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Pleadings Before the California Supreme Court

The Myth of the "Settled Question"

Petitioner in this case seeks admission to the practice of law after modifying his oath into an explicitly Trinitarian oath. Can he do it? The State Bar says No; that question has already been raised in courts and decided in the negative. It is now "a settled question." Petitioner is unconvinced that this issue has ever been raised in any case, much less "settled."

Respondent answers Petitioner's 90+ page brief with the facile claim, "Despite petitioner's assertions to the contrary, the constitutionality of support oaths is a settled question."[1] This is a completely understandable reaction, as many courts have repeated the claim. But close analysis of the claim yields some surprising and significant insights, among them that the claim is as widely accepted as it is untrue. Respondent cites six cases in support of the claim; Petitioner's unique arguments were not raised in any of these cases. The Support Oath was challenged in only three of the cases, and by plaintiffs who were public employees, not attorneys. These cases also viewed the issue as "a settled question," so we turn to find out when and how it was first "settled." The results are important.

The first case cited by Respondent, Law Students Civil Rights Research Council Inc. v. Wadmond,[2] was not a challenge to the Support Oath,[3] but did contain dicta that "there can be no doubt of its validity. It merely requires an applicant to swear or affirm that he will 'support the constitution of the United States' as well as that of the [s]tate. . . ."[4] Three cases were cited by the Law Students Court as leaving "no doubt" as to the constitutional validity of the Attorney's Support Oath.

Knight v. Board of Regents (1967) Petitioner's arguments were not "settled" in this court, for Plaintiff-teachers here conceded that "it is constitutionally permissible to demand from public officials, federal and state, a[ support] oath,"[5] but distinguished teachers' speech, which they contended must be totally "free of interference."[6] With the left hand the court said the oath imposes "no restrictions upon political . . . expressions," and with the right hand the court justified such restrictions by saying "A state does not interfere with its teachers by requiring them to support the governmental systems which shelter and nourish the institutions in which they teach . . . ."[7] Apparently, if someone wishes to teach Christianity, but the State's schools exclude by law Christian teachers and Christian morality, that person can, presumably, start his own school and teach Christianity. But to teach in the state schools, one must be loyal to the State.[8] The Knight court had little to support this holding, as the applicability of the Constitutional Support Oaths (Articles II and VI) to teachers was not "a "settled question,"[9] but the court referred to the case of Bond v. Floyd,[10] which "stated that Georgia's requirement that her legislators take a similar oath in no way impinges upon the First Amendment's protection of free speech."[11] Turning to that case, we find that no challenge to the oath on First Amendment grounds was made; the Bond Court held that the state Legislature cannot "test the sincerity with which another duly elected legislator can swear to uphold the Constitution."[12] The Constitutionality of the oath itself was not challenged in Bond, nor could it be, as the oath is required of State Legislators by Article VI of the U.S. Constitution. But that Article does not require a Support Oath of Attorneys, Bond did not "settle" the issues raised by present Petitioner, thus neither did Knight,[13] and thus, so far, neither has Law Students.

Hosack v. Smiley (1967) was the next case cited by the Law Students Court. Plaintiffs, State University Professors,[14] challenged a Support Oath as Vague.[15] The Court defined the oath as a "simple recognition that ours is a government of laws and not of men." But present Petitioner argues that the shift from Christian to Humanist/Statist values brings to the "simple" words of the oath a hidden agenda. Thus, Petitioner cites many cases in which applicants who were willing to make this "simple recognition" were not permitted to do so because of their religious beliefs.[16] An oath which is not void on its face can nevertheless be unconstitutionally applied. Hosack thus did not "settle" the unique issues raised by present Petitioner, and thus, so far, neither has Law Students.

Ohlson v. Phillips is the final case upon which the Law Students dictum rests. Respondent rightly makes it evident[17] that Ohlson rests squarely on Hosack, which we have just shown did not "settle" the issues raised by present Petitioner. Ohlson re-affirmed the contention that the oath was not vague because it was, again, a "simple recognition that ours is a government of laws and not of men." But while "simple" on its face, the oath is found to be unconstitutional in its application, for the applicants cited by present Petitioner did not challenge the constitutionality of the oath, were willing to take it, and believed that "ours is a government of laws and not of men," but when full disclosure of their Christian beliefs was made, the Secular State refused to admit them. This issue was not "settled" in Ohlson.

Thus, the issue raised by Petitioner was not "settled" in any of the cases cited by the Law Students Court, which on its face claims not to have adjudicated Petitioner's contentions, and thus, so far, Respondents' claim that the application of a constitutional Support Oath to a Christian Attorney "is a settled question" is without merit.

The second case cited by Respondent is Cole v. Richardson. Far from leaving present Petitioner's arguments "settled," it merely re-states the dictum of Law Students, and the issues raised in Cole were analyzed in Petitioner's Brief at 83-86. Among the distinctions drawn there, we should note the following. (1) Appellee Richardson was an employee of the state, not a would-be attorney. (2) The common feature of the cases surveyed by the Cole Court was that they were based on the now-axiomatic

recognition that the Constitution itself prescribes comparable oaths in two articles. Article II, &sec; 1, cl. 8, provides that the President shall swear that he will "faithfully execute the Office . . [sic] and will to the best of [his] Ability preserve, protect and defend the Constitution of the United States." Article VI, cl. 3, provides that all state and federal officers shall be bound by an oath "to support this Constitution." The oath taken by attorneys as a condition of admission to the Bar of this Court identically provides in part "that I will support the Constitution of the United States"; it also requires the attorney to state that he will "conduct [himself] uprightly, and according to law."[18]
It is natural to assume that if we have the words in the Constitution, and we have the same words in this statute, that in this case they must be constitutional. Petitioner has argued that much more is involved than this, but Respondent's cases do not go beyond the easy Article VI equation, providing no analysis of the issues raised by present Petitioner, but only re-statement and explication of the meaning of the basic oath form found on the face of the two Articles. Thus, again quoting Ohlson, the Cole Court said the oath is "simply a recognition that ours is a government of laws and not of men."[19] It is a promise that "he will endeavor to perform his duties lawfully."[20] "[I]t is a commitment not to use illegal and constitutionally unprotected force to change the constitutional system;"[21] "to live by the constitutional processes of our system, as Mr Justice Marshall suggested in [Law Students v.] Wadmond . . . ."[22] (3) But as Secular Humanism replaces Christianity as the religious foundation of the State, the facially-valid oath turns out to mean more than "simply" this; in its application the simplicity of this analysis inevitably breaks down: if a Christian or anarchist is willing to take the oath and willing to affirm all of these things, the Court will still exclude him because of his religious beliefs. The religious foundations of our nation have been altered, and the issue is no longer "simple" or "settled." The Cole Court did not settle these issues, and Respondent's claim is still without merit.

The third case Respondent cites is In re Griffiths. Appellant was a resident alien denied admission to the Bar because he was not a citizen of the U.S. No challenge whatever was made to the Support Oath in this case.[23] Thus, Griffiths cannot be said to have "settled" the issues raised by present Petitioner,[24] and Respondent's claim is appearing increasingly tenuous.

The fourth case cited by Respondent is Connell v. Higgenbotham. Once again, Appellant was an employee of the state. Once again, retreat was made to Article VI of the U.S. Constitution. Once again, "The validity of . . . the oath would appear settled."[25] And once again, appearances are deceiving; in support of the claimed validity of the oath, the Court returns us to the Knight, Hosack, and Ohlson cases, which, as we have shown above, did not "settle" the issues raised by present Petitioner. Respondent still has not supported its quick dismissal of Petitioner's claims.

The fifth case offered by Respondent is Biklen v. Board of Education. Once again, the applicability of a Support Oath to an employee of the state was the first point made by the court.[26] The Court then rested the validity of the oath on the same cases we have analyzed above: Hosack, Ohlson, and Connell. The Court granted that "the attack in none of these cases has been bottomed on free exercise of religion grounds . . . ."[27] but tried to make a connection between the "Support Oath" and "no religious Test" clauses of Article VI, a connection which Petitioner has already dissected (Petitioner's Brief at 85, text at note 53[28]). Finally, the court made the all-too-easy return to Article VI: "The support oath in issue here is uniquely constitutional since it is mandated by the United States Constitution itself. Article VI cl. 3."[29]

What Petitioner finds in these cases is the effect of a propaganda technique known as "The Big Lie," which is not to assert some self-conscious, devious conspiracy by the courts to establish a Nazi regime, but simply that the easy connection between the wording of Constitutionally-mandated Support Oaths for Constitutional officers and the wording of statutory Support Oaths required of teachers was early made, then repeated over and over until its truth is now assumed by Respondent without question. Petitioner has raised serious questions as to whether that easy assumption can be made in a postTorcaso climate and applied to a Christian attorney, and none of the cases cited by Respondent have thus far "settled" those questions.

Respondent's last hope is Raffaelli v. Committee of Bar Examiners. Unfortunately, this case is simply California's precursor of the Griffiths case above. Petitioner Raffaelli was denied admission to practice law on the sole ground that he was not a citizen. Respondent State Bar argued that Raffaelli could not honestly take the Support Oath; the Court held he could. In dicta[30] the Court asserted that such an oath was constitutionally permissible, relying -- not surprisingly -- on the dicta in Law Students.[31]

Curiously, Respondent also marshals dicta in Goldfarb, viz.: the repeated simplistic understanding of the concept of the Attorney as "officer of the court" (Respondent's Brief at 9) -- a concept which was analyzed with more scrutiny by Petitioner (Petitioner's brief at 22-23). Respondent cites Raffaelli on the same issue, but did not consider the connection of the Support Oath to the holding in Raffaelli regarding an "officer of the court." The Raffaelli Court could find "no demonstrable nexus between that status and a requirement that every lawyer be a United States citizen."[32] But Respondent has in effect argued that the requirement that an attorney take a Support Oath was "settled" in Law Students, which in turn based its dictum on Hosack, which in turn rested on Blackstone,[33] who said at common law every citizen owed such allegiance to his sovereign. Q.E.D.: there is "no demonstrable nexus" between an Attorney and the Support Oath, since an Attorney need not be a citizen. And in particular, the First Amendment demands that there be no such nexus between a Christian attorney and a secular Support Oath, for the Christian owes his allegiance to a Higher Sovereign.

Petitioner understands that it seems so obviously constitutional to require an attorney to swear support for the Constitution, when the very words are "right there in the Constitution" (Article VI). A number of courts have stated this very "obvious" truth. But Petitioner has gone beneath the surface and raised serious challenges to the application of the oath to attorneys, issues which have never been raised, and thus cannot be regarded as "settled." Respondent having failed to argue successfully against Petitioner's analysis, the writ should issue.


(1) Brief of Respondent, at 7.

(2) Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 165, 91 S.Ct. 720 (1971) a case already raised by Respondent in correspondence with Petitioner, and answered (Petitioner's Brief at 2-3).

(3) Law Students, 401 U.S. 154 at 161, 91 S.Ct. 720 at 726. ("We do not understand the appellants to question the constitutionality of the actual oath an applicant must take before admission to practice.") Biklen v. Board of Education, another of the six cases cited by Respondent and analyzed below, noted of Law Students that "the support oath or affirmation which was also required by the State of New York for members of the legal profession was not attacked in that case . . . ." (333 F.Supp. 902 at 908).

(4) Law Students, 401 U.S. 154 at 161-2, 91 S.Ct. 720 at 726. (Petitioner supposes that it "merely" requires something which (1) is an increasingly meaningless formality (2) the wording of which mimics that explicitly mandated in the Constitution of its officers [Arts. II, VI] [adding nothing concerning membership in the Communist Party, etc.].)

(5) Knight, 269 F.Supp. 339 at 341.

(6) Idem.. Plaintiffs in Knight relied heavily upon the flag salute case, West Va. v. Barnette, in which plaintiffs "were members of a religious group who claimed that the requirement of the oath and accompanying salute violated their religious beliefs. No such claim or allegation is made here." (Knight, 269 F.Supp. 339 at 341.) This distinction was not followed in Socialist Workers v. Martin, in which the Barnette decision was used to relieve secular plaintiffs from a Texas loyalty oath (Petitioner's Brief at 90-92).

(7) Knight, 269 F.Supp. 339 at 341.

(8) The analogous argument applied to attorneys, while easy to construct, suffers serious deficiencies: If the State becomes unjust and oppresses someone, that person will be denied the right to effective representation in the State's courts if the only one who is legally permitted to represent her must first swear an oath which places loyalty to the State and its claims above the just claims of his client. While the State does not have a monopoly on institutions of learning, it does have a monopoly on legalized violence, and the case of "State v. John Doe" cannot be heard in a private court. The Attorney is the critical buffer between that violence and the individual, and undue restrictions on the exercise of a role which existed before the State was created must not be permitted.

(9) Knight, 269 F.Supp. 339 at 340 ("So far as we can determine, the precise question of whether an oath such as that provided for by [statute] may constitutionally be required of teachers has not been ruled upon by the Supreme Court.")

(10) Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966).

(11) Knight, 269 F.Supp. 339 at 340. This was the argument in Cole v. Richardson (Petitioner's Brief at 84-85).

(12) Bond v. Floyd, 385 U.S. 116 at 132, 87 S.Ct. 339 at 347.

(13) Knight ultimately rested on the argument that since, according to Blackstone, at common law every citizen owed allegiance to his sovereign, a Support Oath could be required of everyone. We will encounter this argument again in Hosack v. Smiley, below.

(14) The case is thus immediately distinguished from present Petitioner. Hosack et al were employees of the State, whose offices are arguably creatures of the Constitution and subject to its oath requirement (Article VI); attorneys are not (Petitioner's Brief at 22-23). The Hosack court also argued that the oath can be substantially equated to that allegiance which, by the common law, every citizen was understood to owe to his sovereign" (at 878, quoting Knight, above, quoting Blackstone). But the common law was "built on the foundation of reverence for Christianity" (Updegraph v. Commonwealth, cited in Petitioner's Brief, at 50, ftn. 15), which has been implicitly repudiated for decades, and explicitly so in Torcaso v. Watkins (Petitioner's Brief, Appendix C). Petitioner, a Christian, does not consider himself a citizen of a Secular State (Petitioner's brief, at 21, ftn. 55), and his obedience to the State is mandated not by an implied "citizenship," but by the Scriptures (Romans 12- 13, I Peter 2, and the Sermon on the Mount), which say we are not to resist, but to submit to, evil (such as the State).

(15) The court defined "vagueness" as "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . ." (276 F.Supp. 876 at 878). As we will see below, the court will define the terms of the oath so as to eliminate any "vagueness." But Clyde Summers (Petitioner's Brief at 9-14) fell within every parameter of meaning established by the Hosack court, but because of his religious views was not permitted by the non-Christian Court to take the oath. In Petitioner's experience, when "men of common intelligence" are apprised of the Summers case and its parallels to present Petitioner, they "differ as to its application."

(16) as well as political beliefs. The Hosack court cited Konigsberg v. State Bar of California (353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 [1957]) in defense of the proposition that "Support for the constitutions and laws of the nation and state does not call for blind subservience." But upon remanded rehearing, Konigsberg was still denied admission, and that denial was upheld in Konigsberg [II] (366 U.S. 36; 81 S.Ct. 997 [1961]).

The Hosack court also stated that the oath "does [not] limit the right to seek through lawful means the repeal or amendment of state or federal laws with which the oath taker is in disagreement." (at 879). But the more careful analysis is found in the Saralieff case (Petitioner's brief, at 13-14), which rightly observed that a person who sought to amend the entire system of government out of existence and set up an anarchist utopia cannot in any rational sense swear "support" for that government, freedom to amend and a "simple recognition" notwithstanding. This is the point missed by Resondent (above, pp.1-2). Respondent would have Petitioner take the oath anyway, thus reducing a once-solemn oath to meaninglessness.

(17) Respondent's Brief at 8.

(18) Cole v. Richardson, 405 U.S. 676 at 681, 92 S.Ct. 1332 at 1336.

(19) Ibid., at 405 U.S. 682, 92 S.Ct. 1336.

(20) Idem, quoting Law Students.

(21) Ibid., at 405 U.S. 684, 92 S.Ct. 1337.

(22) Idem.

(23) "Appellant has indicated her willingness and ability to subscribe to the substance of both oaths . . ." (In re Griffiths, 413 U.S. 717 at 726, 93 S.Ct. 2851 at 2857.)

(24) In a footnote, the Court asserted that "There is no question as to the validity of requiring an applicant, as a precondition to admission to the bar, to take such an oath" (at 413 U.S. 726 n. 16, 93 S.Ct. 2857 n. 16). The statement must be regarded as a dictum, as it was not the issue before the bar, and it was unnecessary to the holding in this case. As authority for the statement, the Court cited the dictum in Law Students, which, as we have shown above, was a case which did not challenge the oath nor settle the issues raised by present Petitioner.

(25) Connell, 403 U.S. 207 at 208, 91 S.Ct. 1772 at 1773.

(26) Biklen, 333 F.Supp. 902 at 906, quoting Knight (see analysis under Knight above).

(27) Idem.

(28) Note 53 contains a typographical error. The Court should be referred to the discussion on pages 23-24, not "I.C.2.a.-b., p. 16."

(29) Biklen, 333 F.Supp. 902 at 907.

(30) Dicta are statements which are "made without argument, or full consideration of the point," "concerning some rule, priciple, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination. . ." (Black's Law Dictionary, 4th ed., 541). Raffaelli and the Law Students did not challenge the constitutionality of the Support Oath, and so the Courts' statements that the oath was "no doubt" constitutional were dicta. The fundamental unfairness of regarding dicta as a "settled question" arises from the conclusion having never been subjected to the adversarial process of Anglo-American law: a careful hearing of vigorous advocates for the contrary position.

(31) Raffaelli, 7 C.3d 288 at 297, 101 Cal.Rptr 896 at 902. In addition, not only did this case not "settle" the issues raised by Petitioner, but the analysis in this case, when applied to the oath required of present Petitioner, gives good reasons for granting the writ requested by Petitioner (Petitioner's Brief at 24-28).

(32) Raffaelli, 7 C.3d 288 at 301, 101 Cal.Rptr 896 at 905 (emphasis added).

(33) as quoted by the Knight court.