RUSSELL v. CATHERWOOD, 399 U.S. 936 (1969)

June 29, 1970

On Petition for Writ of Certiorari to the Appellate Division, Supreme Court, New York, Third Judicial Department.

The petition for a writ of certiorari is denied.

Mr. Chief Justice BURGER, with whom Mr. Justice DOUGLAS joins, dissenting.

The Appellate Division of the New York Supreme Court has interpreted 593 of the New York Unemployment Insurance Law as requiring an applicant for unemployment benefits, as a condition to receiving those benefits, to stand ready to accept suitable employment when tendered, even though acceptance of the employment would compel him to join a union as to which he has 'conscientious objections.' The decision of the New York courts places a burden on the petitioner's freedom of association-a freedom we have placed on a high, if indeed not a 'preferred' plane. See NAACP v. Alabama, 357 U.S. 449 (1958). Consequently, this case may well present important issues that ought to be decided, particularly if the result of the New York holding is that a worker must decide between a deeply felt belief which falls in the First Amendment area, and crucial unemployment benefits.

The Industrial Commissioner, if we are to place any weight on his response here, has shown that he considers the petitioner bound to accept a job tender even when his acceptance requires union membership that is repugnant to him. It may be that on plenary consideration we would conclude that the Constitution requires the respondent to provide employment that does not conflict with the worker's freedom of association, as might be indicated under Sherbert v. Verner, 374 U.S. 398 (1963). In that case we held unemployment benefits could not be denied because of refusal to accept employment that required a member of the Seventh [399 U.S. 936 , 937]   Day Adventists to work on her Sabbath. See also NAACP v. Button, 371 U.S. 415, 438 (1963).

I would grant the writ because I believe that the petitioner has presented a substantial question and possibly one of important constitutional dimensions that warrants plenary-not summary-consideration.