Thomas v. Review Board of the Indiana Employment Security Division – Oral Argument – October 07, 1980

Media for Thomas v. Review Board of the Indiana Employment Security Division

Audio Transcription for Opinion Announcement – April 06, 1981 in Thomas v. Review Board of the Indiana Employment Security Division

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Warren E. Burger:

We will hear arguments now in Thomas v. Review Board of the Indiana Employment Security Division et al. Mrs. Bianchi.

Mrs Blanca Bianchi De La Torre:

And then they say, even if it’s a religious belief, it’s not a cardinal tenet of his religion and it’s not shared by the congregation.

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

In 1963 this Court held that the denial of unemployment compensation benefits to a person who refuses otherwise available and suitable work for religious reasons was a denial of that person’s right to the free exercise of religion.

With facts very similar to those that this Court had before it in Sherbert v. Verner, the Supreme Court of Indiana has upheld the denial of unemployment compensation benefits to the petitioner, Eddie C. Thomas.

The facts before this Court which were determined by the Referee of the Division and affirmed by the Review Board reveal the following.

Mr. Thomas was specially hired into the roll foundry of respondent, Blaw-Knox.

Warren E. Burger:

What did they make there, what kind of fabricating did they do there?

Mrs Blanca Bianchi De La Torre:

Mr. Chief Justice, this is not a matter of record but I can inform the Court that the roll foundry was engaged in the production of steel rolls to be used in the steel industry.

Warren E. Burger:

Some of it might get into tank turrets, I suppose?

Mrs Blanca Bianchi De La Torre:

It is possible; yes.

Warren E. Burger:

Or trucks and–

–Does all of it get into tank service?

Mrs Blanca Bianchi De La Torre:

Again, the record does not reveal that.

It is possible that some of these rolls went to other divisions of Blaw-Knox.

Now, some of these rolls were also sold to other steel mills in the area, like Bethelehem Steel, Inland Steel, for different and varied purposes.

Mr. Thomas was working in the roll foundry for approximately a year.

The record revealed that this division was not engaged in the production of armaments.

He worked as a chainman “hooker” and he was involuntarily transferred to the tank turret line after a year.

When Mr. Thomas was transferred to the tank turret line, he realized that his new job involved the direct manufacture of armaments.

At this time–

William J. Brennan, Jr.:

Had he been a Jehovah’s Witness when he was first employed?

Mrs Blanca Bianchi De La Torre:

–Yes.

When he became an employee of Blaw-Knox he listed in his initial application for employment, “Religion… Jehovah’s Witness”.

And

“Hobbies… Bible study and Bible reading. “

Harry A. Blackmun:

Incidentally, did the congregation itself ever decide that issue?

Mrs Blanca Bianchi De La Torre:

It’s not clear from the record.

The transcript of the–

Harry A. Blackmun:

The record’s pretty obscure… that’s the same answer you’ve given me each time, and–

Mrs Blanca Bianchi De La Torre:

–Well, the record reveals that he was going to ask the congregation to make a decision but the record does not indicate whether the congregation made the decision.

However, Mr. Thomas did reach a decision that the work he was performing in the tank turret line was against his religious belief.

Potter Stewart:

–Is there any claim in this case that his beliefs were not bona fide religious beliefs?

Mrs Blanca Bianchi De La Torre:

Well, the Supreme Court of Indiana seems to attack, not his sincerity, but the nature and the basis of his belief.

The Supreme Court of Indiana essentially says, well, it isn’t clear what his belief is and the nature and basis of the same.

Potter Stewart:

And pointed to another Jehovah’s Witness who had continued–

Mrs Blanca Bianchi De La Torre:

Yes.

Potter Stewart:

–That in your submission is entirely irrelevant.

Mrs Blanca Bianchi De La Torre:

Yes.

They are irrelevant.

What we are arguing is that a belief, a religious belief which is sincerely held, even though it’s not consistent–

Potter Stewart:

Even though it’s held by only this person?

Mrs Blanca Bianchi De La Torre:

–Yes, yes, Mr. Justice, even though it’s not consistent with the philosophy… excuse me, consistent with but not adopted by the religion to which this person belongs is protected by the First Amendment.

That’s essentially our claim before this Court.

William H. Rehnquist:

Mrs. de la Torre?

Mrs Blanca Bianchi De La Torre:

Yes, Mr. Justice?

William H. Rehnquist:

To the extent that you are quoting from the record or saying that the record shows, I take it the final guide for us is what the opinion of the Supreme Court of Indiana says insofar as it speaks to the question, as to what the facts are?

Mrs Blanca Bianchi De La Torre:

No, the facts appear in the record in the decision of the Referee that was affirmed by the Review Board.

William H. Rehnquist:

Well, but I mean, if the Supreme Court of Indiana says the facts were different than that, we take the facts as stated by the Supreme Court of Indiana, do we not?

Mrs Blanca Bianchi De La Torre:

Well, the problem with that is that the Supreme Court seems to challenge the fact but never reverses or modifies those facts.

In fact, they say, “We affirm the Review Board”.

They raise this question but never reverse the Review Board.

William H. Rehnquist:

Well, it’s possible to affirm a lower tribunal on a different ground, is it not?

Mrs Blanca Bianchi De La Torre:

That is possible; yes.

Harry A. Blackmun:

Mrs. de la Torre, suppose that Mr. Thomas had reached the point where all work was against his religious convictions.

Would you still be here?

Mrs Blanca Bianchi De La Torre:

We would have to look at that claim under the test that the courts have advanced, is this a religious belief and is it sincerely held?

But that is not our case.

He has not become a nonproductive member of society, he has just said, I will not work in the production of armaments, but I am willing, able, and available to return to the roll foundry or to work in any other type of work that does not violate my religious belief.

William H. Rehnquist:

What if in the Selective Service cases that were decided in the late 60s and early 70s where it was held that an ethical or sincerely held moral belief, even though nonreligiously founded, was adequate for conscientious objection.

William H. Rehnquist:

What if his views stemmed from that rather than from his membership in Jehovah’s Witnesses?

Mrs Blanca Bianchi De La Torre:

Well, this is a constitutional claim and that definition of religion which was adopted in Seeger and Welsh has not been expanded to the First Amendment.

And we are saying that we don’t have to go that far.

That’s not the issue in this case because he belongs to a well-established and known religion that is no stranger to the federal judiciary, the Jehovah’s Witnesses, and we don’t need to look for an answer in Seeger or Welsh.

The Referee concluded that Mr. Thomas quit for religious reasons because as a Jehovah’s Witness he was specifically exempted from aiding in or producing armaments used in the advancement of war.

The Court of Appeals of Indiana said that the facts were not in dispute in that with those facts Sherbert was controlling.

The Court of Appeals of Indiana held that the disqualifying provisions of the Indiana Code 22-4-15-1 as applied to Thomas imposed a burden on the exercise of his First Amendment right to the free exercise of religion.

Because the Review Board conceded that they had no compelling state interest to justify any infringement, the Court of Appeals reversed the Review Board and awarded benefits to Thomas.

The case came before the Supreme Court of Indiana on a petition to transfer filed by the Board.

In a 3-2 decision the Supreme Court of Indiana attempts to distinguish Sherbert and in doing so applies erroneous standards.

Like we said before, the Supreme Court said, well, it isn’t clear what his belief was and the basis of his belief.

If it’s religious, it’s not a cardinal tenet, and even if it is religious, it’s not shared by all of the congregation.

These are erroneous standards.

There’s no requirement that this be a cardinal tenet of the religion to which this person belongs or that it be shared by all the members of the congregation.

The critical point is whether this is a religious belief and whether it is sincerely held by this individual.

That, as I said, is the threshold inquiry.

The answer to both questions in Thomas’s case is, yes.

Thomas’ belief is religious in nature.

He is a Jehovah’s Witness.

Nobody has questioned that thus far.

Warren E. Burger:

Does that faith also bar participating in national defense if our country were invaded?

Does it bar… is it total passive resistance?

Mrs Blanca Bianchi De La Torre:

From reading the cases that this Court has had before it involving Jehovah’s Witnesses opposed to military service, it is clear they oppose all the wars of this world.

And I refer to the Sicurella case, a 1955 decision of this Court.

Mr Thomas describes his beliefs as religious and I would like to, if the Court allows me, read from a transcript of the Referee before the hearing… from the hearing before the Referee.

Thomas says, and I quote:

“I really could not, you know, conscientiously continue to work with armaments. “

“It would be against all of the religious principles that I have come to learn and appreciate except up to this point. “

Byron R. White:

Mrs. de la Torre what if the Referee at the conclusion of the hearing had said, I don’t believe Mr. Thomas?

Mrs Blanca Bianchi De La Torre:

Well, then he could have concluded that Thomas quit for personal reasons, but he didn’t do that.

Mrs Blanca Bianchi De La Torre:

In fact he said, the Referee, oh, I can understand, I can see your difficulty, and I have the utmost respect for your religious principles.

And I’m quoting from the transcript.

Those are the words of the Referee.

Byron R. White:

And what if the Supreme Court of Indiana had said after the Referee said what you have just quoted him as saying, we find that the Referee committed reversible error in believing Thomas?

Mrs Blanca Bianchi De La Torre:

The Supreme Court of Indiana never said that.

Byron R. White:

But what if it had?

Mrs Blanca Bianchi De La Torre:

Then they would have reversed the conclusion of the Referee and we would still be here because we think that the record supports the conclusion of the Referee.

Byron R. White:

But didn’t the… the Referee said he quit for religious reasons?

Mrs Blanca Bianchi De La Torre:

Yes.

Byron R. White:

The Supreme Court said, we disagree.

Mrs Blanca Bianchi De La Torre:

The Supreme Court said–

Byron R. White:

You could certainly interpret what they were disagreeing with as including the reasons.

Mrs Blanca Bianchi De La Torre:

–Well, I agree with that, Mr. Justice.

Byron R. White:

Well, then, if they disagree with the referee on that fact-finding, where are you?

Mrs Blanca Bianchi De La Torre:

Okay.

Then I say that the Supreme Court of Indiana was wrong if they in fact reversed the Referee, because the evidence in the record reveals that there is sufficient evidence.

Warren E. Burger:

Is that a federal question then?

Mrs Blanca Bianchi De La Torre:

The constitutional claim is a federal question.

Warren E. Burger:

Is it a federal question on the narrow hypothetical Mr. Justice White has just posed, that the state court has reversed the referee on what could be his credibility findings?

Now, let’s assume, hypothetically, that reversing on credibility of witnesses unseen by the reviewing court would be an error of some kind.

Is it a federal question error?

Mrs Blanca Bianchi De La Torre:

It would not be a federal question if we didn’t have a free exercise claim involved.

But this Court has held that when free exercise or constitutional claims are involved it is free to review the facts and come to its own conclusion, especially when the constitutional claim is denied on facts as determined by the–

William J. Brennan, Jr.:

You mean that’s the doctrine of constitutional facts?

The doctrine of constitutional facts?

Mrs Blanca Bianchi De La Torre:

–Yes.

William J. Brennan, Jr.:

That this being a free exercise claim–

Mrs Blanca Bianchi De La Torre:

This Court is free–

William J. Brennan, Jr.:

–we independently can make our own determination of what the facts are?

Mrs Blanca Bianchi De La Torre:

–Well, the Court can look at the record to determine if–

Byron R. White:

–if he quit for religious reasons?

Mrs Blanca Bianchi De La Torre:

–Are you asking me if he did or if the Court can look–

William J. Brennan, Jr.:

You’re saying we may look at the record and make our determination.

Mrs Blanca Bianchi De La Torre:

–I believe this Court can.

Again, we submit that Mr. Thomas’ opposition to working with armaments is a belief protected by the First Amendment.

The Court cannot–

Warren E. Burger:

Could the connection be so tenuous that the reviewing courts could reverse?

Let me take a hypothetical between some of… in the mean between some of the hypotheticals suggested.

Suppose he was working in a factory making threshing machines for farms and he reasoned that threshing machines would be used to produce wheat which might go to Russia and he does not want, his religious belief forbids his doing anything to help the communist world.

Would that be in your view too tenuous and speculative to sustain a religious claim?

Mrs Blanca Bianchi De La Torre:

–Again, I would have to go back to the test, is this a religious belief, and is it sincerely held?

That would be the answer, the only answer in every case where a person raises the constitutional claim; we’re going to have to face that threshold question.

And then, if the answer is yes on both questions, then we’re going to have to go to the test as advanced in Sherbert, which is what the Supreme Court of Indiana fails to do.

Warren E. Burger:

But you said before, this being a case involving turrets for tanks, tanks are reasonably used only in warfare.

We don’t have those difficult questions.

Mrs Blanca Bianchi De La Torre:

No, we don’t have them in here.

In looking at the sincerity, since the courts according to the doctrines of Fowler and United States v. Ballard cannot inquire into the validity of the belief, the courts can and do, most of the time, look into the sincerity.

In a–

Warren E. Burger:

Which court?

This Court in reviewing?

Mrs Blanca Bianchi De La Torre:

–The trial court, the appellate court.

They’re not prevented, you know, from looking at the sincerity of the belief.

Once a First Amendment claim or a constitutional claim is raised, then the courts must answer those two questions: if this is a religious belief, is it sincerely held?

And in looking at sincerity, consistency with a belief, consistency of this belief with the tenets of a well-established religion may be persuasive on the issue of this person’s sincerity but it’s not conclusive.

There are other extrinsic facts that the courts can consider to determine sincerity.

One of those is, what role does religion play in the life of this individual?

In Thomas’s case we submit that religion plays a central role in his life.

He’s a Jehovah’s Witness, his hobbies are Bible study and Bible reading.

His belief is consistent with the tenets of the Jehovah’s Witnesses who are opposed to war.

Furthermore, Mr. Thomas was willing to take a 50 percent cut in his income in order to live his life according to his religious belief.

Mrs Blanca Bianchi De La Torre:

And that, we submit, shows that his belief was religious in nature and sincerely held.

The analysis, then, in a free exercise case, is, is there a burden on the free exercise of religion?

And if there is, is it justified by a compelling state interest?

In this case we believe that there is an infringement on his First Amendment rights, the same infringement that this Court found in Sherbert vs. Verner.

Mr. Thomas’ ineligibility for unemployment compensation benefits derives solely from the practice of his religion.

Like in Sherbert, he is forced to choose between following the precepts of his religion and forfeiting benefits on the one hand, or abandoning the precepts of his religion to remain employed, on the other hand.

This, this Court has held, is an unconstitutional choice.

And this same test had been applied in McDaniel v. Paty and Wisconsin v. Yoder.

The Review Board has conceded that it has no compelling state interest to justify the infringement on Thomas’s First Amendment rights.

No compelling state interest was raised or briefed before the state courts below, and now the Review Board for the first time in these proceedings has attempted to introduce before this Court a compelling state interest.

This Court has consistently held that it will not consider matters raised here for the first time which were never briefed or raised in the lower courts below.

It will do so only when there is plain error, and we submit that is not in this case, that is not our case.

There’s a concession that there is no compelling state interest.

And under those circumstances we respectfully request this Court that the infringement on Thomas’s First Amendment rights not be tolerated.

Harry A. Blackmun:

Mrs. de la Torre, in your briefs you have not cited the Braunfeld case.

Mrs Blanca Bianchi De La Torre:

Yes?

Harry A. Blackmun:

Do you have any comment on that?

Mrs Blanca Bianchi De La Torre:

Yes.

We submit that Sherbert expanded the test advanced in Braunfeld and this Court has not expressly overruled Braunfeld although in recent decisions… I believe in the Wisconsin v. Yoder or McDaniel v. Paty.

Justice Brennan indicated that candor compels an admission that Braunfeld has been overruled.

I think what–

Harry A. Blackmun:

But has the Court overruled it?

Mrs Blanca Bianchi De La Torre:

–No, it has not been overruled, but I think that the Court has expanded the test to require the state a greater burden of proof when there is an infringement on First Amendment rights, which was not the test in Braunfeld.

Braunfeld has been, I think, not overruled but severely limited by the test in Sherbert, which this Court has consistently applied ever since Sherbert was decided.

Harry A. Blackmun:

Well, I thought you would have attacked it in some way, anyway.

One of the amicis did, but you didn’t.

Mrs Blanca Bianchi De La Torre:

Yes.

Americans United for Separation of Church and State.

John Paul Stevens:

It’s a pretty small point, but where is the Blaw-Knox factory located?

Mrs Blanca Bianchi De La Torre:

It’s in East Chicago, Indiana.

John Paul Stevens:

In East Chicago.

Mrs Blanca Bianchi De La Torre:

Finally, we would like to indicate that granting unemployment compensation benefits to the petitioner does not amount to a violation of the Establishment Clause.

This argument was rejected in Sherbert, and also in McDaniel v. Paty, decided by this Court in 1978.

All that the state is doing in granting unemployment compensation benefits to Thomas is acting with neutrality in the light of serious religious differences in our nation.

This Court has characterized itself for encouraging benevolent neutrality, the doctrine of flexibility in its approach to the religion clauses of the First Amendment.

We submit that the decision of the Supreme Court of Indiana is erroneous, that it should be reversed, and that Thomas should be entitled to unemployment compensation benefits.

We would like to reserve the time left for rebuttal.

Byron R. White:

Could I ask you how the compensation is financed in Indiana?

Is it by assessments on employers?

Mrs Blanca Bianchi De La Torre:

Yes, taxes from… contributions–

Byron R. White:

It’s not a state fund?

Mrs Blanca Bianchi De La Torre:

–I believe it’s both state funds and employers; yes.

Byron R. White:

But what the employer pays depends on his rate of unemployment, doesn’t it?

Mrs Blanca Bianchi De La Torre:

Yes.

That’s correct.

Warren E. Burger:

When you say, a state fund, is the state any more than a keeper of the stakes?

That is, the state impounds the money coming from the employer.

There’s no tax on the general public that goes into this, is there?

Mrs Blanca Bianchi De La Torre:

No, I don’t think there is.

Warren E. Burger:

Any contribution from the employees in Indiana?

Mrs Blanca Bianchi De La Torre:

I believe there is none.

Byron R. White:

Would you be making the same argument that this man, under Title VII or something, that he was discharged for religious purposes?

Mrs Blanca Bianchi De La Torre:

Well, the problem is that the employer in this case, if Thomas had filed a Title VII, could not accommodate him, because all of the other divisions except the roll foundry were engaged in the production of armaments.

And Thomas did not file a Title VII.

He filed for a–

Byron R. White:

Well, wouldn’t he have been willing to take a job as clerk in an office?

Mrs Blanca Bianchi De La Torre:

–Oh, yes, but there was no such job, apparently.

The record reveals that he sought the transfer immediately upon being assigned to the tank turret line.

And in seeking this transfer he realized that all of the other functions at Blaw-Knox were directly involved with the manufacture of armaments.

Byron R. White:

But the employer must now pay him, in effect; pay him unemployment compensation.

Mrs Blanca Bianchi De La Torre:

The employer and the state.

Not only the employer.

Byron R. White:

Are there state funds in this fund?

Mrs Blanca Bianchi De La Torre:

I believe so.

Warren E. Burger:

I thought you just told me that there was no tax?

Mrs Blanca Bianchi De La Torre:

State funds… well, there’s state funds and employers’ contributions, I believe.

Warren E. Burger:

It conceivably might be important to know whether any general tax revenues are paid.

I’m not sure.

The record is silent on that, is it?

Mrs Blanca Bianchi De La Torre:

Yes, it is, and that issue has never been raised by the Board or–

Warren E. Burger:

Perhaps your friend may know the answer to that.

Mrs Blanca Bianchi De La Torre:

–Probably.

Warren E. Burger:

If the answer is important.

Mrs Blanca Bianchi De La Torre:

Thank you.

Warren E. Burger:

Mr. Daily.

William E. Daily:

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

The answer is that the contributions are made solely by the employers to the fund.

There are no general tax funds, although I would suppose that the employer views it as a tax on the employer to create the fund in the first place.

Before I get to the meat of my argument, I have to address a point raised in the petitioner’s reply brief and also addressed in oral argument today.

I do not believe the Review Board has ever conceded that there is not a compelling state interest.

There is some ambiguous language in the opinion of the State Court of Appeals which seems to say that at oral argument there may have been a concession by the State on a compelling state interest issue but the Review Board’s position is only that.

There is no evidence on the record as to the existence or nonexistence of a compelling state interest, and the reason for that blank record is that the Review Board was not a party at the hearing stage.

The Review Board has never had any opportunity to present facts into evidence on the existence or nonexistence of a compelling state interest.

When I think of that, I think I will show as I go through my argument that compelling state interest is not really relevant to this case and the case can be decided without addressing that issue.

But if you do want to address that issue, the Review Board should be given an opportunity to present facts if the case should be remanded.

Byron R. White:

Well, who litigates before the Review Board?

The employer?

William E. Daily:

The employer–

Byron R. White:

–and the employee.

William E. Daily:

–and the employee.

John Paul Stevens:

What sort of proceeding would the Review Board put in such evidence?

William E. Daily:

It would have to be remanded to some lower court.

The Supreme Court of Indiana can hold factual hearings in this case.

John Paul Stevens:

Are you suggesting that we… if we thought compelling state interest was relevant, we should send it back to the Supreme Court of Indiana to hold an evidentiary hearing?

William E. Daily:

I certainly hope it doesn’t come to that stage.

John Paul Stevens:

But if it does, is that what you’re suggesting?

William E. Daily:

I’m suggesting that the Review Board certainly should have an opportunity to present facts as to the existence of a compelling state interest.

William H. Rehnquist:

What cases of ours would you say they would be guided by?

William E. Daily:

I think perhaps they would have to go back… if the decision were against us to the point where we were required to have a hearing on a compelling state interest, we would have to look to Sherbert, perhaps Wisconsin v. Yoder, and that line of cases.

Warren E. Burger:

How would Yoder help you there?

William E. Daily:

I’m sorry; I stated the wrong case.

Warren E. Burger:

How would the Yoder case–

William E. Daily:

No.

Yoder will not help in compelling state interest.

I’m sorry.

I think Sherbert–

Warren E. Burger:

–Sherbert v. Verner–

William E. Daily:

–Sherbert v. Verner; right.

Harry A. Blackmun:

–You feel Sherbert helps you?

William E. Daily:

No, I think we would have to be guided by that if we went back for a hearing on compelling state interest.

Harry A. Blackmun:

Do you think that Sherbert should be over-ruled?

William E. Daily:

I think it should be modified, I think there are some very good points in Sherbert but I think it goes too far.

I’m not sure that Sherbert by itself goes too far, but it’s certainly been interpreted by subsequent courts and by some decisions from this Court more broadly than the decision itself warrants.

And I’ll get to that in a moment.

The petitioner in this case relies heavily on Sherbert v. Verner; in fact, almost exclusively.

Therefore, the Indiana Supreme Court looked to Sherbert and attempted to distinguish it.

The court, the Indiana Supreme Court noted that the opinion in Sherbert specifically limits itself.

The language says,

“We do not by our decision today declare the existence of a constitutional right to unemployment benefits on the part of all persons… all persons whose religious convictions are the cause of their unemployment. “

Now, despite that clear language, the petitioner in this case says that all persons are entitled to unemployment benefits under Sherbert.

William E. Daily:

Now Sherbert didn’t say that.

It said, we do not make that finding.

Potter Stewart:

Well, I think the… my understanding of the reason for that language in Sherbert was to take care of my brother Blackmun’s earlier hypothetical question as to what about the person whose religious convictions taught him that it was sin to work at all, at anything.

William E. Daily:

Well, I agree that there may be a spectrum here, going from that situation perhaps to a Sherbert.

Potter Stewart:

Such a person, say, in the absence of that language in Sherbert, could say, I’m entitled to workmen’s compensation… I’m entitled to unemployment compensation.

William E. Daily:

And the petitioner did not deny that that person should… in fact, the petitioner’s position is that if there is a sincere religious conviction, sincerely held by an individual, that person is entitled to unemployment benefits no matter what his conviction is, even if it is that I should not be required to work at all.

Potter Stewart:

That’s not this case.

William E. Daily:

No.

Obviously not.

Warren E. Burger:

What is the status of people, if any, in many of the courts, who would have a religious objection and scruple against participating in social security?

William E. Daily:

In the Indiana courts?

Warren E. Burger:

There have been some cases on that, haven’t there, in the lower courts?

William E. Daily:

I’m not prepared to discuss that; I’m sorry.

To continue my distinguishment of Sherbert, Sherbert involved a situation where South Carolina had a state law giving benefits to Sunday worshipers.

Sherbert extended that same privilege to Saturday worshipers.

There is no comparable situation in the case before you today.

We are not dealing with giving equality to Saturday worshipers that Sunday worshipers already have.

Sherbert found that the highest state court had not been able to point out any state interest.

In this case the Indiana Supreme Court clearly points out the state interest to be protected and those state interests, if I may skip to another point, are to promote the stability in employment, to protect the citizens from the hardships of unemployment, preserving the unemployment fund.

Those state interests are in my opinion as compelling or more compelling than some of the state interests already upheld in this Court.

And there I will refer you to Braunfeld v. Brown, Reynolds–

John Paul Stevens:

Mr. Daily, I don’t think it’s quite correct to say that there were no state interests involved in Sherbert.

The opinion noted that there was a state interest in preventing spurious claims which would also be present here, and also a state interest in not making, complicating the work schedule that the employer has to worry about putting people on, when people can’t work on Saturdays.

So there were state interests there.

William E. Daily:

–That is correct.

And those state interests would exist here, in addition to the interests that I have listed.

In this case, however, we have the highest court of the State finding that those interests that I have listed are sufficient to sustain the statute.

Similar cases inquire as to whether or not there are other ways to achieve the secular state purposes or achieve the interest established by the case.

And I note that the petitioners have not pointed out any other ways to achieve these secular interests or secular purposes.

As I read the opinion of the Indiana Supreme Court, that Court based its decision on three general and independent grounds.

William E. Daily:

There are three different grounds for sustaining the Indiana Court’s opinion.

First of all, the Court found that the statutory good cause requirement has a valid secular purpose and a valid secular effect.

In other words, the Braunfeld v. Brown test.

Under that test we have a valid secular purpose, a valid secular effect; it is therefore a constitutional statute.

Secondly, the Indiana Supreme Court found that the grant of an exemption to Mr. Thomas would conflict with the Establishment Clause in the Constitution, as a second independent grounds, also requiring that the statute be found to be constitutional.

Thirdly, the Supreme Court went into the–

John Paul Stevens:

Mr. Daily, wasn’t that argument specifically rejected in Verner, both by the majority and by the dissenters?

William E. Daily:

–To that extent I am arguing for a modification of Sherbert v. Verner.

John Paul Stevens:

That’s why you asked for the modification?

William E. Daily:

To the extent that that has been found by other courts, I think it should be modified.

And I’d like to address that question now.

In Walz v. the New York Tax Commission, this Court noted that past opinions had considerable internal inconsistency because of certain sweeping statements.

This Court also recognized that there could be a potential conflict between the religion clauses, and a test proposed in Walz v. New York Tax Commission is, first of all, examine the legislative purpose; secondly, examine the degree of involvement between church and state.

The current Indiana practice withstands these tests.

Legislative purpose is a valid secular purpose, the degree of involvement is almost zero.

The only reason that the Court had to examine the sincerity or the contents of Mr. Thomas’s beliefs was because it had to distinguish Sherbert, or perhaps Wisconsin v. Yoder.

Under the current procedure in Indiana there is really no reason beyond those cases for an examination or for an involvement of the church with the state.

However, if the state were to pass a statute saying that persons in Mr. Thomas’s situation are exempt from the objective good cause requirement, if you examine that statute, the statute proposed by Mr. Thomas here… although Mr. Thomas is not proposing a statute, he’s proposing the Court do something to the same effect, to create for Indiana an exemption.

If the Court were to create that exemption or if the Legislature in Indiana were to create that exemption and were examined under the Walz test, you would have to find a secular legislative purpose for an exemption for people in Mr. Thomas’s situation.

Now I submit that there is no reasonable secular purpose for that exemption.

I don’t think you will find a reasonable purpose stated in the briefs.

I’ve noted one amicus brief seems to think that a secular purpose would be avoidance of conflict with the religion clauses and that argument seems to me somewhat circular.

You can point out as a secular purpose for the denial of the relief an avoidance of conflict with the Establishment Clause.

In any event, there is no valid secular purpose for the establishment of exemption; the degree of involvement escalates terrifically if you grant an exemption for religious purposes.

Then it becomes necessary to examine Mr. Thomas or people in his position to determine whether or not he actually has a sincere belief.

You have to examine whether or not that belief is a religious belief, as opposed to a merely personal belief.

And you run into the problem that Mr. Rehnquist suggested in one of his early questions: if you create that exemption statutorily, you run into the problem of the conscientious objector cases and you perhaps have to interpret the statutory exemption in such a way that it applies to everybody whether it’s a religious exemption or merely a deeply held personal conviction.

Warren E. Burger:

Do you think it is not clear in this case that his position was placed entirely on his formal religious beliefs as distinguished from just disagreeing with some particular facet of a war, as Vietnam, for example?

William E. Daily:

I think Mr. Thomas stated that his beliefs, it was a personal religious belief.

Warren E. Burger:

Well, a personal religious belief against doing anything relating to making the weapons of war, direct weapons of war?

William E. Daily:

Directly involved in it; yes, sir.

Warren E. Burger:

He backed that up by saying that making steel alone, as he had previously, was not a barrier, and we can only infer that he meant that some of that steel might go into other purposes, and that he was only raising the question and he was helping to make a tank, for which there was no use except in war.

William E. Daily:

I think that’s clear from the record, that his only objection was to being put on an assembly line where he could clearly see what he was making.

In other words, if tanks or guns of some sort were going past him on the assembly line, then he found it conflicted with his personal beliefs.

Whereas if a few steel–

Warren E. Burger:

Religious beliefs, as a member of Jehovah’s Witnesses.

Didn’t he make that clear, in your view?

William E. Daily:

–Yes, in my view it’s very clear that as long as it were something that he could not recognize as a weapon, he had no–

Warren E. Burger:

It was not just a general appeal to conscience in the abstract as in the hypothetical posed by Mr. Justice Rehnquist, it was specifically his membership and adherence to the beliefs of Jehovah’s Witnesses that he relied on.

William E. Daily:

–I’m not sure that he relied on his Jehovah’s Witness beliefs, but on his beliefs.

Harry A. Blackmun:

Well, is that true from the record, when there is another Jehovah’s Witness who is not upset by this situation?

William E. Daily:

That’s the point I’m making.

It was Mr. Thomas’ beliefs and not necessarily Jehovah’s Witness beliefs.

Harry A. Blackmun:

So it gets down to a matter of a personal religious belief wholly apart from Jehovah’s Witnesses?

William E. Daily:

On the record in this case that’s true.

I think if you’ll notice in the reply brief by petitioner, it is apparently a matter of conscience by individual Jehovah’s Witnesses rather… there’s a paragraph in the reply brief that seems to indicate that individual Jehovah’s Witnesses may examine their own conscience and make their own determinations as to whether or not to work in certain fields.

Warren E. Burger:

But it is not unrelated to the beliefs of Jehovah’s Witnesses, as a faith.

William E. Daily:

On the record in this case, I don’t know that you can make that determination.

Warren E. Burger:

I thought the record in that respect was crystal clear, open to no possible doubt.

Harry A. Blackmun:

Well, it’s a factor, I suppose, but the fact that another Jehovah’s Witness went the other way would indicate it isn’t a compelling factor.

I don’t believe–

–Didn’t the Supreme Court of Indiana say the question was unclear as to why he quit?

William E. Daily:

Examining the record in this case, the Supreme Court in Indiana could not find a basis for finding that this was a tenet.

Warren E. Burger:

That probably led to the 4-3 decision in the Indiana Supreme Court to some extent.

It was still 4-3.

William E. Daily:

Well, the minority in the Indiana Supreme Court felt that Sherbert should be given broad application and did not go into the facts.

So they thought that Sherbert applied across the board, and therefore applied in this case.

Warren E. Burger:

Well, the fact that some other employees who were members of Jehovah’s Witnesses did not take the same view of the matter, there’s nothing unique in that.

William E. Daily:

That’s so.

Warren E. Burger:

Members of any given faith, whether Catholic or Presbyterian or whatnot, have more literal constructions of their own faith, but it’s still rooted back to his claim as a Jehovah’s Witness adherent.

William E. Daily:

I think that it is rooted in his claim that his personal interpretation of the doctrine required him to reach that decision.

Thurgood Marshall:

Is there anything in this record that shows that any Jehovah’s Witness is willing to work on a tank?

William E. Daily:

There are a number of… well, it is clear from the record that Jehovah’s Witnesses are willing to work on a tank in this factory.

There are Jehovah’s Witnesses working there.

Thurgood Marshall:

Working on the tank itself?

William E. Daily:

Yes.

There is–

Thurgood Marshall:

On the tank itself?

William E. Daily:

–There is no other–

Thurgood Marshall:

Or the turret for the tank?

William E. Daily:

–I’m sorry; the turret for the tank.

I should be specific there.

Thurgood Marshall:

That’s what I thought.

John Paul Stevens:

Mr. Daily, you were telling us the three reasons for the Supreme Court of Indiana decision.

The first was that it didn’t come within the state good cause requirement.

The State Supreme Court said good cause has to be a valid objective job-related reason, as I understand it.

William E. Daily:

That is my interpretation of the Braunfeld criteria.

John Paul Stevens:

Now, under that interpretation, refusal to work on Saturday would not be good cause, would it?

William E. Daily:

Under that interpretation refusal to work on Saturday would not be good cause.

John Paul Stevens:

So that part of the Supreme Court decision is plainly inconsistent with this Court’s holding in Sherbert, isn’t that correct?

William E. Daily:

That is correct.

John Paul Stevens:

Now, what was the third reason?

You didn’t get to the third, but the second one is, you agreed that we’d have to modify Sherbert also to accept the second ground, so I’m interested in… what was it?

I forget what the third one was.

William E. Daily:

The third one was the factual issues as to whether or not there is a religious tenet involved, whether or not he held that religious principle, a number… in effect, everything I’ve said about distinguishing Sherbert.

On the facts.

William E. Daily:

All right.

That’s the–

Byron R. White:

When he says… the Supreme Court of Indiana said he was uncertain as to his precise beliefs, and said that his reasons for quitting work were unclear.

William E. Daily:

–That is certainly correct from the record.

Byron R. White:

That’s what the Supreme Court of Indiana said, whether… totally aside from what the record says, but that was its reading of the record.

William E. Daily:

Yes.

There are a number of tests under the Establishment Clause arising out of the aid to school cases.

William J. Brennan, Jr.:

Before you get to that, may I ask you, I take it we can read… this is a constitutional fact type case, isn’t it?

William E. Daily:

Yes, it is.

There are a number of–

William J. Brennan, Jr.:

Well, let me put the question to you directly.

I gather we’re as free to read the record in respect to this constitutional issue as was the Indiana Supreme Court, are we not?

William E. Daily:

–I understand that you incline towards giving credit to the interpretation by the state of its own–

William J. Brennan, Jr.:

Well, that isn’t my question.

William E. Daily:

–And that you would–

William J. Brennan, Jr.:

My question is whether we are as free as the Supreme Court of Indiana, since this is a constitutional fact question, to read the record and reach our own determination?

William E. Daily:

–I would limit that to the extent that you may go to the record if the state’s determination is clearly erroneous.

William J. Brennan, Jr.:

Where did you get that?

No, no.

In such cases as the involuntary confession cases… didn’t set up any clearly erroneous threshold but said that this Court was as free as were the state courts to… in fact, had a duty, independently, to assess the record, the evidence of record.

William H. Rehnquist:

I thought they set up the test of the so-called undisputed facts, that if there had been a resolution of disputed fact by the state, you accept the resolution by the state.

William E. Daily:

The problem on this factual record is, of course, that there was no participation by anybody opposed to Mr. Thomas so we have to examine what he said now as to the threshold question as to when you begin that examination.

I’m not prepared to answer that.

John Paul Stevens:

Mr. Daily, as I understand the Supreme Court of Indiana, they’re saying the resolution of this issue is somewhat unclear.

They didn’t resolve it definitely one way or the other, did they?

William E. Daily:

They definitely said that he had not clearly stated a religious principle that they could find in his testimony.

They did not… the burden of proof was obviously on the petitioner at this point.

I think you can interpret their holding to say that he failed to meet his burden of proof.

John Paul Stevens:

Well, he prevailed on the fact issue before the hearing examiner and the Industrial Review Board and the Court of Appeals, didn’t he?

William E. Daily:

No, he did not prevail at the two lower levels.

The only point at which he prevailed was before the Court of Appeals.

John Paul Stevens:

He didn’t get the award; I understand that.

But on the question of whether his belief was a sincere religious belief, they both agreed with him, didn’t they?

William E. Daily:

They agreed with him on that point, yes.

John Paul Stevens:

And this is what we are talking about now?

William E. Daily:

Yes.

Warren E. Burger:

And what do you say the Supreme Court of Indiana said about the sincere religious belief determination of the Court of Appeals?

Didn’t they say it was unclear?

William E. Daily:

They said that on the record they could not sustain the finding below that he had a clear religious conviction.

Warren E. Burger:

Of the Board?

William E. Daily:

Of the Board.

Byron R. White:

Well, they said, not only is it unclear what his belief was but that it was unclear why he quit work.

William E. Daily:

That goes perhaps farther than–

Byron R. White:

Which is even different.

William E. Daily:

–I think that would go further than I could go on the facts in this case, at least that statement of their holding.

They could… the record clearly shows that he had, that he quit work because he did not want to work on the turrets, the tank turrets.

Byron R. White:

Well, that may be so.

It may be so that he didn’t want to work on the tank turrets but it would still be a question of whether he quit because of a religious belief.

William E. Daily:

That’s true.

And I don’t think that… I think the Supreme Court of Indiana did not find any clear statement as to whether or not that’s why he quit.

I’d like to point to… a minute… to a fairly recent case of this Court called TWA v. Hardison.

In that case this Court said,

“We will not readily construe a statute to require an employer to discriminate against some employees in order to enable others to celebrate their sabbath. “

I am hopeful that that to some extent modifies Sherbert.

At least the dissent thought that it did.

And I think it does too, and I think the basic principle in TWA v. Hardison is equality under the law.

Petitioner in this case–

Warren E. Burger:

Was Sherbert addressed to that kind of a question?

William E. Daily:

–Sherbert was addressed to a state action.

This is an employer action involving a statutory mention of religion which is the same thing that the petitioners want us to do here, create an exemption for religion.

I think the reasoning is analogous, even though the factual situation is different.

This Court has frequently stated that the Court should allow the legislature to assess the public need and should not strike down a neutral state action within the state’s power even if that action approaches the verge or the limits of the power.

That’s from Everson v. Board of Education.

The Court realizes the potential conflict between establishment and freedom that was realized in Walz v. Tax Commissioners.

William E. Daily:

As Justice White noted in dissent in Welsh v. U. S., Congress or in this case the state should have some leeway in interpreting the religion clauses.

In this case the state has adopted a neutral position.

That position does not clearly establish a religion nor does it directly infringe upon religious freedoms.

I am making the same plea that every attorney general probably does before you and ask that you recognize the federal system and adopt a hands-off approach in this particular situation.

The Legislature of Indiana has assessed the public need, as required in Everson v. Board of Education.

The statute is neutral, as required in that estate, and even though there is an indirect, there may be an indirect burden on Mr. Thomas in this case, that does not by itself give rise to a requirement that a statute otherwise neutral, with a secular purpose and a secular effect, should be stricken down.

Thank you.

I’m sorry.

Any further questions?

Warren E. Burger:

Apparently none.

Do you have anything further?

Mrs Blanca Bianchi De La Torre:

First we would like to address the contention of the respondent that the Court of Appeals never said there was there was a concession of no compelling state interest and we would like to address the attention of the Court to pages 13(a) and 19(a) of our petition for certiorari where the Court of Appeals clearly said that the task of applying Sherbert in this case is focused by the Board’s concession in oral argument that no compelling state interest exists in this case to justify an infringement.

So it is very clear, there was a concession in oral argument.

Second, the Board contends that in Sherbert there was a discriminatory effect in relation to Sunday worshipers that is not present in this case.

The truth of the matter is that Sherbert was decided on First Amendment, not on the Fourteenth Amendment equal protection provision.

Also, the interests now asserted by the State for the first time before this Court in these proceedings were already rejected in Sherbert like Justice Stevens pointed… And this Court has stated that only the gravest abuses endangering paramount interests permit infringement on First Amendment rights.

Those grave abuses are not present in this case.

William H. Rehnquist:

Mrs. de la Torre, what if at the time that your Mr. Thomas applied for work at the foundry he was told that as a matter of company policy someone who is in the roll mill automatically at the end of six months would be placed, rotated to the tank production department?

Mrs Blanca Bianchi De La Torre:

That would be different from our case because that would indicate knowledge on this petitioner that that job was in conflict with his religious beliefs.

And I have to admit that he could not accept that job and then allege that his free exercise rights had been violated, because he had knowledge.

But in this case he didn’t.

The Referee concluded that it wasn’t until he was transferred to the tank turret line that he realized the armament-producing nature of Blaw-Knox.

So he would not put himself in a position of having a conflict with his religious beliefs.

Also–

Byron R. White:

Could I ask you, suppose that his request to the Jehovah’s Witnesses had been answered by the religious body saying, there’s nothing contrary to our religion to work in the turret factory.

And he said, well, that’s maybe your view of it as a group, but my own personal religious beliefs prevent me from doing so.

Mrs Blanca Bianchi De La Torre:

–We will still argue that the First Amendment protects that belief because it’s religious in nature, it’s sincerely held.

Byron R. White:

As long as you say it’s religion.

What if he says, well, I just don’t believe I should… I just don’t believe in war.

Mrs Blanca Bianchi De La Torre:

Well, that is consistent with the tenet of the Jehovah’s Witnesses and would also be a belief protected by the First Amendment.

Byron R. White:

And you would say the same thing, then, if a person went to his employer and said, I can’t work in a turret factory, I’m going to quit, and the employer said, well, why?

I have a religious belief.

And his employer said, well, what religion are you a member of?

And he says, none except mine.

I’m a one-man, I have a one-man religion.

And… but it’s religious.

I think it’s contrary to the laws of God to go to war or to even work on the implements of war.

You would be here in the same capacity–

Mrs Blanca Bianchi De La Torre:

Then we would have to urge this Court to adopt the definition of religion in Seeger and Welsh, which has not been extended to the First Amendment as of today.

Byron R. White:

–Well, no, he would say, this isn’t just conscientious.

I categorize my beliefs as religious.

Mrs Blanca Bianchi De La Torre:

Okay, then, we would have to look, as I said, to the test of sincerity and religious nature and how central this belief is to the life of this individual.

The Court has often emphasized the centrality of the belief to determine sincerity, and to that effect are the decisions of the Court of Appeals in Teterud v. Burns, 1979 decision, I believe, and other decisions of lower federal courts.

Harry A. Blackmun:

So you’re close to conceding that all this Jehovah’s Witness business is irrelevant.

Mrs Blanca Bianchi De La Torre:

What we’re saying is that if–

Harry A. Blackmun:

For the precise issue here.

Mrs Blanca Bianchi De La Torre:

–Pardon?

Harry A. Blackmun:

For the precise issue here.

You are close to conceding that the presence of a Jehovah’s Witness connection is irrelevant.

He’ll prevail anyway.

The church–

Mrs Blanca Bianchi De La Torre:

He doesn’t need the backing of the well-known religious organization to come to this Court and urge protection of his First Amendment rights, but in this case that backing is persuasive as to the issue of sincerity and is very crucial.

Harry A. Blackmun:

–but your response to Mr. Justice White was that eliminating that you would still be here.

Mrs Blanca Bianchi De La Torre:

Yes; yes, Mr. Justice.

What if he said, I’m an atheist but I’m opposed to all wars?

Mrs Blanca Bianchi De La Torre:

Then I would have to urge this Court to adopt the definition of religion in Seeger and Welsh.

Warren E. Burger:

But these fallback positions do not alter the fact that you have an organized established religion declaring the belief on which he relies.

Mrs Blanca Bianchi De La Torre:

Yes, there is one.

Byron R. White:

But which all members do not follow, apparently.

Mrs Blanca Bianchi De La Torre:

Well, as we indicate in our reply brief, the Jehovah’s Witnesses encourage their members to read and study the Bible and get their own teachings from it.

Mrs Blanca Bianchi De La Torre:

It’s the practice that they do encourage and they have to come to their own decision.

Byron R. White:

But some of them… not all Jehovah’s Witnesses refuse to work in the turret factory.

Mrs Blanca Bianchi De La Torre:

That’s correct.

Byron R. White:

And at least some of them thought it was wholly consistent with the tenets of the sect, or of the religion.

Mrs Blanca Bianchi De La Torre:

They did not view working there as unscriptural, while Mr. Thomas did.

John Paul Stevens:

But does that necessarily follow?

Supposing you had a Catholic nurse employed in a hospital and was transferred into the abortion ward, and she said, well, it’s against my religion to work in abortions and then they defend it on the grounds, well, some other Catholics will perform these services, therefore your belief is not religious, is not sincere.

Mrs Blanca Bianchi De La Torre:

I would say that the belief is religious in nature because she’s saying that–

John Paul Stevens:

Some people are more religious than others within the same faith, in other words.

Mrs Blanca Bianchi De La Torre:

–Yes.

Warren E. Burger:

Well, you have the further factor that in the Roman Catholic faith you have an authoritarian determination of these issues and yet people are not excommunicated just because they don’t follow all of them.

Mrs Blanca Bianchi De La Torre:

Well, we are submitting that the pressure from the congregation is not a necessary element of a protected expression of religious belief.

Byron R. White:

You agree that the group as a whole do not make this a tenet, that they don’t have a rule against working in turret factories.

They leave it up to each individual to study the Scriptures and come to his own conclusions as to what his religious belief should be.

Mrs Blanca Bianchi De La Torre:

Yes, Mr. Justice.

Byron R. White:

So the fellow who works in the turret factory is acting just as consistently with the Jehovah’s Witnesses tenets as the fellow who doesn’t.

Mrs Blanca Bianchi De La Torre:

His interpretation; yes.

Byron R. White:

Yes.

Mrs Blanca Bianchi De La Torre:

Thank you.

Warren E. Burger:

Very well.

Thank you, counsel.

The case is submitted.