The opinion
CARTER, J.
I dissent.
I approach the consideration of this case with a profound consciousness that the problems involved may have a direct impact upon the stability of our state and federal governments. Evidently those who enacted the legislation here involved felt that it was necessary to preserve the status quo of those governments. On the other hand the plaintiff challenges the enactments as an invasion of fundamental constitutional guarantees to it and other religious institutions. We are, therefore, at the outset, faced with the problem as to what sanctions, in the way of pledges of fealty and loyalty, our government may exact from a taxpayer in order to qualify the latter for a tax exemption granted to all in the same class. The solution of this problem depends upon our interpretation and application of the constitutional guarantees relied upon by plaintiff as barriers against such sanctions.
It must be remembered that while our government was “conceived in liberty,” it was born in revolution. The Declaration of Independence was the antithesis of a pledge of allegiance or loyalty to the British government of which the then American colonists were a part. This memorable document epitomized the concept of its framers of the objects and purposes of government and the right of the people to change it by force if necessary. It declared: “We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their *452 safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and, accordingly, all experience hath shown that mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security. Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government.”
The events which followed the adoption of the Declaration of Independence by the Continental Congress on July 4, 1776, are well known to every student of American history. These events culminated in the Constitutional Convention at Philadelphia during the summer of 1787 where the Constitution of the United States was drafted. Many of the delegates at the Constitutional Convention had been members of the Continental Congress which had adopted the Declaration of Independence. They were revolutionists in the truest and most dignified sense. It should be remembered that the Declaration of Independence and the Constitution of the United States were prepared by a group of men who had endured tyranny under a monarchial form of government for over three generations. They were the leaders in the struggle which overthrew that government and they sought to establish a government of the people, by the people, and for the people, which would derive its just powers from the consent of the governed. They sought to establish justice, ensure domestic tranquility, promote the general welfare, provide for the common defense and secure the blessings of liberty to themselves and their posterity—a government which would govern without tyranny and without oppression and' which would guarantee to the governed all of the liberty that a free people in a homogenous society could enjoy.
The great liberality accorded to the guarantees of freedom of speech and press by those at the head of our government during its formative period is exemplified by the following statement in the First Inaugural Address of President Thomas Jefferson. He there declared: “If there be any among us who would wish to dissolve this union or change its republican form, let them stand undisturbed as monuments of the safety *453 with which error of opinion may be tolerated where reason is left free to combat it.” This same concept was again expressed by Mr. Jefferson in his letter to Benjamin Rush in these words: “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.” This concept was more recently depicted by Mr. Justice Brandeis in Whitney v. California, 274 U.S. 357 [ 47 S.Ct. 641 , 71 L.Ed. 1095 ], in words that will forever be a part of our American heritage. “Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the process of popular government, no danger flowing from free speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may be fatal before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
Over a century and a half has elapsed since the above quoted utterances of Thomas Jefferson. Our government has withstood one major revolution and several minor armed rebellions but the fundamental basic concept of civil liberties embraced within the Bill of Rights has remained unimpaired.
It is worthy of note that the framers of the Constitution of the United States saw fit to exact of the person who assumed the office of President a very simple oath which reads as follows: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.” (U.S. Const., art. II, § 1.) This is the only oath mentioned in the Constitution. Notwithstanding the great trust reposed in and power conferred upon the President of the United States by the Constitution and laws enacted by Congress, no other oath or pledge of loyalty may be exacted of him. Nevertheless no president has ever been suspected of disloyalty. It may be said with confidence that history has demonstrated the wisdom of the framers of the Constitution in drafting an oath so simple and yet so effective that it has endured the tests of time and trial. The past at least is secure. But such an oath was not deemed sufficient to insure the loyalty and fealty of the Vice President, members of Congress and other officials of our *454 national government. Although no other official of our government possesses the power or authority of the President, they are required to take an oath much more exacting as it amounts to a pledge of allegiance. This oath is contained in an act of Congress and is as follows: “I do solemnly swear (or affirm) 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; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” (U.S. Code, title V, § 16, pp. 10-11, U.S.C. 1952 ed., titles 1-14.) I find no fault with this oath and recognize the propriety of exacting such an oath from one who assumes an official position with our government. It will be observed, however, that neither of the above quoted oaths has the slightest resemblance to the test oath here involved. In commenting on such an oath Dr. Carl Joachim Friedrich, Professor of Government, of Harvard University had the following to say: “It is depressing to realize that the oath has always cropped up as a political device when the political order was crumbling. In the period of religious dissensions the oath of allegiance made its appearance in England as an instrument-of intolerance and, a little later, of royal oppression. James Stuart, the tiresome pedant on the throne, sought refuge in an oath required of all ministers and the like (most teaching then being religious). At that time the imperial pretensions of the ‘reformed’ papacy, the right of the Pope claimed by the Jesuits to absolve the subjects of an heretical king from their allegiance, made the king desirous of testing the loyalty of his more influential subjects. Yet not many years later his son’s head rolled into the sand.
“Following that, Oliver Cromwell in his desperate efforts to find a legitimate basis for his dictatorial regime, demanded an oath preceding the election of parliament in 1653 that no one participating in the election would allow the constitution ‘as settled in one person and parliament’ to be disturbed. But Cromwell died and the oath was forgotten. The rupture which the oath was supposed to heal did not disappear until toleration and a liberal, truly constitutional government had taught people how Catholic and Protestant, how parliamentarian and authoritarian, how Whig and Tory could live peaceably together, with no one requiring the other to swear oaths which were either unnecessary or ineffectual.
*455 “And where have oaths appeared in our own day? In Fascist Italy and in Nazi Germany. In both of these countries the dictators have promulgated requirements according to which the teachers and professors have to swear an oath of allegiance to the Duce, the Leader. But what, one may ask, was the object of demanding such a declaration from men who every day were obliged to mold their words and their teachings to the Fascist creed? The purpose was to humiliate or to destroy them. There were plenty of men who were known to the students as non-Faseists, non-Nazis. If they could be forced into swearing their allegiance to the official creed, they were morally discredited, they were shown to be trimmers. What is more, the man of integrity and of faith is the really dangerous enemy. He would not consent. He would protest. Gaetano Salvemini, now teaching at Harvard, is such a man. He knew the game of Mussolini and he left.” (Article entitled “Teacher’s Oaths,” published in the January, 1936 issue of Harper’s, vol. 172 at p. 171.)
At this point, I cannot refrain from quoting the words of warning contained in the powerful concurring opinion of Mr. Justice Black in Wieman v. Updegraff, 344 U.S. 183, 192 [ 73 S.Ct. 215 , 97 L.Ed. 216 ] : “History indicates that individual liberty is intermittently subjected to extraordinary perils. . . . The first years of our Republic marked such a period. Enforcement of the Alien and Sedition Laws by zealous patriots who feared ideas made it highly dangerous for people to think, speak, or write critically about government, its agents, or its policies, either foreign or domestic. Our constitutional liberties survived the ordeal of this regrettable period because there were influential men and powerful organized groups bold enough to champion the undiluted right of individuals to publish and argue for their beliefs however unorthodox or loathsome. Today, however, few people and organizations of power and influence argue that unpopular advocacy has this same wholly unqualified immunity from governmental interference. For this and other reasons the present period of fear seems more ominously dangerous to speech and press than was that of the Alien and Sedition Laws. Suppressive laws and practices are the fashion. The Oklahoma oath statute is but one manifestation of a national network of laws aimed at coercing and controlling the minds of men. Test oaths are notorious tools of tyranny. When used to shackle the mind they are, or at least they should he, unspeakably odious to a free people. Test oaths are made still more danger *456 otis when combined with bills of attainder which like this Oklahoma statute impose pains and penalties for past lawful associations and utterances.
“. . . Our own free society should never forget that laws which stigmatize and penalize thought and speech of the unorthodox have a way of reaching, ensnaring and silencing many more people than at first intended. We must have freedom of speech for all or we will in the long run have it for none but the cringing and the craven. And I cannot too often repeat my belief that the right to speak on matters of public concern must be wholly free or eventually be wholly lost.” (Emphasis added.)
History is replete with accounts of the many stratagems created by tyrants to violate the individual’s liberty. But it is also replete with accounts of man’s constant warfare against these devices and victories won by courageous judges, legislators, administrators, lawyers, and citizens.
In 1787, the founders of this nation assumed that they had settled these matters for all time when they drew upon the lessons of history and wrote a Bill of' Rights to assure the individual permanent freedom from official tyranny, and the right freely to participate in the process of self-government.
“Such constitutional limitations arise from grievances, real or fancied, which their makers have suffered, and should go pari passu with the supposed evil. They withstand the winds of logic by the depth and toughness of their roots in the past. Nor should we forget that what seems.fair enough against a squalid huckster of bad liquor may take on a very different face, if used by a government determined to suppress political opposition under the guise of sedition.” (Learned Hand, J., in United States v. Kirschenblatt (C.C.A.2d), 16 F.2d 202, 203 [ 51 A.L.R. 416 ].)
“These specific grievances and the safeguards against their recurrence were not defined by the Constitution.. They were defined by history. Their meaning was so settled by history that definition was superfluous. . . . ‘Upon this point a page of history is worth a volume of logic. ’ New York Trust Co. v. Eisner, 256 U.S. 345, 349 [ 41 S.Ct. 506 , 65 L.Ed. 963 , 16 A.L.R. 660 ].” (Frankfurter, J., United States v. Lovett (1945), 328 U.S. 303, 321, 323 [ 66 S.Ct. 1073 , 90 L.Ed. 1252 ].)
“It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U.S. 616 [ 6 S.Ct. 524 , 29 .L.Ed. 746], in Weeks v. United States, 232 U.S. 383 [ 34 S.Ct. 341 , 58 L.Ed. *457 652 , L.R.A. 1915B 834 ], and in Silverthorne Lumber Co. v. United States, 251 U.S. 385 [ 40 S.Ct. 182 , 64 L.Ed. 319 , 24 A.L.R. 1426 ]) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is: That such rights are declared to be indispensable to the ‘full enjoyment of personal security, personal liberty, and private property; ’ that they are to be regarded as of the very essence of constitutional liberty • and that the guaranty of them is as important and as imperative as are the guaranties to the other fundamental rights of the individual citizen—the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these Amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts, or by well-intentioned but mistakenly over-zealous executive officers.” (Go uled v. United States (1920), 255 U.S. 298, 303 [ 41 S.Ct. 261 , 65 L.Ed. 647 ], Clarke, J.) (Emphasis supplied.) See also: Brandeis, J. dissenting, Olmstead v. United States (1927), 277 U.S. 438, 476, 478 [ 48 S.Ct. 564 , 72 L.Ed. 944 , 66 A.L.R. 376 ], and Jones v. Securities & Exch. Com. (1935), 298 U.S. 1, 28 [ 56 S.Ct. 654 , 80 L.Ed. 1015 ].
“If there is one fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in polities, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” (Jackson, J., in West Virginia State Board of Education v. Barnette (1943), 319 U.S. 624, 642 [ 63 S.Ct. 1178 , 87 L.Ed. 1628 , 147 A.L.R. 674 ].) (Emphasis supplied.)
The story of the rise and fall of the oath ex-officio needs to be retold. It will be recalled that the early 1200’s were marked by the adoption of this procedural device in the ecclesiastical courts. In this period the inquisitional oath began to take the place of the trial by compurgation oaths in the ecclesiastical courts. The compurgation trials conducted with the device of “oath helpers” had become little better than a farce. The new method of the oath ex-officio was one which pledged the accused to answer truly and was followed by a rational process of judicial probing by questions on the specific details of the affair. In a footnote by John H. Wigmore in 15 Harvard Law Review 615, it is stated that by the *458 middle of the 13th century “the new oath became the customary instrument in the papal inquisition of heresy; which, indeed, owed its effectiveness largely to the new methods.”
Liberals in the church courts insisted that the oath could only be imposed if the court had a rational hypothesis for proceeding against the suspect. Such rational hypothesis could either be fama publica or clamosa insinuation However, this was too mild for those who wanted a more vigorous pursuit of heretics and schismatics, and they finally prevailed in establishing the doctrine that the oath could be imposed by the church official ex-officio without any antecedent foundation. This extreme position, however, directly resulted in the downfall of the power of the ecclesiastical courts because of the public indignation it aroused.
The ordinary course of trial by the Inquisition was this. A man would be reported to the inquisitor as of ill-repute for heresy, or his name would occur in the confessions of some other prisoners. A secret inquisition would be made and all accessible evidence against him would be collected. When the mass of surmises and gossip, exaggerated and distorted by the natural fear of the witnesses, eager to save themselves from the suspicion of favoring heretics, grew sufficient for action, the blow would fall. The accused was then prejudged. He was assumed to be guilty, or he would not have been put on trial, and virtually his only mode of escape was by confessing the charges against him, abjuring heresy, and accepting whatever punishment might be imposed on him in the shape of penance. Persistent denial of guilt and assertion of orthodoxy, when there was evidence against him, rendered him an impenitent, obstinate heretic, to be abandoned to the secular arm and consigned to the state. (See Henry Charles Lea, A History of the Inquisition of.the Middle Ages, I, p. 407.)
However, the English people early registered their resistance to general inquisitorial methods and their attendant abuses. A statute passed in 1360 in the reign of Edward III, provided, “that all general inquiries before this time granted within any seignories, for the mischiefs and oppression which have been done to the people by such inquiries, shall utterly cease and be repealed.” (34 Edw. III, ch. 1.)
But in 1583 the Court of High Commission in Causes Ecclesiastical, under the leadership of Archbishop Whitgift, started a crusade against heresy wherever it could be found, *459 examining suspected persons under oath in most extreme ex-officio style.
In 1609 Sir Edward Coke, as Chief Justice of Common Pleas, granted prohibition against the High Court of Ecclesiastical Causes in Edward’s case. (13 Rep. 9.) Edward had been charged with libel and the church court put him under the ex-officio oath to compel him to state his meaning of the libelous words he was accused of uttering. The common law court took jurisdiction away from the church court upon the ground, among others, that “in cases where a man is to be examined upon his oath, he ought to be examined upon acts or words, and not of the intentions or thought of his heart; and if any man should be examined upon his oath of the opinion he holdeth concerning any point of religion, he is not bound to answer the same.”
But the oath ex-officio persisted and the Court of the Star Chamber began during James’ reign to use the ex-officio oath in stamping out sedition. Here the common law courts were powerless to prevent employment of the oath procedure because they lacked jurisdiction over the Court of the Star-Chamber.
In 1639 the Court of the Star Chamber examined John Lilburn, “Freeborn John,” an opponent of the Stuarts, on a charge of printing or importing certain heretical and seditious books. Lilburn refused to answer questions “concerning other men, to insnare me, and to get further matter against me.” The Council of the Star Chamber condemned him to he whipped and pilloried for his “boldness in refusing to take a legal oath,” without which many offenses might go “undiscovered and unpunished.” (See 3 How. State Trials 1315, et seq.)
The whip that lashed “Freeborn John” smashed the Court of the Star Chamber as well. In July, 1641, Parliament abolished the Court of the Star Chamber, the Court of High Commission for Ecclesiastical Causes, and provided by statute that no ecclesiastical court could thereafter administer an ex-officio oath on penal matters. In 1645 the House of Lords set aside Lilburn’s sentence and in 1648 Lilburn was granted £3000 reparation for the whipping which he had received.
Meanwhile, the scene of struggle against oaths ex-officio was carried to colonial America. The story is well told by R. Carter Pittman in 21 Virginia Law Rev. 763 from which the following quotations are taken:
“The settlement of the English colonials in the new world *460 took place at a time in English History when opposition to the ex-officio oath of the ecclesiastical courts was most pronounced, and at the period when the insistence upon the privilege against self-incrimination in the courts of common law had begun to have decided effect. . . . The ex-officio oath, as employed in the ecclesiastical courts, which regulated the most intimate details of men’s daily life, and more particularly by the Court of High Commission, was possibly the most hated instrument employed to create the unhappy plight of these Puritans and Separatists. . . .
“About getting out of England there was much ‘red tape’ and it consisted in the most part of taking oaths—the oath of Supremacy and the oath of Allegiance, etc. For days and weeks thousands waited aboard ship in the river Thames until this oath ordeal was over and after that they were forced with a refined cruelty to say the prayers in the Anglican prayer books twice a day at sea. ...”
The trial of Mrs. Ann Hutchinson before Governor Winthrop of Massachusetts in the year 1637 was recalled by Mr. Justice Black in Adamson v. California, 332 U.S. 46 [ 67 S.Ct. 1672 , 91 L.Ed. 1903 , 171 A.L.R. 1223 ], when he commented at page 88:
“Mrs. Hutchinson was tried, if trial it can be called, for holding unorthodox religious views. People with a consuming belief that their religious convictions must be forced on others rarely ever believe that the unorthodox have any rights which should or can be rightfully respected. As a result of her trial and compelled admissions, Mrs. Hutchinson was found guilty of unorthodoxy and banished from Massachusetts. The lamentable experience of Mrs. Hutchinson and others, contributed to the over-whelming sentiment that demanded adoption of the Constitutional Bill of Bights. The founders of this Government wanted no more such ‘trials’ and punishments as Mrs. Hutchinson had to undergo. They wanted to erect barriers that would bar legislators from passing laws that encroached on the domain of belief, and that would, among other things, strip courts and all public officers of a power to compel people to testify against themselves.” (Emphasis supplied.)
But the ingenuity of those who would use the oath against the unorthodox was undaunted.
See Harrison v. Evans, 1 English Reports, 1437, decided by the House of Lords in 1767. Evans was a Protestant Dissenter and this fact was known to the Lord Mayor of London. Nevertheless, the Mayor appointed Evans to fill a vacancy as *461 sheriff, despite the existence of an act providing that no person should be admitted to any office who had not, within the twelve preceding months “received the sacrament of the Lord’s Supper according to the rites of the Church of England.” Because of this statute Evans could not take the oath of office or assume it, and he was assessed for a statutory penalty of £600 which was made applicable to any citizen who refused to assume an office after being appointed thereto.
The House of Lords, by a 6 to 1 vote, ruled with the dissenting Evans, overturned the judgments of the lower courts and returned to him his £600.
“Test oaths, designed to impose civil disabilities upon men for their beliefs rather than for unlawful conduct were an abomination to the founders of this nation. This feeling was made manifest in Article VI of the Constitution which provides that no religious test shall ever be required as a qualification to any office or public trust under the United States.” (Black, J., dissenting In re Summers (1945), 325 U.S. 561, 576 [ 65 S.Ct. 1307 , 89 L.Ed. 1795 ].) (Emphasis supplied.)
“No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed. It cannot be denied, for example, that the religious test oath or the restrictions upon assembly then prevalent in England would have been regarded as measures which the Constitution prohibited the American Congress from passing.” (Emphasis supplied.) (Bridges v. California (1941), 314 U.S. 252 at 265 [ 62 S.Ct. 190 , 86 L.Ed. 192 , 159 A.L.R. 1346 ].)
It is revealing to note that test oaths and the struggle against them arose at a time when the division between church and state was in its early stages, when the separation was far from complete. The immunity from compulsory disclosure which ultimately developed affected not only the right of the individual to worship as he pleased but also his right, notwithstanding his place or mode of worship, to hold political office. The protection accorded religious belief developed hand in hand with nonsectarianism in government.
This policy has been recognized in the United States. While the original purpose behind the abolition of the test oath may have been to further religious liberty, the effect has been to extend political liberty. The following statement is illustrative: “This conjunction of liberties is not peculiar to religious activity and institutions alone. The First Amendment *462 gives freedom of mind the same security as freedom of conscience. Cf . Pierce v. Society of Sisters, 268 U.S. 510 [ 45 S.Ct. 571 , 69 L.Ed. 1070 ]. Great secular causes, with small ones, are guarded. The grievances for redress of which the right of petition was insured, and with it the right of assembly, are not solely religious or political ones. And the rights of free speech and a free press are not confined to any field of human interest.” (Thomas v. Collins, 323 U.S. 516, 531 [ 65 S.Ct. 315 , 89 L.Ed. 430 ].)
The California 1897 Direct Primary Act permitted political parties to require persons, as a condition of voting at the primary, to give an oath that they would thereafter support the nominees of that party. That statute was declared unconstitutional and the Supreme Court, in Spier v. Baker (1898), 120 Cal. 370 , said at page 379 [ 52 P. 659 , 41 L.R.A. 196 ] : “. . . And the moment you recognize the existence of power in the legislature to create tests in these primary elections, you recognize the right of the legislature to create any test which to that body may seem proper. While the test prescribed in this act may be said to be a most reasonable one, yet the right to make it carries with it the right to make tests most unreasonable. If the power rests in the legislature to create a test, then the power is found in a Democratic legislature to make the test at a primary election a belief in the free coinage of silver at the ratio of sixteen to one, and the same power is found in a Republican legislature to make the test a belief in the protective tariff. If such a power may be sustained under the constitution, then the life and death of political parties are held in the hollow of the hand by a state legislature. ’ ’
In Thomas v. Collins, 323 U.S. 516 [ 65 S.Ct. 315 , 89 L.Ed. 430 ], the same thought is expressed: “But it cannot be the duty, because it is not the right of the state to protect the public against false doctrine. The very purpose of the First Amendment'is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” (Emphasis supplied.)
In the light of the foregoing discussion, let us consider the attacks made by plaintiff upon the oath here required. It is contended, with merit, that the oath here is unconstitutional in that it violates the equal protection clauses of both *463 the federal and state Constitutions and that it also violates the First Amendment to the Constitution of the United States. Section 32 makes an exception insofar as the householder’s $100 exemption on personal property is concerned. While it cannot be denied that the Legislature in its wisdom may classify in order that certain evils may be avoided in the future, such classification must bear a reasonable relation to the evil to be avoided. There is here no reasonable classification when the evil to be avoided is considered. There is no evidence that any of the churches or veterans here involved advocated, or intended to advocate, the forbidden political philosophy. The constitutional amendment and section 32 appear to be a sort of shotgun attempt on the part of the Legislature to hit an undefined object. In other words, there is no relation between the object to be achieved and the tactics taken to achieve it. A statement made in the majority opinion clearly shows the fallacy in the entire affair. That statement reads as follows: “By its enactment [section 19 of article XX] the people of the state declared the public policy of withholding from the owners of property in this state who engage in the prohibited activities the benefits of tax exemption. The denounced activities are criminal offenses under state law (Stats. 1919, p. 281), and the act of Congress known as the Smith Act ( 54 Stat. 670 ) makes it unlawful to advocate the overthrow of the government by force and violence.” It should be emphatically stated and understood that not one of the churches or veterans here involved has been so much as accused of subversive activities. But through their refusal to take the unconstitutional (as I believe) oath, they are penalized in advance for something they have not done and will, in all probability, never do. By the majority opinion we are informed that the reason for the oath is to protect state revenues from impairment by those who would seek to destroy it by unlawful means. An entirely different situation would be presented had any of those involved sought to destroy the state, but here only future highly problematical activity is forsworn although the tax is levied for past ownership of property to which the exemption was applicable. Just why charitable institutions are singled out as presenting the greatest danger to this country in time of peace or war is not made clear in the majority opinion. It is Hornbook law that legislation classifying certain groups for corrective purposes must bear a reasonable *464 relationship to the object to be achieved. Churches would, indeed, seem to me to be the least likely subjects of classification for legislative measures to correct the evil thought to exist. Veterans, also, are those who have risked their lives or have been willing to risk them to uphold the ideals for which this country stands. The exemptions were granted, in the first instance, so that religious work might be carried on with the least amount of tax burden possible to the end that the money saved thereby might be used to promote the general welfare; in the second instance, to veterans because they gave up homes, families and positions to promote the general welfare insofar as protecting this country from an enemy was concerned. It hardly seems logical to assume that laws removing the tax exemptions from those dedicated to the promotion of the general welfare because they might, in the future, decide to do a turn-about-face and destroy the general welfare can be said to be a reasonable classification. If there is one principle that has always (heretofore) been clearly understood in this country it is that every person is presumed innocent until proven guilty beyond a reasonable doubt. The legislation involved here presumes that one refusing to sign the oath has been, or will soon be, guilty of treasonable conduct. From what is said in the majority opinion it appears that this thought did occur to the members of the court signing it. We are informed that there is a presumption of innocence hut that the assessor, because of it, is not relieved from making the investigation enjoined on him by law; that his administrative determination is not binding on the tax exemption claimant “but it is sufficient to authorize him to tax the property as non-exempt and to place the burden on the claimant to test the validity of his administrative determination in a court of law. ’ ’ What is this but forcing the supposedly subversive organization or person to prove itself or himself innocent beyond a reasonable doubt ?
In testing the reasonableness of the laws under attack here, the next question which presents itself is why are householders excepted from those who must take the oath before any tax exemption is allowed them? We are told that the “segment of householders in this state is so overwhelmingly large as compared with others chosen for exemption that the cost of processing them would justify their separate classification.” If this class is so “overwhelmingly large” it would appear that if the old adage “in numbers lie strength” is *465 true, that this class should also be required to take the oath prior to claiming the exemption. It would also appear that mere difficulty in “processing” would be of little moment in an undertaking thought to be so vitally necessary. Furthermore, if the principle behind the oath is, as we are told, to prevent those dangerous persons from depleting the state’s revenues, it would appear that this “overwhelmingly large” class might, even though the exemption is a relatively 'small one, deplete it even more than the revenues from those which fall within the legislation. The Supreme Court of the United States said (Louisville Gas & E. Co. v. Coleman, 277 U.S. 32, 37 [ 48 S.Ct. 423 , 72 L.Ed. 770 ]) that “The equal protection clause, like the due process of law clause, is not susceptible of exact delimitation. No definite rule in respect of either, which automatically will solve the question in specific instances, can be formulated. Certain general principles, however, have been established in the light of which the cases as they arise are to be considered. In the first place, it may be said generally that the equal protection clause means that the rights of all persons must rest upon the same rule under similar circumstances, Kentucky Railroad Tax Cases, 115 U.S. 321, 337 [ 6 S.Ct. 57 , 29 L.Ed. 414 ] ; Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 293 [ 18 S.Ct. 594 , 42 L.Ed. 1037 ], and that it applies to the exercise of all the powers of the state which can affect the individual or his property, including the power of taxation. County of Santa Clara v. Southern Pac. R. Co., 18 F. 385, 388-399 [ 9 Sawy. 165 ] ; The Railroad Tax Cases, 13 F. 722, 733 [ 8 Sawy. 238 ], It does not, however, forbid classification; and the power of the state to classify for purposes of taxation is of wide range and flexibility, provided always, that the classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. ’ Royster Guano Co. v. Virginia, 253 U.S. 412, 415 [ 40 S.Ct. 560 , 64 L.Ed. 989 ] ; Air-way etc. Corp. v. Day, 266 U.S. 71, 85 [ 45 S.Ct. 12 , 69 L.Ed. 169 ]; Schlesinger v. Wisconsin, 270 U.S. 230, 240 [ 46 S.Ct. 260 , 70 L.Ed. 557 , 43 A.L.R 1224]. That is to say, mere difference is not enough: the attempted classification ‘must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily *466 and without any such basis. ’ Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150, 155 [ 17 S.Ct. 255 , 41 L.Ed. 666 ].”
There is in my mind no doubt whatsoever that the legislation with which we are here concerned bears no relation whatsoever to the objective to be achieved. Presumably that objective is to stamp out, by any means at hand, the promulgation of unpopular ideas. While the idea of the overthrow of the government of this country by force and violence in either peace or war is as abhorrent to me as it is to the majority of Americans, I am at a complete loss when it comes to imagining any reasonable theory on which the legislation in question can be considered an effective way of preventing such action. The tax itself is on property owned by churches and used for religious purposes and the exemption applies only when such property is used for such purposes. So far as the veteran’s exemption is concerned, the tax to which it applies is also on property. Property taxes and unpopular beliefs or advocacy would appear to be as far apart as the poles and to bear no reasonable relationship one to the other. The classification here involved falls directly within the rule of the Louisville Gas case: it is arbitrary, it does not rest upon a difference bearing a reasonable and just relation to the act in respect to which the classification is proposed; it is a mere difference which “is not enough.”
The Oath Is A Violation of the Constitutional Guarantee of Freedom of Speech :
In Danskin v. San Diego Unified Sch. Dist., 28 Cal.2d 536, 542 [ 171 P.2d 885 ], we held that “Freedom of speech and of peaceable assembly are protected by the First Amendment of the Constitution of the United States against infringement by Congress. They are likewise protected by the Fourteenth Amendment against infringement by state Legislatures. (Thomas v. Collins, 323 U.S. 516, 530 [ 65 S.Ct. 315 , 89 L.Ed. 430 ] ; De Jonge v. Oregon, 299 U.S. 353, 364 [ 57 S.Ct. 255 , 81 L.Ed. 278 ].) However reprehensible a Legislature may regard certain convictions or affiliations, it cannot forbid them if they present ‘no clear and present danger that they will bring about the substantive evils’ that the Legislature has a right to prevent. ‘It is a question of proximity and degree.’ (Schenck v. United States, 249 U.S. 47, 52 [ 39 S.Ct. 247 , 63 L.Ed. 470 ].) The United States Supreme Court has been alive to the difference between remote dangers and substantial ones, between remote dangers and immediate ones . . . . *467 Moreover, the likelihood, however great, that a substantive evil will result cannot alone justify a restriction upon freedom of speech or the press. The evil itself must be “substantial,” Brandeis, J., concurring in Whitney v. California, supra, 274 U.S. at page 374 ; it must be “serious,” id. 274 U.S. at page 376 . And even the expression of “legislative preferences or beliefs” cannot transform minor matters of public inconvenience or annoyance into substantive evils of sufficient weight to warrant the curtailment of liberty of expression. . . .’ ” (Bridges v. California, 314 U.S. 252, 261 [ 62 S.Ct. 190 , 86 L.Ed. 192 , 159 A.L.R. 1346 ], quoting from the concurring opinion of Mr. Justice Brandeis in Whitney v. California, 247 U.S. 357, 374 [ 47 S.Ct. 641 , 71 L.Ed. 1095 ].)
A reading of the majority opinion leaves in the minds of the reader the implication that the “clear and present danger” rule was abrogated by the later case of Dennis v. United States, 341 U.S. 494 [ 71 S.Ct. 857 , 95 L.Ed. 1137 ], In the Dennis case it was specifically noted by the court that in the Smith Act “Congress did not intend to eradicate the free discussion of political theories, to destroy the traditional rights of Americans to discuss and evaluate ideas without fear of governmental sanction. Rather Congress was concerned with the very kind of activity in which the evidence showed these petitioners engaged.” It will be recalled that we have here no evidence that the churches and veterans involved were even so much as accused of the forbidden activities. In the Dennis case the petitioners had been found guilty by a jury of organizing a Communist party in the United States; in knowingly and wilfully teaching and advocating the overthrow of our government by force and violence. The court also held that it had been determined that the evidence amply supported the necessary finding of the jury that the petitioners “were unwilling to work within our framework of democracy, but intended to initiate a violent revolution whenever the propitious occasion appeared.” In the majority opinion in the Dennis case it was said that “Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech” and speaking of the “clear and present danger” rule it was said “Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them *468 to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.” (Emphasis added.) The court expressly rejected the contention that success or probability of success in overthrowing the government was the criterion. The court then, in speaking of prior cases, said that the court had not been ‘ ‘ confronted with any situation comparable to the instant one —the development of an apparatus designed and dedicated to the overthrow of the Government, in the context of world crisis after crisis.” The Supreme Court then stated the rule, relied upon by the majority here, that “In each ease [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” This rule, following the court’s language concerning what constituted a “clear and present” danger and read in the light of the facts as they were stated in the Dennis case, shows the absurdity of this tempest-in-a-teapot which which we are here confronted: there is no showing that the churches and veterans were highly organized into a war-like machine dedicated to the overthrow of the government by force and violence with leaders highly trained and ready to give the “word” when the time was ripe for revolution! The objects of the legislation, the objective and the means used to achieve it are completely unrelated. Where is the “danger” so far as churches and veterans are concerned? And does the denial of a charitable exemption constitute a reasonable attempt to save this country from revolution? Or does the oath involved just constitute an unconstitutional invasion of freedom of speech? In my opinion it constitutes an unconstitutional invasion of freedom of speech with the absurdity of the entire situation pinpointed by the thought that any embryo revolutionist would surely not hesitate to subscribe to such an oath.
As Mr. Justice Douglas said in his dissenting opinion in the Dennis case, “Full and free discussion keeps a society from becoming stagnant and unprepared for -the stresses and strains that work to tear all civilization apart.
“Full and free discussion has indeed been the first article of our faith. We have founded our political system on it. It has been the safeguard of every religious, political, philosophical, economic, and racial group amongst us. We have counted on it to keep us from embracing what is cheap and false; we have trusted the common sense of our people to choose the doctrine true to our genius and to reject the rest. *469 This has been the one single outstanding tenet that has made onr institutions the symbol of freedom and equality. We have deemed it more costly to liberty to suppress a despised minority than to let them vent their spleen. We have above all else feared the political censor. We have wanted a land where our people can be exposed to all the diverse creeds and cultures of the world.
“There comes a time when even speech loses its constitutional immunity. Speech innocuous one year may at another time fan such destructive flames that it must be halted in the interests of the safety of the Republic. That is the meaning of the clear and present danger test. When conditions are so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt. Otherwise, free speech which is the strength of the Nation will be the cause of its destruction.
“Yet free speech is the rule, not the exception. The restraint to be constitutional must be based on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed.”
Mr. Justice Douglas said that “If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage, the assassination of the President, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubts. The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale along with obscenity and immorality. This case was argued as if those were the facts. The argument imported much seditious conduct into the record. That is easy and it has popular appeal, for the activities of Communists in plotting and scheming against the free world are common knowledge. But the fact is that no such evidence was introduced at the trial.” The books on Leninism and Communism, etc., which were involved in the Dennis case were commented on by Mr. Justice Douglas as follows:1 ‘ Those books are to Soviet Communism what Mein Kampf was to Nazism. If they are understood, the ugliness of Communism is revealed, its deceit and cunning are exposed, the nature of its activities becomes apparent, and the chances of its success less likely. That is not, of course, the reason why petitioners chose these books for their classrooms. They are fer *470 vent Communists to whom these volumes are gospel. They preached the creed with the hope that some day it would be acted upon.” Mr. Justice Douglas then continued: “The vice of treating speech as the equivalent of overt acts of a treasonable or seditious character is emphasized by a concurring opinion [Mr. Justice Jackson], which by invoking the law of conspiracy makes speech do service for deeds which are dangerous to society. ... I repeat that we deal here with speech alone, not with speech plus acts of sabotage or unlawful conduct. Not a single seditious act is charged in the indictment. To make a lawful speech unlawful because two men conceive it is to raise the law of conspiracy to appalling proportions. That course is to make a radical break with the past and to violate one of the cardinal principles of our constitutional scheme.”
I repeat that in the case at bar we haven’t even had speech let alone any facts. Neither prejudice nor hate nor senseless fear should be the basis for abridging freedom of speech. “Free speech—the glory of our system of government-should not be sacrificed on anything less than plain and objective proof of danger that the evil advocated is imminent.”
American democracy is no accident; it is the majestic product of a vigorous, experimental and passionate history. This nation came into existence as the result of a purposeful struggle against governmental tyranny. The heritage of Thomas Jefferson—“Rebellion to Tyrants is obedience to God”— remains with us, embodied in our institutions and traditions. The spirit of Inquisition, which was abjured in the Declaration of Independence, has always been obnoxious to our political and social life. Equally, it has found no tolerance in our legal codes, our legal traditions, our juridical morality. Due process has meant a fair, legal process. Liberty has meant genuine, concrete liberty for the individual citizen—his right to freedom from search and seizure, his right to privacy, his right to be free of persecutory inquisition on grounds of race, color, creed, political opinion or association.
At this truly grave moment in our nation’s growth it is in the power of this court to speak forthrightly in the language of Coke, Camden, and Bradley, in the language of the many illustrious jurists for whom the frenzy of the political market place never blurred the meaning of freedom.
“Under our constitutional system courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, *471 or because they are nonconforming victims of prejudice and public excitement. ... No higher duty, nor more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution—of whatever race, creed or persuasion.” (Chambers v. Florida (1940), 309 U.S. 227, 241 [ 60 S.Ct. 472 , 84 L.Ed. 716 ].)
What is required at this moment of this court is not innovation, but rather a restatement of the glowing principles by which the history of the western world has given dignity to its citizens: “Historical liberties and privileges are not to bend from day to day because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. A community whose judges would be willing to give it whatever law might gratify the impulse of the moment would find in the end that it had paid too high a price.” (Cardozo, J., Matter of Doyle, 257 N.Y. 244, 268 [ 177 N.E. 489 ].)
The issue is momentous, of far-reaching implication, and the ruling of the court will be a categorical imperative whose cumulative effect will be seen only in the fullness of time. “Nothing less is involved than that which makes for an atmosphere of freedom as against a feeling of fear and repression for society as a whole. The dangers are not fanciful. We too readily forget them. Recollection may be refreshed as to the happenings after the first World War by the ‘Report Upon the Illegal Practices of the United States Department of Justice, ’ which aroused the public concern of Chief Justice Hughes (then at the bar), and by the little book entitled ‘The Deportations Delirium of Nineteen-Twenty’ by Louis F. Post, who spoke with the authoritative knowledge of an Assistant Secretary of Labor.” (Frankfurter, J., dissenting, Harris v. United States (1947), 331 U.S. 145, 173 [ 67 S.Ct. 1098 , 91 L.Ed. 1399 ].)
Devotion to Americanism often calls for something other than conformity. The plaintiff in the present case knew that to protect the Constitution, indeed merely to invoke its protection for all Americans, required courage, and that hardihood to challenge a wrong done under color of authority was as indispensable to good citizenship as would be, in other circumstances, unquestioning obedience. President Thomas Jefferson wrote to Benjamin Rush in a letter dated April 21, 1803: “It behooves every man who values liberty of eon- *472 science for himself, to resist invasions of it in the case of others; or their ease may, by change of circumstances, become his own. It behooves him, too, in his own case to give no example of concession, betraying the common right of independent opinion, by answering questions of faith which the laws have left between God and himself.” (Emphasis supplied.)
In the last analysis, when the moment of decision comes, to the private citizen as well as to the judge, it is in the quiet of his own mind and in the glow of his own courage that Americanism thrives. And it is in the cumulative decision of millions, citizen as well as official, that Americanism is reborn each moment.
For the foregoing reasons, I would reverse the judgment.
Appellant’s petition for a rehearing was denied May 22, 1957. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.