Warren E. Burger: We’ll hear arguments next in 70-5112, Weber against the Aetna Casualty.
Vanue B. Lacour: Mr. Chief Justice --
Warren E. Burger: Mr. Lacour.
Vanue B. Lacour: -- and may it please the Court. This case is here on certiorari to the Supreme Court of the State of Louisiana. The sole issue before the Court is whether or not the denial of workmen’s compensation to dependent illegitimate children of a single family unit, solely because they are really illegitimate deprives such illegitimate children of equal protection under the Fourteenth Amendment. I’ll sketch the facts of the case briefly. Henry Clyde Stokes was the father of four legitimate children born of the marriage with a lawfully wedded wife from whom he was separated. He became the paramour or common-law husband of Willie Mae Weber. He moved his four illegitimate children into the house with her and lived there as a family unit.
Warren E. Burger: When you say common-law, that did not mean --
Vanue B. Lacour: That don’t mean -- I mean out of wedlock wife if I may put it that way.
Warren E. Burger: He could not be a common-law husband.
Vanue B. Lacour: There are no common-law marriages in Louisiana.
Potter Stewart: And his lawful wife was still living?
Vanue B. Lacour: His lawful wife was still living but they were separated not judicially separated or divorced. While living with Willie Mae Weber, they were born one child of their illicit or out of wedlock relationship. Then while they were living, he was employed as a truck driver. He was killed on the job and of course, the scope of his employment had no dispute was that he was covered by workmen’s compensation under Louisiana law. And sometime after his death, there was born to Willie Mae Weber another child conceived out of the relationship with him prior to his death. Now --
Potter Stewart: Is there any question Mr. Lacour about that second child if that second child had been a legitimate child, although a posthumous child? Would that child had been counted as a child under the workmen’s compensation?
Vanue B. Lacour: Yes, he would have. But if he is a posthumous child and an illegitimate child, Louisiana does, even though it isn’t involve in this case, Louisiana does draw a distinct between a posthumous illegitimate and a posthumous legitimate. A posthumous legitimate child will be paid workmen’s compensation but not a posthumous illegitimate, which is another discrimination not emphasized in the case however, because there are larger discriminations here which we could not even get to this.
Warren E. Burger: But it is not partly related in a practical sense to the problems of proof?
Vanue B. Lacour: That is argued, I suppose so; however, without being suspicious, I suppose the proof of paternity you assume it. You prove it by outward manifestation of family membership. In this instance, the posthumous child that the mother conceived the child, she was pregnant had no doubt in the record, it’s not in dispute that Henry Clyde Stoke, the deceased employee was the father of the child. Now --
Warren E. Burger: Has Louisiana in any case you know of ever given any special status to extra judicial acknowledgements, that is letters, affidavits, things of that kind, acknowledgements of paternity?
Vanue B. Lacour: Not of paternity, of maternity, even though Louisiana law requires -- well, it’s earn settle in Louisiana as to whether or not what we call an informal acknowledgement of an illegitimate child, lifts that child from the object of lowest level of which the Civil Code say it is known by the escalation basket, whereas the child acknowledged either formally by notarial act or some formal act or informally the mother, because of maternity doesn’t leave open the question of uncertainty as to parentage. Informal acknowledgement of maternity is accepted on whereas there is some reservation with respect to informal acknowledgement of paternity. Now --
Byron R. White: Mr. Lacour, is it -- in the amicus brief, I think it’s a statement that these out of wedlock children could not have been acknowledged under, is it Article 204?
Vanue B. Lacour: 204 of the Louisiana Civil Code.
Byron R. White: Do you agree with that?
Vanue B. Lacour: That is correct; that is correct. The provision for acknowledgement, for formal acknowledgement, has a restriction. The restriction is that a parent may not acknowledge a child, either informally or formally, and we are dealing with formally here if at the time of conception, there was an impediment to the marriage of the parents of the illegitimate child. In this instance, sir, there would have been a bigger but myriad mode of conception, and the impediment was that Henry Clyde still was lawfully married to another woman and therefore, these children could not have been acknowledged.
Speaker: And this is a distinction from last term’s case of Labine against Vincent?
Vanue B. Lacour: That would be if we are going to focus our attention upon what is argued as being the distinction between Labine and Levy wherein Labine apparently is saying that there was insurmountable barrier in Levy, whereas there is not an insurmountable barrier here and that the children could be acknowledged. Of course, you will see that there is an insurmountable barrier here when you look at what is said in the amicus brief and what the Louisiana Civil Code actually provides under 204, the insurmountable barrier here because each children couldn’t even be acknowledged.
Byron R. White: What is the purpose of the barrier in the code you think? I don’t know if it's being present in other -- in common law states anyway?
Vanue B. Lacour: No. As I recall it, it’s a carry on through long history from the Civil Law or sort of -- I guess, for me to discourage, which was rejected in Levy to discourage the illicit relationship we would produce or also to prohibit the bringing into up to the statehood of a child, a child where the parents where actually married to each other. It’s also the law where it’s constitution on that an incestuous marriage would prohibit or prevent the acknowledgement of the child. Also, to the extent that at the time when it was constitutional, a misogynous (ph) marriage or misogynous relationship, misogyny, they would have a difference in rate. It would have been an impediment to the marriage consequently. We have a long line of cases where a lot of children couldn’t be acknowledged. Now, back to the --
William H. Rehnquist: Mr. Lacour, do you make a separate contention here that that rule of Louisiana law respecting legitimation distinguishing between the case where there was an impediment to the marriage of the parents or there wasn’t, that that itself is a violation of equal protection? Or do you concede that is rational based statute?
Vanue B. Lacour: I concede that that is a rational basis. What we are saying here, we take the position at the trust of Labine versus Vincent is not to reject or overrule Levy; that Levy, which held that on Article 2315, which is the Louisiana basic tort law. All of other law for negligence or other tort claim arise or get its source from Article 2315 of Louisiana Civil Code, which provides that roughly whoever is injured as result of the act of another is entitled to reparation. And then Louisiana, through the years enacted wrong had a wrongful-death statute to give an action for tort for death to survivors. And as the Court knows in Levy, the plaintiffs were illegitimate children of the mother who died as result of an alleged tort. And the denial of a tort cause of action to those children would have to be violative of the Equal Protection Clause. Now, what we are saying here if Levy is still the law, then Labine, it seems to me, took pain to say that Levy is still the law. And what Labine is saying is that the denial of inheritance right is not the same kind of denial and deprivation that in a tort cause of action, the child, as Justice Douglas points out, is nurtured by the parent, is not a non-person. The child is loved and he loses the same thing when he loses his parents, his mother, in that instance, the legitimate child. Now, under Louisiana law it really wasn’t compensation law although all the other state, the Workmen’s Compensation law is the replacement for the tort law. Now, so 2315 could not be used against the employer here. Now I need to go into just a little more explanation of the fact, because there is a tie-in between with Workmen’s Compensation and the Louisiana Tort Law. What happened further in this case was that the grandmother of the four legitimate children sought a tort action against a third party tortfeasor who was responsible for the acts of death in which the employee was killed. Do you still have your cause of action against your third party for tort even though you do have your worker’s compensation? But whatever Workmen’s Compensation you recover from your third party tortfeasor, you owe it, the beneficiary will owe it to the employer, i.e. to insure under the right of subrogation. So the tort suit was settled, the maximum compensation payable in Louisiana in any answers at that time was $14,000.00. The tort claim exceeded $14,000.00. The four legitimate children then came back into the State Court and dismissed their claim for Workmen’s Compensation on the basis that there was nothing for them to recover anyway, because if they recovered, the right would belong to Aetna Casualty and the truck driving concerned the employer. Then the employer and its insurer moved to dismiss the suit on the ground that there was no -- the Workmen’s Compensation had been exhausted, and we had, of course, pleaded that the denial of Workmen’s Compensation to the two illegitimate children would constitute the denial of equal protection and the court -- the Trial Court held that they were entitled to Workmen’s Compensation but only if there was any left after the four legitimate children had used it all up. So from that we appeal on that and what happens then is the Supreme Court of Louisiana interpreting the Workmen’s Compensation Law of Louisiana is saying that you have six children born of a man who are his dependents. They are supported by him. They are all -- they are member that acted the family unit which he is maintaining at the time of his life and at the time of his death as a family unit consisting of six children. The out of wedlock wife or the mother of the two illegitimate is also the stepmother of the legitimate. So everything is equal insofar as the nexus or the relationship between the father and the six children. The only difference between the four who got the Workmen’s Compensation and the two who did not is that the four was legitimate and the other two were illegitimate.
Warren E. Burger: Now that is -- assuming that the record supports that statement Mr. Lacour in this case that would not necessarily be true with respect to all illegitimate children, would it? As a general proposition, they aren’t always under the cover and protection of the father?
Vanue B. Lacour: No, if acknowledged; if they were acknowledged, acknowledged illegitimate children would be beneficiary under the Louisiana Workmen’s Compensation Law. Formerly acknowledged illegitimate, if those children have been acknowledged they would have been entitled to Workmen’s Compensation. If I understand Mr. Chief Justice question correctly. I think I have just about covered the essential feature of the case except, I have to reemphasize that we believe what we are arguing here is exactly what Labine, that is the Louisiana case involving inheritance, the reservation of Labine. We believe also that if the answer insurmountable barrier is the distinction, if I am clear in pointing out what had happened in this case, there is no opportunity for the two illegitimate children to get any Workmen’s Compensation here unless by sheer accident, because if I may point out, the $14,000.00 maximum Workmen’s Compensation was never paid by the compensation carrier; it was paid by the third party tortfeasor. The compensation, the employer and the insurer got credit for it because automatically they would get credit for under Louisiana Workmen’s Compensation Law. Ordinarily, Workmen’s Compensation benefits are paid weekly. It would have been $35.00 a week here for 400 weeks. Here it was not done that way, there is no money coming in so that if one of the legitimate should die short of reaching adulthood, one of the illegitimate would step in, that’s what it meant under Louisiana law. It is not exhausted. Here, it’s all gone and so the Court just effectively closed the door against the two illegitimates and saying your six children living at one family unit all equally supported by the father, no apparent difference in his treatment in what he would have wished for them to have, but because the two are illegitimate, the four gets all of the Workmen’s Compensation and the other two are left upon (Inaudible).
Speaker: Mr. Lacour, would your case be any different if 204 were not present, if the barrier of 204 were not there, and he just had not acknowledge his children.
Vanue B. Lacour: Yes, it would have been; it would have been. If 204 -- if there had not been an impediment, he could have acknowledged them, and if he had acknowledged them under Louisiana Workmen’s Compensation Law, they would have been entitled to.
Speaker: What if it could happen? Does your case would be any different?
Vanue B. Lacour: It wouldn’t have been any different.
Speaker: Well, this is my question. If he could have but didn’t?
Vanue B. Lacour: If he could have but didn’t then they would have been excluded from Workmen’s Compensation. In extent, I think perhaps we need to clear this point.
Speaker: Would you still be acting on their exclusion or not?
Vanue B. Lacour: Yes.
Speaker: He could have acknowledge them but didn’t.
Vanue B. Lacour: Right.
Speaker: And then he dies, was these unacknowledged children be entitled to --
Vanue B. Lacour: We would still be arguing this Mr. Justice. We would still be arguing that you are excluding them because they are illegitimate, and if they are, in every way, equally dependent upon the father and it is established and undisputed in the record that they are his children. Then the exclusion of them from participation in Workmen’s Compensation along with the other children who had no more dependency upon the father than they had would still be an invidious, arbitrary and capricious without any basis at all other than they are illegitimate and the other four are legitimate.
Speaker: Except that he had a way to acknowledge them and didn’t pursue that way?
Vanue B. Lacour: Well, you would say then that that would probably be the argument under Labine versus Vincent that that he had a way. But I am not willing in my argument here that I think is more eye catching than the real distinction of Labine. I don’t think that insurmountable barrier which was pointed out by the Court there is it really the real reason as you read underneath here that inheritance is -- if they are not involve the same kind of nexus and attachment in human relation between people that parent and children do and that when you deny talk cause of action to a child whose parent’s life has been snuffed out, you are denying reparation for a deprivation. But when you deny the law of succession and the state say you go this way or that way, the state is not pinpointing and saying you lost something but you can’t get any reparation, because you’re illegitimate. The state is just saying, you don’t fall in that class under who ruled you would get a right of inheritance, and I think the real distinction between Labine and Vincent is not the insurmountable barrier but the real invidiousness of telling one who has lost his parent, you cannot get a reparation that one is entitled to from lost of the parent merely because you are illegitimate.
Warren E. Burger: Thank you Mr. Lacour.
Vanue B. Lacour: Thank you.
Warren E. Burger: Mr. Moore.
W. Henson Moore: Mr. Chief Justice and may it please the Court. The counsel in this case looked at this particular case before you is somewhere in a gray area either between Levy versus Louisiana, Labine versus Vincent and perhaps in a gray area on the either extreme of these two cases. It’s the opinion of the respondents that there is no invidious discrimination in this case. I’d like to draw a contrast in this case with Levy and Labine. First, in the Levy case you had a tort situation. The Louisiana law has drawn this distinction and has not extended Levy beyond tort. In the Labine decision, this Honorable Court noted that this is while the distinction; Levy applied the tort. Secondly, in the Levy case it was pointed out quite forcefully the wrong doer was about to go scot-free. No one was going to recover. No tortfeasor was going to have to pay for the death of the mother in the Levy case, and the case at bar at this time there is no wrong doer. This is Workmen’s Compensation. There is no question of fault. There is no question of someone getting all free. However, I might point out as Mr. Lacour did. Under Louisiana’s Workmen’s Compensation Law, the employer is entitled to recover Workmen’s Compensation benefits he pays to an employee from the tortfeasor, if there is a tortfeasor who injured the employee. We now, as respondents, have lost that right because of one year proscription in Louisiana law. This action took place in 1967 therefore --
Potter Stewart: But you got a complete setoff haven’t you from --
W. Henson Moore: Well, we got that --
Potter Stewart: We got the recovery by the four legitimate children?
W. Henson Moore: We got that but I don’t think it’s clear at all that what should happen if this Honorable Court should reverse this decision. It may well be, we’ve got to turn right around and pay the two children, that Mr. Lacour represents, their fair share, and then try to recover that back from the tortfeasor, which we can no longer do, we are barred by one year proscription.
Potter Stewart: It wasn’t 65% of the wages the maximum whether or not they are four children or six children?
W. Henson Moore: That’s correct. That’s the maximum amount of wages paid on Louisiana law.
Potter Stewart: And the --
W. Henson Moore: Workmen’s Compensation.
Potter Stewart: And this covered more the four they covered more the maximum and you got a complete set off, am I wrong?
W. Henson Moore: I have the complete set off as to those four, Your Honor.
Potter Stewart: Well, it isn’t 65% of the maximum.
W. Henson Moore: That’s right.
Potter Stewart: And whether therefore it is 6 or 12 children?
W. Henson Moore: Well, but what I’m trying to say is Your Honor, it is not clear under our law at all whether or not I will still be liable to Mr. Lacour’s class for Workmen’s Compensation. The set off I got, applied to the four people on Louisiana law at the time this case was decided who could recover compensation. Mr. Lacour’s class could not, and so it is not clear at our law then, in other words, if you reverse this case and they will be, but I have now pay his clients and the set off by had against the four legitimate children is no protection to me now as to these two children and therefore the tortfeasor one year is going by and so this is an interesting quarrel, if this case is reverse the tortfeasor will get all scot-free as far as the liability for compensation to two more children. Now, the next point I would like to point out and distinction is the fact of this unacknowledged illegitimate children situation. Under the tort law of Louisiana part of the Levy whether you are acknowledged or unacknowledged may draw a difference. If you’re illegitimate you could recover no tort benefits, only legitimate children could, born in wedlock or adopted. This is not true in the Compensation Law of Louisiana. If you are, in fact, an illegitimate unacknowledged you’re treated as an other dependent under Subsection 8 of our list of ranking of dependents and how they will recover the money. This applies in this case, that you are not excluded from Workmen’s Compensation by law that you are right but not excluded.
William H. Rehnquist: In other words, had there been no legitimate children in this case, the illegitimate children that Mr. Lacour represents would have been entitled some share of the Workmen’s Compensation?
W. Henson Moore: That’s correct, Your Honor. As a matter of fact I called your attention to this -- Yes, as matter of ranking in preference under Section 1232 of our Louisiana Workmen’s Compensation Law, which I quote verbatim in my brief. “There are eight classifications or ranking of which dependent in which situation gets what percent of the allowable wages to be paid in Workmen’s Compensation benefits." The illegitimate unacknowledged children are treated as other dependents under the eighth ranking meaning in order of preference. They are eighth in the line, eighth in the line of preference. But of those eight the first, second, fourth, fifth and seventh all have situations where there may be somebody in a high ranking that does not use up the whole 65%, the balance then goes down the line and it would come to the eighth rank illegitimate unacknowledged children. In other words, I gave an example. Under Section 5, Subsection 5 it says, if there are two children meaning, legitimates are acknowledged. These two children recovered fourty-six and one-quarter percent of the wages. The difference between this forty-six and one-quarter percent and sixty-five percent would go down the line to the next order of persons all the way to the end. In that case there would be a -- in this case the illegitimate children would recover the difference between forty-six and one-quarter and sixty-five percent.
Speaker: What if the decedent had no legitimate children, no one but had one parent?
W. Henson Moore: That’s right.
Speaker: Then the thirty-two and one-half percent would go to illegitimate children?
W. Henson Moore: Correct, Your Honor. Correct. And so we are trying to point out here is that there is no absolute barrier for illegitimate unacknowledged child to recover compensation as the laws in the tort law of Louisiana dealing with 2315. Now in the case of Labine versus Vincent the same thing is true. An illegitimate unacknowledged child has absolute no right to inherit under Louisiana law. This again, we just pointed out, is not true in our compensation law. Now let's take the situation of the acknowledged illegitimate child, how is it for you?
Speaker: Right there Mr. Moore, do you concede that these children could not have been acknowledged under 204?
W. Henson Moore: At the time of the decedent’s death, no, they could not have been, that’s correct. Of course the law goes on to point out that should these two persons subsequently contract illegal marriage, they then can adopt, and so the restriction there is not one for all time. It worked out that way in this case, because obviously, the man died before he had the chance to properly divorce his first wife and marry the woman with whom he was living. And the case of the acknowledged illegitimate child, once again under Levy, he had no right of recovery. As you point out in Labine versus Vincent, he does have a right of succession, a right to be in the succession, but he has not rank equally with legitimate children. Even in Labine versus Vincent, he comes in a preferential order. He comes down the line ahead of the State of Louisiana and several other miscellaneous persons with on the line on order of succession, but he has not acknowledged, illegitimate child is not treated equally with the legitimate child of Louisiana succession law. Now, we come to Louisiana’s Workmen’s Compensation Law and we see that an acknowledged illegitimate child is treated equally with the adopted or children born to a legal marriage. Therefore once again we can see that in looking to similarities, Louisiana’s Workmen’s Compensation Law does not have any were near the barriers found in Levy and it is indeed far better off than those this Honorable Court pointed out in Labine versus Vincent. Further, as I pointed out, in the case of whether a child can be acknowledge or not, if those two parents subsequently marry, they can then acknowledge the child. I would like also point out the discrimination here as to the illegitimate children is no different than discrimination of a ranking of all persons in the eight subcategories of dependents. In other words the ascendants are ranked over the collateral relations and the descendants are ranked over the ascendants, and so this is just the whole schematic line up of rankings here. There is no invidious discrimination any of them, they use to give a preferential order of how the support is to be partialled out. The moment -- the question was asked a moment ago as for the reason for this ranking or why this was done. And I’d like to point out that in the -- on page 76 of the Appendix, the Louisiana Supreme Court summed it up as best as we can find anywhere in print. The Louisiana Supreme Court said for ourselves we find nothing invidious into the distinction made in the compensation statute, which would protect such legally recognize family relationships anymore in the preference given the legitimate dependent children even the illegitimate ones when they’re duly acknowledged over dependent parents. What the Court is saying here is, this is all Louisiana, legislative of Louisiana has felt that this protects the order, the existing family orders, but partialling out the compensation based upon first of all the question of dependency and secondly the question of the family relationship. I would like to point out to this Honorable Court in the Levy decision noted the fairness of Louisiana’s Workmen’s Compensation Law in footnote number 7, and so I'd like to point again, to the fact that Louisiana Workmen’s Compensation Law does not have absolute invidious discrimination or an absolute barrier to recovery. It is just in this particular case it appears that this time at this time the two illegitimate children will not recover anything. Now if subsequently, before the 400 weeks expires, I assume that this time it has expired, if one or more of the illegitimate children had died then there would be this balance or overflow that would go down the line to the illegitimates, and so even after the Court rendered its initial opinion to this case, it was still possible for the illegitimates to come and to some Workman’s Compensation benefits. This was noted and preserved in the judgment of the Trial Court.
William H. Rehnquist: Mr. Moore, have these children born out of wedlock but impediment not been there to actual legitimation and have they been legitimated, they would have recover as lawful children under compensation law?
W. Henson Moore: Correct, sir. Correct under compensation law. That’s not true or it’s not true under the tort law and it is not true still under succession law to Labine versus Vincent, but it true in the workmen’s compensation law. Your Honors, I’d like to point out the language in Labine and Levy, which lead to Louisiana’s discretion or its power to do what is done in setting up this Louisiana Workmen’s Compensation Law. In Labine, this Honorable Court pointed out and I quote, “Levy did not say and cannot barely be read to say that a state can never treat any illegitimate child differently from legitimate offspring.” And further the Court noted that and I quote, “The choices reflected by the interstate or the intrastate succession statutes are choices which is within its power of the State to make.” The Federal Constitution does not give this Court the power to overturn the State’s choice under the guidance of constitutional interpretation, because the Justice of this Court can provide better rules. And under Levy the majority opinion and I quote, “In applying the Equal Protection Clause to social and economic legislation, we give great latitude of the legislature in making classifications.” I would like to say of course Louisiana’s Workmen’s Compensation Law has been definitely social and economic legislature, and we ask this Honorable Court to find that the State of Louisiana has had its latitude in making this classifications that they are not invidious and that the State can, in this case, treat illegitimate children somewhat differently in a ranking if it has not absolutely prevented them from recovery. And we ask you therefore to find that there is no invidious discrimination and to affirm the judgment of Louisiana Supreme Court.
Lewis F. Powell, Jr.: Mr. Moore, may I ask you a question? The classification that you’ve been discussing applies in the case of death, is there a similar classification on the Louisiana law that applies with respect to Workmen’s Compensation benefits resulting from an injury?
W. Henson Moore: No, sir. Your Honor, in the case of injury, the benefits are paid directly to the injured employee.
Lewis F. Powell, Jr.: And regardless of the disability --
W. Henson Moore: That’s correct. We have partial disability and permanent disability situations.
Lewis F. Powell, Jr.: (Voice Overlap) likely manly disabled?
W. Henson Moore: In that case Your Honor I am not sure I think he would probably be paid to --
Lewis F. Powell, Jr.: (Voice Overlap) comity or --
W. Henson Moore: You have to have someone appointed as a treater, not a treater but administrator of his state and money would be paid to that person. But that’s the only in the case of a death situation you are under classification of who are the beneficiaries of the compensation benefits.
Warren E. Burger: Thank you Mr. Moore. Do you have any further Mr. Lacour?
Vanue B. Lacour: Just three comment, may it please the Chief Justice and members of the Court. An argument is made here that the employer and its compensation insurer would perhaps be prejudice by a non payable decision in that now proscription has run, they would not and it would be without their remedy of subrogation. But the record will show however that the circumstances in which the employer or any its insurer find itself now really was part of its own doing, the Court should -- I want the Court to know that the illegitimate children were brought into the suit by what do we call (Inaudible) in Louisiana by interpleader by the compensation carrier in order to assure itself that it would get everybody in the Court and have finally decide so it wouldn’t be left or paying multiple payments or just to avoid what normally interpleader avoid. However, at this turn of the event, when it found itself entitled to the all set and the legitimate children dismissed it too, it had its fair opportunity to uphold the dismissal and have the things finally litigated. So, any prejudice really that itself is not called by any action on the part of the appellants you know would it result to any in affirmance by the Court but really be the result of that choice made in the court below. Now the allusion it made also to what the Court said in Levy that of defendants of Louisiana of course in my brief I footnote that point and when I first read it, when Levy was quite decided, it was mindful of the fact that it did not call to the attention of the Court that the fairness or the permission of the allowance of Workmen’s Compensation to illegitimate children, such as the Court saw there, was not because they were children, and I want the Court -- I want to get it clearly understood and try to get it across that the illegitimate children when they come in under classification eight to witness that more alludes, come in as other dependents and anybody else who might be a member of a family they’re not because they are the children but have been an aunt, or had been a maid, or had been an uncle living in the family and he could show that dependency of that family and there were not enough legitimate children to use up the Workmen’s Compensation he would come in so this little children are thrown with this crowd that happen to be dependent and they’re not respected as dependent member or children who have that nexus that we’re talking about that the Court was talking about in Levy and that is really the Workmen’s Compensation replace it 2315 here and if to disregard the children as it did on the workmen on the 2315 on the tort it is invidious discrimination. You’re taking away from them here the very same thing in the Ninth and the very same thing under guide of Workmen’s Compensation that would been denied on the Levy so with that --
Potter Stewart: Under 8 -- under Subsection 8, a complete stranger so far as that is a complete non-family member could qualify as a dependent as I understand?
Vanue B. Lacour: Yes. Yes, if he has approved dependency and provide it --
Potter Stewart: If he proves the fact to dependency?
Vanue B. Lacour: And provided the nature that would have taken even though they were unacknowledged, incapable of being acknowledged illegitimate would have taken whatever promise that have been left if they had not been a enough people to use up all the [Voice Overlap].
Potter Stewart: Just on proving the fact of the dependency not on proving the fact of --
Vanue B. Lacour: Yes, not only proving the fact of being fair and having the nexus to apply the need the same reparation for the loss of a parent that has illegitimate children.
Potter Stewart: And it is your claim that whatever it may or may not provide that the Equal Protection Clause of the Fourteenth Amendment entitles your client as to be treated as children?
Vanue B. Lacour: Right. Not in the both bases, but indeed particular facts on this petition case was one family unit and there is nothing nor the reason to mistreat these two children here as they were mistreated and that they were illegitimate. Yes in this particular case, it was invidious in any case as now as this. If -- I don’t see how we can escape seeing invidiousness of treating those children, and we believe that the Supreme Court of Louisiana ought to be reversed and the case be remanded for the appropriate relief. Thank you.
Warren E. Burger: Thank you Mr. Lacour. Thank you, Mr. Moore. The case is submitted.


Warren E. Burger: We will hear arguments now in Thomas v. Review Board of the Indiana Employment Security Division et al. Mrs. Bianchi.
Mrs Blanca Bianchi De La Torre: Mr. Chief Justice, and may it please the Court: In 1963 this Court held that the denial of unemployment compensation benefits to a person who refuses otherwise available and suitable work for religious reasons was a denial of that person's right to the free exercise of religion. With facts very similar to those that this Court had before it in Sherbert v. Verner, the Supreme Court of Indiana has upheld the denial of unemployment compensation benefits to the petitioner, Eddie C. Thomas. The facts before this Court which were determined by the Referee of the Division and affirmed by the Review Board reveal the following. Mr. Thomas was specially hired into the roll foundry of respondent, Blaw-Knox.
Warren E. Burger: What did they make there, what kind of fabricating did they do there?
Mrs Blanca Bianchi De La Torre: Mr. Chief Justice, this is not a matter of record but I can inform the Court that the roll foundry was engaged in the production of steel rolls to be used in the steel industry.
Warren E. Burger: Some of it might get into tank turrets, I suppose?
Mrs Blanca Bianchi De La Torre: It is possible; yes.
Warren E. Burger: Or trucks and--
Speaker: --Does all of it get into tank service?
Mrs Blanca Bianchi De La Torre: Again, the record does not reveal that. It is possible that some of these rolls went to other divisions of Blaw-Knox. Now, some of these rolls were also sold to other steel mills in the area, like Bethelehem Steel, Inland Steel, for different and varied purposes. Mr. Thomas was working in the roll foundry for approximately a year. The record revealed that this division was not engaged in the production of armaments. He worked as a chainman "hooker" and he was involuntarily transferred to the tank turret line after a year. When Mr. Thomas was transferred to the tank turret line, he realized that his new job involved the direct manufacture of armaments. At this time--
William J. Brennan, Jr.: Had he been a Jehovah's Witness when he was first employed?
Mrs Blanca Bianchi De La Torre: --Yes. When he became an employee of Blaw-Knox he listed in his initial application for employment, "Religion... Jehovah's Witness". And "Hobbies... Bible study and Bible reading. "
Harry A. Blackmun: Incidentally, did the congregation itself ever decide that issue?
Mrs Blanca Bianchi De La Torre: It's not clear from the record. The transcript of the--
Harry A. Blackmun: The record's pretty obscure... that's the same answer you've given me each time, and--
Mrs Blanca Bianchi De La Torre: --Well, the record reveals that he was going to ask the congregation to make a decision but the record does not indicate whether the congregation made the decision. However, Mr. Thomas did reach a decision that the work he was performing in the tank turret line was against his religious belief.
Potter Stewart: --Is there any claim in this case that his beliefs were not bona fide religious beliefs?
Mrs Blanca Bianchi De La Torre: Well, the Supreme Court of Indiana seems to attack, not his sincerity, but the nature and the basis of his belief. The Supreme Court of Indiana essentially says, well, it isn't clear what his belief is and the nature and basis of the same.
Potter Stewart: And pointed to another Jehovah's Witness who had continued--
Mrs Blanca Bianchi De La Torre: Yes. And then they say, even if it's a religious belief, it's not a cardinal tenet of his religion and it's not shared by the congregation.
Potter Stewart: --That in your submission is entirely irrelevant.
Mrs Blanca Bianchi De La Torre: Yes. They are irrelevant. What we are arguing is that a belief, a religious belief which is sincerely held, even though it's not consistent--
Potter Stewart: Even though it's held by only this person?
Mrs Blanca Bianchi De La Torre: --Yes, yes, Mr. Justice, even though it's not consistent with the philosophy... excuse me, consistent with but not adopted by the religion to which this person belongs is protected by the First Amendment. That's essentially our claim before this Court.
William H. Rehnquist: Mrs. de la Torre?
Mrs Blanca Bianchi De La Torre: Yes, Mr. Justice?
William H. Rehnquist: To the extent that you are quoting from the record or saying that the record shows, I take it the final guide for us is what the opinion of the Supreme Court of Indiana says insofar as it speaks to the question, as to what the facts are?
Mrs Blanca Bianchi De La Torre: No, the facts appear in the record in the decision of the Referee that was affirmed by the Review Board.
William H. Rehnquist: Well, but I mean, if the Supreme Court of Indiana says the facts were different than that, we take the facts as stated by the Supreme Court of Indiana, do we not?
Mrs Blanca Bianchi De La Torre: Well, the problem with that is that the Supreme Court seems to challenge the fact but never reverses or modifies those facts. In fact, they say, "We affirm the Review Board". They raise this question but never reverse the Review Board.
William H. Rehnquist: Well, it's possible to affirm a lower tribunal on a different ground, is it not?
Mrs Blanca Bianchi De La Torre: That is possible; yes.
Harry A. Blackmun: Mrs. de la Torre, suppose that Mr. Thomas had reached the point where all work was against his religious convictions. Would you still be here?
Mrs Blanca Bianchi De La Torre: We would have to look at that claim under the test that the courts have advanced, is this a religious belief and is it sincerely held? But that is not our case. He has not become a nonproductive member of society, he has just said, I will not work in the production of armaments, but I am willing, able, and available to return to the roll foundry or to work in any other type of work that does not violate my religious belief.
William H. Rehnquist: What if in the Selective Service cases that were decided in the late 60s and early 70s where it was held that an ethical or sincerely held moral belief, even though nonreligiously founded, was adequate for conscientious objection. What if his views stemmed from that rather than from his membership in Jehovah's Witnesses?
Mrs Blanca Bianchi De La Torre: Well, this is a constitutional claim and that definition of religion which was adopted in Seeger and Welsh has not been expanded to the First Amendment. And we are saying that we don't have to go that far. That's not the issue in this case because he belongs to a well-established and known religion that is no stranger to the federal judiciary, the Jehovah's Witnesses, and we don't need to look for an answer in Seeger or Welsh. The Referee concluded that Mr. Thomas quit for religious reasons because as a Jehovah's Witness he was specifically exempted from aiding in or producing armaments used in the advancement of war. The Court of Appeals of Indiana said that the facts were not in dispute in that with those facts Sherbert was controlling. The Court of Appeals of Indiana held that the disqualifying provisions of the Indiana Code 22-4-15-1 as applied to Thomas imposed a burden on the exercise of his First Amendment right to the free exercise of religion. Because the Review Board conceded that they had no compelling state interest to justify any infringement, the Court of Appeals reversed the Review Board and awarded benefits to Thomas. The case came before the Supreme Court of Indiana on a petition to transfer filed by the Board. In a 3-2 decision the Supreme Court of Indiana attempts to distinguish Sherbert and in doing so applies erroneous standards. Like we said before, the Supreme Court said, well, it isn't clear what his belief was and the basis of his belief. If it's religious, it's not a cardinal tenet, and even if it is religious, it's not shared by all of the congregation. These are erroneous standards. There's no requirement that this be a cardinal tenet of the religion to which this person belongs or that it be shared by all the members of the congregation. The critical point is whether this is a religious belief and whether it is sincerely held by this individual. That, as I said, is the threshold inquiry. The answer to both questions in Thomas's case is, yes. Thomas' belief is religious in nature. He is a Jehovah's Witness. Nobody has questioned that thus far.
Warren E. Burger: Does that faith also bar participating in national defense if our country were invaded? Does it bar... is it total passive resistance?
Mrs Blanca Bianchi De La Torre: From reading the cases that this Court has had before it involving Jehovah's Witnesses opposed to military service, it is clear they oppose all the wars of this world. And I refer to the Sicurella case, a 1955 decision of this Court. Mr Thomas describes his beliefs as religious and I would like to, if the Court allows me, read from a transcript of the Referee before the hearing... from the hearing before the Referee. Thomas says, and I quote: "I really could not, you know, conscientiously continue to work with armaments. " "It would be against all of the religious principles that I have come to learn and appreciate except up to this point. "
Byron R. White: Mrs. de la Torre what if the Referee at the conclusion of the hearing had said, I don't believe Mr. Thomas?
Mrs Blanca Bianchi De La Torre: Well, then he could have concluded that Thomas quit for personal reasons, but he didn't do that. In fact he said, the Referee, oh, I can understand, I can see your difficulty, and I have the utmost respect for your religious principles. And I'm quoting from the transcript. Those are the words of the Referee.
Byron R. White: And what if the Supreme Court of Indiana had said after the Referee said what you have just quoted him as saying, we find that the Referee committed reversible error in believing Thomas?
Mrs Blanca Bianchi De La Torre: The Supreme Court of Indiana never said that.
Byron R. White: But what if it had?
Mrs Blanca Bianchi De La Torre: Then they would have reversed the conclusion of the Referee and we would still be here because we think that the record supports the conclusion of the Referee.
Byron R. White: But didn't the... the Referee said he quit for religious reasons?
Mrs Blanca Bianchi De La Torre: Yes.
Byron R. White: The Supreme Court said, we disagree.
Mrs Blanca Bianchi De La Torre: The Supreme Court said--
Byron R. White: You could certainly interpret what they were disagreeing with as including the reasons.
Mrs Blanca Bianchi De La Torre: --Well, I agree with that, Mr. Justice.
Byron R. White: Well, then, if they disagree with the referee on that fact-finding, where are you?
Mrs Blanca Bianchi De La Torre: Okay. Then I say that the Supreme Court of Indiana was wrong if they in fact reversed the Referee, because the evidence in the record reveals that there is sufficient evidence.
Warren E. Burger: Is that a federal question then?
Mrs Blanca Bianchi De La Torre: The constitutional claim is a federal question.
Warren E. Burger: Is it a federal question on the narrow hypothetical Mr. Justice White has just posed, that the state court has reversed the referee on what could be his credibility findings? Now, let's assume, hypothetically, that reversing on credibility of witnesses unseen by the reviewing court would be an error of some kind. Is it a federal question error?
Mrs Blanca Bianchi De La Torre: It would not be a federal question if we didn't have a free exercise claim involved. But this Court has held that when free exercise or constitutional claims are involved it is free to review the facts and come to its own conclusion, especially when the constitutional claim is denied on facts as determined by the--
William J. Brennan, Jr.: You mean that's the doctrine of constitutional facts? The doctrine of constitutional facts?
Mrs Blanca Bianchi De La Torre: --Yes.
William J. Brennan, Jr.: That this being a free exercise claim--
Mrs Blanca Bianchi De La Torre: This Court is free--
William J. Brennan, Jr.: --we independently can make our own determination of what the facts are?
Mrs Blanca Bianchi De La Torre: --Well, the Court can look at the record to determine if--
Byron R. White: --if he quit for religious reasons?
Mrs Blanca Bianchi De La Torre: --Are you asking me if he did or if the Court can look--
William J. Brennan, Jr.: You're saying we may look at the record and make our determination.
Mrs Blanca Bianchi De La Torre: --I believe this Court can. Again, we submit that Mr. Thomas' opposition to working with armaments is a belief protected by the First Amendment. The Court cannot--
Warren E. Burger: Could the connection be so tenuous that the reviewing courts could reverse? Let me take a hypothetical between some of... in the mean between some of the hypotheticals suggested. Suppose he was working in a factory making threshing machines for farms and he reasoned that threshing machines would be used to produce wheat which might go to Russia and he does not want, his religious belief forbids his doing anything to help the communist world. Would that be in your view too tenuous and speculative to sustain a religious claim?
Mrs Blanca Bianchi De La Torre: --Again, I would have to go back to the test, is this a religious belief, and is it sincerely held? That would be the answer, the only answer in every case where a person raises the constitutional claim; we're going to have to face that threshold question. And then, if the answer is yes on both questions, then we're going to have to go to the test as advanced in Sherbert, which is what the Supreme Court of Indiana fails to do.
Warren E. Burger: But you said before, this being a case involving turrets for tanks, tanks are reasonably used only in warfare. We don't have those difficult questions.
Mrs Blanca Bianchi De La Torre: No, we don't have them in here. In looking at the sincerity, since the courts according to the doctrines of Fowler and United States v. Ballard cannot inquire into the validity of the belief, the courts can and do, most of the time, look into the sincerity. In a--
Warren E. Burger: Which court? This Court in reviewing?
Mrs Blanca Bianchi De La Torre: --The trial court, the appellate court. They're not prevented, you know, from looking at the sincerity of the belief. Once a First Amendment claim or a constitutional claim is raised, then the courts must answer those two questions: if this is a religious belief, is it sincerely held? And in looking at sincerity, consistency with a belief, consistency of this belief with the tenets of a well-established religion may be persuasive on the issue of this person's sincerity but it's not conclusive. There are other extrinsic facts that the courts can consider to determine sincerity. One of those is, what role does religion play in the life of this individual? In Thomas's case we submit that religion plays a central role in his life. He's a Jehovah's Witness, his hobbies are Bible study and Bible reading. His belief is consistent with the tenets of the Jehovah's Witnesses who are opposed to war. Furthermore, Mr. Thomas was willing to take a 50 percent cut in his income in order to live his life according to his religious belief. And that, we submit, shows that his belief was religious in nature and sincerely held. The analysis, then, in a free exercise case, is, is there a burden on the free exercise of religion? And if there is, is it justified by a compelling state interest? In this case we believe that there is an infringement on his First Amendment rights, the same infringement that this Court found in Sherbert vs. Verner. Mr. Thomas' ineligibility for unemployment compensation benefits derives solely from the practice of his religion. Like in Sherbert, he is forced to choose between following the precepts of his religion and forfeiting benefits on the one hand, or abandoning the precepts of his religion to remain employed, on the other hand. This, this Court has held, is an unconstitutional choice. And this same test had been applied in McDaniel v. Paty and Wisconsin v. Yoder. The Review Board has conceded that it has no compelling state interest to justify the infringement on Thomas's First Amendment rights. No compelling state interest was raised or briefed before the state courts below, and now the Review Board for the first time in these proceedings has attempted to introduce before this Court a compelling state interest. This Court has consistently held that it will not consider matters raised here for the first time which were never briefed or raised in the lower courts below. It will do so only when there is plain error, and we submit that is not in this case, that is not our case. There's a concession that there is no compelling state interest. And under those circumstances we respectfully request this Court that the infringement on Thomas's First Amendment rights not be tolerated.
Harry A. Blackmun: Mrs. de la Torre, in your briefs you have not cited the Braunfeld case.
Mrs Blanca Bianchi De La Torre: Yes?
Harry A. Blackmun: Do you have any comment on that?
Mrs Blanca Bianchi De La Torre: Yes. We submit that Sherbert expanded the test advanced in Braunfeld and this Court has not expressly overruled Braunfeld although in recent decisions... I believe in the Wisconsin v. Yoder or McDaniel v. Paty. Justice Brennan indicated that candor compels an admission that Braunfeld has been overruled. I think what--
Harry A. Blackmun: But has the Court overruled it?
Mrs Blanca Bianchi De La Torre: --No, it has not been overruled, but I think that the Court has expanded the test to require the state a greater burden of proof when there is an infringement on First Amendment rights, which was not the test in Braunfeld. Braunfeld has been, I think, not overruled but severely limited by the test in Sherbert, which this Court has consistently applied ever since Sherbert was decided.
Harry A. Blackmun: Well, I thought you would have attacked it in some way, anyway. One of the amicis did, but you didn't.
Mrs Blanca Bianchi De La Torre: Yes. Americans United for Separation of Church and State.
John Paul Stevens: It's a pretty small point, but where is the Blaw-Knox factory located?
Mrs Blanca Bianchi De La Torre: It's in East Chicago, Indiana.
John Paul Stevens: In East Chicago.
Mrs Blanca Bianchi De La Torre: Finally, we would like to indicate that granting unemployment compensation benefits to the petitioner does not amount to a violation of the Establishment Clause. This argument was rejected in Sherbert, and also in McDaniel v. Paty, decided by this Court in 1978. All that the state is doing in granting unemployment compensation benefits to Thomas is acting with neutrality in the light of serious religious differences in our nation. This Court has characterized itself for encouraging benevolent neutrality, the doctrine of flexibility in its approach to the religion clauses of the First Amendment. We submit that the decision of the Supreme Court of Indiana is erroneous, that it should be reversed, and that Thomas should be entitled to unemployment compensation benefits. We would like to reserve the time left for rebuttal.
Byron R. White: Could I ask you how the compensation is financed in Indiana? Is it by assessments on employers?
Mrs Blanca Bianchi De La Torre: Yes, taxes from... contributions--
Byron R. White: It's not a state fund?
Mrs Blanca Bianchi De La Torre: --I believe it's both state funds and employers; yes.
Byron R. White: But what the employer pays depends on his rate of unemployment, doesn't it?
Mrs Blanca Bianchi De La Torre: Yes. That's correct.
Warren E. Burger: When you say, a state fund, is the state any more than a keeper of the stakes? That is, the state impounds the money coming from the employer. There's no tax on the general public that goes into this, is there?
Mrs Blanca Bianchi De La Torre: No, I don't think there is.
Warren E. Burger: Any contribution from the employees in Indiana?
Mrs Blanca Bianchi De La Torre: I believe there is none.
Byron R. White: Would you be making the same argument that this man, under Title VII or something, that he was discharged for religious purposes?
Mrs Blanca Bianchi De La Torre: Well, the problem is that the employer in this case, if Thomas had filed a Title VII, could not accommodate him, because all of the other divisions except the roll foundry were engaged in the production of armaments. And Thomas did not file a Title VII. He filed for a--
Byron R. White: Well, wouldn't he have been willing to take a job as clerk in an office?
Mrs Blanca Bianchi De La Torre: --Oh, yes, but there was no such job, apparently. The record reveals that he sought the transfer immediately upon being assigned to the tank turret line. And in seeking this transfer he realized that all of the other functions at Blaw-Knox were directly involved with the manufacture of armaments.
Byron R. White: But the employer must now pay him, in effect; pay him unemployment compensation.
Mrs Blanca Bianchi De La Torre: The employer and the state. Not only the employer.
Byron R. White: Are there state funds in this fund?
Mrs Blanca Bianchi De La Torre: I believe so.
Warren E. Burger: I thought you just told me that there was no tax?
Mrs Blanca Bianchi De La Torre: State funds... well, there's state funds and employers' contributions, I believe.
Warren E. Burger: It conceivably might be important to know whether any general tax revenues are paid. I'm not sure. The record is silent on that, is it?
Mrs Blanca Bianchi De La Torre: Yes, it is, and that issue has never been raised by the Board or--
Warren E. Burger: Perhaps your friend may know the answer to that.
Mrs Blanca Bianchi De La Torre: --Probably.
Warren E. Burger: If the answer is important.
Mrs Blanca Bianchi De La Torre: Thank you.
Warren E. Burger: Mr. Daily.
William E. Daily: Mr. Chief Justice, and may it please the Court: The answer is that the contributions are made solely by the employers to the fund. There are no general tax funds, although I would suppose that the employer views it as a tax on the employer to create the fund in the first place. Before I get to the meat of my argument, I have to address a point raised in the petitioner's reply brief and also addressed in oral argument today. I do not believe the Review Board has ever conceded that there is not a compelling state interest. There is some ambiguous language in the opinion of the State Court of Appeals which seems to say that at oral argument there may have been a concession by the State on a compelling state interest issue but the Review Board's position is only that. There is no evidence on the record as to the existence or nonexistence of a compelling state interest, and the reason for that blank record is that the Review Board was not a party at the hearing stage. The Review Board has never had any opportunity to present facts into evidence on the existence or nonexistence of a compelling state interest. When I think of that, I think I will show as I go through my argument that compelling state interest is not really relevant to this case and the case can be decided without addressing that issue. But if you do want to address that issue, the Review Board should be given an opportunity to present facts if the case should be remanded.
Byron R. White: Well, who litigates before the Review Board? The employer?
William E. Daily: The employer--
Byron R. White: --and the employee.
William E. Daily: --and the employee.
John Paul Stevens: What sort of proceeding would the Review Board put in such evidence?
William E. Daily: It would have to be remanded to some lower court. The Supreme Court of Indiana can hold factual hearings in this case.
John Paul Stevens: Are you suggesting that we... if we thought compelling state interest was relevant, we should send it back to the Supreme Court of Indiana to hold an evidentiary hearing?
William E. Daily: I certainly hope it doesn't come to that stage.
John Paul Stevens: But if it does, is that what you're suggesting?
William E. Daily: I'm suggesting that the Review Board certainly should have an opportunity to present facts as to the existence of a compelling state interest.
William H. Rehnquist: What cases of ours would you say they would be guided by?
William E. Daily: I think perhaps they would have to go back... if the decision were against us to the point where we were required to have a hearing on a compelling state interest, we would have to look to Sherbert, perhaps Wisconsin v. Yoder, and that line of cases.
Warren E. Burger: How would Yoder help you there?
William E. Daily: I'm sorry; I stated the wrong case.
Warren E. Burger: How would the Yoder case--
William E. Daily: No. Yoder will not help in compelling state interest. I'm sorry. I think Sherbert--
Warren E. Burger: --Sherbert v. Verner--
William E. Daily: --Sherbert v. Verner; right.
Harry A. Blackmun: --You feel Sherbert helps you?
William E. Daily: No, I think we would have to be guided by that if we went back for a hearing on compelling state interest.
Harry A. Blackmun: Do you think that Sherbert should be over-ruled?
William E. Daily: I think it should be modified, I think there are some very good points in Sherbert but I think it goes too far. I'm not sure that Sherbert by itself goes too far, but it's certainly been interpreted by subsequent courts and by some decisions from this Court more broadly than the decision itself warrants. And I'll get to that in a moment. The petitioner in this case relies heavily on Sherbert v. Verner; in fact, almost exclusively. Therefore, the Indiana Supreme Court looked to Sherbert and attempted to distinguish it. The court, the Indiana Supreme Court noted that the opinion in Sherbert specifically limits itself. The language says, "We do not by our decision today declare the existence of a constitutional right to unemployment benefits on the part of all persons... all persons whose religious convictions are the cause of their unemployment. " Now, despite that clear language, the petitioner in this case says that all persons are entitled to unemployment benefits under Sherbert. Now Sherbert didn't say that. It said, we do not make that finding.
Potter Stewart: Well, I think the... my understanding of the reason for that language in Sherbert was to take care of my brother Blackmun's earlier hypothetical question as to what about the person whose religious convictions taught him that it was sin to work at all, at anything.
William E. Daily: Well, I agree that there may be a spectrum here, going from that situation perhaps to a Sherbert.
Potter Stewart: Such a person, say, in the absence of that language in Sherbert, could say, I'm entitled to workmen's compensation... I'm entitled to unemployment compensation.
William E. Daily: And the petitioner did not deny that that person should... in fact, the petitioner's position is that if there is a sincere religious conviction, sincerely held by an individual, that person is entitled to unemployment benefits no matter what his conviction is, even if it is that I should not be required to work at all.
Potter Stewart: That's not this case.
William E. Daily: No. Obviously not.
Warren E. Burger: What is the status of people, if any, in many of the courts, who would have a religious objection and scruple against participating in social security?
William E. Daily: In the Indiana courts?
Warren E. Burger: There have been some cases on that, haven't there, in the lower courts?
William E. Daily: I'm not prepared to discuss that; I'm sorry. To continue my distinguishment of Sherbert, Sherbert involved a situation where South Carolina had a state law giving benefits to Sunday worshipers. Sherbert extended that same privilege to Saturday worshipers. There is no comparable situation in the case before you today. We are not dealing with giving equality to Saturday worshipers that Sunday worshipers already have. Sherbert found that the highest state court had not been able to point out any state interest. In this case the Indiana Supreme Court clearly points out the state interest to be protected and those state interests, if I may skip to another point, are to promote the stability in employment, to protect the citizens from the hardships of unemployment, preserving the unemployment fund. Those state interests are in my opinion as compelling or more compelling than some of the state interests already upheld in this Court. And there I will refer you to Braunfeld v. Brown, Reynolds--
John Paul Stevens: Mr. Daily, I don't think it's quite correct to say that there were no state interests involved in Sherbert. The opinion noted that there was a state interest in preventing spurious claims which would also be present here, and also a state interest in not making, complicating the work schedule that the employer has to worry about putting people on, when people can't work on Saturdays. So there were state interests there.
William E. Daily: --That is correct. And those state interests would exist here, in addition to the interests that I have listed. In this case, however, we have the highest court of the State finding that those interests that I have listed are sufficient to sustain the statute. Similar cases inquire as to whether or not there are other ways to achieve the secular state purposes or achieve the interest established by the case. And I note that the petitioners have not pointed out any other ways to achieve these secular interests or secular purposes. As I read the opinion of the Indiana Supreme Court, that Court based its decision on three general and independent grounds. There are three different grounds for sustaining the Indiana Court's opinion. First of all, the Court found that the statutory good cause requirement has a valid secular purpose and a valid secular effect. In other words, the Braunfeld v. Brown test. Under that test we have a valid secular purpose, a valid secular effect; it is therefore a constitutional statute. Secondly, the Indiana Supreme Court found that the grant of an exemption to Mr. Thomas would conflict with the Establishment Clause in the Constitution, as a second independent grounds, also requiring that the statute be found to be constitutional. Thirdly, the Supreme Court went into the--
John Paul Stevens: Mr. Daily, wasn't that argument specifically rejected in Verner, both by the majority and by the dissenters?
William E. Daily: --To that extent I am arguing for a modification of Sherbert v. Verner.
John Paul Stevens: That's why you asked for the modification?
William E. Daily: To the extent that that has been found by other courts, I think it should be modified. And I'd like to address that question now. In Walz v. the New York Tax Commission, this Court noted that past opinions had considerable internal inconsistency because of certain sweeping statements. This Court also recognized that there could be a potential conflict between the religion clauses, and a test proposed in Walz v. New York Tax Commission is, first of all, examine the legislative purpose; secondly, examine the degree of involvement between church and state. The current Indiana practice withstands these tests. Legislative purpose is a valid secular purpose, the degree of involvement is almost zero. The only reason that the Court had to examine the sincerity or the contents of Mr. Thomas's beliefs was because it had to distinguish Sherbert, or perhaps Wisconsin v. Yoder. Under the current procedure in Indiana there is really no reason beyond those cases for an examination or for an involvement of the church with the state. However, if the state were to pass a statute saying that persons in Mr. Thomas's situation are exempt from the objective good cause requirement, if you examine that statute, the statute proposed by Mr. Thomas here... although Mr. Thomas is not proposing a statute, he's proposing the Court do something to the same effect, to create for Indiana an exemption. If the Court were to create that exemption or if the Legislature in Indiana were to create that exemption and were examined under the Walz test, you would have to find a secular legislative purpose for an exemption for people in Mr. Thomas's situation. Now I submit that there is no reasonable secular purpose for that exemption. I don't think you will find a reasonable purpose stated in the briefs. I've noted one amicus brief seems to think that a secular purpose would be avoidance of conflict with the religion clauses and that argument seems to me somewhat circular. You can point out as a secular purpose for the denial of the relief an avoidance of conflict with the Establishment Clause. In any event, there is no valid secular purpose for the establishment of exemption; the degree of involvement escalates terrifically if you grant an exemption for religious purposes. Then it becomes necessary to examine Mr. Thomas or people in his position to determine whether or not he actually has a sincere belief. You have to examine whether or not that belief is a religious belief, as opposed to a merely personal belief. And you run into the problem that Mr. Rehnquist suggested in one of his early questions: if you create that exemption statutorily, you run into the problem of the conscientious objector cases and you perhaps have to interpret the statutory exemption in such a way that it applies to everybody whether it's a religious exemption or merely a deeply held personal conviction.
Warren E. Burger: Do you think it is not clear in this case that his position was placed entirely on his formal religious beliefs as distinguished from just disagreeing with some particular facet of a war, as Vietnam, for example?
William E. Daily: I think Mr. Thomas stated that his beliefs, it was a personal religious belief.
Warren E. Burger: Well, a personal religious belief against doing anything relating to making the weapons of war, direct weapons of war?
William E. Daily: Directly involved in it; yes, sir.
Warren E. Burger: He backed that up by saying that making steel alone, as he had previously, was not a barrier, and we can only infer that he meant that some of that steel might go into other purposes, and that he was only raising the question and he was helping to make a tank, for which there was no use except in war.
William E. Daily: I think that's clear from the record, that his only objection was to being put on an assembly line where he could clearly see what he was making. In other words, if tanks or guns of some sort were going past him on the assembly line, then he found it conflicted with his personal beliefs. Whereas if a few steel--
Warren E. Burger: Religious beliefs, as a member of Jehovah's Witnesses. Didn't he make that clear, in your view?
William E. Daily: --Yes, in my view it's very clear that as long as it were something that he could not recognize as a weapon, he had no--
Warren E. Burger: It was not just a general appeal to conscience in the abstract as in the hypothetical posed by Mr. Justice Rehnquist, it was specifically his membership and adherence to the beliefs of Jehovah's Witnesses that he relied on.
William E. Daily: --I'm not sure that he relied on his Jehovah's Witness beliefs, but on his beliefs.
Harry A. Blackmun: Well, is that true from the record, when there is another Jehovah's Witness who is not upset by this situation?
William E. Daily: That's the point I'm making. It was Mr. Thomas' beliefs and not necessarily Jehovah's Witness beliefs.
Harry A. Blackmun: So it gets down to a matter of a personal religious belief wholly apart from Jehovah's Witnesses?
William E. Daily: On the record in this case that's true. I think if you'll notice in the reply brief by petitioner, it is apparently a matter of conscience by individual Jehovah's Witnesses rather... there's a paragraph in the reply brief that seems to indicate that individual Jehovah's Witnesses may examine their own conscience and make their own determinations as to whether or not to work in certain fields.
Warren E. Burger: But it is not unrelated to the beliefs of Jehovah's Witnesses, as a faith.
William E. Daily: On the record in this case, I don't know that you can make that determination.
Warren E. Burger: I thought the record in that respect was crystal clear, open to no possible doubt.
Harry A. Blackmun: Well, it's a factor, I suppose, but the fact that another Jehovah's Witness went the other way would indicate it isn't a compelling factor. I don't believe-- --Didn't the Supreme Court of Indiana say the question was unclear as to why he quit?
William E. Daily: Examining the record in this case, the Supreme Court in Indiana could not find a basis for finding that this was a tenet.
Warren E. Burger: That probably led to the 4-3 decision in the Indiana Supreme Court to some extent.
Speaker: It was still 4-3.
William E. Daily: Well, the minority in the Indiana Supreme Court felt that Sherbert should be given broad application and did not go into the facts. So they thought that Sherbert applied across the board, and therefore applied in this case.
Warren E. Burger: Well, the fact that some other employees who were members of Jehovah's Witnesses did not take the same view of the matter, there's nothing unique in that.
William E. Daily: That's so.
Warren E. Burger: Members of any given faith, whether Catholic or Presbyterian or whatnot, have more literal constructions of their own faith, but it's still rooted back to his claim as a Jehovah's Witness adherent.
William E. Daily: I think that it is rooted in his claim that his personal interpretation of the doctrine required him to reach that decision.
Thurgood Marshall: Is there anything in this record that shows that any Jehovah's Witness is willing to work on a tank?
William E. Daily: There are a number of... well, it is clear from the record that Jehovah's Witnesses are willing to work on a tank in this factory. There are Jehovah's Witnesses working there.
Thurgood Marshall: Working on the tank itself?
William E. Daily: Yes. There is--
Thurgood Marshall: On the tank itself?
William E. Daily: --There is no other--
Thurgood Marshall: Or the turret for the tank?
William E. Daily: --I'm sorry; the turret for the tank. I should be specific there.
Thurgood Marshall: That's what I thought.
John Paul Stevens: Mr. Daily, you were telling us the three reasons for the Supreme Court of Indiana decision. The first was that it didn't come within the state good cause requirement. The State Supreme Court said good cause has to be a valid objective job-related reason, as I understand it.
William E. Daily: That is my interpretation of the Braunfeld criteria.
John Paul Stevens: Now, under that interpretation, refusal to work on Saturday would not be good cause, would it?
William E. Daily: Under that interpretation refusal to work on Saturday would not be good cause.
John Paul Stevens: So that part of the Supreme Court decision is plainly inconsistent with this Court's holding in Sherbert, isn't that correct?
William E. Daily: That is correct.
John Paul Stevens: Now, what was the third reason? You didn't get to the third, but the second one is, you agreed that we'd have to modify Sherbert also to accept the second ground, so I'm interested in... what was it? I forget what the third one was.
William E. Daily: The third one was the factual issues as to whether or not there is a religious tenet involved, whether or not he held that religious principle, a number... in effect, everything I've said about distinguishing Sherbert.
Speaker: On the facts.
William E. Daily: All right. That's the--
Byron R. White: When he says... the Supreme Court of Indiana said he was uncertain as to his precise beliefs, and said that his reasons for quitting work were unclear.
William E. Daily: --That is certainly correct from the record.
Byron R. White: That's what the Supreme Court of Indiana said, whether... totally aside from what the record says, but that was its reading of the record.
William E. Daily: Yes. There are a number of tests under the Establishment Clause arising out of the aid to school cases.
William J. Brennan, Jr.: Before you get to that, may I ask you, I take it we can read... this is a constitutional fact type case, isn't it?
William E. Daily: Yes, it is. There are a number of--
William J. Brennan, Jr.: Well, let me put the question to you directly. I gather we're as free to read the record in respect to this constitutional issue as was the Indiana Supreme Court, are we not?
William E. Daily: --I understand that you incline towards giving credit to the interpretation by the state of its own--
William J. Brennan, Jr.: Well, that isn't my question.
William E. Daily: --And that you would--
William J. Brennan, Jr.: My question is whether we are as free as the Supreme Court of Indiana, since this is a constitutional fact question, to read the record and reach our own determination?
William E. Daily: --I would limit that to the extent that you may go to the record if the state's determination is clearly erroneous.
William J. Brennan, Jr.: Where did you get that? No, no. In such cases as the involuntary confession cases... didn't set up any clearly erroneous threshold but said that this Court was as free as were the state courts to... in fact, had a duty, independently, to assess the record, the evidence of record.
William H. Rehnquist: I thought they set up the test of the so-called undisputed facts, that if there had been a resolution of disputed fact by the state, you accept the resolution by the state.
William E. Daily: The problem on this factual record is, of course, that there was no participation by anybody opposed to Mr. Thomas so we have to examine what he said now as to the threshold question as to when you begin that examination. I'm not prepared to answer that.
John Paul Stevens: Mr. Daily, as I understand the Supreme Court of Indiana, they're saying the resolution of this issue is somewhat unclear. They didn't resolve it definitely one way or the other, did they?
William E. Daily: They definitely said that he had not clearly stated a religious principle that they could find in his testimony. They did not... the burden of proof was obviously on the petitioner at this point. I think you can interpret their holding to say that he failed to meet his burden of proof.
John Paul Stevens: Well, he prevailed on the fact issue before the hearing examiner and the Industrial Review Board and the Court of Appeals, didn't he?
William E. Daily: No, he did not prevail at the two lower levels. The only point at which he prevailed was before the Court of Appeals.
John Paul Stevens: He didn't get the award; I understand that. But on the question of whether his belief was a sincere religious belief, they both agreed with him, didn't they?
William E. Daily: They agreed with him on that point, yes.
John Paul Stevens: And this is what we are talking about now?
William E. Daily: Yes.
Warren E. Burger: And what do you say the Supreme Court of Indiana said about the sincere religious belief determination of the Court of Appeals? Didn't they say it was unclear?
William E. Daily: They said that on the record they could not sustain the finding below that he had a clear religious conviction.
Warren E. Burger: Of the Board?
William E. Daily: Of the Board.
Byron R. White: Well, they said, not only is it unclear what his belief was but that it was unclear why he quit work.
William E. Daily: That goes perhaps farther than--
Byron R. White: Which is even different.
William E. Daily: --I think that would go further than I could go on the facts in this case, at least that statement of their holding. They could... the record clearly shows that he had, that he quit work because he did not want to work on the turrets, the tank turrets.
Byron R. White: Well, that may be so. It may be so that he didn't want to work on the tank turrets but it would still be a question of whether he quit because of a religious belief.
William E. Daily: That's true. And I don't think that... I think the Supreme Court of Indiana did not find any clear statement as to whether or not that's why he quit. I'd like to point to... a minute... to a fairly recent case of this Court called TWA v. Hardison. In that case this Court said, "We will not readily construe a statute to require an employer to discriminate against some employees in order to enable others to celebrate their sabbath. " I am hopeful that that to some extent modifies Sherbert. At least the dissent thought that it did. And I think it does too, and I think the basic principle in TWA v. Hardison is equality under the law. Petitioner in this case--
Warren E. Burger: Was Sherbert addressed to that kind of a question?
William E. Daily: --Sherbert was addressed to a state action. This is an employer action involving a statutory mention of religion which is the same thing that the petitioners want us to do here, create an exemption for religion. I think the reasoning is analogous, even though the factual situation is different. This Court has frequently stated that the Court should allow the legislature to assess the public need and should not strike down a neutral state action within the state's power even if that action approaches the verge or the limits of the power. That's from Everson v. Board of Education. The Court realizes the potential conflict between establishment and freedom that was realized in Walz v. Tax Commissioners. As Justice White noted in dissent in Welsh v. U. S., Congress or in this case the state should have some leeway in interpreting the religion clauses. In this case the state has adopted a neutral position. That position does not clearly establish a religion nor does it directly infringe upon religious freedoms. I am making the same plea that every attorney general probably does before you and ask that you recognize the federal system and adopt a hands-off approach in this particular situation. The Legislature of Indiana has assessed the public need, as required in Everson v. Board of Education. The statute is neutral, as required in that estate, and even though there is an indirect, there may be an indirect burden on Mr. Thomas in this case, that does not by itself give rise to a requirement that a statute otherwise neutral, with a secular purpose and a secular effect, should be stricken down. Thank you. I'm sorry. Any further questions?
Warren E. Burger: Apparently none. Do you have anything further?
Mrs Blanca Bianchi De La Torre: First we would like to address the contention of the respondent that the Court of Appeals never said there was there was a concession of no compelling state interest and we would like to address the attention of the Court to pages 13(a) and 19(a) of our petition for certiorari where the Court of Appeals clearly said that the task of applying Sherbert in this case is focused by the Board's concession in oral argument that no compelling state interest exists in this case to justify an infringement. So it is very clear, there was a concession in oral argument. Second, the Board contends that in Sherbert there was a discriminatory effect in relation to Sunday worshipers that is not present in this case. The truth of the matter is that Sherbert was decided on First Amendment, not on the Fourteenth Amendment equal protection provision. Also, the interests now asserted by the State for the first time before this Court in these proceedings were already rejected in Sherbert like Justice Stevens pointed... And this Court has stated that only the gravest abuses endangering paramount interests permit infringement on First Amendment rights. Those grave abuses are not present in this case.
William H. Rehnquist: Mrs. de la Torre, what if at the time that your Mr. Thomas applied for work at the foundry he was told that as a matter of company policy someone who is in the roll mill automatically at the end of six months would be placed, rotated to the tank production department?
Mrs Blanca Bianchi De La Torre: That would be different from our case because that would indicate knowledge on this petitioner that that job was in conflict with his religious beliefs. And I have to admit that he could not accept that job and then allege that his free exercise rights had been violated, because he had knowledge. But in this case he didn't. The Referee concluded that it wasn't until he was transferred to the tank turret line that he realized the armament-producing nature of Blaw-Knox. So he would not put himself in a position of having a conflict with his religious beliefs. Also--
Byron R. White: Could I ask you, suppose that his request to the Jehovah's Witnesses had been answered by the religious body saying, there's nothing contrary to our religion to work in the turret factory. And he said, well, that's maybe your view of it as a group, but my own personal religious beliefs prevent me from doing so.
Mrs Blanca Bianchi De La Torre: --We will still argue that the First Amendment protects that belief because it's religious in nature, it's sincerely held.
Byron R. White: As long as you say it's religion. What if he says, well, I just don't believe I should... I just don't believe in war.
Mrs Blanca Bianchi De La Torre: Well, that is consistent with the tenet of the Jehovah's Witnesses and would also be a belief protected by the First Amendment.
Byron R. White: And you would say the same thing, then, if a person went to his employer and said, I can't work in a turret factory, I'm going to quit, and the employer said, well, why?
Byron R. White: I have a religious belief.
Byron R. White: And his employer said, well, what religion are you a member of? And he says, none except mine. I'm a one-man, I have a one-man religion. And... but it's religious. I think it's contrary to the laws of God to go to war or to even work on the implements of war. You would be here in the same capacity--
Mrs Blanca Bianchi De La Torre: Then we would have to urge this Court to adopt the definition of religion in Seeger and Welsh, which has not been extended to the First Amendment as of today.
Byron R. White: --Well, no, he would say, this isn't just conscientious. I categorize my beliefs as religious.
Mrs Blanca Bianchi De La Torre: Okay, then, we would have to look, as I said, to the test of sincerity and religious nature and how central this belief is to the life of this individual. The Court has often emphasized the centrality of the belief to determine sincerity, and to that effect are the decisions of the Court of Appeals in Teterud v. Burns, 1979 decision, I believe, and other decisions of lower federal courts.
Harry A. Blackmun: So you're close to conceding that all this Jehovah's Witness business is irrelevant.
Mrs Blanca Bianchi De La Torre: What we're saying is that if--
Harry A. Blackmun: For the precise issue here.
Mrs Blanca Bianchi De La Torre: --Pardon?
Harry A. Blackmun: For the precise issue here. You are close to conceding that the presence of a Jehovah's Witness connection is irrelevant. He'll prevail anyway. The church--
Mrs Blanca Bianchi De La Torre: He doesn't need the backing of the well-known religious organization to come to this Court and urge protection of his First Amendment rights, but in this case that backing is persuasive as to the issue of sincerity and is very crucial.
Harry A. Blackmun: --but your response to Mr. Justice White was that eliminating that you would still be here.
Mrs Blanca Bianchi De La Torre: Yes; yes, Mr. Justice.
Speaker: What if he said, I'm an atheist but I'm opposed to all wars?
Mrs Blanca Bianchi De La Torre: Then I would have to urge this Court to adopt the definition of religion in Seeger and Welsh.
Warren E. Burger: But these fallback positions do not alter the fact that you have an organized established religion declaring the belief on which he relies.
Mrs Blanca Bianchi De La Torre: Yes, there is one.
Byron R. White: But which all members do not follow, apparently.
Mrs Blanca Bianchi De La Torre: Well, as we indicate in our reply brief, the Jehovah's Witnesses encourage their members to read and study the Bible and get their own teachings from it. It's the practice that they do encourage and they have to come to their own decision.
Byron R. White: But some of them... not all Jehovah's Witnesses refuse to work in the turret factory.
Mrs Blanca Bianchi De La Torre: That's correct.
Byron R. White: And at least some of them thought it was wholly consistent with the tenets of the sect, or of the religion.
Mrs Blanca Bianchi De La Torre: They did not view working there as unscriptural, while Mr. Thomas did.
John Paul Stevens: But does that necessarily follow? Supposing you had a Catholic nurse employed in a hospital and was transferred into the abortion ward, and she said, well, it's against my religion to work in abortions and then they defend it on the grounds, well, some other Catholics will perform these services, therefore your belief is not religious, is not sincere.
Mrs Blanca Bianchi De La Torre: I would say that the belief is religious in nature because she's saying that--
John Paul Stevens: Some people are more religious than others within the same faith, in other words.
Mrs Blanca Bianchi De La Torre: --Yes.
Warren E. Burger: Well, you have the further factor that in the Roman Catholic faith you have an authoritarian determination of these issues and yet people are not excommunicated just because they don't follow all of them.
Mrs Blanca Bianchi De La Torre: Well, we are submitting that the pressure from the congregation is not a necessary element of a protected expression of religious belief.
Byron R. White: You agree that the group as a whole do not make this a tenet, that they don't have a rule against working in turret factories. They leave it up to each individual to study the Scriptures and come to his own conclusions as to what his religious belief should be.
Mrs Blanca Bianchi De La Torre: Yes, Mr. Justice.
Byron R. White: So the fellow who works in the turret factory is acting just as consistently with the Jehovah's Witnesses tenets as the fellow who doesn't.
Mrs Blanca Bianchi De La Torre: His interpretation; yes.
Byron R. White: Yes.
Mrs Blanca Bianchi De La Torre: Thank you.
Warren E. Burger: Very well. Thank you, counsel. The case is submitted.