Baird v. State Bar of Arizona/Concurrence Stewart

by Potter Stewart

United States Supreme Court

401 U.S. 1

Baird  v.  State Bar of Arizona

 Argued: Oct. 14, 1970. --- Decided: Feb 23, 1971

Mr. Justice STEWART, concurring in judgment.

The Court has held that under some circumstances simple inquiry into present or past Communist Party membership of an applicant for admission to the Bar is not as such unconstitutional. Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105; In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135.

Question 27, however, goes further and asks applicants whether they have ever belonged to any organization 'that advocates overthrow of the United States Government by force or violence.' Our decisions have made clear that such inquiry must be confined to knowing membership to satisfy the First and Fourteenth Amendments. See, e.g., United States v. Robel, 389 U.S. 258, 265 266, 88 S.Ct. 419, 424-425, 19 L.Ed.2d 508; Law Students Civil Rights Research Council v. Wadmond, 400 U.S., at 165, 91 S.Ct., at 727. It follows from these decisions that mere membership in an organization can never, by itself, be sufficient ground for a State's imposition of civil disabilities or criminal punishment. Such membership can be quite different from knowing membership in an organization advocating the overthrow of the Government by force or violence, on the part of one sharing the specific intent to further the organization's illegal goals. See Scales v. United States, 367 U.S. 203, 228-230, 81 S.Ct. 1469, 6 L.Ed.2d 782; Law Student Civil Rights Research Council v. Wadmond, supra.

There is a further constitutional infirmity in Arizona's Question 27. The respondent State Bar is the agency entrusted with the administration of the standards for admission to practice law in Arizona. And the respondent's explanation of its purpose in asking the question makes clear that the question must be treated as an inquiry into political beliefs. For the respondent explicitly states that it would recommend denial of admission solely because of an applicant's beliefs that the respondent found objectionable. Cf. Wadmond, supra, at 162-163 of 400 U.S., at 726 of 91 S.Ct. Yet the First and Fourteenth Amendments bar a State from acting against any person merely because of his beliefs. E.g., West Virginia Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628; Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903, 84 L.Ed. 1213. Cf. Carrington v. Rash, 380 U.S. 89, 94, 85 S.Ct. 775, 779, 13 L.Ed.2d 675.

Mr. Justice WHITE, dissenting.

Notes