Barbara AUSTIN, Plaintiff-Appellee, v. Sandra BERRYMAN; Patrice Johnson; Joseph Hayes; Ralph Cantrell, Defendants-Appellants, National Employment Law Project, Inc., Amicus Curiae, 862 F.2d 1050

SPROUSE, Circuit Judge: Sandra Berryman, Acting Chief Appeals Examiner, Patrice Johnson, Special Examiner, Joseph Hayes, Assistant for Commission Appeals, and Ralph Cantrell, Commissioner, all of the Virginia Employment Commission of the Commonwealth of Virginia, appeal from the judgment of the district court in favor of Barbara Austin. When Austin resigned her job in Salem, Virginia, to move to Castlewood, Virginia, with her husband, she applied for unemployment benefits.

The Commission decided that she was ineligible for benefits, basing its decision on a provision of the Virginia unemployment compensation statute that singles out employees who voluntarily quit work to follow a spouse to a new locality. Austin then brought the underlying action in the district court. She claimed, among other things, that the Virginia statute violated her first amendment right to the free exercise of religion and her fundamental marriage rights protected by the due process clause of the fourteenth amendment.

The district court held that the statute infringed upon incidents of marriage protected by the fourteenth amendment and was facially unconstitutional. Pursuant to that holding, it enjoined the Commission from enforcing the statute against any married person solely because he or she resigned a position to follow a spouse. It also held that, as applied to Austin, the statute violated her first amendment right to the free exercise of religion. Austin v. Berryman, 670 F.Supp. 672 (W.D.Va.1987). Believing itself bound to do so by our decision in Brown v.

Porcher, 660 F.2d 1001 (4th Cir.1981), cert. denied, 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983), overruled on other grounds, Wimberly v. Labor & Industrial Relations Commission, 479 U.S. 511, 107 S.Ct. 821, 93 L.Ed.2d 909 (1987), it later amended its judgment and ordered the Commission to pay Austin retroactive benefits. The district court’s ruling on these issues is now before us on appeal. We do not agree that the statute is facially unconstitutional.

In our view, the statute’s denial of benefits to employees who resign to follow their spouses does not so fundamentally affect marriage relationships that it must be examined under heightened judicial scrutiny. Gauging the statute under the rational-basis test, we conclude that a reasonable and rational connection exists between the legislation and the legitimate purpose motivating its enactment. Therefore, we reverse that portion of the district court’s judgment enjoining the enforcement of the statute.

We agree with the district court, however, that the Virginia statute as applied to Austin violates her first amendment right to the free exercise of religion. We think that Brown does not control the outcome of this issue and that the eleventh amendment prohibits the award of retroactive benefits. Therefore, we reverse that part of the district court’s judgment awarding those benefits. I Austin was employed by McVitty House, Inc., in Salem, Virginia, from May 14, 1984 through June 3, 1985.

In the spring of 1985, her husband decided to move approximately 150 miles away to Castlewood, Virginia, to care for his 81-year-old mother who lived there. Austin quit her job with McVitty House to accompany her husband to Castlewood and, unable to find employment, she applied for state unemployment benefits on July 2, 1985. At the time of her benefits application, Virginia Code § 60.1-58(

a) provided that an employee was disqualified from receiving unemployment benefits if he or she “left work voluntarily without good cause.” Interpreting “good cause” in

section 60.1-58(a), the Commission had established a practice of granting unemployment compensation to employees who left work voluntarily for purely personal reasons of a compelling nature. In 1979, however, the Virginia legislature amended

section 60.1-58(

a) to provide that “the voluntary leaving of work with an employer to accompany or to join his or her spouse in a new locality” is not “good cause.” When Austin filed her claim for unemployment benefits, a deputy of the Commission determined that she was ineligible for benefits because she voluntarily left her employment without good cause. Austin appealed that denial within the Commission, and, on August 22, 1985, an appeals examiner conducted a hearing. Austin testified that her husband moved from Salem to Castlewood to care for his elderly mother.

She testified that she and her husband are members of the Holiness church, that her husband had been a member of the religion since he was an infant, and that she joined the church when she married him eighteen years prior to the time of her resignation from the McVitty House employment. She explained the tenets of her faith during the hearing: [W]e, uh, abide by what the Bible tells us and we live what is wrote in God’s Word, His Bible. ... [0]ur belief is that we honor our husband. It tells you in the Bible that you honor your husband and his decisions on things.

And, uh, [we] feel like that if you go against a decision like this pertaining to his mother, which it says in the Commandments that you honor your father and your mother. And in this case his mother needed him and he felt like that he would be going against what the, that our religion is, that he would be going against God’s Word if he did not go and, and take care of his mother when she was in need. And therefore [we] also believe[] that you honor your husband’s decision and that you go where your husband says go, because [we] feel like that that’s breaking up a home ... if you don’t.

It is been taught to us and in the Bible it, it tells you [that the Commandment, “Honor thy father and thy mother,” applies to one’s in-laws]. It’s not that, uh, it’s, it’s his mother and, and it, and, respect it is my mother too in our belief. It is, um ... She’s just like, it would be my own mother in our belief because she’s part of our family. It’s her, it’s his mother, but just like, um, my mother and father, we do and, and honor what they think_ And what they need. ...

I ... didn’t feel like there was any other choice to be made.... [B]ecause of our religion I felt ... it was the right thing to do because his mother needed help and she’s part of the family and we abide by our religion that part of the famply]. You take care_ The appeals examiner nevertheless decided that she was not entitled to unemployment benefits, and she appealed to the Commission itself. On March 5,1986, the Commission issued an opinion affirming the decision of the appeals examiner.

It held that Austin’s primary reason for quitting her job was a desire to move with her husband to a new locality and that she therefore voluntarily left her employment without good cause. The Commission also rejected Austin’s first amendment free exercise claim: [Austin’s] decision to terminate employment was not because of any religious objection to the job held or work requirements expected of her. [She] was, at all times, consistent with her claimed religious belief, able to be employed but for the decision of her husband to relocate.

In this case, [her] decision to quit her employment had nothing to do with any religious objection to the job itself or to a requirement of the employer. Austin then filed suit in district court challenging the constitutionality of

section 60.-l-58(

a) based on, inter alia, the first amendment free exercise clause and the fourteenth amendment due process clause. II In our view, the district court correctly analyzed United States Supreme Court precedent as requiring its finding that the Commission violated Austin’s first amendment free exercise rights. In Sherbert v.

Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Supreme Court held that a South Carolina statute abridged the appellant’s first amendment right to free exercise of religion by disqualifying her from receipt of unemployment compensation benefits because of her refusal to work on Saturday. She was a member of the Seventh-Day Adventist church whose tenets prohibited Saturday labor.

The Court stated: The [denial] forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship. ... [T]o condition the availability of benefits upon this appellant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.

Id. at 404, 406, 83 S.Ct. at 1794, 1795. The Court went on to hold, of course, that only a compelling state interest could justify such a burden on first amendment rights.

Responding to an argument that South Carolina had a compelling interest to prevent the possibility of fraudulent claims, the Court explained that “even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.” Id. at 407, 83 S.Ct. at 1795. In Thomas v.

Review Board of the Indiana Employment Security Division, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), a Jehovah’s Witness was transferred from a roll foundry of a fabricated sheet steel factory to a department that fabricated turrets for military tanks. He quit his position because all jobs available to him involved weapons production and because his religious beliefs prevented him from working on weapons. His subsequent request for unemployment benefits was denied. The Supreme Court concluded that Thomas clearly terminated his employment for religious reasons.

The Court stated that “[t]he narrow function of a reviewing court ... is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion.” Id. at 716, 101 S.Ct. 1431.

The Court, following Sherbert, explained that the denial of benefits placed a burden on Thomas’ religious liberty: Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial. Id. at 717-18, 101 S.Ct. at 1431-32.

It stated that the state can justify such an “inroad on religious liberty” only by showing it has used “the least restrictive means of achieving some compelling state interest.” Id. at 718, 101 S.Ct. at 1432. Under this strict scrutiny, the Court concluded that the state interest of preventing a burden on the unemployment fund did not justify the denial of benefits. Recently, the Supreme Court again entertained this basic first amendment issue in Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987).

During her employment with a jewelry store, Hob-bie converted to the Seventh-Day Adventist religion. Following her new religious beliefs, she refused to work on Friday evenings and Saturdays. She was therefore discharged and subsequently denied state unemployment benefits. The Court quoted Sherbert and Thomas and found that the denial of benefits to Hobbie violated her first amendment free exercise right.

The Court explained that “[i]n Sherbert, Thomas, and the present ease, the employee was forced to choose between fidelity to religious belief and continued employment; the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee’s choice.” 107 S.Ct. at 1051. That Hobbie’s beliefs changed during the course of her employment was constitutionally irrelevant because “[t]he First Amendment protects the free exercise rights of employees who adopt religious beliefs or convert from one faith to another after they are hired.” Id.

Here, Austin has unquestionably established that she terminated her employment with McVitty House because of her sincere religious beliefs. She testified that her Holiness faith required her to abide by her husband’s decision to move to Castlewood and to stay with her family. Neither the examiner during the hearing nor the Commission on administrative appeal questioned the sincerity of Austin’s beliefs. We agree with the district court that no meaningful distinction exists between these circumstances and those that the Supreme Court reviewed in Sherbert, Thomas, and Hobbie.

Guided by the rationale announced in those cases, we find that the Commission cannot show a compelling justification for penalizing Austin for adhering to her religious beliefs. The Commission argues that the Commission must maintain the fiscal integrity of the unemployment compensation fund and ensure stability of employment. The Supreme Court rejected similar proffered justifications in Sherbert and Thomas. In our view, any decision different from the one we reach today would require a narrowing of the broad doctrine announced in the governing trilogy of cases. Ill The district court, citing Zablocki v.

Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) and Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion), held that

section 60.1-58(

a) of the Virginia Code impinges impermissibly upon the fundamental constitutional right of a married couple to live together. In Za-blocki, the Supreme Court examined a Wisconsin statute providing that any resident having minor children not in his custody, which he was under an obligation to support by court order, could not marry without obtaining court approval. The plaintiff and the woman he wanted to marry were expecting a child and wanted to marry before the child’s birth, but they were denied a marriage license because the plaintiff did not have court approval.

The Court stated: It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.... [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. 434 U.S. at 386, 98 S.Ct. at 681.

Because the statutory classification “directly and substantially” interfered with the fundamental right to marry, id. at 387, 98 S.Ct. at 681, the Court held that the classification violated equal protection when reviewed under the required heightened judicial scrutiny. In Moore, the Court considered the constitutionality of a housing ordinance that limited occupancy of a residence to a single narrowly-defined family. A grandmother who housed two grandsons was prosecuted for violation of the ordinance and convicted.

The Moore plurality, in reversing her conviction, decided that the rights of persons to live together as a family is one of the liberties protected by the due process clause of the fourteenth amendment. 431 U.S. at 499-500, 97 S.Ct. at 1935-36. We do not think, however, that the circumstances bearing on marriage and family unity that we consider here equate to the circumstances present in Zablocki and Moore. There are, of course, many state regulations affecting the marriage relationship that do not implicate constitutional concerns.

In our view, the regulation of unemployment compensation benefits to married persons in the context presented here is one of them. The Supreme Court, in Lyng v. Castillo, 477 U.S. 635, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986), examined the constitutionality of the narrow definition of “household” in the Food Stamp Act. The Act treats parents, siblings, and children who live together as a single “household”; however, distant relatives and unrelated persons who live together are not a “household” unless they purchase food and prepare meals together.

The Court held that this classification does not “ ‘directly and substantially’ interfere with family living arrangements and thereby burden a fundamental right.” Id. at 638, 106 S.Ct. at 2729-30. The Court explained: The “household” definition does not order or prevent any group of persons from dining together. Indeed, in the overwhelming majority of cases it probably has no effect at all.

It is exceedingly unlikely that close relatives would choose to live apart simply to increase their allotment of food stamps, for the cost of separate housing would almost certainly exceed the incremental value of the additional stamps. Id. Upholding the constitutionality of the Act, the Court applied a rational-basis test because the “household” definition does not burden a fundamental right. Id. at 639, 106 S.Ct. at 2730. Two years later, in Lyng v.

International Union, UAW, — U.S. -, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988), the Supreme Court also held constitutional a 1981 amendment to the Food Stamp Act which prohibits a household from becoming eligible for, or increasing benefits of, food stamps when a member of the household is on strike.

Following Castillo, the Court held that a rational-basis review was appropriate rather than a stricter standard because the 1981 amendment does not significantly implicate a fundamental right: As was true of the provision at issue in Castillo, it is “exceedingly unlikely” that [the 1981 amendment] will “prevent any group of persons from dining together.” Even if isolated instances can be found in which a striking individual may have left the other members of the household in order to increase their allotment of food stamps, “in the overwhelming majority of cases [the statute] probably has no effect at all.” The statute certainly does not “order” any individuals not to dine together; nor does it in any other way “ ‘directly and substantially’ interfere with family living arrangements.” Id. at 1189 (quoting Castillo, 477 U.S. at 638, 106 S.Ct. at 2729-30) (citations omitted (second brackets in original)).

We find that rational-basis review is appropriate to determine the facial validity of

section 60.1-58(a). Following the analysis of Castillo and International Union, we conclude that the Virginia statute does not “directly and substantially” interfere with the fundamental right to marry or the fundamental right to live together as a family.

Section 60.1-58(a), which makes ineligible for unemployment compensation an employee who quits work to follow his or her spouse to a new place of residence, does not “order or prevent” spouses or families from living together. It is “exceedingly unlikely” that a spouse would decide to remain at work and not to follow his or her spouse simply because the spouse would be ineligible to receive unemployment benefits. Even if rare cases exist in which workers decide not to accompany their spouses to a new place of residence simply because they know they will be ineligible for benefits,

section 60.1-58(a) “ ‘in the overwhelming majority of cases ... probably has no effect at all,’ ” International Union, 108 S.Ct. at 1189 (quoting Castillo, 477 U.S. at 638, 106 S.Ct. at 2729-30). Therefore, we hold that the Virginia statute does not significantly burden a fundamental right. Under the proper standard of review, we think that the Virginia legislature had a rational basis to protect the unemployment compensation fund from what it determined are unmerited claims. IV The district court, in its published opinion, awarded declaratory and injunctive relief in favor of Austin on her “free exercise” claim.

The court recognized the forceful effect of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), in which the Supreme Court held that the eleventh amendment prohibits an award of retroactive monetary damages against a state treasury. Holding itself bound to do so by our decision in Brown v. Porcher, 660 F.2d 1001 (4th Cir.1981), cert. denied, 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983), overruled on other grounds, Wimberly v.

Labor & Industrial Relations Commission, 479 U.S. 511, 107 S.Ct. 821, 93 L.Ed.2d 909 (1987), however, the district court amended its judgment after the publication of its opinion and ordered an award of retroactive benefits from Virginia’s unemployment compensation fund. In Brown, we held that a retroactive award against the “insulated, separately financed” South Carolina unemployment compensation fund does not violate the eleventh amendment. Id. at 1007.

As the district court recognized in its amended judgment, however, crucial distinctions exist between Virginia’s unemployment compensation fund and the South Carolina fund that we considered in Brown. Crucial to our decision in Brown was our understanding that the South Carolina fund is administered separately from all other public funds. As required by

article 10,

section 7 of the Virginia Constitution and Virginia Code §§ 60.2-301 and 60.2-302 (1987), all contributions are paid into the state treasury and then credited to the fund. Moreover, under

section 60.2-304, the State Treasurer makes all payments and disbursements from the fund at the request of the Comptroller. The fund is also subject to Virginia’s general budgetary process under

section 2.1-394. Although the district court ordered the four appellants to pay Austin retroactive benefits, a retroactive benefits payment cheek, if made, would be at the request of the Comptroller and signed by the State Treasurer. Such a payment “is in practical effect indistinquishable in many aspects from an award of damages against the State.” Edelman, 415 U.S. at 668, 94 S.Ct. at 1358. In our view, the Virginia Constitution and the Virginia Code categorize the entire structure of the Virginia unemployment compensation fund as a part of the integrated Virginia treasury.

We hold, therefore, that the eleventh amendment forecloses an award of retroactive monetary relief to Austin and limits her recovery to declaratory and injunctive relief. V In view of the above, the judgment of the district court is affirmed in part, reversed in part, and remanded for proceedings consistent with the views expressed in this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. . Virginia Code § 60.1-58(

a) provided that ordinarily an employee who voluntarily quits work is ineligible for unemployment benefits unless "good cause” is established. Germane to this case, however, the statute further provided that quitting work in order to follow a spouse can never be considered "good cause.” .

Section 60.1-58(

a) was repealed and recodi-fied in

section 60.2-618(1), effective January 1, 1987.