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Annotation 11 - First Amendment

  Freedom of Belief

The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as one chooses. 169 ''If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.'' 170 Speaking in the context of religious freedom, the Court at one point said that while the freedom to act on one's beliefs could be limited, the freedom to believe what one will ''is absolute.'' 171 But matters are not so simple.

  Flag Salute Cases .--That government generally may not compel a person to affirm a belief is the principle of the second Flag Salute Case. 172 In Minersville School District v. Gobitis, 173 the Court upheld the power of the State to expel from its schools certain children, Jehovah's Witnesses, who refused upon religious grounds to join in a flag salute ceremony and recitation of the pledge of allegiance. ''Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.'' 174 But three years later, a six-to-three majority of the Court reversed itself. 175 Justice Jackson for

the Court chose to ignore the religious argument and to ground the decision upon freedom of speech. The state policy, he said, constituted ''a compulsion of students to declare a belief. . . . It requires the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks.'' 176 But the power of a State to follow a policy that ''requires affirmation of a belief and an attitude of mind'' is limited by the First Amendment, which, under the standard then prevailing, required the State to prove that the act of the students in remaining passive during the ritual ''creates a clear and present danger that would justify an effort even to muffle expression.'' 177  

[Footnote 176] Id. at 631, 633.

[Footnote 177] Id. at 633-34. Barnette was the focus of the Court's decision in Wooley v. Maynard, 430 U.S. 705 (1977), voiding the state's requirement that motorists display auto license plates bearing the motto ''Live Free or Die.'' Acting on the complaint of a Jehovah's Witness, the Court held that one may not be compelled to display on his private property a message making an ideological statement. Compare PruneYard Shopping Center v. Robins, 447 U.S. 74, 85 -88 (1980), and id. at 96 (Justice Powell concurring).

However, the principle of Barnette does not extend so far as to bar government from requiring of its employees or of persons seeking professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the Constitution, that the taker of the oath will uphold and defend the Constitution. 178 It is not at all clear, however, to what degree the government is limited in probing the sincerity of the person taking the oath. 179  

  Imposition of Consequences for Holding Certain Beliefs .--Despite the Cantwell dictum that freedom of belief is absolute, 180 government has been permitted to inquire into the holding of certain beliefs and to impose consequences on the believers, primarily with regard to its own employees and to licensing certain professions. 181 It is not clear what precise limitations the Court has placed on these practices.

In its disposition of one of the first cases concerning the federal loyalty security program, the Court of Appeals for the District of Columbia asserted broadly that ''so far as the Constitution is concerned there is no prohibition against dismissal of Government employees because of their political beliefs, activities or affiliations.'' 182 On appeal, this decision was affirmed by an equally divided Court, it being impossible to determine whether this issue was one treated by the Justices. 183 Thereafter, the Court dealt with the loyalty-security program in several narrow decisions not confronting the issue of denial or termination of employment because of beliefs or ''beliefs plus.'' But the same issue was also before the Court in related fields. In American Communications Ass'n v. Douds, 184 the Court was again evenly divided over a requirement that, in order for a union to have access to the NLRB, each of its officers must file an affidavit that he neither believed in, nor belonged to an organization that believed in, the overthrow of government by force or by illegal means. Chief Justice Vinson thought the requirement reasonable because it did not prevent anyone from believing what he chose but only prevented certain people from being officers of unions, and because Congress could reasonably conclude that a person with such beliefs was likely to engage in political strikes and other conduct which Congress could prevent. 185 Dissenting, Justice Frankfurter thought the provision too vague, 186 Justice Jackson thought that Congress could impose no disqualification upon anyone for an opinion or belief which had not manifested itself in any overt act, 187 and Justice Black thought that government had no power to penalize beliefs in any way. 188 Fi nally, in Konigsberg v. State Bar of California, 189 a majority of the Court was found supporting dictum in Justice Harlan's opinion in which he justified some inquiry into beliefs, saying that ''[i]t would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country's legal and political institutions.''

When the same issue returned to the Court years later, three five-to-four decisions left the principles involved unclear. 190 Four Justices endorsed the view that beliefs could not be inquired into as a basis for determining qualifications for admission to the bar; 191 four Justices endorsed the view that while mere beliefs might not be sufficient grounds to debar one from admission, the States were not precluded from inquiring into them for purposes of determining whether one was prepared to advocate violent overthrow of the government and to act on his beliefs. 192 The decisive vote in each case was cast by a single Justice who would not permit denial of admission based on beliefs alone but would permit inquiry into those beliefs to an unspecified extent for purposes of determining that the required oath to uphold and defend the Constitution could be taken in good faith. 193 Changes in Court personnel following this decision would seem to leave the questions presented open to further litigation.

Footnotes

[Footnote 169] West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Cantwell v. Connecticut, 310 U.S. 296, 303 -04 (1940); United States v. Ballard, 322 U.S. 78 (1944); Torcaso v. Watkins, 367 U.S. 488 (1961); American Communications Ass'n v. Douds, 339 U.S. 382, 408 (1950); Bond v. Floyd, 385 U.S. 116, 132 (1966); Speiser v. Randall, 357 U.S. 513 (1958); Baird v. State Bar of Arizona, 401 U.S. 1, 5 -6 (1971), and id. at 9-10 (Justice Stewart concurring).

[Footnote 170] West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

[Footnote 171] Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

[Footnote 172] West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

[Footnote 173]   310 U.S. 586 (1940).

[Footnote 174] Id. at 594. Justice Stone alone dissented, arguing that the First Amendment religion and speech clauses forbade coercion of ''these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.'' Id. at 601.

[Footnote 175] West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Justices Roberts and Reed simply noted their continued adherence to Gobitis. Id. at 642. Justice Frankfurter dissented at some length, denying that the First Amendment authorized the Court ''to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.'' Id. at 646, 647.

[Footnote 176] Id. at 631, 633.

[Footnote 177] Id. at 633-34. Barnette was the focus of the Court's decision in Wooley v. Maynard, 430 U.S. 705 (1977), voiding the state's requirement that motorists display auto license plates bearing the motto ''Live Free or Die.'' Acting on the complaint of a Jehovah's Witness, the Court held that one may not be compelled to display on his private property a message making an ideological statement. Compare PruneYard Shopping Center v. Robins, 447 U.S. 74, 85 -88 (1980), and id. at 96 (Justice Powell concurring).

[Footnote 178] Cole v. Richardson, 405 U.S. 676 (1972); Connell v. Higginbotham, 403 U.S. 207 (1971); Bond v. Floyd, 385 U.S. 116 (1966); Knight v. Board of Regents, 269 F. Supp. 339 (S.D.N.Y. 1967) (three- judge court), aff'd, 390 U.S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (C.D. Colo. 1967) (three-judge court), aff'd, 390 U.S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (C.D. Colo. 1969) (three-judge court), aff'd., 397 U.S. 317 (1970); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 161 (1971); Fields v. Askew, 279 So. 2d 822 (Fla. 1973), aff'd per curiam, 414 U.S. 1148 (1974).

[Footnote 179] Compare Bond v. Floyd, 385 U.S. 116 (1966), with Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971).

[Footnote 180] Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

[Footnote 181] The issue has also arisen in the context of criminal sentencing. Evidence that racial hatred was a motivation for a crime may be taken into account, Barclay v. Florida, 463 U.S. 939, 949 (1983), Wisconsin v. Mitchell, 508 U.S. 476 (1993) (criminal sentence may be enhanced because the defendant intentionally selected his victim on account of the victim's race), but evidence of the defendant's membership in a racist group is inadmissible where race was not a factor and no connection had been established between the defendant's crime and the group's objectives. Dawson v. Delaware, 112 S. Ct. 4197 (1992). See also United States v. Abel, 469 U.S. 45 (1984) (defense witness could be impeached by evidence that both witness and defendant belonged to group whose members were sworn to lie on each other's behalf).

[Footnote 182] Bailey v. Richardson, 182 F. 2d 46, 59 (D.C. Cir. 1950). The premise of the decision was that government employment is a privilege rather than a right and that access thereto may be conditioned as the Government pleases. But this basis, as the Court has said, ''has been thoroughly undermined in the ensuing years.'' Board of Regents v. Roth, 408 U.S. 564, 571 n.9 (1972). For the vitiation of the right- privilege distinction, see infra, p.1085.

[Footnote 183] Bailey v. Richardson, 341 U.S. 918 (1951). See also Washington v. McGrath, 341 U.S. 923 (1951), aff'g by an equally divided Court, 182 F. 2d 375 (D.C. Cir. 1950). While no opinions were written in these cases, several Justices expressed themselves on the issues in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951), decided the same day.

[Footnote 184]   339 U.S. 382 (1950). In a later case raising the same point, the Court was again equally divided. Osman v. Douds, 339 U.S. 846 (1950).

[Footnote 185]   339 U.S. at 408 -09, 412.

[Footnote 186] Id. at 415.

[Footnote 187] Id. at 422.

[Footnote 188] Id. at 445.

[Footnote 189]   336 U.S. 36, 51 -52 (1961). See also In re Anastaplo, 336 U.S. 82, 89 (1961). Justice Black, joined by Justice Douglas and Chief Justice Warren, dissented on the ground that the refusal to admit the two to the state bars was impermissibly based upon their beliefs. Id. at 56, 97.

[Footnote 190] Baird v. State Bar of Arizona, 401 U.S. 1 (1971); In re Stolar, 401 U.S. 23 (1971); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971).

[Footnote 191]   401 U.S. at 5 -8; id. at 28-29 (plurality opinions of Justices Black, Douglas, Brennan, and Marshall in Baird and Stolar, respectively); id. at 174-76, 178-80 (Justices Black and Douglas dissenting in Wadmond), 186-90 (Justices Marshall and Brennan dissenting in Wadmond).

[Footnote 192]   401 U.S. at 17 -19, 21-22 (Justices Blackmun, Harlan, and White, and Chief Justice Burger dissenting in Baird).

[Footnote 193]   401 U.S. at 9 -10; id. at 31 (Justice Stewart concurring in Baird and Stolar, respectively). How far Justice Stewart would permit government to go is not made clear by his majority opinion in Wadmond. Id. at 161-66.


 

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Annotations p. 11