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Petitioner's inability to "support the Constitution" stems not so much from the nature of the Constitution itself, but from the official interpretation of that document given to it by courts in the last 50 years.
Similarly, the inability of a Christian to swear an oath to a god other than the Triune God of Scripture did not become an issue until the Constitution was officially declared to require it. Petitioner is willing to believe that the Constitution itself did not prohibit Trinitarian oaths (I Cor. 13:5-7).
Petitioner can cite no cases holding that an attorney-at-law is not obligated to take an oath in support of the Constitution. His argument consists in a direct appeal to the First Amendment, and to Article VI, Clause 3 of the U.S. Constitution in historical context.
In re Summers[1] closely parallels petitioner's circumstances, but rules against him. Although willing to do so, the prospective attorney in this case was not allowed to take an oath in support of the constitution because he disagreed with certain provisions of the constitution based on his religious views,[2] and thus was held unable to take the Support Oath in "good faith," though willing to do so.
The Summers case was based on three U.S. Supreme Court cases subsequently overruled by the High Court in Girouard v. U.S.[3] Petitioner's argument is based on Girouard and on the arguments from the First Amendment in the dissenting opinions in the four pre-Girouard cases.
Petitioner finally argues that valid legislative interests (commitment to non-violent resolution of disputes; no loyalty to a foreign state) can be satisfied without requiring Petitioner to swear "Support" for Constitutionalism.
Several Appendices are incorporated by reference into Petitioner's argument. These Appendices examine a number of other Support Oath cases in which First Amendment freedoms are restricted and a non-Christian religion established in violation of the First Amendment, as well as the objective, historical meaning of Article VI, Cl. 3.
(1). In re Summers, 325 U.S. 561, 65 S.Ct. 1307 (1945).
(2). In Appendices A and D, the competing religious and philosophical views of Petitioner and the State are set forth and analyzed in greater detail. The judicial history of this contrast is discussed is Appendices E and F, and arguments made in favor of extraordinary relief are drawn therefrom.
(3). Girouard v. U.S., 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946).
THE "SUPPORT OATH" UNNECESSARILY RESTRICTS PETITIONER'S FREE EXERCISE OF RELIGION AND FORCES PETITIONER'S ASSENT TO A RIVAL RELIGION. LEGISLATIVE OBJECTIVES CAN BE SATISFIED WITHOUT REQUIRING PETITIONER TO TAKE THE OATH. ACCORDINGLY, PETITIONER SHOULD BE ADMITTED TO AUTHORIZED PRACTICE OF LAW WITHOUT SUBSCRIBING TO A "SUPPORT OATH."
I. IN RE SUMMERS[1]: The Paradigm -- The "Support Oath" vs. The First Amendment.
A. Biblical Faith rejects coercion, force, or violence as individual and collective means of self-preservation.
In formulating his views on the State, present Petitioner takes the Sermon on the Mount into consideration.[2] While Jesus says not to resist our enemies, the State is the political institutionalization of resistance to our enemies: the State is the use of violence and force either to prevent self-injury or to exact vengeance from the injuring party. This contradicts the Sermon on the Mount.
This belief comes also from the Apostle Paul in 1 Corinthians 6:1-11. There he says Christians are not to participate in "the legal system."[3] It is better to be defrauded, better to turn the other cheek, better to go an extra mile, than to seek vengeance at the hand of the State.[4]
The Apostle Paul said to avoid the pagan legal system because those who seek power or seek to justify political coercion do not understand the comprehensive scope of God's Word in the Bible.[5]
B. The "Support Oath" establishes a religious faith in violence.
When the Illinois State Bar heard this kind of pacifism from an applicant named Clyde Summers, it refused to allow Summers to take the support oath and be admitted to the practice of law.
Summers, perhaps not cognizant of the seriousness of the oath,[6] was willing to take the oath to support a state constitution which required military service from its citizenry, even though he was conscientiously opposed to such service. But the State Bar said Summers could not swear/ his "support" for such a constitution in "good faith" because of his own pacifist religion.[7] Summers held basically the same position the present Petitioner has taken on war, based on the Sermon on the Mount.
Summers appealed the decision of the State Bar. This was Summers' argument in his petition before the Illinois Supreme Court:
The so-called "misconduct" for which petitioner could be reproached for is his taking the New Testament too seriously. Instead of merely reading or preaching the Sermon on the Mount, he tries to practice it. The only fault of the petitioner consists in his attempt to act as a good Christian in accordance with his interpretation of the Bible, and according to the dictates of his conscience. We respectfully submit that the profession of law does not shut its gates to persons who have qualified in all other respects, even when they follow in the footsteps of that Great Teacher of mankind who delivered the Sermon on the Mount. We respectfully submit that under our Constitutional guarantees even good Christians who have met all the requirements for the admission to the bar may be admitted to practice law.[8]
The Illinois Supreme Court upheld the State Bar's rejection of Summers.
In the U.S. Supreme Court, the ruling of the Illinois State Supreme Court was upheld. The Court held that an applicant who had such disagreement with the Constitution as Summers did could not take the support oath in "good faith," even though he was willing to do so.[9]
There was no misunderstanding. The Sermon on the Mount is at odds with every concept of "the State." In fact, the Illinois Bar was quite astute in sensing the implications of Summers' pro-Sermon on the Mount position. Although there is no record of Summers' views on 1 Corinthians 6, the present Petitioner believes the position of non-violence taught in the Sermon on the Mount is quite consistent with the position the Apostle Paul takes against using the non-Christian legal system to solve problems (or to remedy our frustration over having not solved our problems). In 1 Corinthians 6, Paul says plainly that Christians should not sue in secular courts. If everybody took the Sermon on the Mount and 1 Corinthians 6 seriously, there would be no "law" (i.e., no "State") as we know it. Present Petitioner suspects the Illinois State Bar recognized this ominous fact. In unofficial correspondence with Summers from the Secretary of the Bar, the would-be attorney was told,
I think the record establishes that you are a conscientious objector. Also that your philosophical beliefs go further: you eschew the use of force regardless of circumstances. But the law[10] which you profess to embrace and which you teach and would practice is not an abstraction observed through mutual respect. It is real. It is the result of experience of man in an imperfect world, necessary we believe to restrain the strong and protect the weak. It recognizes the right even of the individual to use force under certain circumstances and commands the use of force to obtain its observance. * * * I do not argue against your religious beliefs or your philosophy of non-violence. My point is merely that your position seems inconsistent with the obligation of an attorney at law.[11]
The Secretary's judgment is a consistent application of a non-Christian political paradigm; Summers may not have been consistent to his.[12] The Summers case stands in a long line of cases holding that religious belief in the politically orthodox use of violence is required even of those who would defend others against such violence.[13]
C. The establishment of one religion results in the restriction of the freedoms of a minority based on their exercise of a rival religion.
Although willing to take the oath, Summers was not permitted by the State Bar and Supreme Court of Illinois to do so, because he could not do so in "good faith," given his religious disagreements with certain provisions of the Illinois state constitution.[14] He was otherwise qualified for admission to practice law.[15]
The Court stated the facts in a very "neutral" manner:
Illinois has constitutional provisions which require service in the militia in time of war of men of petitioner's age group. [P]etitioner is a believer in passive resistance [and] would not use force to meet aggressions against himself . . . .[16]
J. Black, dissenting, stated the facts with a little more passion:
The fact that petitioner measures up to every other requirement for admission to the Bar set by the State demonstrates beyond doubt that the only reason for his rejection was his religious beliefs.[17]
Present Petitioner's beliefs include those of the applicant in the Summers case, and he would thus be barred from taking a support oath in good faith under that holding. But his beliefs go well beyond those of the applicant's in Summers in philosophical radicalism. Summers' petition was rejected for his failure to support only one delegated power. As a defender of a Biblical Social Order[18] (Patriarchy), Petitioner, after comparing Biblical Law with the Constitution, is unable to support the delegation of any Christian responsibilities to the State as is found, e.g., in the enumeration of congressional powers in Article I Section 8 of our Constitution; Petitioner believes each of these responsibilities, if morally legitimate at all, are duties which families cannot delegate, or need not delegate monopolistically (i.e., only to a "State"), and in any case cannot fund through the theft of taxation[19] or inflation.[20]
When the decentralized Patriarchal (Family-centered) social order of the Bible is compared with the political (polis-centered) order of every constitution (even those of California and the U.S.), we see the conflict between the religion of the Bible and the religion of Greco-Roman "classicism," a religion we today call "Secular Humanism."[21]
Perhaps Summers was counseled, as Present Petitioner has been, to swear support for the Constitution in spite of disagreements with it on the theory that the Constitution allows for its own amendment (Article V). First, there are still limits to the number of qualifications an applicant can entertain and still come within rational limits of established legal interpretation and tolerance under a polis-centered paradigm. Petitioner clearly exceeds these limits, as expressed in the case of In re Saralieff.[22] In that case, Applicant for Naturalization was
the editor of a newspaper . . . and through that publication and otherwise he advocates and ardently desires the amendment of the Constitution of the United States. There is, of course, nothing objectionable in a citizen seeking to amend the Constitution. That has been done nineteen times. But to what end does the applicant seek its amendment? To abolish the executive, the legislative, and the judicial departments as established. . . . [T]his is more than the amendment of the Constitution. It is nothing short of the destruction of the same. How an individual can seek this result and at the same time state that he [supports] the Constitution . . . is beyond comprehension. . . . Citizenship is available for aliens who in good faith, by their example, and mental attitude disclose their sincere adherence to the political philosophy of the Constitution. Those who come in any other frame of mind are asking for a privilege that they have no right to receive. No matter how well founded their political beliefs may be, conformity to the principles of the Constitution is indispensable."[23]
In the case of the present Petitioner, the existence of such "support" can be said to have "died the death of a thousand Amendments." When it comes to the Principles of the Constitution, the present Petitioner clearly lacks "conformity." The question then becomes, Does the First Amendment protect the rights of all non-conformists, or only those who are willing falsely to take an oath of conformity?
Second, it is not Petitioner's goal to change the Constitution. Petitioner cannot conceive of any amendment process which could produce a supportable Constitution. Constitutionalism is a political philosophy which is always a Humanistic philosophy. It is always focused on a human charter, a charter which is completely unnecessary, and in fact, anti-Christian, seeing the existence of a Divine Constitution which contains "all things that pertain unto life and godliness" (2 Peter 1:3)[24]
Petitioner thus believes that the Constitution as an organic whole is morally illegitimate. Conscientious respect[25] for the Summers case thus bars Petitioner completely from taking a Constitutional support oath with any integrity.
D. The Foundations of In re Summers, its Progeny[26] and Forebears[27], have been Undercut.[28]]
The premises lead to a compelling conclusion:
(1) The Summers Decision was Squarely Based on the Macintosh Case[29]
(2) Macintosh[30] was Overruled in Girouard v. U.S.[31]
U.S. v. Schwimmer (1929)[32] Applicant for Naturalization, a woman, refused to declare her willingness to take up arms against another country because she was an "uncompromising pacifist" with "no sense of nationalism."[33] The applicant was not permitted to take the oath because her beliefs were held to be inconsistent with the requirement to be "attached to the principles of the Constitution of the United States."[34] But J. Holmes, dissenting, said "[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought . . . ."[35]
The Court was particularly concerned over defendant's "purpose or power to influence others" as a "lecturer and writer"[36] to adopt her anarchist perspective, a purpose which present Petitioner shares.[37]
Petitioner has written a series of books defending this position, hoping someday to give it wider circulation [Appendix A]. By a careful examination of human history and God's Law as recorded in the Bible, Petitioner suggests that God nowhere commands people to abandon Patriarchy to form non-familial political structures. Families are commanded to educate their children, give them vocational training, care for their elderly, care for their ill, care for the familyless, teach the ignorant, and care for those who cannot care for themselves. If families dedicate themselves to all these things, you will have a "well-governed" society. But there will be no time for "government." Thus, there will be no reason to support a Constitution.
Petitioner believes that the publication of such "revolutionary" books is not consistent with an oath to "support the Constitution." Petitioner is unable to find a judge who disagrees, and is willing to administer the "Support Oath" to him when full disclosure of his religious opposition to politics is made. Such a restriction of First Amendment freedoms is unnecessary to advance legitimate state interests.[38]
U.S. v. Bland (1931)[39] Under facts nearly identical to Macintosh[40] and decided the same day, an applicant for naturalization sought to qualify the "Support Oath" by adding "as far as my conscience as a Christian will allow . . . . Petition Denied."[41] C.J. Hughes' dissent was adopted in Girouard v. U.S.,[42] which overruled Bland and its companion case, Macintosh.
U.S. v. Macintosh (1931)[43] Applicant for Naturalization was unable to take "Support Oath." "[T]he position thus taken was the only one he could take consistently with his moral principles and with what he understood to be the moral principles of Christianity."[44] Overruled in Girouard.
Although the Schwimmer-Bland-Macintosh holdings were overruled in Girouard, the religious faith which undergirds them all (and the Summers case, below) was re-established.[45]
But in Girouard and the dissents of Summers and the Macintosh "trio," the principle of Religious Freedom embodied in the First Amendment was held to transcend the Constitutional provisions of military service and its "Support Oath." Girouard says there is a moral Power higher than the State.[46] This being so, the State must permit ultimate allegiance to be given to this Higher Power.
In his dissent in Macintosh, Chief Justice Hughes emphasized that the "Support Oath" should be judged by the principle of religious freedom embodied in the First Amendment (not vice versa).
It goes without saying that it was not the intention of the Congress in framing the oath to impose any religious test. When we consider the history of the struggle for religious liberty, the large number of citizens of our country from the very beginning who have been unwilling to sacrifice their religious convictions, and, in particular, those who have been conscientiously opposed to war and who would not yield what they sincerely believed to be their allegiance to the will of God, I find it impossible to conclude that such persons are to be deemed disqualified for public office in this country because of the requirement of the oath which must be taken before they enter upon their duties. * * * I think that the requirement of the oath of office should be read in the light of our regard from the beginning for freedom of conscience. * * * The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.[47]
In his dissent in Schwimmer, Justice Holmes reminded the Court that Free Thought was the Highest Principle in the Constitution, again showing the priority of the First Amendment over Article VI. Justice Holmes' remarks were quoted by the Girouard Court:
Mr. Justice Holmes stated in the Schwimmer case, 279 U.S. at pages 654, 655, 49 S.Ct. at page 451, 73 L.Ed 889: "if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within this country."[48]
It is essential to realize that the principle of Religious Freedom stands totally outside the Organic Law of the State. The First Amendment is merely a recognition of the Principle, not the creation of it.
The struggle for religious liberty has through the centuries been an effort to accommodate the demands of the State to the conscience of the individual. The victory for freedom of thought recorded in our Bill of Rights recognizes that in the domain of conscience there is a moral power higher than the State. Throughout the ages men have suffered death rather than subordinate their allegiance to God to the authority of the State. Freedom of religion guaranteed by the First Amendment is the product of that struggle."[49]
(1) In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed 1795 (1945).
(2) A full statement of Petitioner's views on the State is to be found in Appendix A.
(3) See generally Buzzard and Eck, Tell it to the Church, 1985; Sande, The Peacemaker, 1991.
(4) Cf. Romans 12:2,14,17-21.
(5) 1 Corinthians 2:8; 6:1-11; cf. 2 Peter 1:3, in "Biblicism," Appendix A, p. 32.
(6) Cf. Appendix A, "The Seriousness of the Oath," p. 29.
(7) In Re Summers, 325 U.S. 561 at 565, 65 S.Ct. 1307 at 1310.
(8) Ibid., at 325 U.S. 570, 65 S.Ct. 1312. Emphasis added.
(9) Cf. American Communications Ass'n CIO v. Douds, 339 U.S. 382 at 405, 70 S.Ct. 674 at 687 (1950). (Conscientious disagreement with Constitution bars taking of "Support Oath" in good faith.)
(10) that is, the law of the polis, the State, as opposed to the "law of Christ" (Galatians 6:2), which, it may be inferred, would be considered "an abstraction."
(11) Summers, at 325 U.S. 563 n.3, 65 S.Ct. 1309 n.3.
(12) Why should someone who opposes the use of force be given a license to "practice law," i.e., use the institutionalized force of "the law" (the Sheriff's gun) to get people to do what he could not persuade them to do through logic or love? And why should Summers even want to wield a gun ("practice law") when he professes to follow the "abstraction" known as Christianity? For present Petitioner, the answer is found in the Biblical commands to defend individuals oppressed by statist violence, whether initiated by the State or other individuals (Appendix B).
(13) Appendix F surveys some of these cases in greater detail, showing how the "Support Oath" establishes a religion contrary to the First Amendment and contrary to Petitioner's own religious views. Appendix D briefly examines this secular, violent religion. p. 60.
(14) Summers, at 325 U.S. 565, 65 S.Ct. 1310. See also American Communications Ass'n CIO v. Douds, 339 U.S. 382 at 405, 70 S.Ct. 674 at 687 (1950)(already speaking of the control of the Summers case in the imperfect tense).
(15) Summers, at 325 U.S. 563, 65 S.Ct. 1309.
(16) Ibid., at 325 U.S. 571, 65 S.Ct. 1313. The Court admitted that a decision to admit applicant to the Bar would be based on "its deeply rooted tradition in freedom of belief" (at 325 U.S. 570, 65 S.Ct. 1313 [emphasis added]).
(17) Ibid., at 325 U.S. 573-74, 65 S.Ct. 1314.
(18) See Appendix A.
(19) Art. I, § 8, para. 1 ("collect taxes"); Amend. XVI.
(20) Art. I, § 8, para. 2 ("borrow money").
(21) This religion is briefly examined in Appendix D.
(22) In re Saralieff, 59 F.2d 436 (E.D. Mo. 1932).
(23) Ibid., at 437. The concerns voiced by the courts over applicants who manifest the "purpose or power to influence others" (Schwimmer, 279 U.S. 644 at 651, 49 S.Ct. 448 at 450, cf. below, p. 16), as here, "through . . . publication," chill present Petitioner's freedom to publish views which might be deemed inconsistent with an oath to "support" "constitutional processes of government" (Cole v. Richardson, 405 U.S. 676 at 682, 92 S.Ct. 1332 at 1336; cf. below, p. 84, text at note 54), and might subject Petitioner to charges of perjury and actions for disbarment. See Appendix A.
(24) See "Biblicism," in Appendix A, p. 34.
(25) Cf. Romans 13:5 ("Therefore you must be subject, not only because of wrath, but also for conscience' sake.")
(26) Summers may be regarded as a sterile case, infrequently cited except as to procedural matters. But it epitomizes the analysis of the conflict between Christians and the "Support Oath," and involves an Attorney, thus chilling Present Petitioner's free exercise of the right to effect non-violent change both in and out of courts of law.
(27) The provision of the Illinois constitution with which Summers disagreed was based on the duty (asserted by the State) of self-preservation. Anarchists deny the existence of such a duty, and allege a duty on the part of individuals to work for a Stateless society. A long string of cases which restricted the free exercise of this anarchist faith are analyzed in Appendix F, p. 72-74.
(28) Insofar as the case pertains to substantive First Amendment issues. The argument that Summers was in fact overruled by Girouard (see below, the logic of texts at notes 29-31), must still consider the reality that Girouard did not release an applicant from taking a religiously-conflicting oath, but merely permitted one who, by Summers standards, could not take the oath in "good faith" to take it anyway, if they so desired. The court in Naturalization of Brakel, 524 F.Supp. 300 (N.D. Ill. 1979) noted that "these decisions were overruled (on strictly statutory grounds) in Girouard. . . ." (at 301, emphasis added).
(29) In re Summers, 325 U.S. 561 at 572-73, 65 S.Ct. 1307 at 1313-14. Summers opposed armed state action in a number of areas, but since the Macintosh case turned on serving in the armed forces, the Summers Court said, "We need to consider only his [Summers'] attitude toward service in the armed forces." At 325 U.S. 571, 65 S.Ct. 1313.
(30) U.S. v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302 (1931). More specifically, the Schwimmer-Bland-Macintosh trio.
(31) Girouard v. U.S., 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946).
(32) U.S. v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889 (1929).
(33) Ibid., at 279 U.S. 644, 49 S.Ct. 448.
(34) Ibid., at 279 U.S. 646, 49 S.Ct. 448.
(35) Ibid., at 279 U.S. 654-55, 49 S.Ct. 451 (emphasis added).
(36) Ibid., at 279 U.S. 651, 49 S.Ct. 450. J. White, dissenting from the expansive opinion of J. Black in the Baird case (below, p. 71), concluded,
Neither should [the Bar] be required to admit to practice a person who believes in violent conduct to achieve social, political, or other ends and who is currently and actively supporting such activities or who expects to do so in the course of advising clients in his professional role. I thus see no constitutional basis for forbidding the asking of perfectly relevant questions designed to ascertain whether an applicant considers it the proper role of the lawyer, as practitioner, to advise and advocate as a means for settling disputes or achieving social or political ends.
Baird, 401 U.S. 1 at 113, 91 S.Ct. 719 at 719-20. Since the distinction between "illegality" (criminal violence) and "unlawfulness" (apolitical anarchism) are often blurred (see the analysis of the Cole case, below pp. 78-81), the dissent of JJ. Blackmun, White, Harlan, and the Chief Justice is perhaps more to the point: "'The issue is simple. "Is one who believes in and who is willing to work to undermine and destroy the Government of the United States qualified to be admitted to the practice of law?"' Respondent's Brief 13." (Baird at 401 U.S. 17 n.4, 91 S.Ct. 702 at 711 n.4.)
(37) As in the Saralieff case (above, p. 13), the inclination and ability to propagate politically unorthodox views triggers the judicial warning light -- precisely why the First Amendment was drafted, and the point unceasingly made by the dissents in these cases and those analyzed in Appendices E and F. But not just the First Amendment of the Federal Constitution;
"Californians have more freedoms than other Americans," declared ACLU lawyer Margaret C. Crosby. . . . Californians have these freedoms, Crosby explained, because of unusual express provisions in our state charter, and because California judges take the provisions seriously. . . . Some important liberties, such as freedom of speech and religion, are included in both Constitutions but phrased in very different terms. The two California provisions are stated in affirmative language. Article I, §2, proclaims: "Every person may freely speak, write and publish his or her sentiments on all subjects. . .", in addition to prohibiting any law abridging speech. Similarly, instead of the cryptic and negative federal prohibition against Congress making a law "respecting an establishment of religion, or prohibiting the free exercise thereof," California affirmatively states: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed."
Turner and Brinkman, "The Constitution of First Resort," California Lawyer, June 1989 at 52.
(38) See below, pp. 20ff.
(39) U.S. v. Bland, 283 U.S. 636, 51 S.Ct. 569 (1931).
(40) U.S. v. Macintosh 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed 1302 (1931).
(41) Bland, at U.S. 636, S.Ct. 570.
(42) Girouard v. U.S., 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946). See below, note 46. As discussed below, the Summers case, involving an attorney, was based on the Schwimmer-Bland-Macintosh analysis, but was handed down a year before Girouard overruled the trio without explicitly overruling Summers.
(43) U.S. v. Macintosh 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed 1302 (1931).
(44) Ibid. at 283 U.S. 619, 51 S.Ct. 573.
(45) As discussed below, p. 72, the Summers case was based on the Macintosh-Bland-Schwimmer analysis, but was handed down a year before Girouard, which overruled the trio, but did not explicitly rule on Summers. As discussed below, p. 70, the Court in Macintosh, restating the principles in Bland and Schwimmer, above, imposed its religious views on applicant:
When he speaks of putting his allegiance to the will of God above his allegiance to the government, it is evident in the light of his entire statement, that he means to make his own interpretation of the will of God the decisive test. . . . [True, w]e are a Christian people (Holy Trinity Church v. United States, 143 U.S. 457,470,471, 12 S.Ct. 511,[516], 36 L.Ed. 226), according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God. But, also, we are a nation with the duty to survive; a nation whose . . . government must go forward upon the assumption, and safely can proceed upon no other, that unqualified allegiance to the nation and submission and obedience to the laws of the land . . . are not inconsistent with the will of God. (at 283 U.S. 625, 51 S.Ct. 575, "his own interpretation," Court's emphasis; other emphasis added).
The court in Naturalization of Brakel, 524 F.Supp. 300 (N.D. Ill. 1979) noted that "these decisions were overruled (on strictly statutory grounds) in Girouard. . ." (at 301, emphasis added). See above at note 27.
(46) Girouard, at 328 U.S. 63-64, 66 S.Ct. 827. ("As we recognized in [In] Re Summers [cite], [the Macintosh, Bland and Schwimmer cases] stand for the same general rule -- that an alien who refuses to bear arms will not be admitted to citizenship. As an original proposition, we could not agree with that rule. The fallacies underlying it were, we think, demonstrated in the dissents of Mr. Justice Holmes in the Schwimmer case and of Mr. Chief Justice Hughes in the Macintosh case.") Thus we shall examine those dissents for relevant legal principles. But as for Summers, if logically overruled by Girouard, the Court here seems still to stand on the case.
(47) Dissenting in Macintosh, at 283 U.S. 630-31, 633-34, 51 S.Ct. 577, 578. The Chief Justice's definition of "the essence of religion" is absolutely critical to the protection of present Petitioner's First Amendment freedoms. It is examined in Appendix C.
(48) Girouard v. U.S., at 328 U.S. 68, 66 S.Ct. 829.
(49) Id., emphasis added. A long line of "Support Oath" cases have denied the First Amendment right to subordinate allegiance to the State to the authority of God. Those cases are discussed in Appendix E.