Photo Credit: Rabbi Hanoch Teller

Adell Sherbert became a member of the Seventh-Day Adventist Church, she refused to work on Saturday causing her to be discharged from her employment. Sherbert looked for Monday-to-Friday work with the other three mills in Spartanburg but failed to find suitable employment. She then filed for unemployment compensation benefits under the South Carolina Unemployment Compensation Act which was denied.

The Unemployment Commission justified their position by stating that they only provided unemployment benefits to people for whom work was not available, not to people who were unavailable to work. Sherbert sued, first in a lower court and then subsequently in the South Carolina Supreme Court – both of which rejected the appellant’s contention that the South Carolina statute abridged her right to the free exercise of her religion.

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It was the State’s position that the unavailability to work each Saturday was akin to not being available to work at all and hence undeserving of unemployment benefits. The State also argued that they had an additional compelling reason for not issuing unemployment benefits in order to protect themselves from others who would fraudulently claim religious objections to work.

Adell Sherbert

The ruling of the South Carolina Supreme Court forced Sherbert to decide between following the precepts of her religion (and forfeiting her benefits), or accepting employment that included a Saturday shift.

This did not seem in consonance with the constitutional liberties afforded by the free exercise of religion; it was as if the state had fined her for being a Sabbatarian. Accordingly, she appealed to the US Supreme Court claiming that the denial of unemployment compensation violated the First and Fourteenth Amendments to the Constitution.

On June 14, 1963 the Supreme Court ruled 7-2 in favor of Adell Sherbert’s ability to freely exercise her faith by refusing to work on her Sabbath without giving up her right to unemployment benefits.

Justice Brennan wrote the majority opinion. “To condition the availability of benefits upon this appellant’s unwillingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.” In other words, the governmental imposition of such a choice infringes upon the Sabbatarian’s religious liberty guaranteed by the First Amendment.

Subsequent to this ruling, the United States Supreme Court developed what became known as the Sherbert Test, which requires the court to determine whether: (a) the plaintiff has a claim involving a sincere religious belief; and (b) whether the government action is a substantial burden of the person’s ability to act on that belief. If those two elements are established, then the government must demonstrate that it is acting in furtherance of a compelling government interest.

At the time of the Goldman case, even though it was rarely applied, the Sherbert Test was considered a ‘‘high water mark’’ in the constitutional protection of minority religious beliefs whose religious practice conflicted with state laws.

Sherbert predated Goldman by twenty years, but the similarities between the two were apparent: In Sherbert, in the absence of a compelling government interest, she should not have been forbidden from the free exercise of her religion. Likewise, Goldman, in the absence of a compelling government interest, should not be barred from observing his religion by wearing a yarmulke.

This was indeed Nathan Lewin’s argument: The government should not be allowed to make Goldman violate his faith unless they could show a compelling interest.

Although the Geller case with the beard did not come to this, the government had a compelling interest with a beard which did not exist with a yarmulke. Namely, a beard poses a problem with a gas mask which obviously does not exist with a yarmulke.

The Appeals court rejected the Sherbert argument by accepting the military’s contention that they had a compelling interest to deny Goldman’s request. It was their perspective that Goldman was not a solitary soldier doing his job in a base hospital; he was a potential instigator, perhaps even an agent provocateur, that could undermine the smooth running of the country’s defense (read: compelling basic public necessity).

That’s right; Simcha Goldman wearing a yarmulke in uniform was perceived as an act of insurrection that could weaken the very foundations of the military. But how?

To ensure discipline, the military is scrupulous about uniformity. All recruits have the identical haircut, wear the same uniform and are monitored to see that there is constant conformity. Any deviation from the standard could undermine the all-essential esprit de corps and fray the fabric of order and obedience.

To be continued.

 

Chodesh Tov – have a pleasant month!

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