JAMES KEVIN CRAIG
12314 Palm Dr. #107
Desert Hot Springs, CA
1) Does the "no religious test" phrase of Article VI, paragraph 3 of the United States Constitution, and the ruling in Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), which prohibited the states from requiring oaths of office the terms of which conform to the tenets of the religion of Christianity, also forbid the states from permitting an applicant to the Bar to swear voluntarily an oath the terms of which conform to the religion of Christianity?
2) Does this Court's ruling in In re Summers 325 U.S. 561; 65 S.Ct. 1307 (1945) (holding that a Christian pacifist who disagreed with that part of the constitution requiring military training could not take the "support oath" in good faith) forbid a prospective attorney at law, who declares the authority of God and of the Christian Scriptures to be superior to that of the State, from being admitted to the Bar for inability to take in good faith a required oath to "support the Constitution", contrary to the First Amendment?
3) In view of modern policy considerations of "Global Interdependence," does this Court's ruling in In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), holding that U.S. citizenship cannot be required for admission to the Bar, absolve an applicant to the Bar from taking an oath to "support the Constitution," which this Court has "substantially equated to that allegiance which, by the common law, every citizen was understood to owe to his sovereign." Knight v. Board of Regents, 269 F.Supp 339 (1967), aff'd per curiam, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812 (1968).
|TABLE OF AUTHORITIES................||ii|
|STATUTORY PROVISION INVOLVED.......||1|
|REASONS FOR GRANTING THE PETITION...||5|
|A. Torcaso v. Watkins and "Religious Tests".....||6|
|B. In re Summers and "Good Faith" Support.....||9|
|C. Attorneys as "Officers".................||16|
|Denial of Petition by Respondent State Bar......||1a|
|Denial of Petition by California Supreme Court...||2a|
|APPENDIX C Report on Decision in [L.A.] Daily Journal.....||3a|
TABLE OF AUTHORITIES CASES Abrams v. U.S., 250 U.S. 616, 40 S.Ct. 17 (1919)................11 Allan v. United States, 115 F.2d 804 (9th Cir. 1940)............13 American Communications Ass'n CIO v. Douds, 339 U.S. 382, 70 S.Ct. 647 (1950)........................9,13,15 Anastaplo, In re, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135 (1961)............10,15 Arbesu, Naturalization of, 347 F.Supp. 1014 (E.D. La. 1972)..............................15 Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1946)............14 Baird v State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971).............5,13 Barenblatt v. U.S., 360 U.S. 109; 79 S.Ct. 1081 3 L.Ed.2d 1115 (1959).............15 Naturalization of Brakel, 524 F.Supp. 300 at 301 (N.D. Ill. 1979).......................14 Cammer v. U.S., 350 U.S. 399, 405, 76 S.Ct. 456, 459 (1956)...................16 Cole v. Richardson, 405 U.S. 676 92 S.Ct. 1332; 31 L.Ed.2d 593 (1972)..........14,15 Conally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322......................15 Cramp v. Board of Public Instruction of Orange Co., Florida, 368 U.S. 278, 82 S.Ct. 275 (1961).............................15 Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176 (1980)............................................8 De Bellis, Petition for Naturalization, 493 F.Supp. 534 (E.D. Pa. 1980)...............................13 Funk v. United States, 290 U.S. 371 (1933)......................13 Gillette v. United States, 401 U.S. 437, 91 Sup Ct 828, (1971)...........................13 Girouard v. U.S., 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946)..........3,13,14 Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975)............16 Griffiths, In re, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973)..........4,17 Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892).............6,12 Knight v. Board of Regents, 269 F.Supp 339 (S.D.N.Y.1967)...............................4,17 Konigsberg v. State Bar of California, 366 U.S. 36; 81 S.Ct. 997, 6 L.Ed.2d 105 (1961)...............10 Law Students Civil Rights Research Council Inc. v. Wadmond, 401 U.S.154 91 S.Ct. 720, 27 L.Ed.2d 749 (1971).........10,15,17 Lopez v. Howe, 170 CCA 337, 259 F. 401, 12 ALR 192 (1919)....................11 Matz, Petition for Naturalization of, 296 F.Supp. 927 (E.D. Cal., 1969)..........................13,14 Meghnot's Petition, 238 F.Supp. 479 (E.D. Mich. 1965)...........15 New York Times v. Sullivan 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)..............7 Ozonoff v Berzak, 744 F.2d 224, 233 (1st Cir. 1984).............16 Pisciattano, In re, 308 F.Supp 818 (D. Conn. 1970)..............14 Rector, etc., of Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892).............6,12 Rodriguez v. Seamans, 463 F.2d 837, 843 (D.C. Cir. 1972)............................11 Saralieff, In re, 59 F.2d 436 (E.D. Mo. 1932)................13,14 SEC v. United Benefit Life Ins. Co., 387 U.S. 202 (1967)........13 Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).............7 Smith v. County Engineer of San Diego Co., 266 C.A.2d 645, 72 Cal.Rptr. 501, 285 P.2d 617 (1968)..........8 Socialist Workers Party v. Martin, 345 F.Supp. 1132 (S.D. Tex. 1972).............................15 Summers, In re 325 U.S. 561; 65 S.Ct. 1307, 89 L.Ed. 1795 (1945) passim Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438, 441 (1960).........6 Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) ........passim U.S. ex rel Turner v. Williams, 194 U.S. 279, 24 S.Ct. 719 (1904).............................11 U.S. v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302 (1931)..........passim U.S. v. Rossler, 144 F.2d 463 (2d Cir. 1944)....................13 U.S. v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889 (1929)...............10 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 117, 87 L.Ed. 1628 (1943)..............14 Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 288, (1967).............15 Williams, Petition of, 474 F.Supp. 384 (D. Ariz. 1979)..........13 Wolfle v. United States, 291 U.S. 7 (1934)......................13 CONSTITUTIONS Del. Const. art. 22 (adopted Sept. 20, 1776), 1 Del. Code Ann. 117 (Michie, 1975).............................6 U.S. Const., Art II. Sec. 1, para. 8............................16 _____ Art VI, sec. 3...........................................16 STATUTES AND RULES 28 U.S.C. S1257(a).. ............................................1 Cal. Bus. & Prof. Code S6067 (1988)..............................2 MISCELLANEOUS Acts 5:29.......................................................12 D. Barton, Keys to Good Government (1994)........................8 D. Barton, The Myth of Separation (1992)......................9,12 W. Estep, Revolution Within the Revolution: The First Amendment in Historical Context 1612-1789 (1990)...............8 A. Goldberg, Equal Justice (1971)................................9 P. Irons, The Courage of Their Convictions (1988)................9 B. Moyers, Transcript: "God and Politics: On Earth as it Is in Heaven," Public Affairs Television (broadcast date: Dec. 23, 1987)..........................................................8 North, Political Polytheism: The Myth of Pluralism, 1989.........8 Reed, Stare Decisis and Constitutional Law, 35 Pa.B.A.Q. 131, (1938).........................................................5 Skillman, The Constitutions of All the States According to the Latest Amendments, (1817)..................................6 R. Stern, E. Gressman, S. Shapiro, K. Geller, Supreme Court Practice (7th ed. 1993)................................8,13 J. Stevens, The Life Span of a Judge-Made Rule, 58 N.Y.U.L. Rev. 1 (1983)........................................5,9 Westminster Confession of Faith (1647)............................6 J. Whitehead, The Second American Revolution (1982)...............9
SUPREME COURT OF THE UNITED STATES
October Term, 1994
James Kevin Craig, Petitioner,
California State Bar, Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF CALIFORNIA
James Kevin Craig respectfully petitions for a writ of certiorari to review the decision of the Supreme Court in the State of California in this case.
OPINIONS BELOW The Supreme Court in the State of California did not file an opinion or comment in this case. (No. 5034117). (See Appendix C, "Report on Decision in [L.A.] Daily Journal.") Pleadings below include Brief of Petitioner, Brief of Respondent, and Replication (Reply) of Petitioner.
JURISDICTION The Supreme Court in the State of California entered its judgment on April 27, 1994. (Appendix B). The jurisdiction of this Court is invoked under 28 U.S.C. S1257(a).
Petitioner seeks admission to the practice of law in California. The State of California requires applicants to swear a "Support Oath." Based on his understanding of judicial interpretations of this oath, Petitioner believed that he could not take the oath without violating his conscience, and would be subjected to disbarment or charges of perjury if he did.
In correspondence with the Respondent California State Bar, Petitioner inquired about the possibility of modifying the required oath to protect First Amendment rights. The State Bar replied that it lacked authority to modify a legislatively mandated oath, and added their opinion that the oath was constitutional, citing relevant Federal authority.
In order to exhaust administrative remedies before seeking extraordinary relief at the Supreme Court of the State of California, Petitioner filed a formal petition with the Committee of Bar Examiners of the State Bar seeking a modification of the oath, analyzing the U.S. Supreme Court decisions cited by Respondent, and supporting his belief that his proposed modification was Constitutional under the First Amendment.
The Committee of Bar Examiners restated their position that they were without authority to modify a legislatively mandated oath.
Petitioner then sought relief in the Supreme Court of the State of California, which has original jurisdiction over matters pertaining to the State Bar.
Petitioner filed a single Petition for a Writ of Mandate which raised essentially two issues:
A. Torcaso v. Watkins 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) held that the states could not require oaths the terms of which conformed to the tenets of Christianity. Petitioner, a Christian, believes that he is required by his faith to take only oaths the terms of which conform to the tenets of Christianity.
Believing the First Amendment permitted the voluntary swearing of religious oaths as part of the "free exercise of religion," and that Article VI of the U.S. Constitution did not prohibit the voluntary taking of what might otherwise be called a "religious test," Petitioner prayed the California Supreme Court to permit the California State Bar to allow a voluntary modification of the required oath, taking as a model one of the oaths Constitutionally required by the states in the 172 years following the ratification of the U.S. Constitution and preceding Torcaso. That petition was denied. Petitioner here seeks review of that decision.
The substantial federal Constitutional issues raised by Torcaso v. Watkins of the establishment and free exercise of religion (the First Amendment), and Trinitarian test oaths (Article VI), were properly and timely pleaded, being raised in all formal pleadings submitted by Petitioner.
B. In re Summers 325 U.S. 561; 65 S.Ct. 1307, 89 L.Ed. 1795 (1945) held that a prospective attorney could not take an oath to support the constitution in good faith if he disagreed with parts of that constitution, even if the disagreements resulted from sincerely held religious beliefs.
In a very lengthy brief which Respondent State Bar characterized as "scholarly," Petitioner suggested that this decision was problematic, alerting the California Supreme Court to the fact that the nationalistic legal foundations of the Summers decision were subsequently overruled. Petitioner coupled this analysis with the serious First Amendment challenges to "support oaths" which have been raised in this century, and proposed that Attorneys were not obligated to take the oath prescribed in the U.S. Constitution (Art. VI, Sec. 3) because the Attorney at law does not hold an "office" created by the Constitution and required to swear such an oath.
In response, Respondent reiterated the contention that the requirement to take a "support oath" was "a settled question," citing the six leading Federal cases. Petitioner carefully analyzed these cases in a supplemental Reply Brief and found that the claims of these Courts that the question was "settled" were mere dicta in cases which did not directly challenge the Summers-Torcaso Attorneys' "support" oath. Further, Petitioner noted that all the cases cited by Respondent State Bar trace their ultimate source of authority back to a citation of Blackstone to the effect that at common law, every "citizen" owed allegiance to his sovereign. Petitioner pointed out that the nexus between the Attorney at law and the duties of support and loyalty to the sovereign required of citizens was broken by a U.S. Supreme Court ruling that one could not be required to be a citizen in order to be an attorney.
Petitioner suggested a modification of the "support" clause of the oath which explicitly affirmed the legitimate state interests as enunciated in the relevant case law in place of the ambiguous promise to "support the Constitution." That petition was denied.
The substantial federal Constitutional issues raised by the Summers case and the denial of First Amendment rights which would take place if that decision were followed, were properly and timely pleaded, being raised in all stages of the proceedings below.
Final judgment on the Petition raising all these issues was filed by the California Supreme Court on April 27, 1994, with no opinion or comment. Petitioner here seeks review of that decision.
REASONS FOR GRANTING THE PETITION
Justice Felix Frankfurter has said, "It should not be assumed that oaths will be lightly taken; fastidiously scrupulous regard for them should be encouraged." Failure to do so has led not only to a denial of due process of law in the cases of those who do so regard oaths, but to a breakdown in respect for the integrity of law and government.
This case presents an opportunity to decide two import ant questions of federal law which have not been, but should be settled by this Court, both of which center around the requirement of a prospective attorney to take an oath to "support the constitution."
In pleadings below, Respondent State Bar has consistently urged that the requirement of Attorneys to "support the Constitution" is a "settled question." Petitioner herein has not forgotten the maxim, stare decisis et non quieta movere, which Justice Reed (then Solicitor General) rendered, "stand by the precedents and do not disturb the calm." But in the sea of "loyalty oath" cases, there is no calm. "The foregoing cases and others contain thousands of pages of confusing formulas, refined reasonings, and puzzling holdings." Courts on all levels have and continue to render opposite holdings in nearly identical fact patterns. In many cases oaths are "lightly taken," or else used to bruise the scruples of many. This Court can bring clarity in areas of the law which have left many confused about the honesty and predictability of the legal system. And to start, the confusion and fears surrounding loyalty oaths in the 20th century resulted in part from an unprecedented disturbing of the 19th century calm our Founding Fathers left us.
A. Torcaso v Watkins and "Religious Tests"
Petitioner in this case approaches oaths with scruples derived from the Westminster Confession of Faith (1647), which devotes an entire chapter to "Lawful Oaths and Vows." An oath is said to be "a part of religious worship" (S I), which can only be done in the Name of God (SS II, VI), and must be subordinated to "the Word of God" (S VII).
Although separated from the Reformation by nearly 300 years, the Framers of the Constitution had tremendous respect for Christian scruples, and drafted oaths which conformed to Biblical requirements, such as this one, from Delaware:
Every person who shall be chosen a member of either house, or appointed to any office or place of trust . . . shall . . . make and subscribe the following declaration, to wit: "I ________, 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 scripture of the Old and New Testaments to be given by divine inspiration."
As late as 1892, this Court noted the presence of Christian or theistic oaths in all the (44) states, and -- without disturbing the calm -- gave them an impassioned endorsement.
But in 1961, this Court, in Torcaso v. Watkins, held that the Establishment Clause of the First Amendment prohibited the states from requiring a Christian oath from one who adhered to the religion of Secular Humanism. Sociologically, Biblical oaths had been fading from the scene for decades. Legally, it was a disturbing of the calm.
In his petition to the California Supreme Court, Petitioner in the present case, citing constitutional debates and other historical documents, argued that Article VI, para. 3, prohibiting a "religious test," in fact prohibited what we would call a denominational test, one which favored the Episcopalians over the Presbyterians (for example), but did not prohibit a generic Christian oath. Following Justice Stewart's concurring opinion in Sherbert v.Verner, similar analysis of the use of the Establishment Clause in Torcaso questioned the "secular reach" of that decision.
Note well that Petitioner in this case is not calling for a return to state-mandated Christian oaths. He merely argues that if theocratic Christian oaths could be constitutionally mandated for over 150 years, then a stronger case can be made for recognition of the individual right to a voluntary free exercise of theocratic oath-taking. His petition to voluntarily take such an oath as Delaware's was denied by the California Supreme Court.
It is to be feared that the ruling in Torcaso has subtly conveyed a message that "fastidiously scrupulous regard" for oaths need not be "encouraged," especially among Christians. The government has likely had a profound effect in determining the nature of religious exercise among those required to take oaths. Even historical and theological discussion may not be as "uninhibited, robust, and wide-open" as it might have been had the Court not apparently closed the door to fastidiously scrupulous Christian oath-takers. This Court is in many ways the Nation's moral Pedagogue, and its decisions set the national agenda.
Review of the Torcaso case to permit the voluntary swearing of Christian oaths would encourage many people to pursue vocations from which they might otherwise be obstructed by a secularist oath. The Reformed Presbyterian Church in North America is officially committed as a denomination to Trinitarian oaths, and the rights of their members have been denied. Many others who are not members of that denomination, such as Petitioner in this case, have come to the same conclusions.
Petitioner, who for years was a Chalcedon Scholar, notes that secular oaths have been targeted by the "Religious Right," and could become a springboard for a wave of litigation. A decision here could forestall conflict.
No rights or interests have vested around secular oaths. The rights of no other people would be restricted by permitting the free exercise of theocratic Christian oaths.
A review of the California decision and the conflict between the Torcaso and Holy Trinity cases could have a dramatic impact in shaping a coherent theory of balance between the Establishment and Free Exercise clauses of the First Amendment. Review would also encourage many on the "right" who are alarmed by decisions (particularly celebrated cases from the years 1961-63) which seem to impose a "Secular Humanist" agenda upon local governments. The reputation of this Court could be enhanced; surely it needs the support of this powerful group.
B. In re Summers and "Good Faith" Support of the Constitution
If this Court grants certiorari to consider the issue of the free exercise of religious oaths, it will then be forced to review the case of In re Summers. Christian "Test oaths" such as that of Delaware, above, declare that ultimate authority rests beyond the nation-state. The long line of cases which Respondent State Bar insists have "settled" the issue of loyalty oaths, rest on a completely different judicial paradigm, one which denies a supra-national Authority.
Even if a Christian oath were to be permitted, Petitioner here would still have no assurance that the California State Bar would admit him to the practice of law, or would not bring proceedings for disbarment or perjury at some point in the future. In an attempt to avoid the result in Konigsberg v. State Bar of California, and In re Anastaplo, Petitioner went overboard in fully and candidly setting forth his politico-religious beliefs. In a word, Petitioner is a non-violent "anarchist." Petitioner has for the last six years lived in a House of Hospitality in the anarchist-pacifist Catholic Worker movement. He views the State as the institutionalization of violence, utterly without moral legitimacy. He has committed his life to the reconstruction of an alternative social order, culminating in the eventual elimination of "constitutional" governments. It would be difficult to say that he "supports" the Constitution, in any ordinary sense of that word.
Thus, Petitioner, whose anarchist views plainly preclude "support" for any constitution, proposed to Respondent State Bar the following "narrowly-drawn" oath in an effort to protect both First Amendment rights and legitimate state interests:
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, and am committed to dissuading others from resorting to force or violence, that I am not loyal to any foreign State, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.
The California Supreme Court denied the Petition to permit this modification.
The facts in Summers are a "chilling" parallel to those in the present case. Summers, a Christian, sought admission to the Illinois Bar. A conscientious Christian pacifist, Summers could not agree with that part of the Illinois Constitution requiring military training of its citizenry. The Illinois Bar denied his application for admission. The Illinois Supreme Court upheld the decision of the State Bar, and that court's decision was upheld by this Court.
The standard set in Summers is clearly indefensible. Summers was barred from the practice of law because of disagreement with one part of the state constitution. Present Petitioner knows of not a single attorney who, having taken an oath to "support the Constitution," agrees with every single provision of that Constitution.
Summers' unrealistic standard was the product of a festering nationalism which was born out of conflict with anarchists at the turn of the century, and would reach a peak during the "vicious, irrational paroxysm of fear and rage known as McCarthyism . . . which plagues us to this day."
This particularly virulent strain of nationalism was set forth in the case of U.S. v. Macintosh, and the Summers case rested foursquare on that case. In Macintosh, an alien willing to swear "support" for the Constitution was denied the opportunity to do so because as a pacifist he was unable to state that he was "willing" to bear arms.
Macintosh highlights the clear ideological demarcations: Those who are Christians, particularly pacifists, have a loyalty to a Higher Power. Their obedience to and "support" of the laws and constitutions of men are subordinate to a supra-national allegiance. Respect for this allegiance dominated the law in the 19th century. But the Macintosh Court repudiated this Transcendental Authority and set into motion the secularist nationalism that would culminate in Torcaso thirty years later. The Macintosh Court acknowledged the holding in Holy Trinity with one hand and withdrew it with the other:
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,, 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.
Most people feel a kind of instinctive repulsion against an oath of unqualified allegiance, and the concept of conscientious civil disobedience, a bedrock doctrine of Christianity, is central to Petitioner's religious beliefs. But without a workable paradigm, the logic of secularist nationalism goes unresisted. Thus, as the God of Scripture has been removed from loyalty oaths, the Nation-State has been enthroned as the new god. Applicants believing in a transcendental authority have been held incapable of "supporting" the constitution. This standard of allegiance, although passionately argued and consistent with a nationalist ideology, is nevertheless an impossible one; no one takes this rhetoric seriously. It says in effect that if constitutional processes produce a law which requires an applicant to turn his neighbor in for a train ride to the concentration camp, he must be "willing to obey."
Congress attempted to buffer the Macintosh case by giving rights to those seeking naturalization, placing them on the same ground as natural-born citizens who have access to conscientious objector status. Macintosh was thus overruled in 1946, a year after the Summers decision. But Girouard apparently did not overrule Summers, which is still cited as controlling. And in fact, some courts have held that Girouard overruled Macintosh "on strictly statutory grounds," and thus impose the Macintosh/Summers standard of unqualified belief in the reigning nationalistic political orthodoxy.
This Court has tried another solution: temper the authority of the nation-state by claiming that the once-solemn and sacred oath is now just an "amenity."
This contention ignores not only the effect of the oath on those who will not solemnly swear unless they can do so honestly and without prevarication and reservation, but also its effect on those who believe the written law means what it says"
As a result, no one with extremist beliefs who is required to take a "support oath" can predict whether he will be allowed by a Cole-type court to take an increasingly-meaningless formality, or whether he will be held to the standard of Summers/Macintosh, and be barred as incapable of taking the oath in good faith. The decisions are chaotic; the obligations of "support" are unclear: One could conclude that this Court holds that one will be permitted to take a once-solemn oath to "support the Constitution" even if "he is now, in one way or another, engaged in an attempt to overthrow the Government by force or violence," but a Summers-type non-violent Christian will not be so permitted. And "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 violates the first essential of due process of law."
It is common knowledge that there is a profound cynicism in the average American concerning our legal system. It is widely perceived that political promises mean nothing. The law seems to be applied subjectively and unpredictably.
A widespread feeling that the law is subjectively applied and objectively unpredictable is the death-knell of that system.
C. Attorneys as "Officers"
A century of secularist nationalism has necessitated the questioning of the unpredictable application of Art. VI "support oaths" to attorneys. Chauvinistic nationalism is a dangerous anachronism. We now live in an era of Global Interdependence. Attorneys holding a supra-national vision of social order must not be discouraged, rather, should be encouraged, to boldly act on their convictions. The Summers decision and its progeny should be reviewed. And as the sun sets on the 20th century, it may now be appropriate to review the possibility of eliminating altogether the requirement of attorneys to swear an oath to "support the constitution."
It is clear that those who hold political offices created by or under the constitution are obligated to swear to "support the constitution."
It is well established by case law that public employees must take a similar oath, although the constitutionality of this requirement is at least arguable (in a way not so of those whose offices are created by the Constitution.)
Attorneys, however, differ from Constitutional office-holders and public employees. The office of Attorney-at-law was not created by the Constitution, and although the Attorney is called an "officer of the Court," he is "not an 'officer' within the ordinary meaning of that term," and the Attorney's "employer is . . . not the American government."
The California State Bar responded to these arguments by citing a string of cases that began with Knight v. Board of Regents and saw its clearest expression in Law Students Civil Rights Research Council, Inc. v. Wadmond. In his reply, Petitioner observed that the "support oath" was not challenged in these cases, and that all the dicta in these cases concerning the "well-established" validity of an oath to support the constitution trace back to Blackstone, cited by the court in Knight, saying "support of the constitutional governments can be substantially equated to that allegiance which, by the common law, every citizen was understood to owe his sovereign.
The nexus between attorneys and citizenship, however, was dissolved by this Court in In re Griffiths. It was there held that an attorney did not have to be a citizen, undercutting Blackstone's nationalistic legal foundation upon which courts have based the required support oath.
The way we treat oaths is symptomatic and symbolic of the way we treat the law as a whole.
Courts are in substantial disarray in the way they treat oaths of office, and this is due to a failed jurisprudential paradigm, which only this Court can fashion.
This Court is not just an impersonal arbiter of judicial disputes, but serves the nation as Conscience and Pedagogue. This Court inescapably sets the standard of our nation's values. This case is an ideal vehicle to begin re-examining fundamental presuppositions because Petitioner's views are part of both the "religious right" and the "left," allowing for focused reflection in comparative political calm.
Thus, while protecting the First Amendment rights of the "fastidiously scrupulous," this Court can also advance vital national interests:
In recognition of transnational realities of the modern world, the archaic nationalism exemplified by 20th century fears of disloyalty can be replaced by a global vision that will last into the 21st century.
In our increasingly lawless and nihilistic culture, recognition of this nation's Christian roots and the importance of Spiritual values will strengthen the social order of the Republic.
Therefore, the Court should grant the petition.
APPENDIX A CORRESPONDENCE FROM RESPONDENT STATE BAR TO PETITIONER
The Committee of Bar Examiners of the State of California
Office of Admissions
555 Franklin St. San Francisco, California 94102 (415)
June 8, 1993
|James Kevin Craig||Assigned Petition No. 11(b)|
|311 Main Street||Registration No. 546334598|
|Santa Ana, CA 92701|
Dear Mr. Craig:
During its meeting on June 4, 1993, the Committee of Bar Examiners took up consideration of your request for modification of the attorney's oath. The Committee has directed that I advise you that since the form of the oath was established by the California legislature, the Committee is without authority to modify it and has, therefore, declined to grant your request. To be admitted to practice, you must take the oath as set forth in Section 6067 of the California Business & Professions Code,
Also, please understand that Rule IX, Rules Regulating Admission to Practice Law in California specifies that no one shall be eligible for admission to practice law in California unless the applicant has taken the attorney's oath within five years of the last day of the examination he or she passed. Our records indicate that you passed the July 1988 bar examination, and that means that if you do not take the attorney's oath by July 28, 1993 (the fifth anniversary of the last day of the July 1988 examination), you will be required to again take and pass the examination before being eligible for certification to the Supreme Court.
Please feel free to let this office know if you have any questions.
Very truly yours, (signed) Jerome Braun Senior Executive, Admissions
APPENDIX B NOTICE OF DECISION FROM CALIFORNIA SUPREME COURT
APPENDIX C REPORT ON DECISION FROM CALIFORNIA SUPREME COURT [Los Angeles] Daily Journal 107:82 (April 29, 1994) p. 20
(1)The full oath reads: "I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability." Cal. Bus. & Prof. Code S6067 (West, 1988).
(2) Appendix A, infra, Letter from Respondent State Bar.
(3) For text of proposed oath, see infra, "Reasons for Granting the Petition," 6.
(4) Brief of Respondent, 6.
(5) Girouard v. U.S., 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946), overruling U.S. v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302 (1931).
(6) Knight v. Board of Regents 269 F.Supp 339 (1967), aff'd per curiam, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812 (1968).
(7) In Re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973).
(8) For text of proposed oath, see infra, "Reasons for Granting the Petition," 10-11.
(9) Concurring in American Communications Association CIO v. Douds 399 US 382 at 420, 70 S.Ct. 674 at 695 (1950). Emphasis added.
(10) S. Reed, Stare Decisis and Constitutional Law, 35 Pa.B.A.Q. 131, 131 (1938), cited by J. Stevens, The Life Span of a Judge-Made Rule, 58 N.Y.U.L.Rev. 1-2 n.2 (1983).
(11) Baird v. State Bar of Arizona 401 U.S. 1 at 4, 91 S.Ct. 702 at 705, 27 L.Ed. 639 (1971) (J. Black, announcing the judgment of the Court in an opinion joined by JJ. Douglas, Brennan, and Marshall).
(11) T. Skillman, The Constitutions of All the States According to the Latest Amendments, 181 (1817). See also Del. Const. art. 22 (adopted Sept. 20, 1776), 1 Del. Code Ann. 117 (Michie, 1975).
(13) Rector, etc., of Holy Trinity Church v. United States, 143 U.S. 457,468, 12 S.Ct. 511, 515, 36 L.Ed. 226 (1892).
(14) Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961).
(15) The Maryland Court had detailed the long secularization of the oath. Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438, 441 (1960).
(16) decided the same day as the "School Prayer" case; Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). ("I think that the Court's approach to the Establishment Clause has on occasion, and specifically in Engel, Schempp and Murray, been not only insensitive, but positively wooden, and that the Court has accorded to the Establishment Clause a meaning which neither the words, the history, nor the intention of the authors of that specific constitutional provision even remotely suggests." J. Stewart, concurring, at 374 U.S. 414, 83 S.Ct. 1799.)
(17) Petitioner also opposes prayer in public schools, for reasons that will become apparent, below.
(18) New York Times v. Sullivan 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964).
(19) Smith v. County Engineer of San Diego Co., 266 C.A.2d 645, 72 Cal.Rptr. 501, 285 P.2d 617 (1968).
(20) D. Barton, Keys to Good Government, 1994.
(21) Chalcedon was identified as the "think tank" of the "Christian Right," W. Estep, Revolution Within the Revolution: The First Amendment in Historical Context 1612-1789, 11-15 (1990); Bill Moyers, Transcript: "God and Politics: On Earth as it Is in Heaven," Public Affairs Television (broadcast date: Dec. 23, 1987), and 97 Newsweek 5:60 (Feb. 2, 1981).
(22) See the manifesto by G. North, Political Polytheism: The Myth of Pluralism, 1989. According to Estep, supra, note 13, id., North, who took his Ph.D. at the University of California, is a very influential writer in the "religious right."
(23) In an unrelated field of law, this Court has granted certiorari "to forestall a possible conflict in the lower courts" on an "important" issue, even though there was "no direct conflict" among various district court and court of appeals opinions. Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176 (1980); R. Stern, E. Gressman, S. Shapiro, K. Geller, Supreme Court Practice, S4.8 179-80 (7th ed. 1993).
(24) P. Irons, The Courage of Their Convictions, 366-67 (1988) ("Like no other legal issue, the prayer issue simply will not surrender to judicial edict. More than two decades after the Supreme Court banned school prayer, teachers lead their students in prayer in more than half of America's ten thousand school districts.")
(25) D. Barton, The Myth of Separation; 1992. J. Whitehead, The Second American Revolution, 1982.
(26) A. Goldberg, Equal Justice 75 (1971), cited by J. Stevens, The Life Span of a Judge-Made Rule, 58 N.Y.U.L.Rev. 2 n.11 (1983). ("[S]tare decisis foster[s] public confidence in the judiciary and public acceptance of individual decisions by giving the appearance of impersonal, consistent, and reasoned opinions.")
(27) In re Summers, 325 U.S. 561; 65 S.Ct. 1307, 89 L.Ed. 1795 (1945) (holding that a Christian pacifist, disagreeing with that part of the Constitution requiring military training, could not take the "support oath" in good faith.)
(28) Konigsberg v. State Bar of California, 366 U.S. 36; 81 S.Ct. 997, 6 L.Ed.2d 105 (1961).
(29) In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135 (1961), reh. den. 368 U.S. 869, 82 S.Ct. 21, 7 L.Ed.2d 69 (1961). (Both cases holding that obstruction of State Bar investigations would ground denial of admission to the Bar.)
(30) The language is from Law Students v. Wadmond, 401 U.S. 154 at 166, 91 S.Ct. 720 at 728, 27 L.Ed.2d 749 (1971). Petitioner would not object to gender-inclusive language.
(31) See the concerns in U.S. v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889 (1929) over a petitioner -- an "uncompromising pacifist" with "no sense of nationalism" (Idem.) -- and her "purpose or power to influence others" as a "lecturer and writer" (at 279 U.S. 651, 49 S.Ct. 450).
(32) In his Brief, Petitioner cited 11 loyalty oath cases which indicated a concern over foreign influence or domination.
(33) The second half of the current oath.
(34) In re Summers, 325 U.S. 561; 65 S.Ct. 1307, 89 L.Ed. 1795 (1945).
(35) Petitioner's Brief, Appendix F, "The Establishment of a Secular, Political Religion Through the 'Support Oath.'" pp. 77-79, analyzes these cases: U.S. ex rel Turner v. Williams, 194 U.S. 279, 24 S.Ct. 719 (1904); Lopez v. Howe, 170 CCA 337, 259 F. 401, 12 ALR 192 (1919); Abrams v. U.S., 250 U.S. 616, 40 S.Ct. 17 (1919).
(36) Rodriguez v. Seamans, 463 F.2d 837, 843 (D.C. Cir. 1972) (Wright, dissenting).
(37) U.S. v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302 (1931).
(38) In re Summers, 325 U.S. 561 at 572-73, 65 S.Ct. 1307 at 1313-14.
(39) D. Barton, The Myth of Separation, 1992.
(40) Holy Trinity Church v. United States, 143 U.S. 457,470,471, 12 S.Ct. 511,, 36 L.Ed. 226 (1892). Cf. text at note 13, supra.
(41) Macintosh, 283 U.S. 605, at 625, 51 S.Ct. 570, at 575. ("his own interpretation," Court's emphasis; all other emphasis added. In particular, Petitioner believes that the word "But" carries with it a profoundly significant disjunction.)
(42) Cf. Acts 5:29 ("We ought to obey God rather than men.")
(43) In an Appendix to Petitioner's California Brief ("Civil Disobedience and the Support Oath"), the relevant cases were analyzed, including Petition of Williams, 474 F.Supp. 384 (D. Ariz. 1979) (citing Allan v. United States, 115 F.2d 804 (9th Cir. 1940) and U.S. v. Rossler, 144 F.2d 463 (2d Cir. 1944)); In re De Bellis Petition for Naturalization, 493 F.Supp. 534 (E.D. Pa. 1980). See also In re Saralieff, 59 F.2d 436 (E.D. Mo. 1932), cited in In re Petition for Naturalization of Matz, 296 F.Supp. 927 (E.D. Cal., 1969).
(44) Girouard v. U.S., 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946).
(45) This Court has granted certiorari in cases involving a question upon which prior decisions of the Supreme Court are irreconcilable or inconsistent. Funk v. United States, 290 U.S. 371 (1933); Wolfle v. United States, 291 U.S. 7 (1934). R. Stern, E. Gressman, S. Shapiro, K. Geller, Supreme Court Practice, S4.5 176 (7th ed. 1993).
(46) Cf. American Communications Ass'n CIO v. Douds, 339 U.S. 382 at 405, 70 S.Ct. 674 at 687 (1950). Gillette v. United States, 401 U.S. 437, 462n23, 91 Sup Ct 828, 842n23 (1971), Baird v State Bar of Arizona, 401 U.S. 1 at 3, 91 S.Ct. 702 at 704, 27 L.Ed.2d 639 (1971). When not cited in reference to matters of procedure, the citations to Summers are nearly always cryptic. This Court has granted certiorari where the decision below is premised upon a prior Supreme Court opinion whose implications are in need of clarification. SEC v. United Benefit Life Ins. Co., 387 U.S. 202, 207 (1967). R. Stern, E. Gressman, S. Shapiro, K. Geller, Supreme Court Practice, S4.5 176 (7th ed. 1993).
(47) Naturalization of Brakel, 524 F.Supp. 300 at 301 (N.D. Ill. 1979).
(48) Cole v. Richardson, 405 U.S. 676 at 685, 92 S.Ct. 1332, at 1337; 31 L.Ed.2d 593 (1972). Petitioner analyzed this case at some length in correspondence with the State Bar, and Petitioner's Brief at 83-86. It is a frightening response to the denial of rights occasioned by secularist nationalism. It only entrenches a disrespect for law.
(49) Cf. Baggett v. Bullitt, 377 U.S. 360 at 374, 84 S.Ct. 1316 at 1324 (1946). Petitioner in the case now before this Court, when describing his conflict of conscience, has been advised by attorneys who have themselves taken the "support oath" to "Just make it 'mean' what ever you want it to mean and get it over with!" This attitude toward the law is common. It is also destructive of its integrity.
(50) How can ordinary people know if a given judge considers a "support" oath to be a solemn act of worship or just an amenity like the one struck down in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 117, 87 L.Ed. 1628 (1943)(flag salute)?
(51) Compare In re Petition for Naturalization of Matz, 296 F.Supp. 927 (E.D. Cal., 1969) (denying naturalization to Jehovah's Witness who, "because of religious training and belief refuses to vote, serve on juries or otherwise participate in government" (at 929), citing In re Saralieff, 59 F.2d 436 (E.D. Mo. 1932)(at 930n6), and Macintosh)(at 931n.20)), with In re Pisciattano, 308 F.Supp 818 (D. Conn. 1970) (granting naturalization to Jehovah's Witness who, "because of her religious beliefs and training . . . would not vote, engage in politics, or serve on a jury" (at 819), citing Girouard (at 820)).
(51) Whitehill v. Elkins, 389 U.S. 54, 62, 88 S.Ct. 184, 188, 19 L.Ed.2d 288, 234 (1967) (J. Harlan, joined by JJ. Stewart and White, dissenting.)
(52) Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278 at 287, 82 S.Ct. 275 at 280 (1961), citing Conally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322.
(53) See note 51, supra. Petitioner's Brief, Appendix F, "The Establishment of a Secular, Political Religion Through the 'Support Oath,'" describes the presence of the Macintosh standard in modern courts and the conflict that emerges when courts try to temper its harshness by diluting the meaning of the oath: American Communications Ass'n CIO v. Douds, 339 U.S. 382, 70 S.Ct. 647 (1950); Barenblatt v. U.S., 360 U.S. 109; 79 S.Ct. 1081 3 L.Ed.2d 1115 (1959) reh. den. 361 U.S. 854, 80 S.Ct. 40, 4 L.Ed.2d 93 (1959); In re Anastaplo, 366 U.S. 82; 81 S.Ct.978, 6 L.Ed. 2d 135 (1961), reh. den. 368 U.S. 869, 82 S.Ct. 21, 7 L.Ed.2d 69 (1961); Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967); Law Students Civil Rights Research Council Inc. v. Wadmond, 401 U.S.154 91 S.Ct. 720, 27 L.Ed.2d 749 (1971); Cole v. Richardson, 405 U.S. 676 92 S.Ct. 1332; 31 L.Ed.2d 593 (1972); Arbesu, Naturalization of, 347 F.Supp. 1014 (E.D. La. 1972); In re Meghnot's Petition, 238 F.Supp. 479 (E.D. Mich. 1965); Socialist Workers Party v. Martin, 345 F.Supp. 1132 (S.D. Tex. 1972).
(55) U.S. Const. Art II. sec. 1, para. 8, and Art. VI, sec. 3.
(56) In a sense, all the Founding Fathers were naturalized citizens, which raised important questions about national loyalty which are absent in our day.
(57) Goldfarb v. Virginia State Bar, 421 U.S. 773 at 792-93, 95 S.Ct. 2004 at 2016, 44 L.Ed.2d 572 (1975).
(58) Cammer v. U.S., 350 U.S. 399, 405, 76 S.Ct. 456, 459 (1956).
(59) Cf. Ozonoff v Berzak, 744 F.2d 224, 233 (1st Cir. 1984).
(60) Knight v. Board of Regents 269 F.Supp 339 (1967), aff'd per curiam, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812 (1968).
(61) Law Students Civil Rights Research Council, Inc. v. Wadmond 401 U.S. 165, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971).
(62) Knight v. Board of Regents 269 F.Supp 339, 341 (1967). Detailed analysis of Respondent's string of cases was raised in Petitioner's Reply, Appendix G, "The Myth of the Settled Question."
(63) In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973).
(64) And it will be just a beginning -- a kind of post-Torcaso "mid-course correction."
(65) Petitioner has published articles in The Chalcedon Report (note 21, supra), as well as The Catholic Worker (founded in New York City by Dorothy Day in 1933).
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