United States v. Girouard

Atty., emption from combatant or non-combatant Cartier, S. Asst. U. B. Arthur J. objector. Atty., a all service as conscientious S. Brandon, U. and Edmund J. all hearing District Mass., At a before Boston, appellant. for with together this evidence was submitted David Fitzsimons and William J. J. testimony he appellee that n Coddaire, appel- Boston, Mass., both of Day Ad- was a member of the Seventh lee. there were about ventist sect. said that He WOODBURY, Before MAHONEY and serving ten in thousand of this sect HEALEY, District Judges, Circuit and non- armed forces of the United States Judge. corps, combatants, especially in the medical willing and that he in was serve army non-combatant but MAHONEY, a Judge. Circuit him to admitted arms. The court question a con- is whether The here citizenship following order: and entered the serve objector willing to scientious. iswho “That since the Train- Selective Service and forces armed as a noncombatant an ing permits, right, Act aas matter of to bear unwilling but of the United States willing- express a draft be admitted arms in its defense ness to armed forces of serve in the citizenship. States, non-combatant, United a but as appellee in Canada The was born is petitioner exercising right this still a country to this and came unqualified person who can take an become In his declaration intention to States, allegiance and oath of to the he which a citizen the United citizenship.” is We eligible therefore Boston on District Court at filed August lower in error. that the court was 8, 1940, described himself he Stoneham, privilege Naturalization is a which engineer with residence at an apy be alien who desires Massachusetts, his offered to with he lives where citizen, privilege subject a come a to but it is pre- daughter. wife He stated on and prescribed have been conditions which liminary petition for naturaliza- form petitioner Congress and which the with principles of understood tion he strictly comply. Con citizenship must be- government of the United gress provide empowered the Constitution was government and lieved form of its aliens naturalization of allegiance willing to take the oath of thought that declare, always fact has hereby “I it is following the oath, form: only after granted absolutely entirely renounce great fidelity care and is evidenced abjure consideration allegiance and any all state, require examination the strict foreign prince, potentate, or petitioner ments which it declared sovereignty or I have of whom citizen; Among must meet. subject the conditions which a or heretofore been obligations he he must fulfill and the support I will Constitution defend the contained in the are those and laws of the United States against America undertake domestic; allegiance oath of which he takes before enemies, foreign and being citizenship. admitted to true that will bear faith same; obliga- this to the tion and that interpreted Court has freely any reserva- without mental to mean Help Me purpose tion of evasion: So country to bear arms God.” interpreted he takes oath so unless petition is to be dismissed and His necessary, answer to the “If citizenship privilege denied. you willing up arms in defense Schwimmer, 1929, 279 U.S. States v. 651, country?” combatant) (non was “No 889, the 73 L.Ed. Day Seventh good He Adventist”. is of a born applicant for was woman character, disposed good moral well examination Hungary. preliminary Her happiness order United States uncompromising was an that she showed organization affiliated with nationalism, “only pacifist no sense of organized government. In a belonging to thr consciousness of a cosmic sworn statement before Acting Natural- family.” linguist, lectur She was human ization Examiner on March he writer, well educated and accustomec er and purely religious was stated that it with matter him, government and civic affairs. in questionnaire filed to discuss opposed to undemocratic institu- Local Draft Board No. 161 ex- She he claimed provision, obedience to no constitutional tions become citizen and wanted to express implied; only harmony because, country whose because, it policy has accorded with willing to take with her up but was not ideals alien, Congress thus to in re- relieve him. The The Court arms in its defense. citizen, when he becomes a naturalized Appeals and versing the acquires, exception, every right with one Court, had affirming District the possessed under the those Constitution petition, denied her said: (Luria citizens who are native-born v. of duty it of force “That is the citizens 231 U.S. 34 S.Ct. against government arms to defend our acquires L.Ed. 101); but no more. he necessity enemies whenever arises The privilege of the native-born conscien- principle a fundamental of the Constitution. objector tious comes, bearing avoid arms Constitution, not from the acts but from the willing- “Whatever tends to lessen the Congress. of tody may grant That or duty ness of discharge citizens to their withhold exemption in its wisdom the bear arms country’s detracts the defense fit; and, it sees withheld, if' it be the strength from the the safety of native-born objector conscientious cannot government. opinions And and be- their successfully privilege. assert the No other liefs as well indicating as their behavior compatible conclusion is well-nigh with the disposition performance of to hinder the powers limitless extent of the war as above duty subjects inquiry are of the under illustrated, implication, include, necessary statutory provisions governing naturaliza- power, extremity, the in the last importance, tion and of if vital are compel any the armed service of citizen large all or a oppose number of citizens land, in or his regard objections without to his ‘good happiness’ order respect views in justice of or of the United long States cannot endure. morality particular war or of war And appli- of is evident the views * * * general. respect cants for of such he speaks “When of putting allegiance his in- disregarded. matters not be The to the will God allegiance above his objectors against fluence of conscientious government, evident, light the use of force in defense of the statement, his entire that he to make means government apt our interpretation his own will of God more detrimental their than mere refusal the decisive test which shall that, conclude the to bear arms. fact reason The government stay its We sex, cause, hand. are they may age or other be un- people Christian (Holy Trinity Church purpose to serve fit does lessen their 457, 470, 471, U.S. power to influence others.” S.Ct. 226), according one Macintosh, case The of United States v. equal another right free- 51 S.Ct. 75 L.Ed. U.S. dom, and acknowledging with reverence peti- followed 1931. There the duty of obedience But, to the will of God. tioner for naturalization to this came also, we are a nation with the to sur- country Baptist was a Canada. He vive; a nation whose Constitution con- faculty minister and member of the of the the templates peace; war as well as whose Divinity University. School at Yale In government go upon forward as- chaplain he was a first World War sumption, safely proceed upon can no Army Canadian and served with the other, unqualified allegiance to the M. A. He stated he American Y. C. nation submission and willing prescribed take obedience to was but that he was not land, up arms as well those made for .laws morally peace, war as he believed that the war was those made for unless justified; are not that his first to consistent with will was of God.” God; and “he could not the will of Bland, 1931, United States v. 283 U.S. any government put allegiance to 75 L.Ed. 1319 was allegiance before the will of country at the time decided same as the Macintosh Here, too, Supreme Court re- God.” applicant case. There Appeals Court of the Circuit versed was native Canada who had served Court’s action in the District dis- affirmed country as a nurse in the first World held: petition. It missing the War. She refused to bear arms in defense “ *** of the United States under circum- objector The conscientious unwilling and was stances obligation to bear from the relieved my allegiance. oath of It also stated “as far as unless words provisions shall of the amendment were as a will allow” conscience Christian apply objector “any who conscientious Supreme Court Again written into it. re- performed military duty Appeals whatever reversed fused to wear the uniform.”' dismissal Court’s sustained the District application. decision It rendered its Kinloch, F.Supp. D.C., In re opinion accordance subjects applied two citizen- British “The words Macintosh case and said ship. They conscientious were classified as qualification the statute do admit At objectors service. for non-combatant which the insists.” they were applications the time their army. members medical of a unit It is decisions that these true ad- applications court their granted over divided until court but citizenship. It mitted them reasoned to by en ruled court itself or the by pro- it Congressional enactment legislation acts gives to the oath a ap- similarly situated vided that these interpretation contrary the meaning to by citizenship plicants were entitled to placed by court, upon it bound to we are the the armed becoming virtue of of members accept promulgated law these deci the as It stated forces of United States. bring sions. in case The facts the instant require oath which to to take an them it square]y these of within the bear willing arms means that cases. destroy the amend- purpose of Court, however, took The District meaningless. ment and make it subject any person the view that in not appellee served Since the has training or religious draft who reason of definitely armed is denied forces he conscientiously war belief is urged it benefits of this amendment. the armed willingness to serve in state his inferentially amendment has under as forces but a non-combatant § changed meaning alle of 5(g) Training and Service Selective Schwimmer, giance promulgated in 1940, U.S.C.A.Ap 887, 54 '50 Stat. Act any Macintosh and Bland cases pendix, seq., 305(g), 301 en et §§ objector may conscientious become citizen permission But the take the oath. titled to by taking mean does not objector, alien as given to a conscientious wiling he is bear arms-. citizen, willingness express well his Congress, think, this passing we in forces of the to serve the armed amendment, intended reward non-combatant, mean does not States as objectors had served or conscientious who citizenship is not applicant for in the allow- serving armed forces required arms to take an oath bear ing them not to take an oath which did country. The naturaliza this defense of scruples. It conflict with their requirements of the make certain tion laws expressly passed legislation changing has citizenship and the considera interpreted by the meaning under the him as a draftee given tion Court, in- we do not believe that it Act and Service does Training Selective beyond to extend this tended reward requirements. not those lessen particular group. We not think that do Nationality Congress passed give it meant to the benefit of When change meaning 1137, ferential the oath U.S.C.A. Act 54-Stat. § ob- alien conscientious alle- oath of seq., it the same et reenacted jector appellee like here has not who any way the change giance did serving in the and is not armed served it upon by interpretation placed forces, objectors opposed or to conscientious However, by an amendment to that Court. service who participate in non-combatant 182, 183, 8 U.S.C.A. Stat. Act assigned to work im- have been of national “any person not a excused §§ civilian direction. portance under Since citizen, regardless age, served who has is not honorably in the mili- serves or hereafter petition the United his defense of of the United States tary naval forces be denied. present during war” who has been of the District Court re- lawfully to the United The order admitted intention, case remanded to that filing a declaration of and the from and versed proceedings for further not inconsis- the residence educational re- court change" opinion. quirements. No was made in the tent WOODBURY, (dissent- permissible Judge from that statute inferences ing). one another. neutralize I think the order the District Then find in the amendment of should be affirmed. passed 27, 1942, above act on March seq., Stat. U.S.C.A. et applica- preliminary § The inclusion in the positive changed evidence that has question with tion for naturalization respect interpretation put upon the oath in the willingness up arms allegiance by originally country defense of this rested Schwimmer, Bland cases to Macintosh and administrative, legislative, action. possible persons making extent of Congress in Naturaliza- and of the §§ petitioner’s religious scruples who share the specify- tion 34 Stat. Act By to take it without mental reservation. ing requirements for admission the amendment a new title was added to not see did naturalization Act, simplify the effect of which tois calling fit statement to include one expedite per- “any willingness human life in citizen, son regardless age, who Nevertheless the United States. served honorably or hereafter in the serves majority military or naval forces of the United Schwimmer, Bland cases Macintosh and war,” during present (and States who pro- requirement in the found such a lawfully admitted) excusing has been vision of Third of the Act § persons filing in- Nationality a declaration 335(a) (3), (4) now § relieving tention to a become citizen and Act. 54 Stat. U.S.C.A. § them of quirements. residence and educational re- an (4), provides that 735(a) (3), petitioner It is true that applicant citizenship must before alien advantage special pro- cannot take of the open court admission declare on oath visions of amendment has this because he “support defend the Con- he will and that military not served in the or naval forces. States United stitution and laws of the domestic, trying,to. applies He is not But it to enemies, against foreign * * * person with service therein and therefore allegiance faith true applies it to those with in a non- the view majority took service same.” The to the combatant, as well as to those service an couch- pacifist coud oath not take capacity. Kinloch, in a combatant In re mental reser- quoted without ed in the terms D.C., F.Supp. Certainly it cannot vation. corps be said that one the medical pass- Congress Following these decisions army hospital ‘Corps navy or the 1940, 54 Stat. Nationality Act of ed' the serving respectively military is not “in the seq., revise 1137, 8 501 et “To U.S.C.A. § or naval of the United States.” forces nationality codify laws of applies Thus the amendment to those who a-comprehensive nation- States into petitioner’s scruples, share the if have ality By Congress it did not alter code.” upon been called served in a have allegiance and so terms the oath of by and, capacity permitted scruples, their adopt- by might be said have it inference change the amendment since does not upon interpretation placed oath ed the allegiance, it seem to follow just in the re- Court cases by necessary implication has this inference seems ferred to. expressed its intention that one be- who persuasive force reason of me to lose take that lieves as the does can Congress in its revision fact that reservation. It would be oath without include, when add- did not codification strangely Congress permit- inconsistent if requirements many eligibility ing new objectors elect service ted conscientious naturalization, specific citizenship by capacity, persons gave in a non-combatant arms, instead willingness to bear but one of aliens, serving, advantages if in obtain- so requirement to stand on permitted still naturalization, citizenship by ing allegiance interpretation of the oath of required actually them to an oath It me closely divided court. seems to bear arms in defense of the States. consequence persuasive that no infer- interpretation placed this adoption judi- Congressional ence my seems me associates interpretation the oath of amendment cial Congress an Schwimmer, accord to intention to Macintosh and Bland to thing words of the oath mean one safely have the be drawn from the Nation- cases can willing to person who serve and has ality 1940. It seems to me that the to a Act of agree extent we military with decisions do forces served something I scruples, permitted our by his who instead decline to follow such decisions and equally willing to serve one else to sex, dependency agree. or reasoning follow which we age, reasons of upon As I see it this which con- physical has been called is the situation unfitness fronts us I think here. permitted do so. the words of have intended Fundamentally question presented is has thing who to one to mean the same statutory one of construction. It is whether naval forces served Congress, as a condition of admission to> who not. do to one naturalization, requires myself go fur- I to state under oath that he is would' even willing actually up below affirm the order of court ther and country. words, this ground. I would be will- of on a broader In other still frankly Congressional at the' case will ing recognize that aliens otherwise- Schwimmer, qualified principle by citizenship- is rule be denied bar admission to cases, conscientiously to if taking but decline life Macintosh Bland war? them. follow already taking recognize my duty appears As I this course accept and has times answered judge federal three as an inferior case,. affirmative. But in Schwimmer controlling follow decisions Holmes, speaking Mr. per- I for himself of the United whether States Justice pr Brandéis, and Mr. on the- sonally agree with those decisions dissented Justice ground appreciate applicant, being I fully a woman- whether do not. fifty years age, if over “would not be allow- federal would soon chaotic law become to,” and judges But ed to bear arms if wanted such as should do otherwise. she consequence further reason that he not see not believe that as could do pacifism impossible- positive court belief in made it under a this we always wholeheartedly blindly. subscribe to the oath re- duty to follow Sanford, quired. Mr. who also dis- Justice it to appellate I conceive Like courts sented, agreed substance with views judicial duty as we decide cases be our Appeals (7 decided, they be should but as think 744) F.2d can be summarized which appellate court one fac- termediate quotation “A petitioner’s rights are not one, tors, important us highly a by putting be determined conundrums to- concluding into how consideration iler.” which we should decide a case is view Supreme In Court would the next case in we think the Nothing question, (United question issue before considered at us. Macintosh, deciding question gained our States v. U.S. to be is way 1302) Mr. contrary to the think the Chief we Justice- Holmes, Hughes, it. And to Associate would decide determine Justices Brandéis, Speaking- decide a and Stone dissented. Court would how ordinarily Justice, through would follow and the then Chief the dissent we privi that court in that is apply unreversed decisions of ers conceded a. grant Bar- Judge lege Congress Parker could or with point. But as said Virginia might State Board of as it im v. West hold on such conditions nette Education, C., F.Supp. 251, 253, constitutionally pose; Congress “de- could D. compel and not are but of the law service armed forces evidences cisions itself,” frankly con- might regardless I select although whomsoever it the law of' majority scruples, they cases de- from religious in the vast were- cede Congress so assume that had Court constitute cisions of the author promise to ity concerned “evi- bear we are conclusive to exact arms as a. far as law,” grant of on rare to its naturalization. nevertheless condition dences them, occasions, they evidence think one of not find in the statute- did had indicating Congress when to the exacted arise exercise situations prophesy promise. They ability of the noted omission from best of our any express requirement position in the federal us our the statute of thrust arms, ques system bear- said promise that dis- judicial must conclude we opinions past express “is whether the exaction is to im senting the tion be today. plied general certain When this situation arises from words” which- law of they literally did “either his- unjust, contrary to be would be torically, implication,” demand the religious tenets of citi- groups among our promise said: “If such a demand- is to patriotic purpose be zens who ed, contrary which have been exemplary dissenting opin- conduct.” The respected fundamental, ion then as follows: continues unequivocal terms, should exact it in “To general conclude that oath not, decision, by judicial attempt we should to interpreted disregard- office is be * * * perform legislative func- ing religious scruples of these citizens tion.” and as disqualifying them because for office they could not take oath with such an dissenting detail the reason- Justices interpretation would, believe, generally be they ed thus: examining On the statute regarded only contrary specific specific requirements certain found with re- repugnant intent of but as gard opinions appli- conduct principle representa- the fundamental cants among them found government. tive none “to effect that be one shall not religious naturalized if reason of his con- “But the naturalization sub- oath is unwilling victions he to to war stantially the oath of the same terms as promise They arms.” considered office I find to which have referred. “highly significant.” this omission they Next ground saying words are to that these facts, examined the from that interpreted differently be in the two cases. examination concluded that the contrary, Congress repro- On the when the fully specific statutory had satisfied all the duced the historic words requirements, and then said “The office oath, in the naturalization I should principal ground appears that, for exclusion to suppose according to familiar rules relate to the terms of interpretation, the oath which the should deemed They must take.” “The said: carry significance.” the same question then is whether the terms of the Following dissenting this the Justices necessarily are to be taken as implying policy noted that granting exemp- arms, willingness assurance of to bear tions from service to conscientious so one whose conscientious convictions objectors consistently had been followed supreme allegiance or belief of to the will times,1 since colonial and said “the permit of God will an him to make such long-established practice excusing promise absolute cannot take the oath military service those whose con- disqualified and citizenship.” hence for admission to oppose victions it confirms the view that the Congress in the terms of the oath did not require dissenting compared promise intend the with the give to Justices wording wording of service.” the oath of Next the admitted dissenters ' prescribed by the Congress of oath “that domain to the state exists within the VI, power, under Art. may clause of the Constitu- of for government generally (except tion for civil officers the enforce regardless obedience laws of ; President) scruples. found terms the of the oaths When one’s belief with collides similar; substantially power state, the supreme said that went with- the latter sphere out it was not within its the intent of punish- submission or saying Congress framing said, in latter to ment they the follows.” “But” “in the test; impose religious conscience, duty found “it forum of power to a moral conclude,” impossible higher tained,” in view of the than state always the been main- history struggle religious liberty, of'the for and “There is abundant room for Congress persons enforcing requisite intended that authority the of law as scruples against requires bearing arms it enacted obedience, disqualified public be holding maintaining should office. Next the the conception of supremacy noted that “There of law as essential orderly Justices important government, most are other and methods of demanding without that either defense, war, apart time even in of applicants from citizens or citizenship shall arms,” personal bearing obligation of and that assume to regard engage war promise bearing allegiance “a arms, in to God as subordinate alle- engage giance power.” They thus to in war believed to civil found no sup- ease, Cir., For citation of authorities Macintosh 42 F.2d

porting proposition opinion see the 848. Appeals of the Circuit Court of in the ligious scruples from ad- ground in so far those excluding Macintosh or beliefs as conscien- scruples protected are either mission because his or beliefs only consistently to wars scruples the Constitution or been tious had reference have However, unjust, respected by Congress. be himself believed which he the view been they by expressing concluded three cases above have not celebrated overruled, they its rule principle case stood in the Schwimmer since judgment bar, special probably I com facts and that at would feel own case my in the require reversal pelled did follow them were it not therein not considering. itself case were view that now do so. contain- importance No discussion opinion in dissenting ed in filed I of reversal that the indications concede trilogy, United States strong third case as here were in Bland, 283 U.S. S.Ct. flag v. West second salute case. Barnette C., contemporaneously with Virginia Education, decided D. State Board of Supreme Court In it the F.Supp. already Macintosh case. appears way it did in appeals divided in the same decisions of circuit courts there- Macintosh case and for the reasons a divided in reversed Schwimmer, expressed. and Bland 'the Macintosh cases, latter, the most in the two ones law I If were decide the nearly point, by margin, the narrowest disposed I before us here de novo would fully, and and the decisions reversed were dissenting reasoning to follow the and were convincingly reasoned think Schwimmer, opinions Macintosh and in the is a substantial unanimous. Thus there the cir Bland and the decisions of cases judicial opinion opposed to that body of appeals reversed therein.2 cuit courts of majority Court in the statutory express pro the absence of In view of this substantial above cases. it hard believe vision find body opinion, of what I be in view deny citizenship naturaliza intended to opin lieve intrinsic merit of to be members of sects such as the tion to Quakers ion, many recent deci view of may be said (and same giving sions of the broad who, Mr. Day Adventists) of Seventh scope guarantee definition to the in his Holmes observed dissent Justice the religion free exercise contained case, Schwimmer “have done their share Amendment,3 I believe that the First country what it is.” It seems to make the prediction be ventured that above can interpreting alle to me that the oath of longer expressive cases are law. giance setting, connec in its historical prediction And statutes, I believe that can be conformity and in tion with other resisting “to Amendment, temptation ventured even First did opportunity exhilarating intend to exact an unconditional embrace anticipating a doctrine which promise actually war, be in but time, the womb whose promise sup birth is dis to exact a instead intended Spector tant.” Learned port dissenting, the Constitution laws Hand and defend Walsh, Motor way Service v. whatever F.2d of the United States 809, 823. appropriate Therefore feel that we are not such means sex, capabilities, applicant’s age, and constrained follow the applicant’s re in violation of cases cited last above. are not 742; Cir., 105, 2 Cir., Pennsylvania, 2 42 F.2d 7 27 F.2d 319 U.S. 63 S.Ct. 870, 1292, 81; 845; 87 2 42 F.2d L.Ed. 146 Mar A.L.R. Connecticut, Struthers, 3 141, tin 310 U.S. 319 U.S. 63 Cantwell v. v. S.Ct. 900, 862, 1313; Taylor 1213, 296, L.Ed. 84 L.Ed. 128 A. 87 v. S.Ct. Missis 60 sippi, 583, 1352; Opelika, 1200, v. U.S. 319 U.S. L.R. Jones 63 S.Ct. 87 1600; Virginia 1231, 1691, 86 L.Ed. L.Ed. West S.Ct. State Board Barnette, 514; rehearing reversed of Education v. A.L.R. U.S. 1290; 87 L.Ed. S.Ct. 147 A.L. U.S. Texas, 674; McCormick, v. v. 318 U.S. 63 S. Follett R. U. Jamison 869; 87 L.Ed. Murdock S.Ct. 88 L.Ed. 938. S. Ct.

Case Details

Case Name: United States v. Girouard

Court Name: Court of Appeals for the First Circuit

Date Published: Jun 1, 1945

Citation: 149 F.2d 760

Docket Number: 4058

Court Abbreviation: 1st Cir.