Sherbert v. Verner, 374 U.S. 398, was a case in which the Supreme Court of the
United States held that the Free Exercise Clause of the First Amendment
required that the government demonstrate both a compelling interest and that the
law in question be narrowly tailored, before denying unemployment compensation
to someone who was fired because her job requirements substantially conflicted
with her religion. The case established the Sherbert Test,
requiring demonstration of such a compelling interest and narrow tailoring
in all Free Exercise cases where a religious person was substantially
burdened by a law. These conditions are the key components of what is usually
called strict scrutiny. 27 years later, the Supreme Court
decided that the Sherbert Test, as a judicial constitutional analysis tool,
was too broad when applied to all laws. With respect to religiously neutral,
generally applicable laws that incidentally burden religious exercise,
the Sherbert Test was eliminated in Employment Division v. Smith 494 U.S.
872. For laws that discriminate along religious/secular lines, or neutral laws
that are enforced in a discriminatory way, the components of the Sherbert Test
are still appropriate constitutional tools for courts to use.
In response to the 1990 Smith decision, Congress created an enhanced version of
the Sherbert Test as a statutory—rather than constitutional—right in the federal
Religious Freedom Restoration Act of 1993. RFRA's provisions were designed to
apply broadly to all laws and regulations, both federal and state.
Although Congress replaced the "narrowly tailored" constitutional requirement
with a "least restrictive means" statutory requirement, the enhanced test
is still referred to as the Sherbert Test.
But the Supreme Court held four years later, in City of Boerne v. Flores, 521
U.S. 507, that RFRA was unconstitutional, because its enhanced
Sherbert Test, as a purported change in constitutional rights, could not be
enforced against the States. RFRA impermissibly interfered with the
judiciary's sole power to interpret the Constitution. But the ruling did not
necessarily limit RFRA's effect on interpretation of federal statutes. So,
in 2000, Congress passed the Religious Land Use and Institutionalized Persons
Act along with a RFRA revised to apply only to federal laws. Both RFRA and
RLUIPA contain the same language for an even further enhanced Sherbert Test, one
that broadens the definition of substantial religious burden.
Without addressing the constitutionality of RFRA at the federal level, the
Supreme Court has since relied on the RFRA's statutory Sherbert Test to decide
several prominent cases, including Burwell v. Hobby Lobby, 573 U.S. ___,
and Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S.
418. Background of the case
Adell Sherbert, a member of the Seventh-day Adventist Church, worked as
a textile-mill operator. Two years after her conversion to that faith, her
employer switched from a five-day to a six-day workweek, including Saturdays.
Since according to her belief, YHWH in Exodus 20:8-11 forbade working on
Saturdays, she refused to work that day and was fired. Sherbert could not find
any other work and applied for unemployment compensation. Her claim was
denied, even though the state's ineligibility provisions exempted
anyone, whether religious or not, "for good cause." The Employment Security
Commission's decision was affirmed by a state trial court and the South Carolina
Supreme Court. The court's decision
The Supreme Court in a 7-2 decision reversed the Commission and the lower
courts, finding that, as applied, the government's denial of Sherbert's claim
was an unconstitutional burden on the free exercise of her religion. The
majority opinion effectively created the Sherbert Test, determining whether
government action runs afoul of the Free Exercise Clause.
= Brennan's majority opinion = Brennan, writing for the majority,
stated that denial of Sherbert's unemployment claim represented a
substantial burden upon her. Even if that burden took the form of denial of a
privilege to unemployment compensation, instead of violating compensation she
was entitled to by right, it still effectively impeded her free exercise of
her religion. As Brennan wrote, "to condition the availability of benefits
upon this appellant's willingness to violate a cardinal principle of her
religious faith effectively penalizes the free exercise of her constitutional
liberties." Brennan dismissed the claim that his decision violated the
Establishment Clause by establishing the Seventh-day Adventist religion. Finally,
the majority opinion did not consider the Equal Protection argument, since it
had already ruled in Sherbert's favor on First Amendment grounds.
= Douglas and Stewart's concurring opinions =
Douglas wrote separately to explain that the issue was not the degree of injury
to Sherbert, but South Carolina's denial of unemployment on the basis of her
beliefs. The issue was not individual action, but government action, and under
what basis government could deny someone benefits.
Stewart concurred in the result, but not in the majority's reasoning. He did not
dismiss the Establishment Clause issue as the majority did. Instead, he
identified as a "double-barreled dilemma" between Free Exercise Clause
protection of Sherbert's actions and — as it had been interpreted, wrongly in
his view, by the court — Establishment Clause prohibition of such protection.
He also disagreed with the majority's claim that a cited precedent, Braunfeld
v. Brown, was distinguishable from Sherbert.
= Harlan's dissenting opinion = Harlan, in a characteristically
formalist reading of the relevant law, argued that the Commission denied
Sherbert unemployment based on the same reason they might any secular claimant,
that she was not "available for work" because of a private decision she had
made. More centrally, he rejected the majority opinion, arguing that the Free
Exercise Clause only required neutrality toward religion in this case, which
would not include exempting Sherbert, though the Constitution would permit a
legislature to create such an exemption. The Sherbert Test
In Sherbert, the Court set out a three-prong test for courts to use in
determining whether the government has violated an individual's
constitutionally-protected right to the free exercise of religion.
The first prong investigates whether government has burdened the individual's
free exercise of religion. If government confronts an individual with a choice
that pressures the individual to forego a religious practice, whether by
imposing a penalty or withholding a benefit, then the government has
burdened the individual's free exercise of religion.
However, under this test not all burdens placed on religious exercise are
constitutionally prohibited. If the first prong is passed, the government
may still constitutionally impose the burden on the individual's free exercise
if the government can show it possesses some compelling state
interest that justifies the infringement; and
no alternative form of regulation can avoid the infringement and still achieve
the state's end. Limiting of the Sherbert Test
The Supreme Court sharply curtailed the Sherbert Test in the 1980s, culminating
in the 1990 landmark case Employment Division v. Smith. In Smith, the court
held that free exercise exemptions were not required from generally applicable
laws. In response to the Smith decision, Congress passed the Religious Freedom
Restoration Act of 1993 to reinstate the Sherbert Test as a statutory right. RFRA
purported to restore strict scrutiny analysis to all free exercise cases in
which the plaintiff proves a substantial burden on the free exercise of his or
her religion. However, four years later, the court struck down RFRA as applied to
Constitutional interpretation. In City of Boerne v. Flores, 521 U.S. 507, the
court found that RFRA, as applied to the Free Exercise Clause, impermissibly
interfered with the judiciary's sole power to interpret the Constitution. But
the ruling did not necessarily limit RFRA's effect on interpretation of
federal statutes. Using a parliamentary procedure known as unanimous consent,
both the House and the Senate re-enacted RFRA's provisions in 2000, in
conjunction with adding a similar statutory test to the Religious Land Use
and Institutionalized Persons Act. Without addressing RFRA's
constitutionality, the Supreme Court has held, in Gonzales v. UDV, 546 U.S. 418,
that RFRA applies to other federal statutes. In UDV, the court applied the
statutory Sherbert Test created by RFRA and found that the conduct in
question—use of a Schedule I drug in a religious ritual—was protected under the
First Amendment. See also
Free Exercise Clause of the First Amendment
Strict scrutiny Lemon Test
Further reading Alley, Robert S.. The Constitution &
Religion: Leading Supreme Court Cases on Church and State. Amherst, NY:
Prometheus Books. pp. 449–453. ISBN 1-57392-703-1.
External links Text of Sherbert v. Vernier, 374 U.S.
398 is available from: Findlaw Justia First Amendment Center
Findlaw's page on Free Exercise exemptions