UNITED STATES v. GIROUARD, 149 F.2d 760

MAHONEY, Circuit Judge. The question here is whether a conscientious. objector who is willing to serve as a noncombatant in the armed forces of the United States but unwilling to bear arms in its defense may be admitted to citizenship. The appellee was born in Canada in 1902 and came to this country in 1923. In his declaration of intention to become a citizen of the United States, which he filed in the District Court at Boston on August 8, 1940, he described himself as an engineer with residence at Stoneham, Massachusetts, where he lives with his wife and daughter.

He stated on the preliminary form of petition for naturalization that he understood the principles of the government of the United States, believed in its form of government and was willing to take the oath of allegiance in the following form: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I take this obligation freely without any mental reservation or purpose of evasion: So Help Me God.” His answer to the question “If necessary, are you willing to take up arms in defense of this country?” was “No (non combatant) Seventh Day Adventist”.

He is of good moral character, well disposed to the good order and happiness of the United States and is not affiliated with any organization opposed to organized government. In a sworn statement before the Acting Naturalization Examiner on March 9, 1943, he stated that it was a purely religious matter with him, and in a questionnaire filed with Local Draft Board No. 161 he claimed exemption from combatant or non-combatant military service as a conscientious objector.

At a hearing before the District Court all this evidence was submitted together with the testimony of the appellee that he was a member of the Seventh Day Adventist sect. He said that there were about ten thousand of this sect serving in the armed forces of the United States as noncombatants, especially in the medical corps, and that he was willing to serve in the army as a non-combatant but would not bear arms.

The court admitted him to citizenship and entered the following order: “That since the Selective Service and Training Act permits, as a matter of right, an applicant for the draft to express a willingness to serve in the armed forces of the United States, but as a non-combatant, then this petitioner by exercising that right is still a person who can take an unqualified oath of allegiance to the United States, and is therefore eligible to citizenship.” We think that the lower court was in error.

Naturalization is a privilege which is offered to apy alien who desires to become a citizen, but it is a privilege subject to conditions which have been prescribed by Congress and with which the petitioner for citizenship must strictly comply. Congress is empowered by the Constitution to provide for the naturalization of aliens and the fact that it has always thought that naturalization is to be granted only after great care and consideration is evidenced by an examination of the strict requirements which it has declared the petitioner must meet.

Among the conditions which he must fulfill and the obligations which he must undertake are those contained in the oath of allegiance which he takes before being admitted to citizenship. The Supreme Court has interpreted that oath to mean that the petitioner is willing to bear arms in defense of this country and unless he takes an oath so interpreted the petition is to be dismissed and the privilege of citizenship denied. In United States v. Schwimmer, 1929, 279 U.S. 644, 651, 49 S.Ct. 448, 450, 73 L.Ed. 889, the applicant for citizenship was a woman born in Hungary.

Her preliminary examination showed that she was an uncompromising pacifist with no sense of nationalism, “only a cosmic consciousness of belonging to thr human family.” She was a linguist, lectur er and writer, well educated and accustomec to discuss government and civic affairs. She was opposed to undemocratic institutions and wanted to become a citizen of a country whose principles were in harmony with her ideals but was not willing to take up arms in its defense.

The Court in reversing the Circuit Court of Appeals and affirming the District Court, which had denied her petition, said: “That it is the duty of citizens by force of arms to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution. “Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country’s defense detracts from the strength and safety of the government.

And their opinions and beliefs as well as their behavior indicating a disposition to hinder in the performance of that duty are subjects of inquiry under the statutory provisions governing naturalization and are of vital importance, for if all or a large number of citizens oppose such defense the ‘good order and happiness’ of the United States cannot long endure. And it is evident that the views of applicants for naturalization in respect of such matters may not be disregarded.

The influence of conscientious objectors against the use of military force in defense of the principles of our government is apt to be more detrimental than their mere refusal to bear arms. The fact that, by reason of sex, age or other cause, they may be unfit to serve does not lessen their purpose or power to influence others.” The case of United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 573, 75 L.Ed. 1302, followed in 1931. There the petitioner for naturalization came to this country from Canada. He was a Baptist minister and a member of the faculty of the Divinity School at Yale University.

In the first World War he was a chaplain with the Canadian Army and served with the American Y. M. C. A. He stated that he was willing to take the prescribed oath but that he was not willing to take up arms unless he believed that the war was morally justified; that his first allegiance was to the will of God; and that “he could not put allegiance to the government of any country before allegiance to the will of God.” Here, too, the Supreme Court reversed the Circuit Court of Appeals and affirmed the District Court’s action in dismissing the petition.

It held: “ * * * The conscientious objector is relieved from the obligation to bear arms in obedience to no constitutional provision, express or implied; but because, and only because, it has accorded with the policy of Congress thus to relieve him. The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native-born (Luria v. United States, 231 U.S. 9, 22, 34 S.Ct. 10, 58 L.Ed. 101); but he acquires no more.

The privilege of the native-born conscientious objector to avoid bearing arms comes, not from the Constitution, but from the acts of Congress. That tody may grant or withhold the exemption as in its wisdom it sees fit; and, if' it be withheld, the native-born conscientious objector cannot successfully assert the privilege.

No other conclusion is compatible with the well-nigh limitless extent of the war powers as above illustrated, which include, by necessary implication, the power, in the last extremity, to compel the armed service of any citizen in the land, without regard to his objections or his views in respect of the justice or morality of the particular war or of war in general. * * * “When he speaks of putting his allegiance to the will of God above his allegiance to the government, it is evident, in the light of his entire statement, that he means to make his own

interpretation of the will of God the decisive test which shall conclude the government and stay its hand. We are a Christian people (Holy Trinity Church v. United States, 143 U.S. 457, 470, 471, 12 S.Ct. 511, 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 Constitution contemplates war as well as peace; whose government 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, as well those made for war as those made for peace, are not inconsistent with the will of God.” United States v. Bland, 1931, 283 U.S. 636, 51 S.Ct. 569, 570, 75 L.Ed. 1319 was decided at the same time as the Macintosh case.

There the applicant for citizenship was a native of Canada who had served this country as a nurse in the first World War. She refused to bear arms in defense of the United States under any circumstances and was unwilling to take the oath unless the words “as far as my conscience as a Christian will allow” were written into it. Again the Supreme Court reversed the Circuit Court of Appeals and sustained the District Court’s dismissal of the application.

It rendered its decision in accordance with the opinion in the Macintosh case and said that “The words of the statute do not admit of the qualification upon which the applicant insists.” It is true that these decisions were by a divided court but until they are overruled by the court itself or Congress enacts legislation which gives to the oath a meaning contrary to the

interpretation placed upon it by the court, we are bound to accept the law as promulgated by these decisions. The facts in the instant case bring it square]y within the principles of these cases. The District Court, however, took the view that any person subject to the draft who by reason of religious training or belief is conscientiously opposed to war may state his willingness to serve in the armed forces but as a non-combatant under § 5(

g) of the Selective Training and Service Act of 1940, 54 Stat. 887, '50 U.S.C.A.Appendix, §§ 301 et seq., 305(g), and is entitled to take the oath. But the permission given to a conscientious objector, alien as well as citizen, to express his willingness to serve in the armed forces of the United States as a non-combatant, does not mean that the applicant for citizenship is not required to take an oath to bear arms in defense of this country.

The naturalization laws make certain requirements of the applicant for citizenship and the consideration given to him as a draftee under the Selective Training and Service Act does not lessen those requirements. When Congress passed the Nationality Act of 1940, 54-Stat. 1137, 8 U.S.C.A. § 501 et seq., it reenacted the same oath of allegiance and did not change in any way the

interpretation placed upon it by the Supreme Court. However, by an amendment to that Act in 1942, 56 Stat. 182, 183, 8 U.S.C.A. §§ 1001, 1004, it excused “any person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war” and who has been lawfully admitted to the United States, from filing a declaration of intention, and from the residence and educational requirements. No change" was made in the oath of allegiance.

It was also stated that the provisions of the amendment shall not apply to “any conscientious objector who performed no military duty whatever or refused to wear the uniform.”' In In re Kinloch, D.C., 53 F.Supp. 521, two British subjects applied for citizenship. They were classified as conscientious objectors for non-combatant service. At the time of their applications they were members of a medical unit of the army. The court granted their applications and admitted them to citizenship.

It reasoned that by Congressional enactment it was provided that these and similarly situated applicants were entitled to citizenship by virtue of becoming members of the armed forces of the United States. It stated that to require them to take an oath which means that they are willing to bear arms would destroy the purpose of the amendment and make it meaningless. Since the appellee has not served in the armed forces he is definitely denied the benefits of this amendment.

But it is urged that the amendment has inferentially changed the meaning of the oath of allegiance as promulgated in the Schwimmer, Macintosh and Bland cases and any conscientious objector may become a citizen by taking an oath which does not mean that he is wiling to bear arms-. Congress, we think, in passing this amendment, intended to reward the conscientious objectors who had served or were serving in the armed forces by allowing them to take an oath which did not conflict with their religious scruples.

It has passed no legislation expressly changing the meaning as interpreted by the Supreme Court, and we do not believe that it intended to extend this reward beyond this particular group. We do not think that it meant to give the benefit of such an inferential change in the meaning of the oath of allegiance to any alien conscientious objector who like the appellee here has not served and is not serving in the armed forces, or to conscientious objectors opposed to participate in non-combatant service who have been assigned to work of national importance under civilian direction.

Since the petitioner is not willing to bear arms in defense of the United States, his petition must be denied. The order of the District Court is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.