(dissenting).
I cannot join in the judgment announced this day.
Central to the controversy is the fundamental and twofold guarantee set forth in the First Amendment to the United States Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ....
Through the operation of the Fourteenth Amendment the Free Exercise Clause applies to state action as well as to federal action. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). The majority, however, elects to dispose of this appeal without reaching this constitutional issue.1
For the Founding Fathers, the word “religion” in the Free Exercise Clause may have had a fairly narrow meaning, reflecting the traditional theistic concepts prevalent in their time. The twentieth century, however, has brought manifold and dramatic changes to religion in America. The growing diversity in religious life and practice has appreciably broadened the range of human activity connoted by the term “religion” in the Free Exercise Clause. As we test this claimant’s conduct by the freedoms guaranteed him by the First Amendment,2 we must bear in mind that religious liberty protects more than the traditional forms of worship.3
The factual matrix out of which this controversy arose is a limited one. The Commission found that when Ambrose Flynn went to work for Camille Carrier he was told “it would be best” if he did not mention his past association with the Franciscan order. There is no evidence that he ever did so. The Commission further found that he was told “it would be best” if he minimized conversation on the job. There is nothing in the record to indicate that he participated in long conversations at the hospital.
While my colleagues premise their majority opinion on the ground Flynn “accepted *910employment on the express understanding that he was not to discuss religion,” the Commission’s findings of fact, on the contrary, indicate that it was “several weeks after he commenced work” before Flynn was called into Carrier’s office and “instructed” not to discuss religion on the job. Further, according to Carrier the only reason for reprimanding his employee was “complaints” passed on to him about Flynn’s conduct. These complaints were no more than “totem pole” hearsay. When at the hearing Carrier was asked five times who had made the complaints, he five times refused to disclose the sources.
The basic facts of this controversy, nevertheless, were clearly established, both by Flynn’s admissions and by Carrier’s statements; despite Carrier’s request to Flynn not to talk with patients in the emergency room about anything, including his religious beliefs, Flynn refused to forego the imperatives of his religion. When in the presence of the emotionally distraught, Ambrose Flynn believed it his duty to God and to himself to speak. Even as for some a moment of silence or a brief period of meditation may at times be mandated by their religious faith, so for Ambrose Flynn, sitting in the emergency room with the psychotic or the suicidal, a vital element of his own religious life was not to keep silent but to express his own deep convictions.
For the refusal to keep silent at such crises Ambrose Flynn was discharged.
Discharge for such a refusal was deemed by the Superior Court, as well as by the Commission, to be “misconduct” within the meaning of the Employment Security Law. 26 M.R.S.A. § 1043(23) (1974). The Superior Court concluded, however, that even if Flynn was guilty of statutory misconduct, the Free Exercise Clause prohibited the State from denying him the unemployment benefits to which he was otherwise entitled. On the contrary, this Court today concludes that Flynn took the job knowing that the conduct his religious beliefs compelled was conduct forbidden to him.
For today’s majority, a citizen’s deeply held religious convictions are as superficial a subject of conversation as yesterday’s baseball scores — a subject freely censored at the whim of the employer. For them, free exercise is something which an employer can request an employee to waive on the penalty of disqualifying himself for the state’s unemployment benefits.4 For Amb-rose Flynn, on the other hand, the expression of these religious views to people in great emotional distress was fundamental to his faith.
At the core of the Free Exercise Clause is voluntarism — the inviolability of conscience. As Professor Kauper has distilled the Clause, any attempt by government to punish a person for professing religious beliefs is a violation of his religious freedom. Church and State: Cooperative Separatism, 60 Mich.L.Rev. 1, 8 (1961). The Clause prohibits not only direct compulsion but also any indirect coercion which might result from subtle discrimination; it is offended by any burden based specifically on one’s *911religion. L. Tribe, American Constitutional Law § 14.3 at 818 (1978).5
Today’s majority imposes such a burden when it denies Flynn his unemployment benefits because he was true to his religious faith in talking as he did with the distraught. Moreover, that burden, the denial of unemployment benefits, is imposed with no compelling reason to warrant the intrusion upon Flynn’s free exercise. See Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963). The record before us does not demonstrate that the payment of unemployment benefits to Flynn would seriously threaten any state interest whatsoever, much less support a conclusion that there is “a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.” Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972). It was the Commission’s burden to show such a state interest, not Ambrose Flynn’s burden to establish an absence of the same.6
Only a few months ago in Dotter v. Maine Employment Security Commission, Me., 435 A.2d 1368, 1372 (1981), we echoed the conclusion of the United States Supreme Court:
[W]hen a state denies unemployment benefits because the worker has engaged in conduct mandated by religious belief, ‘thereby putting substantial pressure on the adherent to modify his behavior and to violate his beliefs,’ a substantial interference with the worker’s free exercise of religion exists. Thomas v. Review Board, 450 U.S. 707 [101 S.Ct. 1425, 67 L.Ed.2d 624] (1981).
In Sherbert v. Verner, supra, the United States Supreme Court moved away from a position of strict neutrality and compelled another state to extend unemployment compensation benefits to claimants who refused to undertake work which would interfere with the observance of their Sabbath. Likewise, I submit, the State of Maine should not deny similar benefits to this claimant who was following the mandates of his religion when he talked with the distraught patients he encountered in the course of his employment.
In Sherbert, supra, the Supreme Court declared that more was required than a mere showing of a rational relationship to some state interest. Instead, the Court required a compelling state interest to justify the burden on free exercise noting that in this highly sensitive area “[ojnly the gravest abuses, endangering paramount interests; give occasion for permissible limitation.” Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945).
As I see it, today’s majority violates the constitutional guarantee of free exercise.
The majority fails to apply the Supreme Court's balancing test — which, I suggest, the court below correctly invoked — and today enters a mandate which inhibits and burdens religion. Our Court instead should be safeguarding Ambrose Flynn’s free exercise of religion. This is his fundamental constitutional right.
Because it stands for the inner sanctuary of a man’s life, religious freedom has its own unique equality and dimension. This is God’s domain and Caesar may not trespass upon it.7
I would affirm the judgment of the Superior Court.
.Neither does the majority address the Declaration of Rights in the Maine Constitution which proclaims, inter alia:
[N]o one shall be hurt, molested or restrained in his person, liberty or estate for ... his religious professions or sentiments, provided he does not disturb the public peace, nor obstruct others in their religious worship; _ Art. 1, § 3.
. With a federally guaranteed constitutional right at issue, this is a federal question controlled by federal law. Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966).
. See People v. Woody, 61 Cal.2d 716, 727, 40 Cal.Rptr. 69, 394 P.2d 813 (1964).
. The majority thereby adopts a waiver theory, reasoning that Flynn took the job with the understanding that he was not to discuss religion at the hospital. The Commission’s findings of fact, however, do not adequately support a conclusion of waiver. The Commission found that when Flynn took the job, it was on an “it would be best” basis. Only later, after Flynn was on the job, came firm instructions from Carrier.
It is well established that courts closely scrutinize waivers of constitutional rights and “indulge every reasonable presumption against waiver.” Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811, 81 L.Ed. 1177 (1937).
Moreover, in this First Amendment context, the evidence that rights were waived must be “clear and compelling.” Curtis Publishing Co. v. Butts, 388 U.S. 130, 145, 87 S.Ct. 1975, 1986, 18 L.Ed.2d 1094 (1967); Sambo’s Restaurants, Inc. v. City of Ann Arbor, 663 F.2d 686, 690 (6th Cir. 1981).
This record falls far short of demonstrating that there can be attributed to Flynn “an intelligent relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
. See generally Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, 80 Harvard L.Rev. 1381 (1967); Pfeffer, The Supremacy of Free Exercise, 61 Georgetown L.J. 1115 (1973); Note, Time, Place and Manner Regulations of Expressive Activities in the Public Forum, 61 Nebraska L.Rev. 167 (1982).
. For a more recent application by the United States Supreme Court of the balancing test see Johnson v. Robinson, 415 U.S. 361, 375, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389 (1974).
. P. Kauper, Frontiers of Constitutional Liberty, ch. III at 112 (1956).