arthur J. Goldberg:

The limitations are not [Inaudible] to the general application of the statute.

Do you have any [Inaudible]?

Daniel R. McLeod:

In those particular industries which allow the breaching of the Sunday rest day, I feel that the distinction is this, that the Sunday is a day of rest day, stand in a category by themselves, and that if there’s an exemption as was in the Massachusetts statute in a very detailed manner, so much so that the Circuit Court of Appeals said that it rendered the statute in veritable hodge-podge.

Exemptions from the Sunday closing laws are not unusual, and as I see it, they are tacitly recognized as valid by this Court.

This is one of those exemptions.

And therefore, to say that it invidiously discriminates against these members of this faith who won’t work on Saturday and they’re thereby penalized by being withheld from unemployment benefits.

To say that is to say also that the exemption granted for the Sunday closing statute must be granted in all other fields: unemployment benefits, public employment, appearances in court.

If one exemption would stand there then the exemption would necessarily by that process of reasoning be applicable in every other field of activity in the State.

And therefore, I feel that there is no invidious discrimination.

William J. Brennan, Jr.:

Well, how would this operate, Mr. Attorney General, if this petitioner were employed in an industry which had one of the national emergency exceptions?

I gather if she refused to work on Saturday, she’d be disqualified, but if someone along side of her refused to work on Sunday that someone would not be disqualified for it.

Daniel R. McLeod:

That’s true.

I think that would be — that point has never come up.

Byron R. White:

Or is it —

Daniel R. McLeod:

This —

Byron R. White:

Or is it that the person who refused to work on Sunday does — does the refusal has to be based upon her — her chance of objection religious —

Daniel R. McLeod:

It does.

Byron R. White:

— religiously given, is that true?

Daniel R. McLeod:

That’s true initially.

Now —

Potter Stewart:

But says conscientious or physical objections —

Daniel R. McLeod:

Conscientious, now I wanted to make this point —

Potter Stewart:

— whatever that might be, whatever that means — physical objection.

Daniel R. McLeod:

I think it means just this.

I think it means the terms that are used are almost synonymous and the point I was just about to make a moment ago and that is this that normally a seven-day week is something that we don’t like.

But for defense purposes, the State permits a seven-day working week and that therefore, when they use the words conscientiously and physically opposed to it then that meant then in a synonymous sense and wouldn’t necessarily have to be based upon some religious belief as to not being willing to work on Sunday or unwilling to work on Sunday.

It might be based on a conscientious objection to work seven days a week for physical reasons or it could be conceivably be based upon religious grounds.

Earl Warren:

Well, isn’t that the sense in which it’s usually used, religious conviction.

Daniel R. McLeod:

Oh yes, correct.

I think so, Your Honor.

Earl Warren:

You don’t — you don’t usually say in the statute that if you — if you feel that it’s — you’re in jeopardy of your health that it’s a conscientious objection?

Daniel R. McLeod:

Exactly.

I think, Your Honor, yes.

That is a normal phraseology used, a normal — a normal —

Potter Stewart:

Attitudes too –-

Daniel R. McLeod:

— attitude that would be taken.

Potter Stewart:

Use all the alternative objections.

It doesn’t say conscientious i.e. physical objection.

It’s says conscientious or physical objection.

Daniel R. McLeod:

I construe those to mean as I say, I think they’re used interchangeably in the same sense.

It may (Voice Overlap)

Potter Stewart:

It — they do not (Voice Overlap) in the dictionary?

Daniel R. McLeod:

Well, I would — maybe.

I feel that the — and maybe substituted in the place [Inaudible] on that.

Potter Stewart:

Well, and the bar not [Inaudible]

Daniel R. McLeod:

Yes sir.

Arthur J. Goldberg:

Mr. General, [Inaudible]

Daniel R. McLeod:

Normally —

Arthur J. Goldberg:

[Inaudible], is that correct?

Daniel R. McLeod:

Yes, sir.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

I should think it would.

My basic position in this matter is this that this is a statute, this is an administrative policy that is secular in aim and object and purpose and secular in its goal.

And that if there is any resulting burden upon any exercise of religion as claimed by this appellant, that is an indirect burden which must be borne and which does — it is not constitutionally objectionable.

The object of the unemployment compensation law is not merely to compensate those who are not working.

Another object and probably —

Hugo L. Black:

May I ask you that the — the state now, does it get any part of their funds from the federal government or if it’s all collected as a state tax?

Daniel R. McLeod:

It’s collected from both, Mr. Justice Black.

There is a three per —

Hugo L. Black:

What extent?

Daniel R. McLeod:

There is a 3% that’s been increased in recent weeks or months but slightly more than that, the federal tax is laid upon the employer for the purpose of creating a fund. Now the federal government credits the employer up to the amount of two and seven tenth percent of that tax if they pay it in to distinct and it is collected by the State of South Carolina, so that three-tenths of 1% is federal, 2.7% is state.

The 3% has been increased to some small extent in recent months.

Hugo L. Black:

Does the federal statute have any strings attached to it in anyway or any conditions with which the states have to comply in connection to getting the money?

Daniel R. McLeod:

None that I’m aware that they touch on this matter here.

Hugo L. Black:

On any matter.

I’m just wondering frankly if —

Daniel R. McLeod:

Well —

Hugo L. Black:

— if this is a matter in which the federal government would be sufficiently interested why they should be present.

Daniel R. McLeod:

I’m not aware — I am not aware of any of the — there are a number of requirements that, of course, must meet such as creating unemployment service, and maintaining certain standards and must have a merit system for employees, certain salaries must be met, and things of that nature, but I’m not aware of any —

Hugo L. Black:

Suppose they are not met, what happens?

Daniel R. McLeod:

Those particular items and I presume that there would be means of withdrawing any federal participation in the scheme of unemployment.

Hugo L. Black:

The federal government does have an actual interest in the way these funds are administered, does it not?

Daniel R. McLeod:

My understanding and I’m not quite confident to answer it — to the Justice’s question — is that the manner in which — matters such as this would be determined, will be at the state level and that will be accepted by the State — by the federal government.

I say that for this reason because as counsel has pointed out a moment ago, many states provide for an exemption exactly as this appellant acted for and some do not.

Hugo L. Black:

I asked —

Daniel R. McLeod:

I think whenever —

Hugo L. Black:

Excuse me, I ask because I saw no reference to the federal laws in either brief —

Daniel R. McLeod:

No.

Hugo L. Black:

— and I had an idea that they might be — might be applied to these —

Daniel R. McLeod:

On this —

Hugo L. Black:

So that they know what interest the federal government had in it.

Daniel R. McLeod:

On this phase, I can see none.

I —

William J. Brennan, Jr.:

Now, well Mr. Attorney General, isn’t there — isn’t there federal supervision of the state administration of the unemployment compensation law?

Daniel R. McLeod:

From an accounting standpoint, from the establishment —

William J. Brennan, Jr.:

Or rather a comprehensive federal supervision, is there none?

Daniel R. McLeod:

It’s primarily a state function as I —

William J. Brennan, Jr.:

I understand that.

What I meant — isn’t there a federal supervision of the state administration?

Daniel R. McLeod:

Undoubtedly.

I’m certain there is.

Hugo L. Black:

And they would be interested in this, I should think.

Daniel R. McLeod:

I shouldn’t — perhaps so.

I have no — it not occurred to me.

I have no reason for believing that they would care whether this matter should be decided one way or the other.

Now, I say that additionally for this reason, the funds and taxes I mentioned a moment ago from the amount that’s paid by the employer, the 2.7% for which the federal government credits, all of the benefits, the unemployment benefits such as these later received, all of those are paid from that 2.7% fund.

Therefore, it’s —

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

I think that’s true and I have information that the benefits come from that point that’s created by the employer.

Arthur J. Goldberg:

Well, that argument [Inaudible]

Daniel R. McLeod:

One point that I think is of vital significance is the thing that not only that we think benefits were that — the worker is unemployed, but the statute requires that employment be secured for these unemployed as far as possible so that they maybe placed back in the working force.

The textile industry in my state is the largest single employer.

Spartanburg got — where this case originated is the largest textile manufacturing plant area in South Carolina, employing about 14% of all the textile labor market.

The Court will note that the five — that the reference in the transcript of record to the fact that this employee, since 1900 and since the end of the World War II had worked on Saturday for a period of about five years prior to the time this case arose, but that was voluntarily done and permitted by the employer.

The employer was operating on a six-day schedule and the mills are operating on six-day schedules now with three day — three shifts each.

When conditions worsen, the work force is not reduced but first the days are shortened so that you may have three days per week, but all of three shifts each.

Daniel R. McLeod:

I am pointing that out to emphasize that economic conditions in the textile industry where this appellant worked for 35 years are good and that employment is available, but that — this employee has restricted her availability for employment.

Number one, by refusing to work because of her religious beliefs on Saturday but it maybe noted incidentally that she is a first shift employee.

That’s the shift that normally goes to the senior employees.

Being a first shift employee, she is available for work on five days of the week.

But on the second shift, and on the third shift, those shifts overlapping sundown Friday until sundown Saturday, on those two shifts, she will only be available four days per week.

Now that’s given some recognition by the administrative agency in the — in the State, but it restricts her appeal of employment so that we are now attempting to place not a textile worker, but a Seventh-day Adventist textile worker.

Hugo L. Black:

Suppose we were to hold, suppose the Court should hold your state law in this respect violates the Federal Constitution, what effect would that have on the federal statute for unemployed insurance?

Daniel R. McLeod:

And I’m unable —

I’m asking you this question for this reason.

If the statute would require before we pass on a case which raises constitutional validity of a federal statute, the Department of Justice must be noted by and be present.

And could we decide this constitutionality of this case so as to hold that it’s unconstitutional, that that thereby to a certain extent holding that the federal statute is unconstitutional?

Would there have an effect —

Mr. Justice Black, I can’t — I have not given thought to that thing sir.

Hugo L. Black:

I can appreciate that because frankly, I didn’t think about it until I looked for the federal statute, it doesn’t seem that it’s —

Daniel R. McLeod:

I do not — I do not — I’m unable to state.

I do not feel there would be any federal involvement in here.

Hugo L. Black:

Well, there wouldn’t be any federal involvement if we were to hold if one of the state security system in which they are end of the [Inaudible] as I recall it, certain standards have to be followed.

They act with it.

It wouldn’t affect the federal statutes for us to hold that this is unconstitutional in that respect?

Daniel R. McLeod:

I presume so.

Earl Warren:

General, do all of the — all of the mills in Spartanburg work six days a week?

Daniel R. McLeod:

In Spartanburg area, it is true, Mr. Justice.

Earl Warren:

In this — in this area, all of them, not most of them.

Daniel R. McLeod:

All of them, all of them do.

The counsel for — it was — it was associated with the general counsel for the mill’s employer involved in this case and he’s closely associated with mill and he so informed me.

The phrase “suitable for work” is one that has been referred to Mr. Justice Goldberg a moment ago, noted almost the — all of the matter, the criteria that is set forth to determine what suitable for work means in the statute.

It is not set forth in its complete detail in the transcript nor in the jurisdictional statement.

In addition to the fact that the health, safety, and morals of the person must be considered in determining whether the work is suitable — other criteria coming — a physical fitness in the work, the prior training, the prior experience, the prior earnings, and length of employment, the prospects for local work in the customary occupation of that employee, the distance of that available work from the employee’s home, all of those, may it please the Court, are secular criteria and none of them has any religious significance whatsoever.

I feel that it’s a reasonable deduction to make when I say that if this appellant is entitled to unemployment benefits and still refused to take work in her customary occupation on Saturday by the same token, the employer would be required to compensate her for any number of days that they might want to work depending upon their particular religious faith and with 300 or more various religious faiths in the country and to employers, will be placed in an intolerable — intolerable situation.

Potter Stewart:

I don’t understand that argument.

Daniel R. McLeod:

I feel that if one person’s faith may require him to work on three days of the week, for instance, the Muslims as I understand it, requires a religious holiday on Friday.

It’s conceivable that a person’s religious faith might require him to work on three days of the week.

Potter Stewart:

Yes.

Daniel R. McLeod:

Then we must find somebody — some person employment in an industry that works three days per week.

The employer is faced in this position.

That’s why I say placed in a rather intolerable position.

Potter Stewart:

Now you’re talking about a private employer, right?

So this case isn’t involved with that.

This case is involved with the action of the State of South Carolina.

Daniel R. McLeod:

That’s true, but the employer is involved in this.

Potter Stewart:

How?

Daniel R. McLeod:

The employer is one who creates the fund from which these benefits are paid.

The employer is faced with the proposition of hiring the appellant.

Potter Stewart:

Yes, hiring anybody.

Daniel R. McLeod:

Well, the appellant in this case —

Potter Stewart:

Hiring its employees.

Daniel R. McLeod:

— was working there.

She was discharged because she would not work the full six days work that was available for her.

Now the only alternative the employer has is to retain her on a five-day basis or else, they — the unemployment benefits to that which come from upon that he himself has created by his own taxes.

Potter Stewart:

I still don’t follow that.

What this case involves is the right of this appellant in unemployment compensation from the State of South Carolina.

That’s what’s involved here, is it not?

Daniel R. McLeod:

Yes sir.

Potter Stewart:

Now an employer, I suppose, a private employer in a private factory, at least we may hypothesize, that he’s free to hire or not hire anybody he wants for any reason he wants, the absence of some nondiscrimination statute in the state.

Now he doesn’t have to hire a Seventh-day Adventist or a Catholic or a Presbyterian or anybody else if he doesn’t want to, but this case involves an action between his appellant and the sovereign state, the State of South Carolina.

Earl Warren:

Do you have a credit rating in your State.

Daniel R. McLeod:

Have what?

Earl Warren:

Credit rating.

Daniel R. McLeod:

Credit rating.

Earl Warren:

Yes, of the employers for — for —

Daniel R. McLeod:

Yes.

Earl Warren:

So the more people they have unemployed —

Daniel R. McLeod:

Yes sir.

That’s the point I want to —

Earl Warren:

— the more they have to pay, is that what you’re referring to?

Daniel R. McLeod:

The experience rate.

Earl Warren:

That’s experience rate.

Daniel R. McLeod:

Yes sir.

Earl Warren:

Yes.

That’s right.

That’s —

Daniel R. McLeod:

Mr. Justice Stewart, I was attempting to show that there’s an overriding state interest in this matter, and that we have a balanced secular statute.

Potter Stewart:

The record shows, as I understand it, that all the — that 150 other members of the — of this church are employed in the State, in this town —

Daniel R. McLeod:

Employees — well, it’s a negative conclusion.

It’s not shown that they were not working.

There is a statement to the effect that there’s one of them I believe who is not employed, but the record does not show that this employee, this appellant, a member of that faith, it’s unanimously employed there — wholesale employed there has been able to secure employment just as in other members of their faith.

There’s no evidence she’s applied to employment that is available to a member of the Seventh-day Adventist Church.

Potter Stewart:

Well, doesn’t she have to apply and show that she’s applying in order to be eligible for compensation?

Daniel R. McLeod:

She has applied in the other remaining plants in the Spartanburg area, and all of them are working on a six-day schedule.

She declined the employment.

Arthur J. Goldberg:

General, she have to apply in addition [Inaudible]

Daniel R. McLeod:

That’s true.

Arthur J. Goldberg:

In both of the [Inaudible]

Daniel R. McLeod:

The statute further requires except suitable work when offered, five instances of this type of work were offered to her, which she had declined.

Arthur J. Goldberg:

[Inaudible]

Earl Warren:

General, what — what percentage of your total work force that is employed in the mills in the area?

Daniel R. McLeod:

Of the area?

Earl Warren:

Yes.

Daniel R. McLeod:

Mr. Chief Justice, I do not have those figures.

14% of all of the textile workers in the State are employed in the area, but I do not have the total.

Daniel R. McLeod:

There are 119,000 persons employed in the textile industry in the State.

Earl Warren:

In the State.

Daniel R. McLeod:

Yes sir.

Earl Warren:

How man people are employed in that area in all respects?

Daniel R. McLeod:

18 — I do not have those figures, not in all — in all respects.

Earl Warren:

Suppose —

Daniel R. McLeod:

I do have the Spartanburg area textile employment.

Earl Warren:

How many?

Daniel R. McLeod:

I know it was 18,000.

Earl Warren:

18,000 and did I understand the counsel say there are about 150,000 people in the area?

Daniel R. McLeod:

People, that’s right —

Earl Warren:

Yes.

Daniel R. McLeod:

150,000 in the metropolitan area.

Earl Warren:

I suppose you could figure roughly half of those are being employed, couldn’t you?

Daniel R. McLeod:

I should think so.

Earl Warren:

Well, that is a very large percentage of employees, why wouldn’t she be available for employment in some other industry or business?

Daniel R. McLeod:

She wouldn’t be, if she was — if it was available and if it’s a work which she can undertake, but the point is, Mr. Chief Justice, work is available there.

Earl Warren:

Yes.

Well, you mean, in this one industry?

Daniel R. McLeod:

That’s true.

Earl Warren:

Yes, but there are other industries that perhaps that she could — she could be employed in and why — why wouldn’t she be eligible for employment there and if there wasn’t anything open for her there, why shouldn’t she have a reasonable time to obtain employment there.

Daniel R. McLeod:

Well, I should think she should.

Now the record shows no evidence on her point and the burden is on her, by the general trend of the business — of the decision.

The record shows no activity on her part except in applying to the remaining textile mills in the Spartanburg area.

No effort to apply to the — any Seventh-day Adventist industry or business.

No effort to apply anywhere else.

Arthur J. Goldberg:

There is nothing jurisdictional [Inaudible]

Daniel R. McLeod:

The disqualification came after she had declined.

Arthur J. Goldberg:

[Inaudible]

Daniel R. McLeod:

That’s right.

Daniel R. McLeod:

Now —

Hugo L. Black:

May I ask you one question?

Daniel R. McLeod:

Yes, sir.

Hugo L. Black:

Suppose your statute provided — it now provides other statute which Mr. Justice Goldberg called your attention to that they can get off of the conscientious reason on Sunday, suppose your statute provided only that people who did not want to work on Saturday could be excused for conscientious reasons but others could not, what would you say about that?

Daniel R. McLeod:

I would say that it wouldn’t — a general statute of that nature.

I state my personal feeling on the thing that I don’t think that type of statute ought to be enacted because I think it is attempting to establish in a regulation, a police regulation, if you please, an exemption that’s framed in terms of religious belief —

Potter Stewart:

Violates the Constitution, wouldn’t it?

Daniel R. McLeod:

— and it ought not to be done in the [Inaudible] on the Establishment Clause of the —

Hugo L. Black:

Do you think that’s about your statute to which Mr. Justice Goldberg called your attention?

Daniel R. McLeod:

I do not, for this reason, that that, as I say, he stands in a completely different category because it is a day of rest statute.

Hugo L. Black:

But suppose — suppose if the legislature want to make it Saturday and it said that those who had conscientious reasons to get working on Saturday.

It attaches conscientious reasons.

The cases the Court held at least the majority, believed that the statutes were not based at this time on any distinction because of religion, it was a day of rest, but here, your statute says, they want to get up on Sunday for a conscientious reasons and why wouldn’t it be precisely the same if it said they wanted to get off Saturday for conscientious reason except in that instance, it would let all Seventh-day Adventists.

Daniel R. McLeod:

Yes.

With this exemption, I reiterate repetitious perhaps, but this is a limited field, a limited economy, one that was called upon by the war department in time of emergency to a very large extent, perhaps larger than or more so than any other industry and this exemption was made to give relief in the seven-day work period and not for any religious purpose.

Earl Warren:

Mr. Donnelly.

William D. Donnelly:

I may endeavor to answer some of the questions that are raised by the Court.

As I recall, the only provision in the federal statute setting standards that would be pertinent here was the one which I believe is embodied and followed in Section 68-114 (3) (c).

This is not set out in our briefs, but this is in the state statute, and it reads, “Not with…” —

Hugo L. Black:

68-114.

William D. Donnelly:

68-114 (3) (c).

I believe this conforms — was put in to conform to the federal requirement.

“Notwithstanding any other provisions of this title, no work shall be deemed suitable and benefit shall not be denied under this title to any otherwise eligible individual for refusing to accept new work under any of the following conditions.

(1) If the position offered is vacant due directly to strike, blackout, or other labor dispute.

(2) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual, then those prevailing for similar work in the locality, or (3), if as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.”

I happen to know about this Section, Your Honor because I thought it was somewhat ironical, that the individual could not be deemed to be offered suitable work if it required him to resign from a union, but under the interpretation of the South Carolina Court, he is offered suitable work though his work would require him to work on a Saturday and in effect to resign from his church.

Hugo L. Black:

Do I understand you to say that that is put in there by reason of the federal statute?

William D. Donnelly:

I believe it will found that the federal statute requires that those provisions be in the state statute and if the state statute does not contain those provisions, it will be deemed not to comply with the exemption granted in the federal statute.

Hugo L. Black:

But, the statute to which I called attention is — is the Title 28 United States Code, 2403 which requires that any actions suit or proceedings of the United States or any agency of it, is not a party within the — wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the Court shall certify such fact to the Attorney General and should permit the Attorney General to intervene in the presentation of evidence and so forth.

William D. Donnelly:

I’m familiar with the statute, Your Honor.

William D. Donnelly:

I don’t believe it has application for here, in this case.

For example, a number of states — I’ve cited them in the brief, three of them, at least have held that their statute does not require the Seventh-day Adventist to work on Saturday and there is not — have been deemed to be any conflict in that construction with the federal statute.

So the federal statute still remains in full force and effect unaffected by the construction which we suggest is necessary to comply with the Constitution.

Hugo L. Black:

But suppose it should be construed the other way, do you know what would be the effect then on the federal statute?

William D. Donnelly:

Well I think — I think that the federal statute would be unaffected if this statute were construed to be valid.

Hugo L. Black:

Yes.

William D. Donnelly:

I still — I still do not believe that the federal statute would be affected.

Earl Warren:

Thank you.

William D. Donnelly:

There’s only one other point that I wanted to mention.

The peculiar Sunday law that was a subject of the discussion earlier is referred to at record 48 by the Court as the reason for accepting the requirement of working on Sunday.

It’s significant that they did not rely on the general Sunday law prohibiting work on Sunday by an individual and I speculate, but I think the reference to the statute will show that this was done because within a month, before the decision of the Supreme Court of South Carolina, the general Sunday law prohibition had been amended radically to provide that many types of work were permissible on Sunday under the impact of the decision in the Sunday law cases and a threat that the old statute was going to be enforced very rigidly.

Thank you, Your Honor.