Braunfeld v. Brown/Concurrence Brennan
Mr. Justice BRENNAN, concurring and dissenting.
I agree with THE CHIEF JUSTICE that there is no merit in appellants' establishment and equal-protection claims. I dissent, however, as to the claim that Pennsylvania has prohibited the free exercise of appellants' religion.
The Court has demonstrated the public need for a weekly surcease from worldly labor, and set forth the considerations of convenience which have led the Commonwealth of Pennsylvania to fix Sunday as the time for that respite. I would approach this case differently, from the point of view of the individuals whose liberty is-concededly-curtailed by these enactments. For the values of the First Amendment, as embodied in the Fourteenth, look primarily towards the preservation of personal liberty, rather than towards the fulfillment of collective goals.
The appellants are small retail merchants, faithful practitioners of the Orthodox Jewish faith. They allege-and the allegation must be taken as true, since the case comes to us on a motion to dismiss the complaint-that '* * * one who does not observe the Sabbath (by refraining from labor) * * * cannot be an Orthodox Jew.' In appellants' business area Friday night and Saturday are busy times; yet appellants, true to their faith, close during the Jewish Sabbath, and make up some, but not all, of the business thus lost by opening on Sunday 'Each of the plaintiffs,' the complaint continues, 'does a substantial amount of business on Sundays, and the ability of the plaintiffs to earn a livelihood will be greatly impaired by closing their business establishment on Sundays.' Consequences even more drastic are alleged: '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. The Court today holds that it may. But I dissent, believing that such a law prohibits the free exercise of religion.
The first question to be resolved, however, is somewhat broader than the facts of this case. That question concerns the appropriate standard of constitutional adjudication in cases in which a statute is assertedly in conflict with the First Amendment, whether that limitation applies of its own force, or as absorbed through the less definite words of the Fourteenth Amendment. The Court in such cases is not confined to the narrow inquiry whether the challenged law is rationally related to some legitimate legislative end. Nor is the case decided by a finding that the State's interest is substantial and important, as well as rationally justifiable. This canon of adjudication was clearly stated by Mr. Justice Jackson, speaking for the Court in West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628:
'In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a state to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the state it is the more specific limiting principles of the First Amendment that finally govern this case.'
This exacting standard has been consistently applied by this Court as the test of legislation under all clauses of the First Amendment, not only those specifically dealing with freedom of speech and of the press. For religious freedom-the freedom to believe and to practice strange and, it may be, foreign creeds-has classically been one of the highest values of our society. See, e.g., Murdock v. Commonwealth of Pennsylvania, 1943, 319 U.S. 105, 115, 63 S.Ct. 870, 876, 87 L.Ed. 1292; Jones v. City of Opelika, 1943, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Martin v. City of Struthers, 1943, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Follett v. Town of McCormick, 1944, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938; Marsh v. State of Alabama, 1946, 326 U.S. 501, 510, 66 S.Ct. 276, 280, 90 L.Ed. 265. Even the most concentrated and fully articulated attack on this high standard has seemingly admitted its validity in principle, while deploring some incidental phraseology. See Kovacs v. Cooper, 1949, 336 U.S. 77, 89, 95-96, 69 S.Ct. 448, 454, 458, 93 L.Ed. 513 (concurring opinion); but cf. Ullmann v. United States, 1956, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511. The honored place of religious freedom in our constitutional hierarchy, suggested long ago by the argument of counsel in Permoli v. Municipality No. 1 of City of New Orleans, 1845, 3 How. 589, 600, 11 L.Ed. 739, and foreshadowed by a prescient footnote in United States v. Carolene Products Co., 1938, 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234, note 4, must now be taken to be settled. Or at least so it appeared until today. For in this case the Court seems to say, without so much as a deferential nod towards that high place which we have accorded religious freedom in the past, that any substantial state interest will justify encroachments on religious practice, at least if those encroachments are cloaked in the guise of some nonreligious public purpose.
Admittedly, these laws do not compel overt affirmation of a repugnant belief, as in Barnette, nor do they prohibit outright any of appellants' religious practices, as did the federal law upheld in Reynolds v. United States, 1878, 98 U.S. 145, 25 L.Ed. 244, cited by the Court. That is, the laws do not say that appellants must work on Saturday. But their effect is that appellants may not simultaneously practice their religion and their trade, without being hampered by a substantial competitive disadvantage. Their effect is that no one may at one and the same time be an Orthodox Jew and compete effectively with his Sunday-observing fellow tradesmen. This clog upon the exercise of religion, this state-imposed burden on Orthodox Judaism, has exactly the same economic effect as a tax levied upon the sale of religious literature. And yet, such a tax, when applied in the form of an excise or license fee, was held invalid in Follett v. Town of McCormick, supra. All this the Court, as I read its opinion, concedes.
What, then, is the compelling state interest which impels the Commonwealth of Pennsylvania to impede appellants' freedom of worship? What overbalancing need is so weighty in the constitutional scale that it justifies this substantial, though indirect, limitation of appellants' freedom? It is not the desire to stamp out a practice deeply abhorred by society, such as polygamy, as in Reynolds, for the custom of resting one day a week is universally honored, as the Court has amply shown. Nor is it the State's traditional protection of children, as in Prince v. Commonwealth of Massachusetts, 1944, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, for appellants are reasoning and fully autonomous adults. It is not even the interest in seeing that everyone rests one day a week, for appellants' religion requires that they take such a rest. It is the mere convenience of having everyone rest on the same day. It is to defend this interest that the Court holds that a State need not follow the alternative route of granting an exemption for those who in good faith observe a day of rest other than Sunday.
It is true, I suppose, that the granting of such an exemption would make Sundays a little noisier, and the task of police and prosecutor a little more difficult. It is also true that a majority-21-of the 34 States which have general Sunday regulations have exemptions of this kind.  We are not told that those States are significantly noisier, or that their police are significantly more burdened, than Pennsylvania's. Even England, not under the compulsion of a written constitution, but simply influenced by considerations of fairness, has such an exemption for some activities.  The Court conjures up several difficulties with such a system which seem to me more fanciful than real. Non-Sunday observers might get an unfair advantage, it is said. A similar contention against the draft exemption for conscientious objectors (another example of the exemption technique) was rejected with the observation that 'its unsoundness is too apparent to require' discussion. Selective Draft Law Cases (Arver v. United States) 1918, 245 U.S. 366, 390, 38 S.Ct. 159, 165, 62 L.Ed. 349. However widespread the complaint, it is legally baseless, and the State's reliance upon it cannot withstand a First Amendment claim. We are told that an official inquiry into the good faith with which religious beliefs are held might be itself unconstitutional. But this Court indicated otherwise in United States v. Ballard, 1944, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148. Such an inquiry is no more an infringement of religious freedom than the requirement imposed by the Court itself in McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, that a plaintiff show that his good-faith religious beliefs are hampered before he acquires standing to attack a statute under the Free-Exercise Clause of the First Amendment. Finally, I find the Court's mention of a problem under state antidiscrimination statutes almost chimerical. Most such statutes provide that hiring may be made on a religious basis if religion is a bona fide occupational qualification.  It happens, moreover, that Pennsylvania's statute has such a provision. 
In fine, the Court, in my view, has exalted administrative convenience to a constitutional level high enough to justify making one religion economically disadvantageous. The Court would justify this result on the ground that the effect on religion, though substantial, is indirect. The Court forgets, I think, a warning uttered during the congressional discussion of the First Amendment itself: '* * * the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand * * *.' 
I would reverse this judgment and remand for a trial of appellants' allegations, limited to the free-exercise-of-religion issue.
Mr. Justice STEWART, dissenting.
^1 Conn.Gen.Stat., 1958 rev., § 53-303; Fla.Laws 1959, c. 59 1650, § 2; Ill.Rev.Stat., 1959, c. 38, § 549; Burns' Ind.Ann.Stat., 1956 repl., § 10-4301; Kan.Gen.Stat.Ann., 1949, § 21-953; Ky.Rev.Stat., 1959, § 436.160(2); Me.Rev.Stat., 1954, c. 134, § 44; Mass.Gen.Laws Ann., 1958, c. 136, § 6; Mich.Stat.Ann., 1957 rev., §§ 18.855, 18.122, 9.2702, Comp.Laws Supp.1956, § 435.252; Comp.Laws 1948, §§ 338.682, 435.7; Mo.Rev.Stat., 1959, § 563.700; Neb.Rev.Stat., 1943, § 28-940; N.J.Stat.Ann., 1953, § 2A:171-4; McKinney's N.Y.Laws, Penal Law, § 2144; N.D.Rev.Code, 1943, § 12-2117; NDCC 12-21-17; Page's Ohio Rev.Code Ann., 1954, § 3773.24; Okla.Stat.Ann., 1958, Tit. 21, § 909; R.I.Gen.Laws, 1956, § 11-40-4; S.D.Code, 1939, § 13.1710; Vernon's Ann.Tex.Pen.Code art. 284; Va.Code, 1950, § 18.1-359; Wash.Rev.Code, 1951, § 9.76.020; W.Va.Code Ann., 1955, c. 61, Art. 8, § 6073. Cf. Wis.Stat.Ann., 1958, § 301.33.
^2 E.g., Shops Act, 1950, 14 Geo. VI, c. 28, § 53.
^3 E.g., Mass.Gen.Laws Ann., 1958, c. 151B, § 4, par. 1.
^4 43 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) § 955.
^5 I Annals of Cong. 730 (remarks of Representative Daniel Carroll of Maryland, August 15, 1789).