Petition for Writ of Certiorari — Craig v. California State Bar

FILED

94 801 JUL 25 19%

No. HE CLERK

EOE THE CLERK

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1994

James Kevin Craig,

Petitioner,

V.

California State Bar

Respondent

On Petition for a Writ of Certiorari to the

Supreme Court of the State of California

PETITION FOR A WRIT OF CERTIORARI

JAMES KEVIN CRAIG

Pro Se

12314 Palm Dr. #107

Desert Hot Springs, CA

92240

(619) 329-9045

Questions Presented

1) Does the "no religious test" phrase of Article VI,

paragraph 3 of the United States Constitution, and the ruling

in Jorcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6

L.Ed.2d 982 (1961), which prohibited the states from re-

quiring oaths of office the terms of which conform to the

tenets of the religion of Christianity, also forbid the states

from permitting an applicant to the Bar to swear voluntarily

an oath the terms of which conform to the religion of Chris-

tianity?

2) Does this Court's ruling in In re Summers 325 U.S.

561, 65 S.Ct. 1307 (1945) (holding that a Christian pacifist

who disagreed with that part of the constitution requiring

mili training could not take the "support oath" in good

faith) forbid a prospective attorney at law, who declares the

authority of God and of the Christian Scriptures to be supe-

rior to that of the State, from being admitted to the Bar for

inability to take in good faith a required oath to "support the

Constitution," contrary to the First Amendment?

3) In view of modern policy considerations of "Global

Interdependence," does this Court's ruling in Jn re Griffiths,

413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973),

holding that U.S. citizenship cannot be required for admis-

sion to the Bar, absolve an applicant to the Bar from taking

an oath to "support the Constitution," which this Court has

"substantially equated to that allegiance which, by the

common law, every citizen was understood to owe to his

sovereign.”

A

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. ............0sseeeeeeeeerees i

TABLE OF AUTHORITIES ...........-:2eseeeseeeeseees ii

OPINIONS BELOW ..........ccccsccccccccccceecscescsees 1

JURISDICTION ..ccccccccscccccsccscccccccccccccccescesees ]

STATUTORY PROVISION INVOLVED............... ]

STATEMENT. ......cccccccsccscccccsccccccccccccsccccccscoes 2

REASONS FOR GRANTING THE PETITION...... 5

A. Torcaso v. Watkins and "Religious Tests” .......... 6

B. In re Summers and “Good Faith" Support.......... 9

C. Attorneys as “Officers” ..........sseeererereererersens 16

CONCLUSION ....ccccccccccccsccccccccccccsccccoscscscees 17

APPENDIX A

Denial of Petition by Respondent State Bar........... la

APPENDIX B

Denial of Petition by California Supreme Court..... 2a

APPENDIX C

Report on Decision in [L.A.] Daily Journal.......... 3a

TABLE OF AUTHORITIES

Abrams v. U.S., 250 U.S. 616, 40 S.Ct. 17 (1919)..... 11

Allan v. United States, 115 F.2d 804 (9th Cir. 1940)... 13

American Communications Ass'n CIO vy. Douds,

339 U.S. 382, 70 S.Ct. 647 (1950).............c00000. 9,13,15

366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135 (1961). 10,15

Arbesu, Naturalization of,

347 F.Supp. 1014 (E.D. La. 1972) .............00000.. 15

Baggett v. Bullitt,

377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1946) . i

Baird v State Bar of Arizona,

401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971). 5,13

Barenblatt v. U.S.,

360 U.S. 109; 79 S.Ct. 1081 3 L.Ed.2d 1115 (1959) 15

Naturalization of Brakel,

524 F.Supp. 300 at 301 (N.D. Ill. 1979) ............. 14

Cammer v. U.S.,

350 U.S. 399, 405, 76 S.Ct. 456, 459 io.) ae 16

Cole v. Richardson,

405 U.S. 676 92 S.Ct. 1332; 31 L.Ed.2d 593 (1972) 14,15

269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322.......... 15

Cramp v. Board of Public Instruction of Orange Co., Florida,

368 U.S. 278, 82 S.Ct. 275 (1961).........00ccc0005-. 15

Dawson Chemical Co. v. Rohm & Haas Co.,

yp ee 8

De Bellis, Petition for Naturalization,

493 F.Supp. 534 (E.D. Pa. 1980)...................... 13

Funk v. United States, 290 U.S. 371 (1933) .............. 13

Gillette v. United States,

401 U.S. 437, 91 Sup Ct 828, (1971)..........00.0... 13

Girouard v. U.S.,

328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946). 3,13,14

Goldfarb v. Virginia State Bar,

421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975). 16

Griffiths, In re,

413 U.S. 717, 93 $.Ct. 2851, 37 L.Ed.2d 910 (1973). 4,17

Holy Trinity Church v. United States,

143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892). 6,12

Knight v. Board of Regents,

269 F.Supp 339 (S.D.N.Y. 1967) .................00066. 4,17

Konigsberg v. State Bar of California,

366 U.S. 36; 81 S.Ct. 997, 6 L.Ed.2d 105 (1961). 10

Law Students Civil Rights Research Council Inc. v. Wadmond,

- name Se AOR I A ROE I,

———

+7

401 U.S.154 91 S.Ct. 720, 27 L.Ed.2d 749 (1971) 10,15,17

Lopez v. Howe,

170 CCA 337, 259 F. 401, 12 ALR 192 (1919)... 11

Matz, Petition for Naturalization of,

296 F.Supp. 927 (E.D. Cal., 1969)..............++2+5: 13,14

Meghnot's Petition, 238 F.Supp. 479 (E.D. Mich. 1965) 15

New York Times v. Sullivan

376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) 7

Ozonoff v Berzak, 744 F.2d 224, 233 (ist Cir. 1984)... 16

Pisciattano, In re, 308 F.Supp 818 (D. Conn. 1970) ........ 14

Rector, etc., of Holy Trinity ch v. United States,

143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892). 6,12

Rodriguez v. Seamans,

3 F.2d 837, 843 (D.C. Cir. 1972)............0eeee 11

Saralieff, In re, 59 F.2d 436 (E.D. Mo. 1932)........... 13,14

SEC v. United Benefit Life Ins. Co., 387 U.S. 202 (1967) 13

Sherbert v. Verner,

374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) 7

Smith v. County ot te of San Diego Co.,

266 C.A.2d 645, 72 Cal.Rptr. 501, 285 P.2d 617 (1968) 8

Socialist Workers Party v. Martin,

345 F.Supp. 1132 (S.D. Tex. 1972) ..........0eeeee+ 15

Summers, In re

325 U.S. 561; 65 S.Ct. 1307, 89 L.Ed. 1795 (1945) passim

Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438, 441 (1960) 6

Torcaso v. Watkins,

367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) passim

U.S. ex rel Turner v. Williams,

194 U.S. 279, 24 S.Ct. 719 (1904).........-.eeeeeeees 11

U.S. v. Macintosh,

283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302 (1931) passim

U.S. v. Rossler, 144 F.2d 463 (2d Cir. 1944)............. 13

U.S. v. Schwimmer,

279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889 (1929). 10

West Virginia State Board of Education v. Barnette,

319 U.S. 624, 63 S.Ct. 117, 87 L.Ed. 1628 (1943) 14

Whitehill v. Elkins,

389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 288, (1967) 15

Williams, Petition of, 474 +H '* 384 (D. Ariz. 1979) 13

Wolfle v. United States, 291 U.S. 7 (1934)............++ 13

CONSTITUTIONS

Del. Const. art. 22 (adopted Sept. 20, 1776),

1 Del. Code Ann. 117 (Michie, 1975).............--.0+0+. 6

U.S. Const., Art II. Sec. 1, para. 8 ..........:ceeeereeeeereeeees 16

PGE VE, GOB. FD ccccececcccsscsccccscccscccccscesccccocceeses 16

Cal. Bus. & Prof. Code §6067 (1988) ..........cccccccccee-0-., 2

MISCELLANEOUS

aos teh cecincctuilisduldbincndinasyssecuoeeesees: 12

D. Barton, Keys to Good Government (1994)..........0006.... 8

D. Barton, The Myth of Separation (1992) .............cc0c00.. 9,12

W. Estep, Revolution Within the Revolution: The First

Amendment in Historical Context 1612-1789 (1990).. 8

A. Goldberg, Equal Justice (1971) ............cceceeceeeeeeess. 9

P. Irons, The Courage of Their Convictions 9

(broadcast date: Dec. 23, 1987) ............cecccesccecceeee. 8

North, Political Polytheism: The Myth of Pluralism, 1989. 8

~~ Decisis and Constitutional Law, 35 Pa.B.A.Q. 131,

eg, | EIA TEES LET 5

According to the Latest Amendments, (1817)............. 6

R. Stern, E. Gressman, S. Shapiro, K. Geller,

Supreme Court Practice (7th ed. 1993).................... 8,13

J. Stevens, The Life Span of a Judge-Made Rule,

gp a A ek SE. 5,9

Westminster Confession of Faith (1647)........................ 6

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1994

James Kevin Craig, Petitioner,

v.

California State Bar, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CALIFORNIA

James Kevin Craig respectfully petitions for a writ of

certiorari to review the decision of the Supreme Court in the

State of California in this case.

OPINIONS BELOW

The Supreme Court in the State of California did not file

an opinion or comment in this case. (No. 5034117). (See

Appendix C, “Report on Decision in [L.A.] Daily

Journal.") Pleadings below include Brief of Petitioner, Brief

of Respondent, and Replication (Reply) of Petitioner.

JURISDICTION

The Supreme Court in the State of California entered its

judgment on April 27, 1994. (A ndix B). The jurisdiction

of this Court is invoked under 28 U.S.C. §1257(a).

STATEMENT

Petitioner seeks admission to the practice of law in

California. The State of California requires applicants to

swear a "Support Oath."’ Based on his understanding of

judicial interpretations of this oath, Petitioner believed that

he could not take the oath without violating his conscience,

and would be subjected to disbarment or charges of perjury

if he did.

In correspondence with the Respondent California State

Bar, Petitioner inquired about the possibility of modifying

the required oath to protect First Amendment rights. The

State Bar replied that it lacked authority to modify a legisla-

tively mandated oath, and added their opinion that the oath

was constitutional, citing relevant Federal authority.

In order to exhaust administrative remedies before

seeking extraordinary relief at the Supreme Court of the

State of California, Petitioner filed a formal petition with

the Committee of Bar Examiners of the State Bar seeking a

modification of the oath, analyzing the U.S. Supreme Court

decisions cited by Respondent, and supporting his belief that

his proposed modification was Constitutional under the First

Amendment.

The Committee of Bar Examiners restated their position

that they were without authority to modify a legislatively

marwiixied oath.”

bex.cioner then sought relief in the Supreme Court of the

State of California, which has original jurisdiction over

matters pertaining to the State Bar.

Petitioner filed a single Petition for a Writ of Mandate

which raised essentially two issues:

A. Torcaso v. Watkins 367 U.S. 488, 81 S.Ct. 1680, 6

L.Ed.2d 982 (1961) held that the states could not require

oaths the terms of which conformed to the tenets of Chris-

1. The full oath reads: "I solemnly swear (or affirm) that I will

support the Constitution of the United States and the Constitution of the

State of California, and that I will faithfully discharge the duties of an

attorney and counselor at law to the best of my knowledge and ability.“

Cal. Bus. & Prof. Code §6067 (West, 1988).

2. Appendix A, infra, Letter from Respondent State Bar.

tianity. Petitioner, a Christian, believes that he is required

by his faith to take only oaths the terms of which conform to

the tenets of Christianity.

Believing the First Amendment permitted the voluntary

swearing of religious oaths as part of the “free exercise of

religion,” and that Article Vi of the U.S. Constitution did

not prohibit the voluntary taking of what might otherwise be

called a “religious test,” Petitioner prayed the California

Supreme Court to permit the California State Bar to allow a

voluntary modification of the required oath, taking as a

model one of the oaths Cay required by the

states in the 172 years following the ratification of the U.S.

Constitution and preceding Torcaso.’ That petition was

denied. Petitioner here seeks review of that decision.

The substantial federal Constitutional issues raised by

Torcaso v. Watkins of the establishment and free exercise of

religion (the First Amendment), and Trinitarian test oaths

(Article VI), were properly and timely pleaded, being raised

in all formal pleadings submitted by Petitioner.

B. In re Summers 325 U.S. 561; 65 S.Ct. 1307, 89

L.Ed. 1795 (1945) held that a prospective attorney could

not take an oath to support the constitution in good faith if

he disagreed with parts of that constitution, even if the dis-

agreements resulted from sincerely held religious beliefs.

In a very lengthy brief which Respondent State Bar

characterized as "scholarly,"* Petitioner suggested that this

decision was problematic, alerting the California Supreme

Court to the fact that the nationalistic legal foundations of

the Summers decision were subsequently overruled.* Peti-

tioner coupled this analysis with the serious First Amend-

ment challenges to “support oaths" which have been raised

in this century, and proposed that Attorneys were not obli-

gated to take the oath prescribed in the U.S. Constitution

(Art. VI, Sec. 3) because the Attorney at law does not hold

3. For text of proposed oath, see infra, “Reasons for Granting the

Petition,” 6.

4. Brief of Respondent, 6.

5. Girouard v. U.S., 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084

em overruling U.S. v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75

-Ed. 1302 (1931).

an "office" created by the Constitution and required to

swear such an oath.

In response, Respondent reiterated the contention that

the requirement to take a "support oath" was "a settled ques-

tion,” citing the six leading Federal cases. Petitioner care-

fully analyzed these cases in a supplemental Reply Brief and

found that the claims of these Courts that the question was

“settled” were mere dicta in cases which did not directly

challenge the Swnmers-Torcaso Attorneys' "support" oath.

Further, Petitioner noted that all the cases cited by Re-

spondent State Bar trace their ultimate source of authority

back to a citation of Blackstone to the effect that at common

law, every “citizen” owed allegiance to his sovereign.°

Petitioner pointed out that the nexus between the Attorney at

law and the duties of support and loyalty to the sovereign

required of citizens was broken by a U.S. Supreme Court

ruling that one could not be required to be a citizen in order

to be an attorney.’

Petitioner suggested a modification of the “support”

Clause of the oath which explicitly affirmed the legitimate

State interests as enunciated in the relevant case law in place

of the ambiguous promise to "support the Constitution."®

That petition was denied.

The substantial federal Constitutional issues raised by

the Summers case and the denial of First Amendment rights

which would take place if that decision were followed, were

properly and timely pleaded, being raised in all stages of the

proceedings below.

Final judgment on the Petition raising all these issues

was filed by the California Supreme Court on April 27,

1994, with no opinion or comment. Petitioner here seeks

review of that decision.

6. oer v. Board of eer 269 Sao 339 (1967), aff'd per

curiam, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812 (1968).

om In Re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910

(1973).

8. For text of proposed oath, see infra, “Reasons for Granting the

Petition,” 10-11.

REASONS FOR GRANTING THE PETITION

Justice Felix Frankfurter has said, "It should not be

assumed that oaths will be lightly taken; fastidiously scru-

pulous regard for them should be encouraged."® Failure to

do so has led not only to a denial of due process of law in

the cases of those who do so regard oaths, but to a break-

down in respect for the integrity of law and government.

This case presents an opportunity to decide two import-

ant questions of federal law which have not been, but should

be settled by this Court, both of which center around the

requirement of a prospective attorney to take an oath to

“support the constitution.”

In pleadings below, Respondent State Bar has consistent-

ly urged that the requirement of Attorneys to “support the

onstitution” is a “settled question.” Petitioner herein has

not forgotten the maxim, stare decisis et non quieta movere,

which Justice Reed (then Solicitor General) rendered, "stand

by the precedents and do not disturb the calm."!° But in the

sea of “loyalty oath" cases, there is no calm. "The forego-

ing cases and others contain thousands of pages of confusin

formulas, refined reasonings, and puzzling holdings."

Courts on all levels have and continue to render opposite

holdings in nearly identical fact patterns. In many cases

oaths are "lightly taken,” or else used to bruise the scruples

of many. This Court can bring clarity in areas of the law

which have left many confused about the honesty and pre-

dictability of the legal system. And to start, the confusion

and fears surrounding loyalty oaths in the 20th century

resulted in part from an unprecedented disturbing of the

19th century calm our Founding Fathers left us.

9. Concurring in American Communications Association CIO v.

Douds 399 US 382 at 420, 70 S.Ct. 674 at 695 (1950). Emphasis added.

10. S. Reed, Stare Decisis and Constitutional Law, 35 - ete

131, ee cited by J. Stevens, The Life Span of a Judge-Made

Rule, 58 N.Y.U.L.Rev. 1-2 n.2 (1983).

11. Baird v. State Bar of Arizona 401 U.S. 1 at 4, 91 S.Ct. 702 at

705, 27 L.Ed. 639 (1971) (J. Black, announcing the By een: of the

Court in an opinion joined by JJ. Douglas, Brennan, an

Marshall).

A. Torcaso v. Watkins and "Religious Tests”

Petitioner in this case approaches oaths with scruples

derived from the Westminster Confession of Faith (1647),

which devotes an entire chapter to "Lawful Oaths and

Vows.” An oath is said to be "a part of religious worship”

(§ I), which can only be done in the Name of God (§§ II,

val and must be subordinated to "the Word of God" (§

).

Although separated from the Reformation by nearly 300

years, the Framers of the Constitution had tremendous

respect for Christian scruples, and drafted oaths which

conformed to Biblical requirements, such as this one, from

Delaware:

Every person who shall be chosen a member of either

house, or appointed to any office or place of trust. . .

shall . . . make and subscribe the following declaration,

to wit: "I , do prvfess faith in God the Father,

and in Jesus Christ His only Son, and in the Holy

Ghost, one God, Blessed for evermore; and I do

acknowledge the holy scripture of the Old and New

Testaments to be given by divine inspiration."'*

As late as 1892, this Court noted the presence of Chris-

tian or theistic oaths in all the (44) states, and -- without

disturbing the calm -- gave them an impassioned endorse-

ment.

But in 1961, this Court, in Jorcaso v. Watkins,'* held

that the Establishment Clause of the First Amendment

prohibited the states from requiring a Christian oath from

one who adhered to the religion of Secular Humanism.

Sociologically, Biblical oaths had been fading from the

scene for decades.'* Legally, it was a disturbing of the

12. T. Skillman, 7he Constitutions of All the States According to the

Latest Amendments, 181 (1817). See also Del. Const. art. 22 (adopted

Sept. 20, 1776), 1 Del. Code Ann. 117 (Michie, 1975).

13. Rector, etc., of Holy Trinity Church v. United States, 143 U.S.

457,468, 12 S.Ct. 511, 515, 36 L.Ed. 226 (1892).

14. Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d

982 (1961).

15. The ~~ Court had detailed the long secularization of the

8, 441 (1960).

oath. Jorcaso v. kins, 223 Md. 49, 162 A.2d 4

calm.

In his petition to the California Supreme Court, Petition-

er in the present case, citing constitutional debates and other

historical documents, argued that Article VI, para. 3, pro-

hibiting a “religious test,” in fact prohibited what we would

call a denominational test, one which favored the Episcopa-

lians over the Presbyterians (for example), but did not

prohibit a generic Christian oath. Following Justice Ste-

wart's concurring opinion in Sherbert v.Verner,'® similar

analysis of the use of the Establishment Clause in Torcaso

questioned the "secular reach” of that decision.

Note well that Petitioner in this case is not calling for a

return to state-mandated Christian oaths.'’? He merely

argues that if theocratic Christian oaths could be constitu-

tionally mandated for over 150 years, then a stronger case

can be made for recognition of the individual right to a

voluntary free exercise of theocratic oath-taking. His peti-

tion to voluntarily take such an oath as Delaware's was

denied by the California Supreme Court.

It is to be feared that the ruling in Jorcaso has subtly

conveyed a message that "fastidiously scrupulous regard"

for oaths need not be "encouraged," especially among

Christians. The government has likely had a profound effect

in determining the nature of religious exercise among those

required to take oaths. Even historical and theological

discussion may not be as “uninhibited, robust, and wide-

open”'® as it might have been had the Court not apparently

closed the door to fastidiously scrupulous Christian oath-

takers. This Court is in many ways the Nation's moral

Pedagogue, and its decisions set the national agenda.

16. decided the same day as the “School Prayer” case; Sherbert v.

Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). ("I think

that the Court's a h to the Establishment Clause has on occasion,

and ifically in Engel, Sche and Murray, been not only insensi-

tive, but positively wooden, that the Court has accorded to the

Establishment Clause a meaning which neither the words, the history,

nor the intention of the authors of that specific constitutional provision

t oamey suggests.” J. Stewart, concurring, at 374 U.S. 414, 83

-Ct. 1799.)

17. Petitioner also - > ge prayer in public schools, for reasons that

will become apparent, below.

18. New York Times v. Sullivan 376 U.S. 254, 270, 84 S.Ct. 710,

721, 11 L.Ed.2d 686 (1964).

Review of the Zorcaso case to permit the voluntary

swearing of Christian oaths would encourage many people

to pursue vocations from which they might otherwise be

obstructed by a secularist oath. The Reformed Presbyterian

Church in North America is officially committed as a

denomination to Trinitarian oaths, and the rights of their

members have been denied.'? Many others who are not

members of that denomination, such as Petitioner in this

case, have come to the same conclusions.”°

Petitioner, who for years was a Chalcedon Scholar,”’

notes that secular oaths have been targeted by the "Religious

Right," and could become a springboard for a wave of

litigation. A decision here could forestall conflict.”

No rights or interests have vested around secular oaths.

The rights of no other people would be restricted by permit-

ting the free exercise of theocratic Christian oaths.

A review of the California decision and the conflict

between the Jorcaso and Holy Trinity cases could have a

dramatic impact in shaping a coherent theory of balance

between the Establishment and Free Exercise clauses of the

First Amendment. Review would also encourage many on

the "right" who are alarmed by decisions (particularly

19. Smith v. County Engineer of San Diego Co., 266 C.A.2d 645,

72 Cal.Rptr. 501, 285 P.2d 617 (1968).

20. D. Barton, Keys to Good Government, 1994.

21. Chalcedon was identified as the “think tank" of the “Christian

Right," W. Estep, Revolution Within the Revolution: The First Amend-

ment in Historical Context 1612-1789, 11-15 (1990); Bill Moyers,

Transcript: "God and Politics: On Earth as it Is in Heaven,” Public

Affairs Television (broadcast date: Dec. 23, 1987), and 97 Newsweek

5:60 (Feb. 2, 1981).

22. See the manifesto by G. North, Political Polytheism: The Myth

of Pluralism, 1989. According to Estep, supra, note 13, id., North, who

took his Ph.D. at the University of California, is a very influential

writer in the "religious right.“

23. In an unrelated field of law, this Court has granted certioran

"to forestall a possible conflict in the lower courts" on an “important”

issue, even though there was “no direct conflict" eH various distnct

court and court of oe opinions. Dawson Chemical Co. v. Rohm &

Haas Co., 448 U.S. 176 (1980); R. Stern, E. Gressman, S. Shapiro, K.

Geller, Supreme Court Practice, §4.8 179-80 (7th ed. 1993).

celebrated cases from the years 1961-6374) which seem to

impose a "Secular Humanist" agenda upon local govern-

ments.** The reputation of this Court could be enhanced;

surely it needs the support of this powerful group.”®

B. In re Summers and "Good Faith" Support

of the Constitution

If this Court grants certiorari to consider the issue of the

free exercise of religious oaths, it will then be forced to

review the case of In re Summers.”’ Christian "Test oaths"

such as that of Delaware, above, declare that ultimate

authority rests beyond the nation-state. The long line of

cases which Respondent State Bar insists have "settled" the

issue of loyalty oaths,- rest on a completely different judicial

paradigm, one which denies a supra-national Authority.

Even if a Christian oath were to be permitted, Petitioner

here would still have no assurance that the California State

Bar would admit him to the practice of law, or would not

bring proceedings for disbarment or perjury at some point in

the future. In an attempt to avoid the result in Konigsberg v.

24. P. Irons, The Courage of Their Convictions, 366-67 (1988)

("Like no other legal issue, the prayer issue ray! will not surrender to

judicial edict. More than two decades after the Supreme Court banned

school prayer, teachers lead their students in prayer in more than half of

America's ten thousand school districts.”)

25. D. Barton, The Myth of Separation; 1992. J. Whitehead, The

Second American Revolution, 1982.

26. A. Goldberg, Equal Justice 75 OU) cited by J. Stevens, The

Life Span of a Judge ade Rule, 58 N.Y.U.L.Rev. 2 n.11 (1983).

(“[S]tare decisis foster[s] public confidence in the judiciary and public

acceptance of individual decisions by giving the appearance of imper-

sonal, consistent, and reasoned opinions. ”)

27. In re Summers, 325 U.S. 561; 65 S.Ct. 1307, 89 L.Ed. 1795

1945) (holding that a Christian pacifist, disagreeing with that part of the

nstitution requiring military training, could not take the “support

oath” in good faith.)

State Bar of California, and In re Anastaplo,” Petitioner

went overboard in fully and candidly setting forth his politi-

co-religious beliefs. In a word, Petitioner is a non-violent

“anarchist.” Petitioner has for the last six years lived in a

House of Hospitality in the anarchist-pacifist Catholic

Worker movement. He views the State as the institutionali-

zation of violence, utterly without moral legitimacy. He has

committed his life to the reconstruction of an alternative

social order, culminating in the eventual elimination of

“constitutional” governments. It would be difficult to say

that he “supports” the Constitution, in any ordinary sense of

that word.

Thus, Petitioner, whose anarchist views plainly preclude

"support" for any constitution, proposed to Respondent

State Bar the following "narrowly-drawn" oath in an effort

to protect both First Amendment rights and legitimate state

interests:

I solemnly swear (or affirm) that I am dedicated to the

peaceful and reasoned settlement of disputes between

men, and between a man and his government,*” and

am committed to dissuading others from resorting to

force or violence,®’ that I am not loyal to any foreign

State,?? and that I will faithfully discharge the duties of

an attorney and counselor at law to the best of my

28. Konigsberg v. State Bar of California, 366 U.S. 36; 81 S.Ct.

997, 6 L.Ed.2d 105 (1961).

29. In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135

1961), reh. den. 368 U.S. 869, 82 S.Ct. 21, 7 L.Ed.2d 69 (1961).

th cases holding that obstruction of State Bar investigations would

ground denial of admission to the Bar.)

30. The wos is from Law Students v. Wadmond, 401 U.S. 154

at 166, 91 S.Ct. 720 at 728, 27 L.Ed.2d 749 (1971). Petitioner would

not object to gender-inclusive language.

31. See the concerns in U.S. v. Schwimmer, 279 U.S. 644, 49

S.Ct. 448, 73 L.Ed. 889 (1929) over a petitioner -- an “uncompromusing

pacifist” with “no sense of nationalism (Idem.) - and her “pu or

power to influence others” as a “lecturer and writer” (at 279 U.S. 651,

49 S.Ct. 450).

32. In his Brief, Petitioner cited 11 loyalty oath cases which indi-

cated a concern over foreign influence or domination.

10

knowledge and ability.**

The California Supreme Court denied the Petition to

permit this modification.

The facts in Summers are a “chilling” parallel to those in

the present case. Summers, a Christian, sought admission to

the Illinois Bar. A conscientious Christian pacifist, Summers

could not agree with that part of the Illinois Constitution

requiring military training of its citizenry. The Illinois Bar

denied his application for admission. The Illinois Supreme

Court upheld the decision of the State Bar, and that court's

decision was upheld by this Court.*4

The standard set in Swmmers is clearly indefensible.

Summers was barred from the practice of law because of

disagreement with one part of the state constitution. Present

Petitioner knows of not a single attorney who, having taken

an oath to “support the Constitution,” agrees with every

single provision of that Constitution.

Summers' unrealistic standard was the product of a

festering nationalism which was born out of conflict with

anarchists at the turn of the century,?* and would reach a

peak during the "vicious, irrational paroxysm of fear and

rage known as McCarthyism . . . which plagues us to this

day."

This particularly virulent strain of nationalism was set

forth in the case of U.S. v. Macintosh,?’ and the Summers

case rested foursquare on that case.°* In Macintosh, an

alien willing to swear "support" for the Constitution was

33. The second half of the current oath.

. A” In re Summers, 325 U.S. 561; 65 S.Ct. 1307, 89 L.Ed. 1795

(1945).

35. Petitioner's Brief, Appendix F, “The Establishment of a Secu-

lar, Political Religion Through the ‘eon Oath.'” pp. 77-79, analyzes

these cases: us ex rel Turner v. Williams, 194 U.S. 279, 24 S.Ct.

719 (1904); Lopez v. Howe, 170 CCA 337, 259 F. 401, 12 ALR 192

(1919); Abrams v. U.S. , 250 U.S. 616, 40 S.Ct. 17 (1919).

36. Rodriguez v. Seamans, 463 F.2d 837, 843 (D.C. Cir. 1972)

(Wright, dissenting).

37. U.S. v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed.

1302 (1931).

; otk In re Summers, 325 U.S. 561 at 572-73, 65 S.Ct. 1307 at

1313-14.

11

denied the opportunity to do so because as a pacifist he was

unable to state that he was “willing” to bear arms.

Court repudiated this Transcendental Authority and set into

motion the secularist nationalism that would culminate in

When he speaks of putting his allegiance to the will of

God above his allegiance to the government, it is evi-

dent in the light of his entire Statement, that he means

to make his own interpretation of the will of God the

decisive test... . [True, w]e are a Christian people

(Holy Trinity Church v. United States, 143 US.

457,470,471, 12 S.Ct. 511,[516], 36 L.Ed. 226),

according to one another the equal right of religious

freedom, and acknowledging with reverence the duty of

obedience to the will of God. But, also, we are a nation

with the duty to survive; a nation whose . . . govern-

ment must go forward upon the assumption, and safely

can proceed upon no other, that unqualified allegiance

to the nation and submission and obedience to the laws

of the land . . . are not inconsistent with the will of

God.*'

Most people feel a kind of instinctive repulsion against

an oath of unqualified allegiance, and the concept of consci-

entious civil disobedience, a bedrock doctrine of Christiani-

ty,” is central to Petitioner's religious beliefs. But without

39. D. Barton, The Myth of Separation, 1992.

40. Holy Trinity Church v. United States, 143 U.S. 457,470,471,

12 S.Ct. 511,[516], 36 L.Ed. 226 (1892). Cf. text at note 13, supra.

41. Macintosh, 283 U.S. 605, at 625, 51 S.Ct. 570, at 575. ("his

own interpretation,” Court's emphasis; all other emphasis added. In

particular, Petitioner believes that the word "But" carnes with it a

profoundly significant disjunction. )

42. Cf. Acts 5:29 ("We ought to obey God rather than men.*)

12

a workable paradigm, the logic of secularist nationalism

goes unresisted. Thus, as the God of Scripture has been

removed from loyalty oaths, the Nation-State has been

enthroned as the new god. Applicants believing in a tran-

scendental authority have been held incapable of "support-

ing" the constitution.*? This standard of allegiance,

although passionately argued and consistent with a national-

ist ideology, is nevertheless an impossible one; no one takes

this rhetoric te It says in effect that if constitutional

processes produce a law which requires an applicant to turn

his neighbor in for a train ride to the concentration camp, he

must be "willing to ie al

Congress attempted to buffer the Macintosh case by

giving rights to those seeking naturalization, placing them

on the same ground as natural-born citizens who have

access to conscientious objector status. Macintosh was thus

overruled in 1946,“ a year after the Summers decision. But

Girouard apparently did not overrule Summers,* which is

still cited as controlling.“ And in fact, some courts have

43. In an Appendix to Petitioner's California Brief ("Civil Disobe-

dience and the Su — Oath"), the relevant cases were analyzed, includ-

ing Petition of Williams, 474 F Supp. 384 (D. Ariz. 1979) (citing Allan

v. United States, 115 F.2d 804 (9 ir. 1940) and U.S. v. Rossler, 144

F.2d 463 (2d Cir. 1944)); In re De Bellis Petition for Naturalization,

493 F.Supp. 534 (E.D. Pa. 1980). See also In re Saralieff, 59 F.2d 436

i. Mo. 1932), cited in In re Petition for Naturalization of Matz, 296

Supp. 927 (E.D. Cal., 1969).

(1946). Girouard v. U.S., 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084

).

45. This Court has granted certiorari in cases involving a question

upon which prior decisions of the Supreme Court are irreconcilable or

inconsistent. Funk v. United States, 290 U.S. 371 (1933); Wolfle vy.

United States, 291 U.S. 7 (1934). R. Stern, E. Gressman, S. Shapiro,

K. Geller, Supreme Court Practice, $4.5 176 (7th ed. 1993).

46. Cf. American Communications Ass'n CIO v. Douds, 339 U.S.

382 at , 70 S.Ct. 674 at 687 (1950). Gillette v. United States, 401

U.S. 437, 462n23, 91 Sup Ct 828, 842n23 fog 1), Baird v State Bar of

Arizona, 401 U.S. 1 at 3, 91 S.Ct. 702 at 704, 27 L.Ed.2d 639 (1971).

When not cited in reference to matters of ure, the citations to

Summers are nearly always cryptic. This has granted certiorari

where the decision below is premised - a prior Supreme Court

— whose implications are in need of clarification. SEC v. United

nefit Life Ins. Co., 387 U.S. 202, 207 (1967). R. Stern, E. Gress-

1993) hapiro, K. Geller, Supreme Court Practice, §4.5 176 (7th ed.

13

held that Girouard overruled Macintosh "on strictly statu-

tory grounds,” and thus impose the Macintosh/Summers

Standard of unqualified belief i in the reigning nationalistic

political orthodoxy. *”

This Court has tried another solution: temper the author-

ity of the nation-state by claiming that the once-solemn and

sacred oath is now just an "amenity."

This contention ignores not only the effect of the oath

on those who will not solemnly swear unless they can

do so honestly and without prevarication and reserva-

tion, but also its effect on those who believe the written

law means what it says"*?

As a result, no one with extremist beliefs who is re-

quired to take a “support oath" can predict whether he will

be allowed by a Cole-type court to take an increasingly-

meaningless formality,°° or whether he will be held to the

Standard of Summers/Macintosh, and be barred as incapable

of taking the oath in good faith.*! The decisions are chao-

_— ‘ Naturalization of Brakel, 524 F.Supp. 300 at 301 (N.D. Il.

48. Cole v. Richardson, 405 U.S. 676 at 685, 92 S.Ct. 1332, at

1337; 31 L.Ed.2d 593 (1972). Petitioner analyzed this case at some

length in co dence with the State Bar, and etitioner's Brief at 83-

86. It is a frightening response to the denial of rights occasioned by

secularist nationalism. It only entrenches a disrespect for law.

49. Cf. Baggett v. Bullitt, 377 U.S. 360 at 374, 84 S.Ct. 1316 at

1324 (1946). Petitioner in the case now before this Court, when describ-

ing his conflict of conscience, has been advised by attorneys who have

themselves taken the “support oath" to “Just make it ‘mean’ what ever

you want it to mean and get it over with!" This attitude toward the law

1s common. It is also destructive of its integrity.

50. How can ordinary people know if a given judge considers a

“support” oath to be a solemn act of worship or just an amenity like the

one struck down in West Virginia State Board o Education v. Barnette,

319 U.S. 624, 63 S.Ct. 117,87 L.Ed. 1628 (1943)(flag salute)?

51. Compare In re Petition _ Naturalization of Matz, 296

F.Supp. 927 (E.D. Cal., 1969) (denying naturalization to Jehovah's

Witness who, "because of religious training and belief refuses to vote,

serve On juries or otherwise ici in government" (at 929), citin

In re Saralief, $9 F.2d 436 (ED. Mo. toe 930n6), an

Macintosh)(at 931 Pi

n.20)), with In re Pisciattano, 308 F.Supp 818 ©

Conn. 1970) ting naturalization to Jehovah's Witness who, "be-

cause of her religious beliefs and training . . . would not vote, engage in

politics, or serve on a jury" (at 819), citing Girouard (at 820)).

14

so heen

tic; the obligations of "support" are unclear: One could

conclude that this Court holds that one will be permitted to

take 2 once-solemn oath to "support the Constitution" even

if “he is mow, in one way or another, engaged in an attempt

to overthrow the Government by force or violence,"** but a

Summers-type non-violent Christian will not be so permit-

ted. And "a statute which either forbids or requires the

doing of an act in terms so vague that men of common intel-

ligence must necessarily guess at its meaning and differ as

to its application violates the first essential of due process of

law."9

_ It is common knowledge that there is a profound cyni-

cism in the average American concerning our legal system.

It is widely perceived that political promises mean nothing.

bres Jaw seems to be applied subjectively and unpredict-

ably.

A widespread feeling that the law is subjectively applied

and objectively unpredictable is the death-knell of that

system.

52. Whitehill v. Elkins, 389 U.S. 54, 62, 88 S.Ct. 184, 188, 19

L.Ed.2d 288, 234 (1967) (J. Harlan, joined by JJ. Stewart and White,

dissenting.)

53. Cramp v. Board of Public Instruction of Orange County, Flori-

da, 368 U.S. 278 at 287, 82 S.Ct. 275 at 280 (1961), citing Conally v.

ek ieee Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70

54. See note 51, supra. Petitioner's Brief, Appendix F, “The

Establishment of a Secular, Political Religion Through the ‘Support

Oath,'" describes the presence of the Macintosh standard in em

courts and the conflict that emerges when courts try to temper its harsh-

ness by diluting the meaning of the oath: American Communications

Ass'n CIO v. Douds, 339 U.S. 382, 70 S.Ct. 647 (1950); Barenblart v.

U.S., 360 U.S. 109; 79 S.Ct. 1081 3 L.Ed.2d 1115 (1959) reh. den.

361 U.S. 854, 80 S.Ct. 40, 4 L.Ed.2d 93 (1959); In re Anastaplo, 366

U.S. 82; 81 S.Ct.978, 6 L.Ed. 2d 135 (1961), reh. den. 368 U.S. 869,

82 S.Ct. 21, 7 L.Ed.2d 69 (1961); Whitehill v. Elkins, 389 U.S. 54, 88

S.Ct. 184, 19 L.Ed.2d 228 (1967); Law Students Civil Rights Research

Council Inc. v. Wadmond, 401 U.S.154 91 S.Ct. 720, 27 L.Ed.2d 749

Bag) Cole v. Richardson, 405 U.S. 676 92 S.Ct. 1332; 31_L.Ed.2d

93 (1972); Arbesu, Naturalization of, 347 F.Supp. 1014 (E.D. La.

1972); In re Meghnot's Petition, 238 F.Supp. 479 (E.D. Mich. 1965);

Socialist Workers Party v. Martin, 345 F.Supp. 1132 (S.D. Tex. 1972).

— ee ee

C. Attorneys as "Officers"

A century of secularist nationalism has necessitated the

questioning of the unpredictable application of Art. VI

"support oaths" to attorneys. Chauvinistic nationalism is a

dangerous anachronism. We now live in an era of Global

Interdependence. Attorneys holding a Supra-national vision

of social order must not be discouraged, rather, should be

mers decision and its progeny should be reviewed. And as

the sun sets on the 20th rp it may now be appropriate

to review the possibility of e iminating altogether the re-

quirement of attorneys to swear an oath to "support the

constitution."

It is clear that those who hold political offices created by

or under the constitution are obligated to swear to "support

the constitution. "55

It is well established by case law that public employees

ment. "59

The California State Bar responded to these arguments

by citing a string of cases that began with Knight v. Board

55. U.S. Const. Art II. sec. 1, para. 8, and Art. VI, sec. 3.

56. In a sense, all the Founding Fathers were naturalized citizens,

which — important questions about national loyalty which are absent

in our day.

57. Goldfarb v. Virginia State Bar, 421 U.S. 773 at 792-93, 95

S.Ct. 2004 at 2016, 44 Ld. 2d 572 (1975).

>8. Cammer v. U.S., 350 U.S. 399, 405, 76 S.Ct. 456, 459

(1956).

39. Cf: Ozonoff v Berzak, 744 F.2d 224, 233 (1st Cir. 1984).

16

of Regents® and saw its clearest expression in Law Students

Civil Rights Research Council, Inc. v. Wadmond.®' In his

reply, Petitioner observed that the “support oath" was not

challenged in these cases, and that all the dicta in these

cases concerning the "well-established" validity of an oath

to support the constitution trace back to Blackstone, cited by

the court in Knight, saying "support of the constitutional

governments can be substantially equated to that allegiance

which, by the common law, every citizen was understood to

owe his sovereign.®

The nexus between attorneys and citizenship, however,

was dissolved by this Court in Jn re Griffiths. It was there

held that an attorney did not have to be a citizen, undercut-

ting Blackstone's nationalistic legal foundation upon which

courts have based the required support oath.

CONCLUSION

The way we treat oaths is symptomatic and symbolic of

the way we treat the law as a whole.

Courts are in substantial disarray in the way they treat

oaths of office, and this is due to a failed jurisprudential

paradigm, which only this Court can fashion.

This Court is not just an impersonal arbiter of judicial

disputes, but serves the nation as Conscience and Peda-

gogue. This Court inescapably sets the standard of our

nation's values. This case is an ideal vehicle to begin™ re-

examining fundamental presuppositions because Petitioner's

60. Knight v. Board of Regents 269 Ay 339 (1967), aff'd per

curiam, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed. 12 (1968).

61. Law Students Civil Rights Research Council, Inc. v. Wadmond

401 U.S. 165, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971).

62. Knight v. Board of Regents 269 F.Supp 339, 341 (1967).

Detailed analysis of Responent's string of cases was raised in Petition-

er's Reply, Appendix G, "The Myth of the Settled Question."

In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910

(1973).

64. And it will be just a beginning — a kind of post-Jorcaso “mid-

course corrrection.”

17

_ Aileny'}

SE a ee eee

views are part of both the "religious right” and the "left,"®

allowing for focused reflection in comparative political

calm.

Thus, while protecting the First Amendment rights of

the "fastidiously scrupulous,” this Court can also advance

vital national interests:

In recognition of transnational realities of the modern

world, the archaic nationalism exemplified by 20th

century fears of disloyalty can be replaced by a

global vision that will last into the 21st century.

In our increasingly lawless and nihilistic culture, recog-

nition of this nation's Christian roots and the impor-

tance of Spiritual values will Strengthen the social

order of the Republic.

Therefore, the Court should grant the petition.

65. Petitioner has published articles in The Chalcedon Re rt rang

21, supra), as well as The Catholic Worker (founded in New York ity

by Dorothy Day in 1933).

18

APPENDIX A

CORESPONDENCE FROM

RESPONDENT STATE BAR

TO PETITIONER

ma

The Committee of Bar Examiners of the State of California

Office of Admissions

555 Franklin St. San Francisco, California 94102 (415) 561-8303

June 8, 1993

James Kevin Craig Assigned Petition No. 11(b)

311 Main Street Registration No. 546334598

Santa Ana, CA 92701

Dear Mr. Craig:

During its meeting on June 4, 1993, the Committee of Bar

Examiners took up consideration of your request for modification

of the attorney's oath. The Committee has directed that I advise

that since the form of the oath was established by the Cali-

ornia legislature, the Committee is without authority to modify it

and has, therefore, declined to grant your request. To be admitted

to practice, you must take the oath as set forth in Section 6067 of

the California Business & Professions Code.

Please feel free to let this office know if you have any questions.

Very truly yours,

s/

Jerome Braun

Senior Executive, Admissions

JB491/L61093

EA

APPENDIX B

NOTICE OF DECISION FROM

CALIFORNIA SUPREME COURT

ee

$034117

IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA

IN BANK

JAMES KEVIN CRAIG, Petitioner

Vv.

STATE BAR OF CALIFORNIA, Respondent

Petition for writ of review DENIED.

s/

Chief Justice

SUPREME COURT

FILED

APR 27 1994

Robert Wandruff Clerk

s/

Deputy

APPENDIX C

REPORT ON DECISION FROM

CALIFORNIA SUPREME COURT

s Angeles] Daily Journal

107:82 (April 29, 1994) p. 20

ae

Court Refuses to Let Attorney Practice

Without Taking Oath

By Philip Carrizosa

Daily Journal Staff Writer

SAN Francisco - After months of study, the state

Supreme Court has refused to allow a would-be lawyer to

practice law in California without taking an oath to support

the state and federal constitutions.

James Kevin Craig, who describes himself as a Christian

and philosophical anarchist, says he cannot take the oath

customarily administered to new lawyers because it requires

him to swear to support the Constitutions of the United

States and of California.

As a Christian, Craig says, he can swear only in the

name of God and can swear allegiance only to God, not to

the state or its laws. Craig says he is willing to take the

second part of the oath, which pledges to "faithfully dis-

charge the duties of an attorney and counselor at law" to the

best of his knowledge and ability.

Nonetheless, Craig, who works at the Santa Ana Cathol-

ic Worker, a hospitality house for homeless drug addicts,

says he believes it is his duty to practice Biblical Law to

defend those who are attacked by the law of man. Craig

passed the Bar exam in 1988.

Officials for the Committee of Bar Examiners have

refused to admit Craig to the practice of law because he

won't take the oath. The committee has also refused to

change the oath, saying it lacks the power to modify the

oath mandated by the state Legislature.

Furthermore, bar examiners contend, the constitutionali-

ty of the oath is well-established and not an open question,

as Craig contended.

Craig filed a 93-page brief crammed with legal and

religious arguments last July and the State Bar replied in

August. The justices had Craig's petition under review ever

since, indicating that they were giving it serious considera-

tion.

But when the matter finally came up for the vote on

Wednesday at the court's regular closed weekly conference,

the justices unanimously voted to deny it without comment,

Craig v. State Bar, $034117.

-

:

i

2