Girouard v. United States/Opinion of the Court

by William O. Douglas

United States Supreme Court

328 U.S. 61

Girouard  v.  United States

 Argued: March 4, 1946. --- Decided: April 22, 1946

In 1943 petitioner, a native of Canada, filed his petition for naturalization in the District Court of Massachusetts. He stated in his application that he understood the principles of the government of the United States, believed in its form of government, and was willing to take the oath of allegiance (54 Stat. 1157, 8 U.S.C. § 735(b), 8 U.S.C.A. § 735(b), which reads as follows:

'I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I takew this obligation freely without any mental reservation or purpose of evasion: So help me God.'

To the question in the application 'If necessary, are you willing to take up arms in defense of this country?' he replied, 'No (Non-combatant) Seventh Day Adventist.' He explained that answer before the examiner by saying 'it is a purely religious matter with me, I have no political or personal reasons other than that.' He did not claim before his Selective Service board exemption from all military service, but only from combatant military duty. At the hearing in the District Court petitioner testified that he was a member of the Seventh Day Adventist denominat on, of whom approximately 10,000 were then serving in the armed forces of the United States as non-combatants, especially in the medical corps; and that he was willing to serve in the army but would not bear arms. The District Court admitted him to citizenship. The Circuit Court of Appeals reversed, one judge dissenting. 1 Cir., 149 F.2d 760. It took that action on the authority of United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889; United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.E. 1302, and United States v. Bland, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319, saying that the facts of the present case brought it squarely within the principles of those cases. The case is here on a petition for a writ of certiorari which we granted so that those authorities might be re-examined.

The Schwimmer, Macintosh and Bland cases involved, as does the present one, a question of statutory construction. At the time of those cases, Congress required an alien, before admission to citizenship, to declare on oath in open court that 'he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.' ^[1] It also required the court to be satisfied that the alien had during the five year period immediately proceeding the date of his application 'behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.' ^[2] Those provisions were reenacted into the present law in substantially the same form. ^[3]

While there are some factual distinctions between this case and the Schwimmer and Macintosh cases, the Bland case on its facts is indistinguishable. But the principle emerging from the three cases obliterates any factual distinction among them. As we recognized in Re Summers, 325 U.S. 561, 572, 577, 65 S.Ct. 1307, 1313, 1316, they 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.

The oath required of aliens does not in terms require that they promise to bear arms. Nor has Congress expressly made any such finding a prerequisite to citizenship. To hold that it is required is to read it into the Act by implication. But we could not assume that Congress intended to make such an abrupt and radical departure from our traditions unles it spoke in unequivocal terms.

The bearing of arms, important as it is, is not the only way in which our institutions may be supported and defended, even in times of great peril. Total war in its modern form dramatizes as never before the great cooperative effort necessary for victory. The nuclear physicists who developed the atomic bomb, the worker at his lathe, the seaman on cargo vessels, construction battalions, nurses, engineers, litter bearers, doctors, chaplains these, too, made essential contributions. And many of them made the supreme sacrifice. Mr. Justice Holmes stated in the Schwimmer case, 279 U.S. at page 655, 49 S.Ct. at page 451, 73 L.Ed. 889, that 'the Quakers have done their share to make the country what it is. And the annals of the recent war show that many whose religious scruples prevented them from bearing arms, nevertheless were unselfish participants in the war effort. Refusal to bear arms is not necessarily a sign of disloyalty or a lack of attachment to our institutions. One may serve his country faithfully and devotedly, though his religious scruples make it impossible for him to shoulder a rifle. Devotion to one's country can be as real and as enduring among non-combatants as among combatants. One may adhere to what he deems to be his obligation to God and yet assume all military risks to secure victory. The effort of war is indivisible; and those whose religious scruples prevent them from killing are no less patriots than those whose special traits or handicaps result in their assignment to duties far behind the fighting front. Each is making the utmost contribution according to his capacity. The fact that his role may be limited by religious convictions rather than by physical characteristics has no necessary bearing on his attachment to his country or on his willingness to support and defend it to his utmost.

Petitioner's religious scruples would not disqualify him from becoming a member of Congress or holding other public offices. While Article VI, Clause 3 of the Constitution provides that such officials, both of the United States and the several States, 'shall be bound by Oath or Affirmation, to support this Constitution,' it significantly adds that 'no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.' The oath required is in no material respect different from that prescribed for aliens under the Naturalization Act. It has long contained the provision 'that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion.' R.S. § 1757, 5 U.S.C. § 16, 5 U.S.C.A. § 16. As Mr. Chief Justice Hughes stated in his dissent in the Macintosh case, 283 U.S. at page 631, 51 S.Ct. at page 577, 75 L.Ed. 1302, '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'-these considerations make 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.'

There is not the slightest suggestion that Congress set a stricter standard for aliens seeking admission to citizenship than it did for officials who make and enforce the laws of the nation and administer its affairs. It is hard to believe that one need forsake his religious scruples to become a citizen but not to sit in the high councils of state.

As Mr. Chief Justice Hughes pointed out (United States v. Macintosh, supra, 283 U.S. at page 633, 51 S.Ct. at page 578, 75 L.Ed. 1302), religious scruples against bearing arms have been recognized by Congress in the various draft laws. This is true of the selective Training and Service Act of 1940, 54 Stat. 889, 50 U.S.C.App. § 305(g), 50 U.S.C.A.Appendix, § 305(g), ^[4] as it was of earlier acts. He who is inducted into the armed services takes an oath which includes the provision 'that I will bear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever.' ^[5] 41 Stat. 809, 10 U.S.C. § 1581, 10 U.S.C.A. § 1581. Congress has thus recognized that one may adequately discharge his obligations as a citizen by rendering non-combatant as well as combatant services. This respect by Congress over the ears for the conscience of those having religious scruples against bearing arms is cogent evidence of the meaning of the oath. It is recognition by Congress that even in time of war one may truly support and defend our institutions though he stops short of using weapons of war.

That construction of the naturalization oath received new support in 1942. In the Second War Powers Act, 56 Stat. 176, 182, 8 U.S.C.Supp. IV, § 1001, 8 U.S.C.A. § 1001, Congress relaxed certain of the requirements for aliens who served honorably in the armed forces of the United States during World War II and provided machinery to expedite their naturalization. ^[6] Residence requirements were relaxed, educational tests were eliminated, and no fees were required. But no change in the oath was made; nor was any change made in the requirement that the alien be attached to the principles of the Constitution. Yet it is clear that these new provisions cover non-combatants as well as combatants. ^[7] If petitioner had served as a non-combatant (as he was willing to do), he could have been admitted to citizenship by taking the identical oath which he is willing to take. Can it be that the oath means one thing to one who has served to the extent permitted by his religious scruples and another thing to one equally willing to serve but who has not had the opportunity? It is not enough to say that petitioner is not entitled to the benefits of the new Act since he did not serve in the armed forces. He is not seeking the benefits of the expedited procedure and the relaxed requirements. The oath which he must take is identical with the oath which both non-combatants and combatants must take. It would, indeed, be a strange construction to say that 'support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic' demands something more from some than it does from others. That oath can hardly be adequate for one who is unwilling to bear arms because of religious scruples and yet exact from another a promise to bear arms despite religious scruples.

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.' 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. As we recently stated in United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 886, 88 L.Ed. 1148, 'Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674.' The test oath is abhorrent to our tradition. Over the years Congress has meticulously respected that tradition and even in time of war has sought to accommodate the military requirements to the religious scruples of the individual. We do not believe that Congress intended to reverse that policy when it came to draft the naturalization oath. Such an abrupt and radical departure from our traditions should not be implied. See Schneiderman v. United States, 320 U.S. 118, 132, 63 S.Ct. 1333, 1340, 87 L.Ed. 1796. Cogent evidence would be necessary to convince us that Congress took that course.

We conclude that the Schwimmer, Macintosh and Bland cases do not state the correct rule of law.

We are met, however, with the argument that even though those cases were wrongly decided, Congress has adopted the rule which they announced. The argument runs as follows: Many efforts were made to amend the law so as to change the rule announced by those cases; but in every instance the bill died in committee. Moreover, in 1940 when the new Naturalization Act was passed, Congress reenacted the oath in its pre-existing form, though at the same time it made extensive changes in the requirements and procedure for naturalization. From this it is argued that Congress adopted and reenacted the rule of the Schwimmer, Macintosh, and Bland cases. Cf. Apex Hosiery Co. v. Leader, 310 U.S. 469, 488, 489, 60 S.Ct. 982, 989, 990, 84 L.Ed. 1311, 128 A.L.R. 1044.

We stated in Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604, 125 A.L.R. 1368, that 'It would require very persuasive circumstances enveloping Congressional silence to debar this Court from re-examining its own doctrines.' It is at best treachrous to find in Congressional silence alone the adoption of a controlling rule of law. We do not think under the circumstances of this legislative history that we can properly place on the shoulders of Congress the burden of the Court's own error. The history of the 1940 Act is at most equivocal. It contains no affirmative recognition of the rule of the Schwimmer, Macintosh and Bland cases. The si ence of Congress and its inaction are as consistent with a desire to leave the problem fluid as they are with an adoption by silence of the rule of those cases. But for us, it is enough to say that since the date of those cases Congress never acted affirmatively on this question but once and that was in 1942. At that time, as we have noted, Congress specifically granted naturalization privileges to non-combatants who like petitioner were prevented from bearing arms by their religious scruples. That was affirmative recognition that one could be attached to the principles of our government and could support and defend it even though his religious convictions prevented him from bearing arms. And, as we have said, we cannot believe that the oath was designed to exact something more from one person than from another. Thus the affirmative action taken by Congress in 1942 negatives any inference that otherwise might be drawn from its silence when it reenacted the oath in 1940.

Reversed.

Mr. Justice JACKSON took no part in the consideration or decision of this case.

Notes

1. Naturalization Act of 1906, § 4, 34 Stat 596.
2. Id.
3. We have already set forth in the opinion the present form of the oath which is required. It is to be found in the Nationality Act of 1940, 54 Stat. 1137, 1157, 8 U.S.C. § 735(b), 8 U.S.C.A. § 735(b). Sec. 307(a) of that Act, 8 U.S.C. § 707(a), 8 U.S.C.A. § 707(a), provides that no person shall be naturalized unless he has been for stated periods and still is 'a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.'
4. Sec. 305(g) provides in part: 'Nothing contained in this Act shall be construed to require any person to be subject to combatant training and service in the land or naval forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Any such person claiming such exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the land or naval forces under this Act, be assigned to noncombatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of such induction, be assigned to work of national importance under civilian direction.' For earlier Acts see Act of February 21, 1864, 13 Stat. 6, 9; Act of January 21, 1903, 32 Stat. 775; Act of June 3, 1916, 39 Stat. 166, 197, 32 U.S.C.A. § 3; Act of May 18, 1917, 40 Stat. 76, 78, 50 U.S.C.A.Appendix, § 204.
5. And see Billings v. Truesdell, 321 U.S. 542, 549, 550, 64 S.Ct. 737, 742, 88 L.Ed. 917; Army Regulations No. 615-500, August 10, 1944, sec. II, 15(f) (2).
6. Comparable provision was made in the Act of December 7, 1942, 56 Stat. 1041, 8 U.S.C.Supp. IV, § 723a, 8 U.S.C.A. § 723a, for those who served honorably in World War I, in the Spanish American War, or on the Mexican Border.
7. In re Kinloch, D.C., 53 F.Supp. 521, involved naturalization proceedings of aliens, one of whom, like petitioner in the present case, was a Seventh Day Adventist. He had been inducted into the army as a non-combatant. His naturalization was opposed by the Immigration Service on the ground that he could not promise to bear arms. The court overruled the objection, stating, page 523: 'If conscientious objectors, who are aliens, performing military duty, and wearing the uniform, are not g anted the privileges of citizenship under this act, then the act would be meaningless. It would be so made if an applicant, being a conscientious objector, who has attained the status of a soldier, performs military duty, and honorably wears the uniform (as is admitted in the instant cases), is denied citizenship. If the oath of allegiance is to be construed as requiring such applicant to agree, without mental reservation, to bear arms, then the result would be a denial of citizenship, even though Congress has conferred such privilege upon him.' And see In re Sawyer, D.C., 59 F.Supp. 428.