"All people are not heterosexual. Heterosexuality is not superior and is not the norm by which all other sexual orientation and gender identities are measured." --Burnaby, B.C. Schools Draft Policy #5.45

Sunday, November 30, 2014

To Those Whom Much is Taught

There is a quote that says, "To those whom much is given, much is expected." 

One could reframe that in terms of the daily hate that's poured onto transgender people and the awful things that many have had to endure, but not hate as something that causes embitterment, but rather as a form of education in the importance of empathy and kindness:

To those whom much is taught, much is expected. 

I like this. I of all people know what it's like, so I'll do my best to be a compassionate person.

Best wishes for a compassionate day to you, whoever you are and wherever you are. 

Monday, March 3, 2014

Sherbert v. Verner, 374 U.S. 398 (1963)

Facts: A member of the Seventh Day Adventist church in South Carolina ("Claimant") was fired for not being able to work on Saturday, the Sabbath in Seventh Day Adventism. She was unable to find other work, also for being unable to work on Saturday. She filed a claim for unemployment compensation. The South Carolina Unemployment Compensation Act said that claimants must be "able to work" and "available for work" when offered work either by the "employment office" or the "employer". The South Carolina state government body administering unemployment compensation claims found her ineligible for benefits; she could not take the work that was offered. 

Procedural History: The South Carolina state government body administering unemployment compensation claims, in administrative proceedings, found her ineligible; she could not take the work that was offered. Claimant appealed to the South Carolina trial court. The administrative ruling was sustained. Claimant appealed to the South Carolina Supreme Court, arguing that the unemployment compensation ruling had abridged her First Amendment right to free exercise of religion, applied to the states through the Fourteenth Amendment. The South Carolina supreme court rejected this argument, and affirmed the lower court rulings. Claimant appeals to the United States Supreme Court.

Outcome: Reversed and remanded. 

Government may not regulate religious beliefs as such. Where it has regulated at all, it has regulated religion-related conduct that poses a threat to safety, public peace, or public order. That's not the case here. Therefore, there's a formula to be applied: Is the incidental burden on the Claimant's right to free exercise justified by a compelling state interest? 

There is a clearly a burden on Claimant's religion. Her ineligibility comes solely from her Saturday Sabbath observance. It's the same as if she had received a fine. Characterizing unemployment benefits as a 'privilege' rather than a right is still an infringement on free exercise. South Carolina doesn't force Sunday Sabbath observers to make the same choice--South Carolina has a statute that permitted textile workers to refuse without penalty to work on Sunday when the South Carolina government had authorized textile mills to operate on Sunday during times of national emergency. Thus a textile worker wouldn't find him or herself unemployed and seeking unemployment benefits for not having worked on a Sunday. 

Compelling state interest doesn't mean a mere rational relationship to a colorable state objective. Only the most serious state objectives qualify as a compelling state interest. Those were not present here. The unemployment agency argues that allowing Saturday sabbath observers will cause others to feign religious observance on Saturday. However, no evidence of that has been produced. Even if there were, the agency would have to have shown that they were unable to find another method to combat malingering without impinging on free exercise rights of sincere claimants. In Braunfield v. Brown, the court found that there was a compelling state interest in providing workers with a uniform day of rest, even though that was costly to merchants who were Orthodox Jewish, whereas here, the court finds no compelling state interest. 

The result here is not a violation of the Establishment Clause because the state remains neutral toward all beliefs. Secular and religious institutions are not being mixed. The beliefs of others are not being abridged. This decision does not extend to all people who are denied unemployment compensation because of belief--only that due to day of rest. 

Justice Douglas's Concurrence: There is a great variety of religious belief that is not in accord with the majority. These could easily be trampled on under the guise of benign laws or regulations. Justice Douglas still disagrees with the result in Braunfield v. Brown. What matters isn't the degree of injury, which may be negligible. What matters is interference with conscience. Here the churchgoer is given second class citizenship. With regard to the Establishment Clause, the payment being made to her is as an unemployed worker, not as a member of the Seventh Day Adventists, so there's no more benefit to her church than there is when she receives a paycheck.

Justice Stewart's Concurrence with the Result: (1) There's a dilemma underneath this that hasn't been resolved. It's this: The court has been positively wooden in its interpretation of the Establishment Clause. Now that's colliding with the court's interpretation of the Free Exercise clause. The court says South Carolina can't classify Claimant as "unavailable for work" because that violates her right to free exercise, yet, under the court's recent Establishment Clause cases, the opposite result would obtain. The court has said that the Establishment Clause forbids the government from financially aiding a religious belief. But that's what's being done here, for if the Claimant had wanted to watch TV on Saturday, no one would deny South Carolina's right to classify her as "unavailable for work". (2) The reasoning of this decision is inconsistent with Braunfield v. Brown. Braunfield involved a state criminal statute, whereas in this case, it's an administrative rule. Also, the financial burden on the plaintiff is less. In Braunfield, the plaintiff stood to lose the capital investment in his business if he couldn't work on Sunday. Here, the Claimant stands to lose only 22 weeks of unemployment.

Justice Harlan and Justice White's Dissent: The purpose of South Carolina's depression-era unemployment compensation law was to store up funds, during economic good times, to stave off hardship, during economic bad times. The purpose wasn't to benefit people who were unavailable for work purely for personal reasons. South Carolina hasn't directed classification of being "unavailable for work" at specific beliefs. It has simply applied it neutrally to everyone. What the court is doing is carving out an exception to the general application of the rule for the benefit of religious believers. This is significant for two reasons: (1) This decision overrules Braunfield v. Brown. A different result in Braunfield would have required judicial inquiry into a plaintiff's beliefs. Here, in the court's result in the present case, that indeed becomes necessary. (2) The majority's decision requires the state to single out of religious conduct for special treatment. If you have a religious motivation for being unavailable for work, you still get unemployment benefits. If you have a secular motivation, no matter how worthy, you don't.

This case is available on Google Scholar here