CRS Annotated Constitution
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Freedom of Belief
The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as one chooses.169 “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”170 Speaking in the context of religious freedom, the Court at one point said that while the freedom to act on one’s beliefs could be limited, the freedom to believe what one will “is absolute.”171 But matters are not so simple.
Flag Salute Cases.—That government generally may not compel a person to affirm a belief is the principle of the second Flag Salute Case.172 In Minersville School District v. Gobitis,173 the Court upheld the power of the State to expel from its schools certain children, Jehovah’s Witnesses, who refused upon religious grounds to join in a flag salute ceremony and recitation of the pledge of allegiance. “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”174 But three years later, a six–to–three majority of the Court reversed itself.175 Justice Jackson for[p.1054]
the Court chose to ignore the religious argument and to ground the decision upon freedom of speech. The state policy, he said, constituted “a compulsion of students to declare a belief. . . . It requires the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks.”176 But the power of a State to follow a policy that “requires affirmation of a belief and an attitude of mind” is limited by the First Amendment, which, under the standard then prevailing, required the State to prove that the act of the students in remaining passive during the ritual “creates a clear and present danger that would justify an effort even to muffle expression.”177
However, the principle of Barnette does not extend so far as to bar government from requiring of its employees or of persons seeking professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the Constitution, that the taker of the oath will uphold and defend the Constitution.178 It is not at all clear, however, to what degree the government is limited in probing the sincerity of the person taking the oath.179
Imposition of Consequences for Holding Certain Beliefs.—Despite the Cantwell dictum that freedom of belief is absolute,180 government has been permitted to inquire into the holding of certain beliefs and to impose consequences on the believers, primarily with regard to its own employees and to licensing certain professions.181 It is not clear what precise limitations the Court has placed on these practices.[p.1055]
In its disposition of one of the first cases concerning the federal loyalty security program, the Court of Appeals for the District of Columbia asserted broadly that “so far as the Constitution is concerned there is no prohibition against dismissal of Government employees because of their political beliefs, activities or affiliations.”182 On appeal, this decision was affirmed by an equally divided Court, it being impossible to determine whether this issue was one treated by the Justices.183 Thereafter, the Court dealt with the loyalty–security program in several narrow decisions not confronting the issue of denial or termination of employment because of beliefs or “beliefs plus.” But the same issue was also before the Court in related fields. In American Communications Ass’n v. Douds,184 the Court was again evenly divided over a requirement that, in order for a union to have access to the NLRB, each of its officers must file an affidavit that he neither believed in, nor belonged to an organization that believed in, the overthrow of government by force or by illegal means. Chief Justice Vinson thought the requirement reasonable because it did not prevent anyone from believing what he chose but only prevented certain people from being officers of unions, and because Congress could reasonably conclude that a person with such beliefs was likely to engage in political strikes and other conduct which Congress could prevent.185 Dissenting, Justice Frankfurter thought the provision too vague,186 Justice Jackson thought that Congress could impose no disqualification upon anyone for an opinion or belief which had not manifested itself in any overt act,187 and Justice Black thought that government had no power to penalize beliefs in any way.188 Fi[p.1056]nally, in Konigsberg v. State Bar of California,189 a majority of the Court was found supporting dictum in Justice Harlan’s opinion in which he justified some inquiry into beliefs, saying that “[i]t would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country’s legal and political institutions.”
When the same issue returned to the Court years later, three five–to–four decisions left the principles involved unclear.190 Four Justices endorsed the view that beliefs could not be inquired into as a basis for determining qualifications for admission to the bar;191 four Justices endorsed the view that while mere beliefs might not be sufficient grounds to debar one from admission, the States were not precluded from inquiring into them for purposes of determining whether one was prepared to advocate violent overthrow of the government and to act on his beliefs.192 The decisive vote in each case was cast by a single Justice who would not permit denial of admission based on beliefs alone but would permit inquiry into those beliefs to an unspecified extent for purposes of determining that the required oath to uphold and defend the Constitution could be taken in good faith.193 Changes in Court personnel following this decision would seem to leave the questions presented open to further litigation.
Supplement: [P. 1054, add to n.177:]
The First Amendment does not preclude the Government from “compel[ling] financial contributions that are used to fund advertising,” provided such contributions do not finance “political or ideological” views. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471, 472 (1997) (upholding Secretary of Agriculture’s marketing orders that assessed fruit producers to cover the expenses of generic advertising of California fruit). Nor does the First Amendment preclude a public university from charging its students an activity fee that is used to support student organizations that engage in extracurricular speech, provided the money is allocated to those groups by use of viewpoint–neutral criteria. Board of Regents of the Univ. of Wisconsin System v. Southworth, 120S. Ct. 1346 (2000) (upholding fee except to the extent a student referendum substituted majority determinations for viewpoint neutrality in allocating funds).
Supplement: [P. 1054, add to n.181 following citation to Barclay v. Florida:]
Wisconsin v. Mitchell, 508 U.S. 476 (1993) (criminal sentence may be enhanced because the defendant intentionally selected his victim on account of the victim’s race),
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