Conscience in the Court, 1931–1946: Religion as Duty and Choice

Conscience in the Court, 1931-1946: Religion as Duty and Choice JEFFREY M. ANDERSON That the moral duty to obey the law should be given precedence over all other moral duty is something that the majority judges read into the Constitution. The Con­ stitution says nothing about it, so it can only be imputed to the Constitution because the judges think that that is the way a good citizen should behave. Frederick Green, 19311 The theological-political problem2—the conflict of loyalties to God and state—arises in various manifestations. It arises when peo­ ple of faith engage in political action on issues ranging from abortion and most-favored-na­ tion status to homelessness and foreign aid. Historic controversies concerning Indian re­ moval, slavery, and temperance revealed ten­ sions between the demands of religious con­ victions and the duties of political citizenship. The theological-political problem seems to be highlighted during wartime, when the govern­ ment calls upon its citizens to take up arms in military conflict. Throughout American his­ tory, Congress and the courts have considered the unique difficulty posed by religious objec­ tion to military service. The same basic difficulty has been pre­ sented in naturalization cases, because federal law requires applicants for citizenship to dem­ onstrate their allegiance to the state and their commitment to its preservation. An applicant for citizenship must demonstrate that he “has been and still is a person of good moral char­ acter, attached to the principles of the Consti­ tution of the United States, and well disposed to the good order and happiness of the United States.”3 Further, he must take an oath of alle­ giance, swearing, in part, “to bear arms on be­ half of the United States when required by the law.”4 Since 1952, the statute has provided certain exemptions from this particular re­ quirement for bona fide religious objectors.5 Thus, the law remains to this day concerned with the theological-political problem in the naturalization context. 26 JOURNAL OF SUPREME COURT HISTORY Consider a recent case. In 1992, a fed­ eral district court in Tennessee denied the cit­ izenship petition of Mahmoud Kassas, a Syr­ ian man, on the ground that he was not “attached to the principles of the Constitu­ tion.”6 This conclusion followed from Kassas’ unwillingness to swear in advance that he would personally bear arms in any fu­ ture wars. Kassas was a Muslim, and the court found that “he thought he would be condemned to hell” if he killed, or was killed by, another Muslim.7 The Government ar­ gued, and the court agreed, that Kassas could not avail himself of the religious-objector ex­ emptions, because he was opposed to only some wars.8 Under an earlier Supreme Court ruling, such selective opposition to military activity is insufficient to warrant exemption from the oath.9 The court in this case confronted a prob­ lem basic to politics for centuries: Someone has to decide what exactly belongs to Caesar. However, the manner in which American courts approach this problem has changed during the course of the twentieth century. In the years leading up to the outbreak of World War II, the Supreme Court decided a series of naturalization cases involving applicants for citizenship who had refused to swear that they would take up arms personally in any future war.10 The question presented in those cases was whether such applicants could be “at­ tached to the principles of the Constitution” as required by the federal naturalization stat­ ute.11 In three cases between 1929 and 1931, the Court held that such applicants were not so attached, and it denied their petitions for citizenship.12 Two of these applicants argued that their religious convictions forbade their making blanket assurances that they would bear arms personally in any and all wars in which the United States might engage in the future. Douglas Macintosh was a Baptist preacher who served as a chaplain in World War I. Marie Bland was the daughter of an Episcopa­ lian priest who herself had served as a nurse TWO PACIFISTS WIN RICHTTOCITIZENSHIP Dr. Macintosh and Miss Bland, War Nurse, Win Reversal of Citizenship Ban. BOTH CANADIAN VETERANS Appeals...

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