In 1957, Adele Sherbert became a member of the Seventh-Day Adventist Church while she worked for a textile mill in South Carolina. The mill changed its work week from five days to six, extending it into Saturdays in 1959. Her religious faith held that working on a Sabbath was sinful and her refusal to work on Saturdays led to her termination. South Carolina denied her unemployment compensation because she would not accept employment that required her to work on the Sabbath. She sued the state under the free exercise clause of the First Amendment. The South Carolina Supreme Court ruled against her and an appeal was made to the Supreme Court.
In 1963, in Sherbert v. Verner, the Warren Court found that the denial of unemployment benefits placed an unconstitutional burden on Ms. Sherbert’s free exercise of her religion, and that the state of South Carolina had not shown that there was a compelling state interest in the enforcement of the eligibility requirements that justified the infringement of her religious rights. It reversed the South Carolina Supreme Court ruling.
From 1963 until the late 1980s, the Sherbert Test, as it came to be known, was applied to cases involving the free exercise of religious beliefs. The test involved three related questions:
1. Did the government place an undue burden on an individual’s free exercise of religion?
If so:
2. Was there a compelling state interest that justified the burden?
3. Was the law the least restrictive method of achieving the state’s interest?
This test was confirmed in 1972’s Wisconsin v. Yoder, in which the Supreme Court unanimously ruled that the free exercise of a parent’s religious belief (in this case Amish) trumped the state’s requirement of compulsory education beyond the eighth grade.
By the late 1980s, the composition of the Supreme Court had become more conservative, and the decisions regarding the free exercise of religion began to reflect that as the Sherbert test was slowly whittled away.
In 1982, the U.S. Forest Service decided it wanted to build a road and open to timber mining a part of the Six Rivers National Forest that was considered to be sacred land by members of the Yurok, Karuk, and Tolowa Nations.
This area, as reported in a study commissioned by the Service, has historically been used by certain American Indians for religious rituals that depend upon privacy, silence, and an undisturbed natural setting. Rejecting the study's recommendation that the road not be completed through the Chimney Rock area because it would irreparably damage the sacred areas, and also rejecting alternative routes outside the National Forest, the Service selected a route through the Chimney Rock area that avoided archeological sites and was removed as far as possible from the sites used by the Indians for specific spiritual activities.
Exhausting all administrative remedies, the tribes, individual members, and the State of California brought suit against the Department of Agriculture, claiming that the road construction and timber harvesting would place an undue burden on the free exercise of the tribes’ religious beliefs. The Federal District Court issued a permanent injunction on the road building and the Agriculture Department appealed to the Rehnquist Court in 1987.
In overturning the lower Court’s ruling and finding in favor of the Agriculture Department, the Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Association written by Justice O’Connor, stated that:
construction of the proposed road does not violate the First Amendment regardless of its effect on the religious practices of the respondents because it compels no behavior contrary to their belief.
The fact that the government action would devastate their most sacred High Country was okay, because the government was not coercing them to violate their religious beliefs. Like working on a Saturday would. (Justice Brennan wrote a powerful dissent, joined by Justice Marshall and Justice Blackmun.)
In 1990, the Supreme Court ruled in Employment Division, Department of Human Resources of Oregon v. Smith, that:
The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use.
Alfred Smith and Galen Black were fired by a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of their Native American Church. Oregon denied them unemployment compensation under a state law disqualifying employees discharged for work-related "misconduct." Possession of peyote was outlawed in Oregon with no exception for religious use.
The Supreme Court moved even further away from the Sherbert test in this case, deciding that since the Oregon law regarding possession of peyote was not aimed at the practice of their religious beliefs specifically, but instead applied to all Oregon residents, it was constitutional.
According to Eugene Volokh:
Smith was broadly condemned, both by the Left and the Right. That coalition has since largely fallen apart, but it was strong back then: In 1993, Congress enacted the Religious Freedom Restoration Act, which gave religious objectors a statutory presumptive entitlement to exemption from generally applicable laws (subject to strict scrutiny). “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.” The vote in the House was unanimous, and in the Senate was 97-3.
It’s hard to believe if you’ve never lived through it, but there was a time when a major piece of legislation could pass through the House on a voice vote and pass the Senate by a vote of 97 to 3. Of course, that was before Newt Gingrich and his Contract with America.
The Religious Freedom Restoration Act (RFRA) basically reinstituted the Sherbert test. In 1997, the Supreme Court ruled that Congress had exceeded its authority when it wrote RFRA to apply to all state laws as well as federal laws. Since then, states have moved to institute their own RFRA laws, with perhaps somewhat different motives.
The RFRA is what Hobby Lobby used to claim an exemption from the Affordable Care Act’s requirement that employer provided health insurance plans include contraceptive coverage. Now, in Zubik v. Burwell, an order of nuns called the Little Sisters of the Poor, who operate a national chain of nursing homes, claim that the accommodation that the government offers them in order to avoid providing contraceptive coverage to the nursing home employees is an undue burden to their free exercise of religion.
This undue, unconstitutional burden? They have to sign a form that says they object to providing the coverage. According to briefs cited by Justice Alito, this requirement/accommodation represents “an unprecedented threat to religious liberty in this country.” Joan McCarter wrote about the case, and its possible outcomes, on Wednesday.
No one is talking about destroying their sacred places, or depriving them of a financial benefit due to their religious beliefs. But they feel that accepting the government’s accommodation would place an undue burden on their free exercise because even if they did not provide the health insurance coverage directly, they would know that someone else would. And that knowledge is an undue burden. So they can't possibly sign a form saying they object as long as doing so allows their employees to obtain coverage elsewhere.
Because somewhere, someone who unfortunate enough to work in one of their nursing homes—perhaps as an assistant or an aide working for minimum wage—might gain control over her own reproductive health. She might be financially free to make decisions, together with her physician, that the Little Sisters of the Poor may not find to be in accordance with their religious beliefs.
And we have finally gone through the looking glass.