Here’s the puzzle: Everyone recognizes that “free exercise” protects religious bodies as well as individuals; but until the 1990s, by and large, the claims of organized religion—Catholic archdioceses, Jewish congregations, and other institutions with a religious cast—were negotiated in Congress or state legislatures. “Conscientious objection” to war was protected by statute, not constitutional litigation; statutes, not court cases, protected the right of Christian congregations to use wine during the sacrament of Communion even during prohibition. Anti-discrimination statutes exempted religious groups from certain discrimination claims—such as female postulants demanding entry to all-male priesthoods.
In contrast to legislation, constitutional litigation was mostly used by individuals who had no powerful denomination to protect them. For these plaintiffs, the Court created something called “the Sherbert test.” It was named after Adell Sherbert, a Seventh-Day Adventist who quit her job when the boss required her to work on Saturday, her Sabbath. The state refused to pay her unemployment compensation on the grounds that her religion was not “good cause” for leaving her job. Announced in 1963, the test asked whether the regulation was “narrowly tailored”—that is, necessary—to further a “compelling” government purpose. (In Sherbert’s case, the Court held, the regulation wasn’t “narrowly tailored”—state law recognized non-religious, but not religious, reasons as constituting “good cause.”) Sherbert mostly applied to claims by individuals like Adell Sherbert: Jehovah’s Witnesses who objected to doing war-related work, Amish parents who faced jail for home-schooling their children.
Though focused on individual rights, courts applying the test also asked whether accommodating the objector would shift the burden to a third party. A Jehovah’s Witness mother could sell pamphlets in the street, but could not make her 9-year-old to do so in violation of child-labor laws. A Connecticut law required employers to give religious employees their “Sabbath” off. The Court held that this rule burdened other employees, who also might want those days off. The Amish parents won, in part, because they weren’t seeking to exempt their teens from school, but to educate them at home. And Amish didn’t get complete immunity from the law: Amish employers, who object to Social Security, were still required to pay their employees’ Social Security payroll tax. Orthodox Jews did not have a constitutional right to keep their discount stores open on Sundays when other stores were required to close.