Free Exercise cases and Girouard v. United States and Douglas and Naturalization Act of 1940 and Nationality Act of 1906 and Chief Justice Stone

In this 5-3 decision, authored by Justice Douglas, the Court held that a Seventh Day Adventist who sought American citizenship under the Nationality Act of 1940 could not be denied citizenship because of his refusal to bear arms in defense of the United States. In so deciding, the Court reversed three precedents from earlier decades, under the nearly identical language of the Naturalization Act of 1906, that denied citizenship to religious pacifists under similar circumstances.

Relevant Facts

When applying for naturalization, petitioner had to take the following oath:

"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 take this obligation freely without any mental reservation or purpose of evasion: So help me God."

As part of the application for citizenship, petitioner stated that he would not take up arms in defeinse of the US because he was a Seventh Day Adventist. Approximately 10,000 Seventh Day Adventists were serving in the armed forces as non-combatants, especially in the medical corps. He said he would be willing to serve in the army (to "wear the uniform") but not to engage in combat. The District Court admitted him to citizenship but the Circuit Court, citing Supreme Court precedents, reversed.

Majority Analysis

Justice Douglas, writing for the majority, said that the case presented an issue of statutory contstruction. Even though the Court precedents, one of which was on all fours factually with this case, denied citizenship, Justice Douglas argued that nothing in the literal wording of the statute required that result. "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 read this requirement into it is to read something into the act "by implication," a disfavored method of statutory construction.

After this brief consideration of the statute, the Justice quotes Justice Holmes, a dissenter in one of the earlier cases, to the effect that noncombatants often are unselfish participants in the war effort and that refusal to bear arms is not necessarily a sign of disloyalty or lack of attachment to our institutions. Mr. Girouard's religious scruples would not prevent him from becoming a member of Congess or holding public office (because no religious tests could be required as a qualification for office under Article Vi, c. 3 of the US Constitution); Congress has evinced no interest in setting a "stricter standard for aliens seeking admission to citizenship than it did for officials who make and enforce the laws..." Thus, requiring a person as part of the naturalization process to pledge to defend the country by arms goes beyond the law.

A Word on a Dissenting Point

One of the arguments the dissenters used is that the aformentioned Supreme Court precedents were acquiesced in by Congress and therefore became built into the 1940 revisions of the 1906 statute. Chief Justice Stone, who himself had also dissented in the earlier cases, now dissented from a position he formerly held primarily because Congress had seemingly acquiesced in the Supreme Court's precedents. As he said, "the question which for me is decisive of the present case is whether Congress has likewise rejected that construction (of the dissenters) by its subsequent legislative action..."

The Chief Justice pointed out that six successive Congresses, over a period of more than a decade, had continuous proposals before it to overturn these Supreme Court rulings. None of the proposals made it out of committee. Then, when the naturalization law was reenacted in 1940 with substantially the same language as the 1906 version, what could one conclude but that Congress wanted things to stay the same, that is, that Congress was doing more than passively acquiescing in the Suprme Court's jurisprudence on the issue?

Back to the Majority

As anyone who has done work in legislative history knows, the evidence frequently reads both ways. Thus, Justice Douglas minimized the material mentioned by the Chief Justice and said that his construction of the Act received support by the Second War Powers Act of 1942. In that Act Congress relaxed certain of the requirements for aliens who served honorably in the US armed forces in order to expedite their naturalization. The new provisions applied to combatants as well as non-combatants. Thus, the Justice argued, "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 wh 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?"

Justice Douglas framed these thoughts in the context of the "struggle for religous liberty" that "has through the centuries been an effort to accommodate the demands of the State to the conscience of the individual." By reversing the earlier precedents, the Court was giving a "victory for freedom of thought" that recognized "that in the domain of conscience ther eis a moral power higher than the State." Because Congress has historically sought to accommodate its 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."

Conclusion

In several cases since the Minersville decision in 1940, Justice Douglas, along with Justice Black, began to chart a course on the issues of religious and speech freedoms that would resonate until now. Their reputation as "First Amendment absolutists," therefore, was forged in the furnace of the Free Exercise cases, most of which dealt with the Jehovah's Witnesses but a few, like this, with other subjects.