Privileging Conscientious Dissent: Another Look at Sherbert v. Verner

Abstract

Since they can involve a collision of competing ultimates, the relations between law and conscience have always been delicate and controversial in American constitutional law, and the Su preme Court's most recent major decision on the meaning of the free exercise of religion clause of the First Amendment is not likely to lessen this controversy. In Wisconsin v. Y oder,1 an nounced in May 1972, the Court ruled that a state must allow a special exemption from its compulsory school attendance poli cies for Amish youths of high school age whose parents have strong scruples against the secular learning promoted by these policies. Neither the decision in this case nor the facts were so controversial in themselves.2 Indeed, the decision seemed long overdue in ending the distressing harassment of a nonconforming but respected and obviously conscientious minority. What was controversial, however, and indeed most significant about the Y oder ruling was that it reasserted and gave new force to an earlier and more important decision, S Herbert v. Verner.3 No doubt because it had attempted a radical reinterpretation of the free exercise clause, Sherbert had remained a rather lonely prece dent and had virtually lain fallow for a decade. Thus the heavy reliance of Yoder upon Sherbert has momentous implications in the development of constitutional doctrine in the area of freedom of conscience.4