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Pleadings Before the California Supreme Court
PETITION FOR A WRIT OF MANDATE

MEMORANDUM OF POINTS AND AUTHORITIES (con't)


II. Petitioner Can Satisfy Valid Legislative Interests Without Taking the "Support Oath."

A. There are two valid legislative interests behind the "Support Oath."

Petitioner agrees with the analysis of the State Bar (see Exhibit A) that the government desires assurance that an applicant is "dedicated to the peaceful and reasoned settlement of disputes between men, and between a man and his government"[50] and is not dedicated to the use of force and violence to change the system.

Cases concerning the reluctance of applicants to take support oaths or answer questions concerning political affiliation have been concerned to screen out those who would use force or violence to overthrow the present order.[51] Courts have been very concerned to guard against violent revolution against the system. The oath is often understood to signify "a commitment not to use illegal and constitutionally unprotected force to change the constitutional system" (Cole v. Richardson).[52]

Cases concerning the reluctance of applicants to take support oaths or answer questions concerning political association have also turned on the question of their loyalty to a foreign state.[53]

The second half of the Attorney's Oath seeks to guard against the incompetent and unethical practice of law. It requires that the applicant be able to affirm that he is "committed to the discharging of his duties as an attorney and counselor at law to the best of his knowledge and ability."

B. Petitioner can affirm all these valid legislative interests without taking Oath to "Support the Constitution."

As a Christian, Petitioner can affirm unreservedly his commitment to non-violent means to advance his agenda, and Petitioner is committed to discouraging all others from resorting to violence in the advancement of theirs. Petitioner is wholeheartedly "dedicated to the peaceful and reasoned settlement of disputes between men, and between a man and his government" (Law Students v. Wadmond) as evidenced by his participation in various peacemaking and mediation organizations (e.g., Christian Conciliation Service, Victim-Offender Reconciliation Program, Southern California Mediation Association, etc.).

The same reasons that preclude Petitioner from supporting the political system of the United States,[54] preclude Petitioner from loyalty to any foreign power. Petitioner's citizenship is not in any human nation-state.[55]

Finally, Petitioner is willing to affirm that he is committed to the discharging of his duties as an attorney and counselor at law to the best of his knowledge and ability (second half of the required oath).[56]

C. The U.S. Constitution does not require sworn "Support" of the Constitution from Petitioner to establish his support of these governmental interests.

The U.S. Constitution does not require a Support Oath from attorneys. The U.S. Constitution requires a support oath from those who would hold onstitutionally-created offices. One holding an office created by the Constitution could have no objection to swearing support for the document that created his very office. Thus in Art. II, 1, para. 8, the President is required to "preserve, protect, and defend the Constitution of the United States"; in Art. VI, Para 3, "The Senators and Representative before mentioned, and the members of the several state legislatures, and all executive and judicial officers" are required "to support this Constitution."

But the Attorney-at-Law is not a Constitutionally-created office. The Attorney and Counselor at Law existed long before the Constitution was drafted.[57] An early California case made this point:

An attorney at law is not such an officer; and, in our opinion, he is not an officer in the constitutional sense of the term. . . ."[58]

The case still governs in California.[59] The rule in Cohen was stated on the Federal level,[60] and would be repeated 100 years later.[61]

Thus, the State has no constitutionally valid interest in requiring an Attorney to support the Constitution per se (beyond those interests listed above).

But second, Any implied Support Oath must answer to First Amendment Prohibitions against restriction of Petitioner's Free Exercise of Religion and the Establishment of a rival religion.[62] Even if it should be argued that the Framers of the Constitution might have expected the application of a "Support Oath" to Attorneys, application in Petitioner's case would contravene the provisions of the First Amendment. That Amendment was demanded by the states to insure that they would continue to enjoy the freedom from Federal interference in religion and speech which existed before the Constitution was adopted.

In general, the purpose of the new Constitution was to give the Federal Government more power than it had under the Articles of Confederation. This granting of new power carried with it certain risks.

In a notable address delivered in support of his proposal, [Madison] stated that many Americans, "respectable for their talents and respectable for the jealousy which they have for their liberty," were dissatisfied with the Constitution as it stood because it "did not contain effectual provisions against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power."[63]

The States would not ratify the new Constitution without express guarantees of these rights.

The Framers of the Constitution felt no need to include in the original document a provision expressly upholding a general theory of freedom of speech, undoubtedly holding to the belief that the government they envisioned, limited to the enumerated powers, could not constitutionally enact a law in derogation of the principle of free speech. Popular pressure, however, demanded a more articulate expression of the guarantees of individual rights from governmental interference. This pressure culminated in the adoption of the Bill of Rights in 1791. Thus, the first amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[64]

Thus, the principles of the First Amendment transcend the application and extrapolation of the details of the Constitution. In the view of the States, adoption of a new form of government meant uncertainty, unpredictability, and risk. The uncertain (the Constitution) was intended to be read in terms of the certain (The Bill of Rights, and is it pertains to this case, the First Amendment). The "Support Oath" itself was the subject of no little debate, particularly the language concerning "religious tests."[65] Since no one can predict how a given provision of the Constitution might be used by the State, we chose to reduce risk by grounding all interpretation and application of Constitutional provisions upon the foundation of the First Amendment.[66]

D. Under the California Constitution, Attorneys Cannot be Subjected to Denominational[67] Loyalty Tests.

As cited above,[68] The First Amendment of the U.S. Constitution protects from governmental interference a number of foundational liberties of belief, association, and publication. Those liberties are protected from abridgment by the states under the Fourteenth Amendment. In a case cited by Respondent Counsel,[69] the principles which must be followed in analyzing the "Support Oath" with a view to protecting these liberties were set forth.[70]

As authority for the proposition that the state may not arbitrarily deny any person the right to engage in "an otherwise lawful occupation," our opinion in Purdy & Fitzpatrick [v. State of California] (71 Cal.2d at p. 759, fn. 27) cites Konigsberg v. State Bar (1957) 353 U.S. 252 [1 L.Ed.2d 810, 77 S.Ct. 722]. That case, together with its companion, Schware v. Board of Bar Examiners (1957) 353 U.S. 232 [1 L.Ed.2d 796, 77 S.Ct. 752], established the principle, which is controlling here, that a person who seeks to enter upon the occupation of a lawyer comes clothed with the protections of the Fourteenth Amendment. Thus in Schware (at pp. 238-39 [1 L.Ed.2d at pp. 801-802]) the high court explained that "A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection clause of the Fourteenth Amendment. [Citations.] A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. [Citations.] Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. . . . [I]n Konigsberg the court reiterated the importance of leaving States free to select their own bars, but it is equally important that the State not exercise this power in an arbitrary or discriminatory manner. . . . A bar composed of lawyers of good character is a worthy objective but it is unnecessary to sacrifice vital freedoms in order to obtain that goal."[71]

The applicant in Raffaelli made an equal protection challenge to the law which excluded him on the grounds of alienage. When a law excludes on the basis of one's religious faith, a more stringent examination of the law must take place.

Any substantial burden on free exercise is reviewed by the Court under a test which balances the burden on religion against the state's interest in the regulation. . . .

Once it is shown that the law burdens the practice of a religious belief the state must show that it has an overriding or compelling secular reason for refusing to grant an exemption from the regulation. In balancing the interests the court must first determine the degree of burden on the religious practice. Then, in assessing the state's interest, the court will have to determine the importance of the secular interest and the extent to which that interest would be impaired by an exemption for the religious practice. If the state interest is truly compelling, there will be no requirement that the state diminish the effectiveness of its regulation by granting the exemption. However, if the state could achieve its goal as well by a means which would not burden the religious practice, it will be required to adopt the alternative means. If the state's interest is of a lesser magnitude it will be required to grant the exemption and accept a less effective means of fulfilling its goal.[72]

Thus, the legislative requirement that an attorney at law swear support for the Constitution must not only promote "'a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.'"[73] This Respondent has not demonstrated.

The more seriously we take the solemnity of the Oath, and the more seriously we take the First Amendment rationale of competition in the marketplace of ideas,[74] the more seriously we will take the idea of narrowly drafting the Support Oath to meet the legitimate interests of the State.

Thus, in Syrek v. California Unemployment Ins. (1960)[75] Taking more seriously the solemn nature of an oath,[76] the court held that an applicant for unemployment benefits need not accept employment which required a loyalty oath.

The pressure put on an unemployed person to take the oath or to go without benefits, perhaps when he is in desperate circumstances, may lead to the taking of the oath with reservations, or with actual falsehood. * * * It would seem to be "good cause," from the standpoint of the state, for an unemployed person to decline to take a grudging and dubious pledge of fealty when the privilege of public service is offered to him."[77]

. . . If the applicant's conscience is not so settled that he may take the oath unreservedly, he must, if the rulings made herein stand, take the oath dishonestly, or change his ideas about government, or do without the benefits.

The first of these alternatives we have considered above as a possible danger to the public interest. As to the second, it is of course desirable that a person of subversive tendencies or of doubtful allegiance or of uncertain mind about the subject matter of the oath, should overcome any disloyal attitude; but the way of winning unqualified and permanent loyalty traditionally and constitutionally has been to allow a large measure of freedom rather than to use political or economic force."[78]

The conflicting state of the law has forced present Petitioner to delay entrance into the legal profession while he wrestled with the issues of conscience described by the Syrek court. The desire of the Syrek court to protect the integrity of the oath would lead to a waiver of the oath in the present Petitioner's case.

The Syrek court took note of certain truths, the importance of which transcend the importance of the State.[79] Although rejecting the violence inherent in these "self-evident truths," present Petitioner likewise relies in this Petition on the existence of Truths which transcend the authority of the State. The First Amendment protects Petitioner's freedom not to swear allegiance to anything or anyone lower than the Source of those Truths.

Again, the Raffaelli court, in applying the logic of the decision in Baird in its review of the decision of the Committee of Bar Examiners to deny admission to practice law to one who was not a citizen of the United States,[80] concluded that the applicant must be admitted:

In Purdy & Fitzpatrick we reiterated the now-settled rules that in reviewing a discriminatory statute based on alienage, "Not only must the classification reasonably relate to the purposes of the law, but also the state must bear the burden of establishing that the classification constitutes a necessary means of accomplishing a legitimate state interest, and that the law serves to promote a compelling state interest." (Fns. omitted.) (71 Cal.2d at 759.) We must measure against those rules the various state interests which respondent contends are served by the statute now before us. There are, we are told, five such interests:

1. A lawyer must "appreciate the spirit of American institutions." While laudable in intent, this subjective requirement has limited pragmatic effect. It cannot constitutionally authorize exclusion from the practice of law on the ground that the applicant holds particular beliefs concerning American institutions, however unorthodox these views may appear to the bar examiners: "The First Amendment's protection of association prohibits a State from excluding a person from a profession or punishing him solely because he is a member of a particular organization or because he holds certain beliefs." (Baird v. State Bar of Arizona (1971) 401 U.S. 1, 6 [27 L.Ed.2d 639, 646-47, 91 S.Ct. 702]; accord, Konigsberg v. State Bar (1957) supra, 353 U.S. 252.) Indeed, those beliefs may not even be a permissible subject of inquiry: "when a State attempts to make inquiries about a person's beliefs or associations, its power is limited by the First Amendment." (Baird v. State Bar of Arizona, supra, at p. 6 [27 L.Ed.2d at p. 647].) Although a state may be able to discharge the "heavy burden . . . to show that the inquiry is necessary to protect a legitimate state interest" as to questions concerning specific prior acts of the applicant, the latter's "views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law." (Id. at pp. 6, 8[27 L.Ed.2d at p. 647]; accord, In re Stolar (1971) 401 U.S. 23, 30 [27 L.Ed.2d 657, 664, 91 S.Ct. 713].)[81]

Although the Raffaelli court did not wrestle with the conflict between the First Amendment and a Secular Humanistic Oath, it did conclude that "to inquire into the 'loyalty' of a prospective lawyer is, for the reasons stated above, to skate on very thin constitutional ice indeed."[82]

Petitioner also contends that the abridging of his religious liberties results from the required "Support Oath," which violates the First Amendment by establishing a "religion." Recent definitions of "religion"[83] will force us to re-evaluate traditional tests for an "establishment of religion."[84]

Our examination of the application of the "oath" clauses of the Constitution show it does not comport with the demands of the First Amendment. Petitioner should be admitted to the practice of law.

CONCLUSION

In California, as elsewhere, an Attorney at Law is not an "officer" required by the U.S. Constitution to swear support for the Constitution.

Although it might otherwise be permissible to require one who does not hold an office created by the Constitution to swear "Support" for it, it cannot be so when to do so would abridge First Amendment Liberties and force one to violate one's conscience. An oath may be the means chosen to protect compelling state interests, but such an oath must be narrowly drawn to protect First Amendment liberties.

Even where a compelling state purpose is present, restriction on the cherished freedom of association protected by the First Amendment and made applicable to the states by the Fourteenth Amendment must be drawn with narrow specificity. First Amendment freedoms are delicate and vulnerable and must be protected wherever possible. When government seeks to limit those freedoms on the basis of legitimate and substantial government purposes, such as eliminating subversives from the public service, those purposes cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. Precision of regulation is required so that the exercise of our most precious freedoms will not be unduly curtailed except to the extent necessitated by the legitimate governmental objective.[85]

Petitioner thus submits the following as an example of an affirmation which is narrowly drawn and satisfies valid legislative interests.

I, A.B., do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the Holy Scriptures of the Old and New Testaments to be given by divine inspiration.[86]

I solemnly swear (or affirm) that I am dedicated to the peaceful and reasoned settlement of disputes between men, and between a man and his government,[87] and am committed to dissuading others from resorting to force or violence,[88] that I am not loyal to any foreign State,[89] and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.[90]


NOTES

(50) citing Law Students [Civil Rights] Research Council, Inc. v. Wadmond, 401 U.S. 154 at 166 [91 S.Ct. 720 at 728, 27 L.Ed.2d 749 at ___] (1971).

(51) Cohen v. Wright, 22 CalRptr 297 at 310 (1863); Cummings v. Missouri, 71 U.S. 277 at 316-17, 4 Wall 277 at ___, 18 L.Ed. 356 at 361 (1867); Ex Parte Garland, 71 U.S. 333, at 376, 4 Wall 333 at ___, 18 L.Ed. 366 at 369 (1867); American Communications v. Douds, 339 U.S. 382 at 386, 70 S.Ct. 674 at 677 (1950); Wieman v. Updegraff, 344 U.S. 183 at 184n1, 73 S.Ct. 215 at n.1 (1952); Konigsberg (I) v. State Bar of California, 353 U.S. 252 at 259, 77 S.Ct. 722 at 726 (1957); Speiser v. Randall, 357 U.S. 513 at 515, 78 S.Ct. 1332 at 1336 (1958); In Re Anastaplo, 366 U.S. 82 at 88, 81 S.Ct. 978 at 982 (1961); Whitehill v. Elkins, 389 U.S. 54 at 55, 56, 57, 58, 88 S.Ct. 184 at 185, 186 (1967); Baird v. State Bar of Arizona, 401 U.S. 1 at 4-5, 91 S.Ct. 702 at 705 (1971); Application of Stolar, 401 U.S. 23 at 24, 30, 91 S.Ct. 713 at 714, 717 (1971); Law Students v. Wadmond, 401 U.S. 154 at 164, 165, 91 S.Ct. 720 at 727 (1971); Connell v. Higgenbotham, 403 U.S. 207 at 208, 91 S.Ct. 1772 at 1773 (1971); Cole v. Richardson, 405 U.S. 676 at 678, 683-84, 92 S.Ct. 1332 at 1334, 1336-37 (1972); cf. Communist Party v. Subversive Activities Control Board, 367 U.S. 1 at 55-56, 81 S.Ct. 1357 at 1389 (1961).

(52) Cole v. Richardson, 405 U.S. 676 at 684, 92 S.Ct. 1332 at 1337, 31 L.Ed.2d 593 (1972). See below, pp. 78-81.

(53) Pre-American Common Law: Imbrie v. Marsh, 3 N.J. 578 at ---, 71 A2d 352 at 357, 363, 18 ALR2d 241 at 247, 253 (1950)(rival sovereigns);
Revolutionary America [Article VI, Section 3]: Imbrie at A2d 364, ALR2d 255; (England);
Civil War Era: Cohen v. Wright, 22 CalRptr 297 at 299 (1863)(brief for appellant), 307, 310, 311, 330; Cummings v. Missouri, 71 U.S. 277 at 317, 327, 18 L.Ed 356 at 361, 364 (1867); Imbrie v. Marsh at A2d 365, ALR2d 256 (the Confederacy);
Cold War Era: Konigsberg (I) v. State Bar of California, 353 U.S. 252 at 298, 77 S.Ct. 722 at 745 (1957); cf. Barenblatt v. United States, 360 U.S. 109 at 130n31, 79 S.Ct. 1081 at 1095n.31 (1959); cf. Communist Party v. Subversive Activities Control Board, 367 U.S. 1 at 5-9, 13-14, 51-55, 57, 81 S.Ct. 1357 at 1363, 1364, 1365, 1366, 1368, 1387, 1388, 1389, 1390 (1961); Elfbrandt v. Russell, 384 U.S. 11 at 21, 86 S.Ct. 1238 at 1243 (1966); cf. Wilkinson v U.S. 365 U.S. 399 at 401, 404n5, 81 S.Ct 567 at 569, 571n5 (1961)(the Soviet Union);
present: Imbrie at A2d 354, 355, 371, ALR2d 244, 245, 362; Speiser v. Randall, 357 U.S. 513 at 515-16, 78 S.Ct. 1332 at 1336 (1958).

(54) Discussed below, Appendix A.

(55) Speaking of theological loyalties: see Philippians 3:20 ("Our citizenship [Gk., politeuma] is in heaven. . . ."), and 2 Corinthians 5:20 ("Therefore we are ambassadors for Christ. . . ." [emphasis added]). In Raffaelli v. Committee of Bar Examiners 7 Cal.3d 288, 101 Cal.Rptr. 896, 496 P.2d 1264, (1972), the court held that although petitioner was not a U.S. citizen, he could still demonstrate the requisite character, knowledge of the system, and commitment to non-violence which the state had an interest in protecting, and thus be admitted to the practice of law.

(56) Although Petitioner could not be said to support "constitutional processes of government" (Cole v. Richardson, 405 U.S. 676 at 682, 92 S.Ct. 1132 at 1336, below, Appendix F at 80) his views are refreshingly consistent with the older concerns with morality and good character which motivated the earlier Attorney's Oaths. Consider part of the oath taken by Oliver Wendell Holmes (1867):

I solemnly swear that I will do no falsehood or consent to the doing of any in Court; I will not wittingly or willingly promote or sue any false, groundless or unlawful suit, nor give aid nor consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the Court according to the best of my knowledge and discretion, and with all good fidelity as well to the Courts as my clients. So help me God. Roads to Greatness, 277 (Galloway, ed., 1962).

For a modern version of this oath, see In re Griffiths,, 413 U.S. 717 at 725n15, 93 S.Ct. 2851 at 2857n15 (1973).

(57) And Petitioner is keen to maintain a sense of independence between the State and the Attorney at law, as he seeks to use the role of an Attorney to act as a buffer between the State and victims of its violence. See Appendix B.

(58) Ex Parte Gregory Yale, 24 Cal. 241, at 244 (1864).

(59) The rule was earlier stated in Cohen v. Wright: "The right to practice law is not a constitutional right, for it is not mentioned in that instrument, or recognized, or established by it" (22 CalRptr 297 at 317 [1863][emphasis added]). The rule from Cohen was cited more recently in Raffaelli v. Committee of Bar Examiners, above, note 6, 7 C.3d 288 at 301, 101 CalRptr 896, at 905, 496 P.2d 1264, at 1273 (1972)("The traditional expression that a lawyer is an 'officer of the court' has not often been explicated. He clearly is not a public office-holder in the literal sense (Cohen v. Wright (1863) supra, 22 Cal. 293 313-315).")

(60) Ex Parte Garland, 71 U.S. 333 at 378, 4 Wall. 333, 18 L.Ed. 366 at 370 (1867) ("The profession of an attorney and counselor is not like an office created by an act of Congress, which depends for its continuance, its powers, and its emoluments, upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution.")

(61) In Re Griffiths, 413 U.S. 717 at 728-729, 93 S.Ct. 2851 at 2858, 37 L.Ed. 910 (1973) ("[A] lawyer is not an officer in the ordinary sense. ... [T]hey are not officials of government by virtue of being lawyers.")

(62) See analysis of Summers, above, pp. 17-19.

(63) Pfeffer, Church State and Freedom, 126 (1967).

(64) Nowak, Rotunda, and Young, Constitutional Law, 833, (1986). See also Pfeffer, above, note 63, at 126 ("The 'public clamor' for a bill of rights was so great that Madison and the other proponents of the Constitution could persuade several states to ratify only after promising to work for the addition of a bill of rights."), and J. Rutledge, dissenting in Everson v. Board of Education of Ewing Tp., 330 U.S. 1 at 39, 67 S.Ct. 504 at 522-23, 91 L.Ed. 711 at ___ ("[Madison] pledged that he would work for a Bill of Rights, including a specific guarantee of religious freedom, and Virginia, with other states, ratified the Constitution on this assurance [note omitted].").

(65) See generally, Kurland and Lerner, eds., "Article 6, Clause 3," 4 The Founders' Constitution, 1987, at 633-47.

(66) Had the Convention in Philadelphia explicitly prescribed "secular" oaths and eliminated sacred, Trinitarian Oaths, the Constitutions simply would not have been ratified by the State Ratifying Conventions. See Appendix C.

(67) Within the religion of Secular Humanism there are both statist and anarchist "denominations," just as in the religion of Christianity. See Appendix A, p. 37, note 27, and Appendices C and D.

(68) text at note 64.

(69) Exhibit A.

(70) Raffaelli v. Committee of Bar Examiners, 7 C.3d 288; 101 Cal.Rptr. 896, 496 P.2d 1264 (1972).

(71) Ibid., at 7 C.3d 293-94, 101 Cal.Rptr. 900, 496 P.2d 1268.

(72) Nowak, Rotunda, and Young, above, note 64, at 1068-69.

(73) Raffaelli, at 7 C.3d 301, 101 Cal.Rptr. 905, 496 P.2d 1273, quoting Serrano v. Priest (1971).

(74) See below, Appendix F, p. 79, text at note 26.

(75) Syrek v. California Unemployment Ins. 54 C.2d 519, 7 Cal.Rptr. 97, 354 P.2d 625, (1960).

(76) Ibid., at 54 C.2d 532, 7 Cal.Rptr. 104, 354 P.2d 632. ("Oathtaking is a more fundamental thing.")

(77) Ibid., at 54 C.2d 530, 7 Cal.Rptr. 103, 354 P.2d 631.

(78) Ibid., at 54 C.2d 531, 7 Cal.Rptr. 104, 354 P.2d 632.

(79) Ibid., at 54 C.2d 523 n.3, 7 Cal.Rptr. 99 n.3, 354 P.2d 627 n.3. ("It should be noted that the Declaration of Independence declares certain 'truths to be self-evident,' among which are the existence of basic human rights, the fact that the purpose of government is to secure those rights, and that 'whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, * * *.'")

(80) See above, p. 21, note 55.

(81) Raffaelli v. Committee of Bar Examiners, 7 C.3d 288 at 295-96., 101 Cal.Rptr. 896 at 901, 496 P.2d 1269.

(82) Ibid., at 7 C.3d 297, 101 Cal.Rptr. 902, 496 P.2d 1270, citing Baird and Stolar.

(83) See, e.g., Appendix D, p. 60, text at note 30.

(84) The defects of the traditional tripartite Lemon test, for example, as set forth in Nowak, et al, above, note 64, at 1033, are apparent from the analysis in Appendix D, p. 59. "First, it must have a secular purpose." But this is to have an anti-Christian purpose, as Secularism is an anti-supernaturalist religion. "Second, it must have a primary secular effect," which again advances a particular religion. "Third, it must not involve the government in an excessive entanglement with religion." But all law is religious, the coercive enforcement of a given morality (Appendix A, below, p. 35). The spectre of this Pandora's Box urges us to the standards articulated in the Raffaelli case, to avoid sacrificing "vital freedoms."

(85) Smith v. County Engineer of San Diego Co., 266 C.A.2d 645,650, 72 Cal.Rptr. 501,504-05 [quoting Vogel v. County of Los Angeles]. Under this analysis, when seen in terms of the Constitution's definition of religion (Appendix C) the Smith court clearly reached an erroneous conclusion, and should have permitted a Trinitarian oath voluntarily to be taken.

(86) Del. Const. art. 22 (adopted Sept. 20, 1776), 1 Del. Code Ann. 117 (Michie, 1975). The solemn oath is, from the Christian perspective, an act of worship. Older oaths recognized this fact, and statements such as these made clear to Whom worship was made. If the Court is unable to overrule the Smith case, Petitioner would be willing to substitute a publicly notarized affirmation in place of a solemn oath.

(87) The language is from Law Students v. Wadmond, 401 U.S. 154 at 166, 91 S.Ct. 720 at 728. Petitioner would not object to gender-inclusive language.

(88) Compare the concerns in the Schwimmer case, above, at 16, text at note 36. It should be recalled that while courts and legislatures have carefully guarded against resort to force or violence (above p. 20, note 51), the use of such force to overthrow an oppressive government is said to be a fundamental right of man, and the exercise of the right to violent revolution was instrumental in the founding of the present constitutional system, according to the Declaration of Independence (above, at 27, note 79). Present Petitioner, a non-violent anarchist, nevertheless repudiates this option.

(89) See text above, p. 20, note 53, and cases cited therein.

(90) The second half of the current oath.