text: Flavonoids are a group of natural compounds in plants with versatile health benefits for humans. Grapes are a dietary source of flavonoids and the flavonoid components in grape berries can depend on the grape species and cultivar. In this experiment, proanthocyanidins, flavonols, and anthocyanins were analyzed in Vitis coignetiae and V. ficifolia var. ganebu, wild grapes native to Japan, and compared with those in V. labruscana cv. Muscat Bailey A, to evaluate the potential of the wild grapes as a grape resource. Proanthocyanidin contents in seeds were lower in the two wild grapes than in Muscat Bailey A. However, the skin of V. ficifolia var. ganebu was the richest source of proanthocyanidins. Flavonol levels in the skins of the two wild grapes were lower than that in the skin of Muscat Bailey A. Colorimetry determined that the total anthocyanin content in the skin of V. ficifolia var. ganebu was 6 times and 7 times higher, respectively, than those of V. coignetiae and Muscat Bailey A. Although monoglucoside anthocyanin levels analyzed by high-pressure liquid chromatography (HPLC) were in the order Muscat Bailey A > V. ficifolia var. ganebu > V. coignetiae, most of the diglucoside and acylated monoglucoside and diglucoside anthocyanin levels identified by HPLC-mass spectrometry were highest in V. ficifolia var. ganebu. These data suggest that V. ficifolia var. ganebu might be a novel source of flavonoids and superior to V. coignetiae as a source of flavonoids.

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Walter C. BRULOTTE et al., Petitioners, v. THYS COMPANY.
Edward S. Irons, Washington, D.C., for petitioners.
Elwood Hutcheson, Yakima, Wash., for respondent.
Respondent, owner of various patents for hop-picking, sold a machine to each of the petitioners for a flat sum 1 and issued a license for its use. Under that license there is payable a minimum royalty of $500 for each hop-picking season or $3.33 1/3 per 200 pounds of dried hops harvested by the machine, whichever is greater. The licenses by their terms may not be assigned nor may the machines be removed from Yakima County. The licenses issued to petitioners listed 12 patents relating to hop-picking machines; 2 but only seven were incorporated into the machines sold to and licensed for use by petitioners. Of those seven all expired on or before 1957. But the licenses issued by respondent to them 3 continued for terms beyond that date.
Petitioners refused to make royalty payments accruing both before and after the expiration of the patents. This suit followed. One defense was misuse of the patents through extension of the license agreements beyond the expiration date of the patents. The trial court rendered judgment for respondent and the Supreme Court of Washington affirmed. 62 Wash.2d 284, 382 P.2d 271. The case is here on a writ of certiorari. 376 U.S. 905, 84 S.Ct. 666, 11 L.ed.2d 605.
We conclude that the judgment below must be reversed insofar as it allows royalties to be collected which accrued after the last of the patents incorporated into the machines had expired.
The Supreme Court of Washington held that in the present case the period during which royalties were required was only 'a reasonable amount of time over which to spread the payments for the use of the patent.' 62 Wash.2d, at 291, 382 P.2d, at 275. But there is intrinsic evidence that the agreements were not designed with that limited view. As we have seen, 4 the purchase price in each case was a flat sum, the annual payments not being part of the purchase price but royalties for use of the machine during that year. The royalty payments due for the post-expiration period are by their terms for use during that period, and are not deferred payments for use during the pre-expiration period. Nor is the case like the hypothetical ones put to us where non- patented articles are marketed at prices based on use. The machines in issue here were patented articles and the royalties exacted were the same for the post-expiration period as they were for the period of the patent. That is peculiarly significant in this case in view of other provisions of the license agreements. The license agreements prevent assignment of the machines or their removal from Yakima County after, as well as before, the expiration of the patents.
Those restrictions are apt and pertinent to protection of the patent monopoly; and their applicability to the post-expiration period is a telltale sign that the licensor was using the licenses to project its monopoly beyond the patent period. They forcefully negate the suggestion that we have here a bare arrangement for a sale or a lease at an undetermined price based on use. The sale or lease of unpatented machines on long-term payments based on a deferred purchase price or on use would present wholly different considerations. Those arrangements seldom rise to the level of a federal question. But patents are in the federal domain; and 'whatever the legal device employed' (Scott Paper Co. v. Marcalus Mfg. Co., supra, 326 U.S., at 256, 66 S.Ct., at 104) a projection of the patent monopoly after the patent expires is not enforceable. The present licenses draw no line between the term of the patent and the post-expiration period. The same provisions as respects both use and royalties are applicable to each. The contracts are, therefore, on their face a bald attempt to exact the same terms and conditions for the period after the patents have expired as they do for the monopoly period. We are, therefore, unable to conjecture what the bargaining position of the parties might have been and what resultant arrangement might have emerged had the provision for post-expiration royalties been divorced from the patent and nowise subject to its leverage.
In light of those considerations, we conclude that a patentee's use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se. If that device were available to patentees, the free market visualized for the post-expiration period would be subject to monopoly influences that have no proper place there.
Automatic Radio Co. v. Hazeltine, 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312, is not in point. While some of the patents under that license apparently had expired, the royalties claimed were not for a period when all of them had expired. 5 That license covered several hundred patents and the royalty was based on the licensee's sales, even when no patents were used. The Court held that the computation of royalty payments by that formula was a convenient and reasonable device. We decline the invitation to extend it so as to project the patent monopoly beyond the 17-year period.
A patent empowers the owner to exact royalties as high as he can negotiate with the leverage of that monopoly. But to use that leverage to project those royalty payments beyond the life of the patent is analogous to an effort to enlarge the monopoly of the patent by tieing the sale or use of the patented article to the purchase or use of unpatented ones. See Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 60 S.Ct. 618; Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 664665, 64 S.Ct. 268, 270 271, 88 L.Ed. 376, and cases cited. The exaction of royalties for use of a machine after the patent has expired is an assertion of monopoly power in the post-expiration period when, as we have seen, the patent has entered the public domain. We share the views of the Court of Appeals in Ar-Tik Systems, Inc. v. Dairy Queen, Inc., 3 Cir., 302 F.2d 496, 510, that after expiration of the last of the patents incorporated in the machines 'the grant of patent monopoly was spent' and that an attempt to project it into another term by continuation of the licensing agreement is unenforceable.
The Court holds that the Thys Company unlawfully misused its patent monopoly by contracting with purchasers of its patented machines for royalty payments based on use beyond the patent term. I think that more discriminating analysis than the Court has seen fit to give this case produces a different result.
The patent laws prohibit post-expiration restrictions on the use of patented ideas; they have no bearing on use restrictions upon nonpatented, tangible machines. We have before us a mixed case involving the sale of a tangible machine which incorporates an intangible, patented idea. My effort in what follows is to separate out these two notions, to show that there is no substantial restriction on the use of the Thys idea, and to demonstrate that what slight restriction there may be is less objectionable than other post-expiration use restrictions which are clearly acceptable.
It surely cannot be questioned that Thys could have lawfully set a fixed price for its machine and extended credit terms beyond the patent period. It is equally unquestionable, I take it, that if Thys had had no patent or if its patent had expired, it could have sold its machines at a flexible, undetermined price based on use; for example, a phonograph record manufacturer could sell a recording of a song in the public domain to a juke-box owner for an undetermined consideration based on the number of times the record was played.
Conversely it should be equally clear that if Thys licensed another manufacturer to produce hop-picking machines incorporating any of the Thys patents, royalties could not be exacted beyond the patent term. Such royalties would restrict the manufacturer's exploitation of the idea after it falls into the public domain, and no such restriction should be valid. To give another example unconnected with a tangible machine, a song writer could charge a royalty every time his songhis ideawas sung for profit during the period of copyright. But once the song falls into the public domain each and every member of the public should be free to sing it.
In fact Thys sells both a machine and the use of an idea. The company should be free to restrict the use of its machine, as in the first two examples given above. It may not restrict the use of its patented idea once it has fallen into the public domain. Whether it has done so must be the point of inquiry.
Consider the situation as of the day the patent monopoly ends. Any manufacturer is completely free to produce Thys-type hop-pickers. The farmer who has previously purchased a Thys machine is free to buy and use any other kind of machine whether or not it incorporates the Thys idea, or make one himself if he is able. Of course, he is not entitled as against Thys to the free use of any Thys machine. The Court's opinion must therefore ultimately rest on the proposition that the purchasing farmer is restricted in using his particular machine, embodying as it does an application of the patented idea, by the fact that royalties are tied directly to use.
To test this proposition I again put a hypothetical. Assume that a Thys contract called for neither an initial flat-sum payment nor any annual minimum royalties; Thys' sole recompense for giving up ownership of its machine was a royalty payment extending beyond the patent term based on use, without any requirement either to use the machine or not to use a competitor's. A moment's thought reveals that, despite the clear restriction on use both before and after the expiration of the patent term, the arrangement would involve no misuse of patent leverage. 1 Unless the Court's opinion rests on technicalities of contract draftsmanship and not on the economic substance of the transaction, the distinction between the hypothetical and the actual case lies only in the cumulative investment consisting of the initial and minimum payments independent of use, which the purchaser obligated himself to make to Thys. I fail to see why this distinguishing feature should be critical. If anything the investment will encourage the purchaser to use his machine in order to amortize the machine's fixed cost over as large a production base as possible. Yet the gravamen of the majority opinion is restriction, not encouragement, of use.
The essence of the majority opinion may lie in some notion that 'patent leverage' being used by Thys to exact use payments extending beyond the patent term somehow allows Thys to extract more onerous payments from the farmers than would otherwise be obtainable. If this be the case, the Court must in some way distinguish long-term use payments from long-term installment payments of a flat-sum purchase price. For the danger which it seems to fear would appear to inhere equally in both, and as I read the Court's opinion, the latter type of arrangement is lawful despite the fact that failure to pay an installment under a conditional sales contract would permit the seller to recapture the machine, thus terminatingnot merely restrictingthe farmer's use of it. Furthermore, since the judgments against petitioners were based almost entirely on defaults in paying the $500 minimums and not on failures to pay for aboveminimum use, 2 any such distinction of extended use payments and extended installments, even if accepted, would not justify eradicating all petitioners' obligations beyond the patent term, but only those based on use above the stated minimums; for the minimums by themselves, being payable whether or not a machine has been used, are precisely identical in substantive economic effect to flat installments.
The possibility remains that the Court is basing its decision on the technical framing of the contract and would have treated the case differently if title had been declared to pass at the termination instead of the outset of the contract term, or if the use payments had been verbally disassociated from the patent licenses and described as a convenient means of spreading out payments for the machine. If indeed the impact of the opinion is that Thys must redraft its contracts to achieve the same economic results, the decision is not only wrong, but conspicuously ineffectual.
One petitioner paid $3,125 for 'title' to a machine, the other petitioner, $3,300.
All but one of the 12 expired prior to the expiration of the license agreements. The exception was a patent whose mechanism was not incorporated in these machines.
Petitioners purchased their machines from prior purchasers under transfer agreements to which respondent was a party.
The petition for certiorari did not in the questions presented raise the question of the effect of the expiration of any of the patents on the royalty agreement. Also, the Hazeltine license, which covered many patents, exacted royalties for patents never used. But that aspect of the case is likewise not apposite here for the present licensees are farmers using the machines, not manufacturers buying the right to incorporate patents into their manufactured products.
Installment of a patented, coin-operated washing machine in the basement of an apartment building without charge except that the landlord and his tenants must deposit 25 cents for every use, should not constitute patent misuse.
Petitioner Charvet was indebted to Thysonly to the extent of the minimums; petitioner Brulotte was in default approximately $4,500 of which $3,120 was attributable to minimums.
The Court also adverts to the provisions in the license agreements prohibiting 'assignment of the machines or their removal from Yakima County' (ante, p. 32) during the terms of the agreements. Such provisions, however, are surely appropriate to secure performance of what are in effect conditional sales agreements and they do not advance the argument for patent misuse.
Furthermore, it should not be overlooked that we are dealing here with a patent, not an antitrust, case, there being no basis in the record for concluding that Thys' arrangements with its licensees were such as to run afoul of the antitrust laws.
Jane ARONSON, Petitioner, v. QUICK POINT PENCIL COMPANY.
LEAR, INCORPORATED, Petitioner, v. John S. ADKINS.
ZENITH RADIO CORPORATION, Petitioner, v. HAZELTINE RESEARCH, INC., et al.

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In Massachusetts Property, et al v. LG Electronics, U.S. Dist. Ct Mass (Oct. 22, 2012), http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FDCO%2020121023B56.xml&docbase=CSLWAR3-2007-CURR , the court denied the manufacturer's motion for summary judgment permitting the microwave fire claim to proceed to trial.
This products liability action arose out of a fire that occurred on October 15, 2008 at the home of William Rheault. The home was insured by the plaintiff, Massachusetts Property Insurance Underwriting Association ("MPIUA"). After MPIUA made payments to Mr. Rheault under the terms of his homeowner's policy, it brought this action, as subrogee of Mr. Rheault, against defendants LG Electronics U.S.A., Inc. ("LG"), General Electric Company ("GE"), and Lowe's Home Centers, Inc. ("Lowe's"), claiming that the fire was caused by a microwave oven that had been designed and manufactured by LG and GE, and had been marketed and sold to the general public by Lowe's. By its complaint, MPIUA asserted claims against LG and GE for negligence, breach of warranties, and violation of Mass. Gen. Laws ch. 93A ("Chapter 93A"), and against Lowe's for breach of warranties and violation of Chapter 93A. However, the plaintiff has since dismissed its claims against Lowe's, leaving only its claims against LG and GE.
The matter was before the court on "Defendants, LG Electronics U.S.A., Inc. and General Electric Company's Motion for Summary Judgment and Separate and Final Judgment". By their motion, LG and GE are seeking summary judgment in their favor on all of MPIUA's claims on the grounds that the plaintiff has failed to present sufficient testimony from its expert to establish that there was a defect in the microwave oven or that the defect caused the fire in Mr. Rheault's home. For all the reasons detailed below, the court found that the plaintiff's evidence was adequate to make the necessary showing. Accordingly, the defendants' motion for summary judgment and for separate and final judgment was denied.
On October 15, 2008, a kitchen fire occurred in the Beverly, Massachusetts home of MPIUA's insured, William Rheault. Members of the Beverly Fire Department responded to the scene, extinguished the fire, and conducted an investigation. During the investigation, Deputy Chief Walsh observed that "the lowest fire pattern came from the wall mounted microwave[,]" and that "[o]n the upper left side of the microwave there was a[n] up and out pattern that extended to the upper cabinet and burned into the inside of the cabinet." He subsequently reported, based on an examination of the scene by a fire investigator/electrician, that "[t]he most probable cause of ignition was found to be the malfunctioning microwave."
Following the fire, MPIUA retained Richard J. Splaine, ME, CFI of Splaine Investigations Inc. to conduct an investigation into the origin and cause of the fire. Mr. Splaine examined Mr. Rheault's property and conducted interviews with the homeowner and the Beverly fire investigator. In a letter to the plaintiff dated November 5, 2008, Mr. Splaine opined that the fire had originated "in the kitchen at the location of the microwave oven[,] and that "[t]he ignition source of the fire came from a malfunction within the microwave oven at the top where the fan motor, circuit board and control circuitry is located." He further stated that his investigation "eliminated the mechanical and electrical components of the dwelling, including the plug that was used to energize the microwave." Mr. Splaine's opinion is the only expert opinion that has been produced by MPIUA in connection with the defendants' motion for summary judgment.
It is undisputed that Mr. Rheault purchased the microwave oven approximately two to three months before the fire, and that he did not alter, repair, or otherwise manipulate the microwave oven after he installed it in his home. Furthermore, there is no dispute that on the date of the fire, the microwave was in the same condition as it had been in on the date it was purchased. Mr. Rheault reported that he had used the microwave at lunch time on the day of the fire, and had not noticed any problems.
The defendants argued that they were entitled to summary judgment because MPIUA has failed to produce evidence necessary to prove its claims against them for negligence and breach of warranties. In particular, the defendants argued that the plaintiff had failed to come forward with expert testimony establishing that there was a defect in the microwave oven, or that any such defect caused the fire giving rise to its claims. The court found that MPIUA's reliance on Mr. Splaine's expert opinion was sufficient to make the requisite showing. Therefore, MPIUA has set forth specific facts showing that there is a genuine issue for trial.
In order to prevail on claims for negligence and breach of warranties in a products liability action, the plaintiff must present evidence showing that there was a defect in the design or manufacture of the product at the time it was sold, and that the defect caused the plaintiff's damages. See Santos v. Sunrise Med., Inc., 351 F.3d 587, 591-92 (1st Cir. 2003) (affirming denial of defendant's motion for judgment as a matter of law on plaintiff's negligence and breach of warranty claims where reasonable jury could have found that the accident was caused by a design defect in a hydraulic lift, and that defect existed at the time it left the manufacturer). Moreover, because "[t]he presence of such a defect cannot be inferred in the absence of expert testimony[,]" it is incumbent upon the plaintiff to present expert testimony identifying the defect and linking that defect to the alleged harm. Enrich v. Windmere Corp., 416 Mass. 83, 87, 616 N.E.2d 1081, 1084 (1993). See also Goffredo v. Mercedes-Benz Truck Co., Inc., 402 Mass. 97, 104, 520 N.E.2d 1315, 1319 (1988) (finding that the "nature of the alleged design defect and the causal relation between the defect and the plaintiff's accident were appropriately the subject of expert testimony"). In the instant case, it is undisputed that at the time of the fire, the microwave oven was in the same condition as it had been in at the time it was sold to Mr. Rheault. Furthermore, MPIUA has presented Mr. Splaine's expert opinion that the cause of the fire was "a malfunction within the microwave oven at the top where the fan motor, circuit board and control circuitry is located" to show that there was a defect in the microwave which caused the fire and resulted in the plaintiff's loss.
The defendants contended that Mr. Splaine's opinion is insufficient to satisfy the plaintiff's burden of proof because it does not "specify[ ] a defect which existed at the time of the microwave's sale and the manner in which any such defect caused the fire." This court disagrees. As illustrated by the decision of the Massachusetts Appeals Court in Collins v. Sears, Roebuck & Co., 31 Mass.App.Ct. 961, 583 N.E.2d 873 (1992), a case involving facts that are strikingly similar to those presented in this case, Mr. Splaine's opinion is adequate to satisfy the plaintiff's evidentiary burden under Massachusetts law. In Collins, the purchasers of an electric dryer brought an action against the retailer, Sears, Roebuck & Co. ("Sears"), claiming that Sears had breached the implied warranty of merchantability, and that its breach had resulted in a fire which destroyed their home. Collins, 31 Mass. App. Ct. at 961, 583 N.E.2d at 873. After a jury returned a verdict in favor of the plaintiffs, Sears appealed, arguing in relevant part that the evidence was insufficient to sustain the verdict. Id. at 961, 583 N.E.2d at 874. The Appeals Court disagreed and affirmed the judgment.
The Appeals Court explained, as an initial matter, that in order to prevail on their warranty claim, "the plaintiffs had the burden of showing that a defect existed in the dryer at the time of sale." Id. It then examined the evidence on that point in the light most favorable to the plaintiffs. Id. Significantly, the Court noted that the plaintiffs had not experienced any problems with the dryer prior to the fire. Id. It also emphasized that during the trial, the plaintiffs had introduced testimony from two experts. Id. at 961-62, 583 N.E.2d at 874. The first expert testified "that the fire started directly behind the dryer[,]" and the second expert opined that "the probable cause of the fire was the electrical system within the dryer." Id. The Appeals Court found that this evidence "was sufficient to warrant an inference on the jury's part that some defect in the electrical system, present at the time of sale, caused the fire." Id. at 962, 583 N.E.2d at 874.
The Collins court specifically rejected Sears' argument that the plaintiffs had not met their burden because their expert in electrical systems was unable to identify the precise defect within the dryer's electrical system. Id. In particular, the Court acknowledged that greater specificity likely was not possible in light of the damage to the dryer that had been caused by the fire, and it noted the lack of any precedent "requiring a higher degree of specificity in the circumstances." Id. Accordingly, the Appeals Court found that "it was sufficient for [the expert] to link the fire to the electrical system generally without being specific as to the exact defective part[,]" and it upheld the judgment in favor of the plaintiffs.
The facts described in Collins demonstrate that Mr. Splaine's testimony is sufficient to withstand summary judgment in this case. Thus, although Mr. Splaine did not specifically use the word "defect" to describe the cause of the fire, and did not pinpoint the precise source of the ignition within the microwave oven, Collins illustrates that no such specificity is required for MPIUA to prevail on its products liability claims. Rather, under Collins, Mr. Splaine's opinion that the fire was caused by "a malfunction within the microwave oven at the top where the fan motor, circuit board and control circuitry is located," coupled with the undisputed fact that the microwave was in the same condition on the date of the fire as it had been in on the date of purchase, supports a reasonable inference that some defect in the microwave oven, present at the time of sale, caused the fire in Mr. Rheault's kitchen. Therefore, the plaintiff has shown that there is a genuine issue of disputed fact, which warrants the denial of the defendants' motion.
The defendants nevertheless suggest that Collins should not be controlling here because it constitutes "a departure from the weight of authority of the Massachusetts Supreme Judicial Court concerning the sufficiency of evidence in a product liability case." However, Collins has never been overruled by the Supreme Judicial Court ("SJC") and remains good law. In fact, in Enrich, a case highlighted by the defendants in support of their motion, the SJC cited Collins in support of its ruling that that "[t]he presence of . . . a defect cannot be inferred in the absence of expert testimony." Enrich, 416 Mass. at 87, 616 N.E.2d at 1084. The First Circuit also has cited Collins without questioning its authority. See Santos, 351 F.3d at 591.
Furthermore, nothing in the SJC cases referenced by the defendants suggests that Collins is an aberration from the ordinary standard applied to products liability cases under Massachusetts law. In most of those cases, the SJC upheld a judgment in favor of the defendant because the plaintiff had failed to present any expert testimony at all. See Enrich, 416 Mass. at 83-89, 616 N.E.2d at 1082-85 (affirming directed verdict for defendant on claims for negligence, breach of warranty and violation of Chapter 93A where plaintiff failed to present expert testimony to establish presence of a defect which caused the harm); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 708-17, 575 N.E.2d 734, 736-41 (1991) (affirming summary judgment for defendant on plaintiff's products liability claims where plaintiff had no expert to prove the existence of a defect at the time the product was purchased); Triangle Dress, Inc. v. Bay State Serv., Inc., 356 Mass. 440, 441-42, 252 N.E.2d 889, 891 (1969) (finding that plaintiff's evidence was insufficient to warrant submission of negligence claim to jury where there was "a complete absence of expert opinion testimony" and jury was "left to conjecture and surmise about the cause of the fire" (quotations and citations omitted)). In the remaining case, the SJC upheld a judgment for the defendant because the plaintiff's expert "was unable to state his opinion in terms of probabilities and not possibilities[,]" and his opinion was speculative and lacked probative value. Goffredo, 402 Mass. at 102-03, 520 N.E.2d at 1318. Nothing in these cases is at odds with the Appeals Court's decision in Collins. Therefore, the defendants have not shown that Collins conflicts with the weight of authority, or that it should not apply in this case. Because Collins is directly applicable to the facts of this case, and supports MPIUA's products liability claims in this matter, the defendants' motion for summary judgment is denied.

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Appellant, a member of the Seventh-Day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. She was unable to obtain other employment because she would not work on Saturday, and she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act, which provides that a claimant is ineligible for benefits if he has failed, without good cause, to accept available suitable work when offered him. The State Commission denied appellant's application on the ground that she would not accept suitable work when offered, and its action was sustained by the State Supreme Court. Held: As so applied, the South Carolina statute abridged appellant's right to the free exercise of her religion, in violation of the First Amendment, made applicable to the states by the Fourteenth Amendment. Pp. 399-410.
(a) Disqualification of appellant for unemployment compensation benefits, solely because of her refusal to accept employment in which she would have to work on Saturday contrary to her religious belief, imposes an unconstitutional burden on the free exercise of her religion. Pp. 403-406.
(b) There is no compelling state interest enforced in the eligibility provisions of the South Carolina statute which justifies the substantial infringement of appellant's right to religious freedom under the First Amendment. Pp. 406-409.
(c) This decision does not foster the "establishment" of the Seventh-Day Adventist religion in South Carolina contrary to the First Amendment. Pp. 409-410.
240 S. C. 286, 125 S. E. 2d 737, reversed.
Daniel R. McLeod, Attorney General of South Carolina, argued the cause for appellees. With him on the brief was Victor S. Evans, Assistant Attorney General.
Appellant, a member of the Seventh-day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. 1 When she was unable to obtain other employment because from conscientious scruples she would not take Saturday work, 2 she filed a claim for [374 U.S. 398, 400] unemployment compensation benefits under the South Carolina Unemployment Compensation Act. 3 That law provides that, to be eligible for benefits, a claimant must be "able to work and . . . available for work"; and, further, [374 U.S. 398, 401] that a claimant is ineligible for benefits "[i]f. . . he has failed, without good cause . . . to accept available suitable work when offered him by the employment office or the employer . . . ." The appellee Employment Security Commission, in administrative proceedings under the statute, found that appellant's restriction upon her availability for Saturday work brought her within the provision disqualifying for benefits insured workers who fail, without good cause, to accept "suitable work when offered. . . by the employment office or the employer . . ." The Commission's finding was sustained by the Court of Common Pleas for Spartanburg County. That court's judgment was in turn affirmed by the South Carolina Supreme Court, which rejected appellant's contention that, as applied to her, the disqualifying provisions of the South Carolina statute abridged her right to the free exercise of her religion secured under the Free Exercise Clause of the First Amendment through the Fourteenth Amendment. The State Supreme Court held specifically that appellant's ineligibility infringed no constitutional liberties because such a construction of the statute "places no restriction upon the appellant's freedom of religion nor does it in any way prevent her in the exercise of her right and freedom to observe her religious beliefs in accordance with the dictates of her conscience." 240 S. C. 286, 303-304, 125 S. E. 2d 737, 746. 4 We noted probable [374 U.S. 398, 402] jurisdiction of appellant's appeal. 371 U.S. 938 . We reverse the judgment of the South Carolina Supreme Court and remand for further proceedings not inconsistent with this opinion.
The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U.S. 296, 303 . Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U.S. 488 ; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U.S. 67 ; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U.S. 105 ; Follett v. McCormick, 321 U.S. 573 ; cf. Grosjean v. American Press Co., 297 U.S. 233 . On the other hand, [374 U.S. 398, 403] the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for "even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions." Braunfeld v. Brown, 366 U.S. 599, 603 . The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e. g., Reynolds v. United States, 98 U.S. 145 ; Jacobson v. Massachusetts, 197 U.S. 11 ; Prince v. Massachusetts, 321 U.S. 158 ; Cleveland v. United States, 329 U.S. 14 .
Plainly enough, appellant's conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant's constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's religion may be justified by a "compelling state interest in the regulation of a subject within the State's constitutional power to regulate . . . ." NAACP v. Button, 371 U.S. 415, 438 .
We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant's religion. We think it is clear that it does. In a sense the consequences of such a disqualification to religious principles and practices may be only an indirect result of welfare legislation within the State's general competence to enact; it is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our [374 U.S. 398, 404] inquiry. 5 For "[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect." Braunfeld v. Brown, supra, at 607. Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.
Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's "right" but merely a "privilege." It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. 6 American [374 U.S. 398, 405] Communications Assn. v. Douds, 339 U.S. 382, 390 ; Wieman v. Updegraff, 344 U.S. 183, 191 -192; Hannegan v. Esquire, Inc., 327 U.S. 146, 155 -156. For example, in Flemming v. Nestor, 363 U.S. 603, 611 , the Court recognized with respect to Federal Social Security benefits that "[t]he interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause." In Speiser v. Randall, 357 U.S. 513 , we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms. We there struck down a condition which limited the availability of a tax exemption to those members of the exempted class who affirmed their loyalty to the state government granting the exemption. While the State was surely under no obligation to afford such an exemption, we held that the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression and thereby threatened to "produce a result which the State could not command directly." 357 U.S., [374 U.S. 398, 406] at 526. "To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech." Id., at 518. Likewise, 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.
Significantly South Carolina expressly saves the Sunday worshipper from having to make the kind of choice which we here hold infringes the Sabbatarian's religious liberty. When in times of "national emergency" the textile plants are authorized by the State Commissioner of Labor to operate on Sunday, "no employee shall be required to work on Sunday . . . who is conscientiously opposed to Sunday work; and if any employee should refuse to work on Sunday on account of conscientious . . . objections he or she shall not jeopardize his or her seniority by such refusal or be discriminated against in any other manner." S. C. Code, 64-4. No question of the disqualification of a Sunday worshipper for benefits is likely to arise, since we cannot suppose that an employer will discharge him in violation of this statute. The unconstitutionality of the disqualification of the Sabbatarian is thus compounded by the religious discrimination which South Carolina's general statutory scheme necessarily effects.
We must next consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant's First Amendment right. It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, "[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation," Thomas v. Collins, 323 U.S. 516, 530 . [374 U.S. 398, 407] No such abuse or danger has been advanced in the present case. The appellees suggest no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work. But that possibility is not apposite here because no such objection appears to have been made before the South Carolina Supreme Court, and we are unwilling to assess the importance of an asserted state interest without the views of the state court. Nor, if the contention had been made below, would the record appear to sustain it; there is no proof whatever to warrant such fears of malingering or deceit as those which the respondents now advance. Even if consideration of such evidence is not foreclosed by the prohibition against judicial inquiry into the truth or falsity of religious beliefs, United States v. Ballard, 322 U.S. 78 - a question as to which we intimate no view since it is not before us - it is highly doubtful whether such evidence would be sufficient to warrant a substantial infringement of religious liberties. For even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights. 7 Cf. Shelton v. Tucker, 364 U.S. 479 , [374 U.S. 398, 408] 487-490; Talley v. California, 362 U.S. 60, 64 ; Schneider v. State, 308 U.S. 147, 161 ; Martin v. Struthers, 319 U.S. 141, 144 -149.
In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. See School District of Abington Township v. Schempp, ante, p. 203. Nor does the recognition of the appellant's right to unemployment benefits under the state statute serve to abridge any other person's religious liberties. Nor do we, by our decision today, declare the existence of a constitutional right to unemployment benefits on the part [374 U.S. 398, 410] of all persons whose religious convictions are the cause of their unemployment. This is not a case in which an employee's religious convictions serve to make him a nonproductive member of society. See note 2, supra. Finally, nothing we say today constrains the States to adopt any particular form or scheme of unemployment compensation. Our holding today is only that South Carolina may not constitutionally apply the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest. This holding but reaffirms a principle that we announced a decade and a half ago, namely that no State may "exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Everson v. Board of Education, 330 U.S. 1, 16 .
[ Footnote 1 ] Appellant became a member of the Seventh-day Adventist Church in 1957, at a time when her employer, a textile-mill operator, permitted her to work a five-day week. It was not until 1959 that the work week was changed to six days, including Saturday, for all three shifts in the employer's mill. No question has been raised in this case concerning the sincerity of appellant's religious beliefs. Nor is there any doubt that the prohibition against Saturday labor is a basic tenet of the Seventh-day Adventist creed, based upon that religion's interpretation of the Holy Bible.
[ Footnote 2 ] After her discharge, appellant sought employment with three other mills in the Spartanburg area, but found no suitable five-day work available at any of the mills. In filing her claim with the Commission, she expressed a willingness to accept employment at other mills, or even in another industry, so long as Saturday work was not required. The record indicates that of the 150 or more Seventh-day Adventists in the Spartanburg area, only appellant and one other have been unable to find suitable non-Saturday employment.
" 68-113. Conditions of eligibility for benefits. - An unemployed insured worker shall be eligible to receive benefits with respect to any week only if the Commission finds that: . . .
"(3) He is able to work and is available for work, but no claimant shall be considered available for work if engaged in self-employment of such nature as to return or promise remuneration in excess of the weekly benefit amounts he would have received if otherwise unemployed over such period of time. . . .
" 68-114. Disqualification for benefits. - Any insured worker shall be ineligible for benefits: . . .
"(2) Discharge for misconduct. - If the Commission finds that he has been discharged for misconduct connected with his most recent work prior to filing a request for determination of insured status or a request for initiation of a claim series within an established benefit year, with such ineligibility beginning with the effective date of such request, and continuing not less than five nor more than the next twenty-two consecutive weeks (in addition to the waiting period), as determined by the Commission in each case according to the seriousness of the misconduct . . . .
"(3) Failure to accept work. - (a) If the Commission finds that he has failed, without good cause, (i) either to apply for available suitable work, when so directed by the employment office or the Commission, (ii) to accept available suitable work when offered him by the employment office or the employer or (iii) to return to his customary self-employment (if any) when so directed by the Commission, such ineligibility shall continue for a period of five weeks (the week in which such failure occurred and the next four weeks in addition to the waiting period) as determined by the Commission according to the circumstances in each case . . . .
[ Footnote 4 ] It has been suggested that appellant is not within the class entitled to benefits under the South Carolina statute because her unemployment did not result from discharge or layoff due to lack of work. It is true that unavailability for work for some personal reasons not having to do with matters of conscience or religion has been held to be a basis of disqualification for benefits. See, e. g., Judson Mills v. South Carolina Unemployment Compensation Comm'n, 204 S. C. 37, 28 S. E. 2d 535; Stone Mfg. Co. v. South Carolina Employment Security Comm'n, 219 S. C. 239, 64 S. E. 2d 644. But appellant claims that the Free Exercise Clause prevents the State from basing the denial of benefits upon the "personal reason" she gives for not working on [374 U.S. 398, 402] Saturday. Where the consequence of disqualification so directly affects First Amendment rights, surely we should not conclude that every "personal reason" is a basis for disqualification in the absence of explicit language to that effect in the statute or decisions of the South Carolina Supreme Court. Nothing we have found in the statute or in the cited decisions, cf. Lee v. Spartan Mills, 7 CCH Unemployment Ins. Rep. S. C. § 8156 (C. P. 1944), and certainly nothing in the South Carolina Court's opinion in this case so construes the statute. Indeed, the contrary seems to have been that court's basic assumption, for if the eligibility provisions were thus limited, it would have been unnecessary for the court to have decided appellant's constitutional challenge to the application of the statute under the Free Exercise Clause.
Likewise, the decision of the State Supreme Court does not rest upon a finding that appellant was disqualified for benefits because she had been "discharged for misconduct" - by reason of her Saturday absences - within the meaning of 68-114 (2). That ground was not adopted by the South Carolina Supreme Court, and the appellees do not urge in this Court that the disqualification rests upon that ground.
". . . the fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect `discouragements' undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes. A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature." American Communications Assn. v. Douds, 339 U.S. 382, 402 . Cf. Smith v. California, 361 U.S. 147, 153 -155.
[ Footnote 6 ] See for examples of conditions and qualifications upon governmental privileges and benefits which have been invalidated because of their tendency to inhibit constitutionally protected activity, Steinberg v. United States, 143 Ct. Cl. 1, 163 F. Supp. 590; Syrek v. California [374 U.S. 398, 405] Unemployment Ins. Board, 54 Cal. 2d 519, 354 P.2d 625; Fino v. Maryland Employment Security Board, 218 Md. 504, 147 A. 2d 738; Chicago Housing Authority v. Blackman, 4 Ill. 2d 319, 122 N. E. 2d 522; Housing Authority of Los Angeles v. Cordova, 130 Cal. App. 2d 883, 279 P.2d 215; Lawson v. Housing Authority of Milwaukee, 270 Wis. 269, 70 N. W. 2d 605; Danskin v. San Diego Unified School District, 28 Cal. 2d 536, 171 P.2d 885; American Civil Liberties Union v. Board of Education, 55 Cal. 2d 167, 359 P.2d 45; cf. City of Baltimore v. A. S. Abell Co., 218 Md. 273, 145 A. 2d 111. See also Willcox, Invasions of the First Amendment Through Conditioned Public Spending, 41 Cornell L. Q. 12 (1955); Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 942-943 (1963); 36 N. Y. U. L. Rev. 1052 (1961); 9 Kan. L. Rev. 346 (1961); Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595, 1599-1602 (1960).
[ Footnote 7 ] We note that before the instant decision, state supreme courts had, without exception, granted benefits to persons who were physically available for work but unable to find suitable employment solely because of a religious prohibition against Saturday work. E. g., In re Miller, 243 N.C. 509, 91 S. E. 2d 241; Swenson v. Michigan Employment Security Comm'n, 340 Mich. 430, 65 N. W. 2d 709; Tary v. Board of Review, 161 Ohio St. 251, 119 N. E. 2d 56. Cf. Kut v. Albers Super Markets, Inc., 146 Ohio St. 522, 66 N. E. 2d 643, appeal dismissed sub nom. Kut v. Bureau of Unemployment Compensation, 329 U.S. 669 . One author has observed, "the law was settled that [374 U.S. 398, 408] conscientious objections to work on the Sabbath made such work unsuitable and that such objectors were nevertheless available for work. . . . A contrary opinion would make the unemployment compensation law unconstitutional, as a violation of freedom of religion. Religious convictions, strongly held, are so impelling as to constitute good cause for refusal. Since availability refers to suitable work, religious observers were not unavailable because they excluded Sabbath work." Altman, Availability for Work: A Study in Unemployment Compensation (1950), 187. See also Sanders, Disqualification for Unemployment Insurance, 8 Vand. L. Rev. 307, 327-328 (1955); 34 N.C. L. Rev. 591 (1956); cf. Freeman, Able To Work and Available for Work, 55 Yale L. J. 123, 131 (1945). Of the 47 States which have eligibility provisions similar to those of the South Carolina statute, only 28 appear to have given administrative rulings concerning the eligibility of persons whose religious convictions prevented them from accepting available work. Twenty-two of those States have held such persons entitled to benefits, although apparently only one such decision rests exclusively upon the federal constitutional ground which constitutes the basis of our decision. See 111 U. of Pa. L. Rev. 253, and n. 3 (1962); 34 N.C. L. Rev. 591, 602, n. 60 (1956).
[ Footnote 8 ] See Note, State Sunday Laws and the Religious Guarantees of the Federal Constitution, 73 Harv. L. Rev. 729, 741-745 (1960).
[ Footnote 9 ] These considerations also distinguish the quite different case of Flemming v. Nestor, supra, upon which appellees rely. In that case the Court found that the compelling federal interests which underlay the decision of Congress to impose such a disqualification justified whatever effect the denial of social security benefits may have had upon the disqualified class. See 363 U.S., at 612 . And compare Torcaso v. Watkins, supra, in which an undoubted state interest in ensuring the veracity and trustworthiness of Notaries Public was held insufficient to justify the substantial infringement upon the religious freedom of applicants for that position which resulted from a required oath of belief in God. See 74 Harv. L. Rev. 611, 612-613 (1961); 109 U. of Pa. L. Rev. 611, 614-616 (1961).
The case we have for decision seems to me to be of small dimensions, though profoundly important. The question is whether the South Carolina law which denies unemployment compensation to a Seventh-day Adventist, who, because of her religion, has declined to work on her Sabbath, is a law "prohibiting the free exercise" of religion as those words are used in the First Amendment. [374 U.S. 398, 411] It seems obvious to me that this law does run afoul of that clause.
These suffice, however, to show that many people hold beliefs alien to the majority of our society - beliefs that are protected by the First Amendment but which could easily be trod upon under the guise of "police" or "health" regulations reflecting the majority's views.
Some have thought that a majority of a community can, through state action, compel a minority to observe their particular religious scruples so long as the majority's rule can be said to perform some valid secular function. [374 U.S. 398, 412] That was the essence of the Court's decision in the Sunday Blue Law Cases (Gallagher v. Crown Kosher Market, 366 U.S. 617 ; Braunfeld v. Brown, 366 U.S. 599 ; McGowan v. Maryland, 366 U.S. 420 ), a ruling from which I then dissented (McGowan v. Maryland, supra, pp. 575-576) and still dissent. See Arlan's Dept. Store v. Kentucky, 371 U.S. 218 .
The result turns not on the degree of injury, which may indeed be nonexistent by ordinary standards. The harm is the interference with the individual's scruples or conscience - an important area of privacy which the First Amendment fences off from government. The interference here is as plain as it is in Soviet Russia, where a churchgoer is given a second-class citizenship, resulting in harm though perhaps not in measurable damages.
Those considerations, however, are not relevant here. If appellant is otherwise qualified for unemployment benefits, payments will be made to her not as a Seventh-day Adventist, but as an unemployed worker. Conceivably these payments will indirectly benefit her church, [374 U.S. 398, 413] but no more so than does the salary of any public employee. Thus, this case does not involve the problems of direct or indirect state assistance to a religious organization - matters relevant to the Establishment Clause, not in issue here.
[ Footnote 1 ] See Shorter Encyclopaedia of Islam (Cornell Press, 1953), 336, 493.
[ Footnote 2 ] See Narasu, The Essence of Buddhism (3d ed. 1948), 52-55; 6 Encyclopaedia of Religion and Ethics (1913), 63-65.
[ Footnote 3 ] See Seventh-day Adventists Answer Questions on Doctrine (1957), 149-153, 622-624; Mitchell, Seventh-Day Adventists (1st ed. 1958), 127, 176-178.
Although fully agreeing with the result which the Court reaches in this case, I cannot join the Court's opinion. This case presents a double-barreled dilemma, which in all candor I think the Court's opinion has not succeeded in papering over. The dilemma ought to be resolved.
Twenty-three years ago in Cantwell v. Connecticut, 310 U.S. 296, 303 , the Court said that both the Establishment Clause and the Free Exercise Clause of the First Amendment were made wholly applicable to the States by the Fourteenth Amendment. In the intervening years several cases involving claims of state abridgment of individual religious freedom have been decided here - most recently Braunfeld v. Brown, 366 U.S. 599 , and Torcaso v. Watkins, 367 U.S. 488 . During the same period "cases dealing with the specific problems arising under the `Establishment' Clause which have reached this Court are few in number." 1 The most recent are last Term's Engel v. Vitale, 370 U.S. 421 , and this Term's Schempp and Murray cases, ante, p. 203.
I am convinced that no liberty is more essential to the continued vitality of the free society which our Constitution guarantees than is the religious liberty protected by the Free Exercise Clause explicit in the First Amendment and imbedded in the Fourteenth. And I regret that on [374 U.S. 398, 414] occasion, and specifically in Braunfeld v. Brown, supra, the Court has shown what has seemed to me a distressing insensitivity to the appropriate demands of this constitutional guarantee. By contrast I think that the Court's approach to the Establishment Clause has on occasion, and specifically in Engel, Schempp and Murray, been not only insensitive, but positively wooden, and that the Court has accorded to the Establishment Clause a meaning which neither the words, the history, nor the intention of the authors of that specific constitutional provision even remotely suggests.
But my views as to the correctness of the Court's decisions in these cases are beside the point here. The point is that the decisions are on the books. And the result is that there are many situations where legitimate claims under the Free Exercise Clause will run into head-on collision with the Court's insensitive and sterile construction of the Establishment Clause. 2 The controversy now before us is clearly such a case.
Because the appellant refuses to accept available jobs which would require her to work on Saturdays, South Carolina has declined to pay unemployment compensation benefits to her. Her refusal to work on Saturdays is based on the tenets of her religious faith. The Court says that South Carolina cannot under these circumstances declare her to be not "available for work" within the meaning of its statute because to do so would violate her constitutional right to the free exercise of her religion.
Yet what this Court has said about the Establishment Clause must inevitably lead to a diametrically opposite result. If the appellant's refusal to work on Saturdays [374 U.S. 398, 415] were based on indolence, or on a compulsive desire to watch the Saturday television programs, no one would say that South Carolina could not hold that she was not "available for work" within the meaning of its statute. That being so, the Establishment Clause as construed by this Court not only permits but affirmatively requires South Carolina equally to deny the appellant's claim for unemployment compensation when her refusal to work on Saturdays is based upon her religious creed. For, as said in Everson v. Board of Education, 330 U.S. 1, 11 , the Establishment Clause bespeaks "a government . . . stripped of all power . . . to support, or otherwise to assist any or all religions . . .," and no State "can pass laws which aid one religion . . . ." Id., at 15. In Mr. Justice Rutledge's words, adopted by the Court today in Schempp, ante, p. 217, the Establishment Clause forbids "every form of public aid or support for religion." 330 U.S., at 32 . In the words of the Court in Engel v. Vitale, 370 U.S., at 431 , reaffirmed today in the Schempp case, ante, p. 221, the Establishment Clause forbids the "financial support of government" to be "placed behind a particular religious belief."
To require South Carolina to so administer its laws as to pay public money to the appellant under the circumstances of this case is thus clearly to require the State to violate the Establishment Clause as construed by this Court. This poses no problem for me, because I think the Court's mechanistic concept of the Establishment Clause is historically unsound and constitutionally wrong. I think the process of constitutional decision in the area of the relationships between government and religion demands considerably more than the invocation of broadbrushed rhetoric of the kind I have quoted. And I think that the guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and accommodation [374 U.S. 398, 416] to individual belief or disbelief. In short, I think our Constitution commands the positive protection by government of religious freedom - not only for a minority, however small - not only for the majority, however large - but for each of us.
South Carolina would deny unemployment benefits to a mother unavailable for work on Saturdays because she was unable to get a babysitter. 3 Thus, we do not have before us a situation where a State provides unemployment compensation generally, and singles out for disqualification only those persons who are unavailable for work on religious grounds. This is not, in short, a scheme which operates so as to discriminate against religion as such. But the Court nevertheless holds that the State must prefer a religious over a secular ground for being unavailable for work - that state financial support of the appellant's religion is constitutionally required to carry out "the governmental obligation of neutrality in the face of religious differences. . . ."
Yet in cases decided under the Establishment Clause the Court has decreed otherwise. It has decreed that government must blind itself to the differing religious beliefs and traditions of the people. With all respect, I think it is the Court's duty to face up to the dilemma posed by the conflict between the Free Exercise Clause of the Constitution and the Establishment Clause as interpreted by the Court. It is a duty, I submit, which we owe to the people, the States, and the Nation, and a duty which we owe to ourselves. For so long as the resounding but fallacious fundamentalist rhetoric of some of our Establishment Clause opinions remains on our books, to be disregarded at will as in the present case, [374 U.S. 398, 417] or to be undiscriminatingly invoked as in the Schempp case, ante, p. 203, so long will the possibility of consistent and perceptive decision in this most difficult and delicate area of constitutional law be impeded and impaired. And so long, I fear, will the guarantee of true religious freedom in our pluralistic society be uncertain and insecure.
My second difference with the Court's opinion is that I cannot agree that today's decision can stand consistently with Braunfeld v. Brown, supra. The Court says that there was a "less direct burden upon religious practices" in that case than in this. With all respect, I think the Court is mistaken, simply as a matter of fact. The Braunfeld case involved a state criminal statute. The undisputed effect of that statute, as pointed out by MR. JUSTICE BRENNAN in his dissenting opinion in that case, was that "`Plaintiff, Abraham Braunfeld, will be unable to continue in his business if he may not stay open on Sunday and he will thereby lose his capital investment.' In other words, the issue in this case - and we do not understand either appellees or the Court to contend otherwise - is whether a State may put an individual to a choice between his business and his religion." 366 U.S., at 611 .
The impact upon the appellant's religious freedom in the present case is considerably less onerous. We deal here not with a criminal statute, but with the particularized administration of South Carolina's Unemployment Compensation Act. Even upon the unlikely assumption that the appellant could not find suitable non-Saturday employment, 4 the appellant at the worst would be denied [374 U.S. 398, 418] a maximum of 22 weeks of compensation payments. I agree with the Court that the possibility of that denial is enough to infringe upon the appellant's constitutional right to the free exercise of her religion. But it is clear to me that in order to reach this conclusion the Court must explicitly reject the reasoning of Braunfeld v. Brown. I think the Braunfeld case was wrongly decided and should be overruled, and accordingly I concur in the result reached by the Court in the case before us.
[ Footnote 1 ] McGowan v. Maryland, 366 U.S. 420, 442 .
[ Footnote 2 ] The obvious potentiality of such collision has been studiously ignored by the Court, but has not escaped the perception of commentators. See, e. g., Katz, Freedom of Religion and State Neutrality, 20 U. of Chi. L. Rev. 426, 428 (1953); Kauper, Prayer, Public Schools and the Supreme Court, 61 Mich. L. Rev. 1031, 1053 (1963).
[ Footnote 3 ] See Judson Mills v. South Carolina Unemployment Compensation Comm'n, 204 S. C. 37, 28 S. E. 2d 535; Hartsville Cotton Mill v. South Carolina Employment Security Comm'n, 224 S. C. 407, 79 S. E. 2d 381.
[ Footnote 4 ] As noted by the Court, "The record indicates that of the 150 or more Seventh-day Adventists in the Spartanburg area, only appellant and one other have been unable to find suitable non-Saturday employment." Ante, P. 399, n. 2.
The South Carolina Supreme Court has uniformly applied this law in conformity with its clearly expressed purpose. It has consistently held that one is not "available for work" if his unemployment has resulted not from the inability of industry to provide a job but rather from personal circumstances, no matter how compelling. The reference to "involuntary unemployment" in the legislative statement of policy, whatever a sociologist, philosopher, or theologian might say, has been interpreted not to embrace such personal circumstances. See, e. g., Judson Mills v. South Carolina Unemployment Compensation Comm'n, 204 S. C. 37, 28 S. E. 2d 535 (claimant was "unavailable for work" when she became unable to work the third shift, and limited her availability to the other two, because of the need to care for her four children); Stone Mfg. Co. v. South Carolina Employment Security Comm'n, 219 S. C. 239, 64 S. E. 2d 644; Hartsville Cotton Mill v. South Carolina Employment Security Comm'n, 224 S. C. 407, 79 S. E. 2d 381.
Second, the implications of the present decision are far more troublesome than its apparently narrow dimensions would indicate at first glance. The meaning of today's holding, as already noted, is that the State must furnish unemployment benefits to one who is unavailable for work if the unavailability stems from the exercise of religious convictions. The State, in other words, must single out for financial assistance those whose behavior is religiously motivated, even though it denies such assistance to others whose identical behavior (in this case, inability to work on Saturdays) is not religiously motivated.
It has been suggested that such singling out of religious conduct for special treatment may violate the constitutional limitations on state action. See Kurland, Of Church and State and The Supreme Court, 29 U. of Chi. L. Rev. 1; cf. Cammarano v. United States, 358 U.S. 498, 515 (concurring opinion). My own view, however, is that at least under the circumstances of this case it would be a permissible accommodation of religion for the State, if it chose to do so, to create an exception to its eligibility requirements for persons like the appellant. The constitutional obligation of "neutrality," see School District of Abington Township v. Schempp, ante, p. 222, is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation. There are too many instances in which no such course can be charted, too many areas in which the pervasive activities of the State justify some special provision for religion to prevent it from being submerged by an all-embracing secularism. The State violates its obligation of neutrality [374 U.S. 398, 423] when, for example, it mandates a daily religious exercise in its public schools, with all the attendant pressures on the school children that such an exercise entails. See Engel v. Vitale, 370 U.S. 421 ; School District of Abington Township v. Schempp, supra. But there is, I believe, enough flexibility in the Constitution to permit a legislative judgment accommodating an unemployment compensation law to the exercise of religious beliefs such as appellant's.
For very much the same reasons, however, I cannot subscribe to the conclusion that the State is constitutionally compelled to carve out an exception to its general rule of eligibility in the present case. Those situations in which the Constitution may require special treatment on account of religion are, in my view, few and far between, and this view is amply supported by the course of constitutional litigation in this area. See, e. g., Braunfeld v. Brown, supra; Cleveland v. United States, 329 U.S. 14 ; Prince v. Massachusetts, 321 U.S. 158 ; Jacobson v. Massachusetts, 197 U.S. 11 ; Reynolds v. United States, 98 U.S. 145 . Such compulsion in the present case is particularly inappropriate in light of the indirect, remote, and insubstantial effect of the decision below on the exercise of appellant's religion and in light of the direct financial assistance to religion that today's decision requires.
[ Footnote 1 ] I am completely at a loss to understand note 4 of the Court's opinion. Certainly the Court is not basing today's decision on the unsupported supposition that some day, the South Carolina Supreme Court may conclude that there is some personal reason for unemployment that may not disqualify a claimant for relief. In any event, I submit it is perfectly clear that South Carolina would not compensate persons who became unemployed for any personal reason, as distinguished from layoffs or lack of work, since the State Supreme Court's decisions make it plain that such persons would not be regarded as "available for work" within the manifest meaning of the eligibility requirements. Nor can I understand what this Court means when it says that "if the eligibility provisions were thus limited, it would have been unnecessary for the [South Carolina] court to have decided appellant's constitutional challenge . . . ."
[ Footnote 2 ] The Court does suggest, in a rather startling disclaimer, ante, pp. 409-410, that its holding is limited in applicability to those whose religious convictions do not make them "nonproductive" members of society, nothing that most of the Seventh-day Adventists in the Spartanburg area are employed. But surely this disclaimer cannot be [374 U.S. 398, 421] taken seriously, for the Court cannot mean that the case would have come out differently if none of the Seventh-day Adventists in Spartanburg had been gainfully employed, or if the appellant's religion had prevented her from working on Tuesdays instead of Saturdays. Nor can the Court be suggesting that it will make a value judgment in each case as to whether a particular individual's religious convictions prevent him from being "productive." I can think of no more inappropriate function for this Court to perform.
[ Footnote 3 ] The Court's reliance on South Carolina Code 64-4, ante, p. 406, to support its conclusion with respect to free exercise, is misplaced. Section 64-4, which is not a part of the Unemployment Compensation [374 U.S. 398, 422] Law, is an extremely narrow provision that becomes operative only during periods of national emergency and thus has no bearing in the circumstances of the present case. And plainly under our decisions in the "Sunday law" cases, appellant can derive no support for her position from the State's general statutory provisions setting aside Sunday as a uniform day of rest.