Imposition of Consequences for Holding Certain Beliefs.

Despite the Cantwell dictum that freedom of belief is absolute,587 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.588 It is not clear what precise limitations the Court has placed on these practices.

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.”589 On appeal, this decision was affirmed by an equally divided Court, its being impossible to determine whether this issue was one treated by the Justices.590 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,591 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 that Congress could prevent.592 Dissenting, Justice Frankfurter thought the provision too vague,593 Justice Jackson thought that Congress could impose no disqualification upon anyone for an opinion or belief that had not manifested itself in any overt act,594 and Justice Black thought that government had no power to penalize beliefs in any way.595 Finally, in Konigsberg v. State Bar of California,596 a majority of the Court supported 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.597 Four Justices endorsed the view that beliefs could not be inquired into as a basis for determining qualifications for admission to the bar;598 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.599 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.600 Changes in Court personnel following this decision would seem to leave the questions presented open to further litigation.

Footnotes

587
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). back
588
The issue has also arisen in the context of criminal sentencing. Evidence that racial hatred was a motivation for a crime may be taken into account, Barclay v. Florida, 463 U.S. 939, 949 (1983); 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), but evidence of the defendant’s membership in a racist group is inadmissible where race was not a factor and no connection had been established between the defendant’s crime and the group’s objectives. Dawson v. Delaware, 503 U.S. 159 (1992). See also United States v. Abel, 469 U.S. 45 (1984) (defense witness could be impeached by evidence that both witness and defendant belonged to group whose members were sworn to lie on each other’s behalf). back
589
Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950). The premise of the decision was that government employment is a privilege rather than a right and that access thereto may be conditioned as the government pleases. But this basis, as the Court has said, “has been thoroughly undermined in the ensuing years.” Board of Regents v. Roth, 408 U.S. 564, 571 n.9 (1972). For the vitiation of the right-privilege distinction, see “Government as Employer: Free Speech Generally,” infra. back
590
Bailey v. Richardson, 341 U.S. 918 (1951). See also Washington v. McGrath, 341 U.S. 923 (1951), aff ’g by an equally divided Court, 182 F.2d 375 (D.C. Cir. 1950). Although no opinions were written in these cases, several Justices expressed themselves on the issues in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951), decided the same day. back
591
339 U.S. 382 (1950). In a later case raising the same point, the Court was again equally divided. Osman v. Douds, 339 U.S. 846 (1950). back
592
339 U.S. at 408–09, 412. back
593
339 U.S. at 415. back
594
339 U.S. at 422. back
595
339 U.S. at 445. back
596
336 U.S. 36, 51–52 (1961). See also In re Anastaplo, 336 U.S. 82, 89 (1961). Justice Black, joined by Justice Douglas and Chief Justice Warren, dissented on the ground that the refusal to admit the two to the state bars was impermissibly based upon their beliefs. Id. at 56, 97. back
597
Baird v. State Bar of Arizona, 401 U.S. 1 (1971); In re Stolar, 401 U.S. 23 (1971); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971). back
598
401 U.S. at 5–8; 401 U.S. at 28–29 (plurality opinions of Justices Black, Douglas, Brennan, and Marshall in Baird and Stolar, respectively); 401 U.S. at 174–76, 178–80 (Justices Black and Douglas dissenting in Wadmond), 186–90 (Justices Marshall and Brennan dissenting in Wadmond). back
599
401 U.S. at 17–19, 21–22 (Justices Blackmun, Harlan, and White, and Chief Justice Burger dissenting in Baird). back
600
401 U.S. at 9–10; 401 U.S. at 31 (Justice Stewart concurring in Baird and Stolar, respectively). How far Justice Stewart would permit government to go is not made clear by his majority opinion in Wadmond. 401 U.S. at 161–66. back