Pacifists and Naturalization

Federal law, as codified in the Naturalization Act of 1952, exempts pacifist applicants for Citizenship from pledging to bear arms on behalf of the United States if their conscientious objection to war is based upon ‘‘religious training and belief.’’ The present statute was enacted after a lengthy political and legal struggle by pacifists to obtain exemption from earlier statutes which omitted any specific dispensation for conscientious objectors.

The Naturalization Act of 1906 required an applicant for Citizenship to declare under oath that he or she would ‘‘support and defend the Constitution and laws of the United States against all enemies, foreign and domestic ...’’ During the First World War, the Naturalization Service began to ask all applicants for Citizenship whether they were willing, if necessary, ‘‘to take up arms’’ in defense of the nation.

The constitutionality of these measures was first challenged in a lawsuit by Rosika Schwimmer, a Hungarian refugee who was a pacifist activist and former Hungarian ambassador to Switzerland. In her application for naturalization, Schwimmer stated that she could not in good conscience take up arms to defend the United States, although she was willing to take the oath of allegiance. In his opinion for the Court in Schwimmer v. United States, 279 U.S. 644 (1929), Justice Pierce Butler explained that ‘‘it is the duty of citizens by force of arms to defend our government against all enemies whenever necessity arises’’ and that ‘‘[w]hatever 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.’’

In a pungent dissent, Justice Oliver Wendell Holmes pointed out that Schwimmer, a fifty-twoyear- old woman, ‘‘would not be allowed to bear arms if she wanted to’’ and that she did not subscribe to subversive political views. Although Holmes acknowledged that some of Schwimmer’s opinions ‘‘might excite popular prejudice,’’ he declared that ‘‘if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.’’ Holmes also observed that pacifists had made significant contributions to the nation and expressed bemusement over the expulsion of persons who ‘‘believed more than some of us do in the teachings of the Sermon on the Mount.’’

The Court reaffirmed its decision in Schwimmer two years later in five-to-four decisions in United States v. Bland, 283 U.S. 636 (1931), and United States v. Macintosh, 283 U.S. 605 (1931). In those cases, the Court upheld the denial of naturalization to Canadians who were willing to bear arms for national defense only if they felt that a war was morally justified. Emphasizing that naturalization is a privilege rather than a right, Justice George W. Sutherland’s opinion explained that the petitioners had failed to meet their burden of demonstrating that the naturalization permitted any exception for pacifists. Treating the issue primarily as a question of statutory interpretation, Sutherland gave short shrift to claims of religious liberty. The nation, he wrote, had a right to temper religious freedom with its ‘‘duty to survive.’’

These decisions were at odds with the Court’s general tendency during this period to demonstrate solicitude for the civil liberties of those who were not political radicals because neither petitioner lacked patriotism or presented any apparent threat to the political order. Douglas Clyde Macintosh, a Baptist minister and professor of theology at Yale, had made wartime speeches in favor of the Allies, and Marie Bland, a devout Anglican, had nursed American soldiers in France during World War I.

The Court’s opinion in Macintosh inspired what was perhaps the most impassioned dissent written by Charles Evans Hughes during his eleven years as chief justice. Perhaps recalling the steadfast moral principles of another Baptist minister, his father, Hughes argued for a statutory exception that would protect religious liberty. In his dissent, joined by Justices Holmes, Brandeis, and Stone, Justice Hughes pointed out that Congress had made exemptions for conscientious objectors in selective service statutes, and he observed that there were ‘‘other and most important methods of defense, even in time of war, apart from the personal bearing of arms’’ that would satisfy the statutory requirement of support for the Constitution against its foes. Emphasizing that liberty of conscience was central to religious liberty, Hughes found no evidence that Congress had intended to depart from its long-standing policy of ‘‘avoiding unnecessary clashes with the dictates of conscience.’’ In discussing the importance of religious liberty, Hughes declared that the ‘‘essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.’’

MacIntosh provoked considerable criticism. In avowed defiance of it, an Ohio county judge in 1933 granted Citizenship to a pacifist in a ruling that won widespread acclaim. Despite these protests, Congress re-enacted the 1906 naturalization act in 1940 without making specific exemptions for conscientious objectors. Hughes’s dissent became the law, however, when the Court overruled its three earlier decisions in Girouard v. United States, 328 U.S. 61 (1946). In that case, the Court held that the U.S. Court ofAppeals had improperly denied naturalization to James Girouard, a Seventh-Day Adventist who had stated in his application for naturalization that he would not be willing to bear arms to defend the United States. Although Girouard contended that combatant military duty would violate his religious scruples, he had not claimed exemption from all military service, and he was willing to take the requisite oath of allegiance.

In a decision by Justice William O. Douglas, the Court ruled that neither the text nor the legislative history of the 1940 naturalization statute indicated that Congress intended to preclude the Citizenship of persons whose religious scruples prevented them from promising to bear arms in the nation’s defense. The Court pointed out that the naturalization oath did not specifically require that naturalization applicants promise to bear arms and that the bearing of arms was not the only manner in which a naturalized person could fulfill the oath to defend the nation against its enemies. The Court explained that ‘‘those whose religious scruples prevent them from killing are no less patriots than those whose specific traits or handicaps result in their assignment to duties far behind the fighting front.’’

Pointing out that Congress had traditionally attempted to accommodate the rights of conscientious objectors, Douglas also declared that the First Amendment’s guarantee of religious freedom was the product of age-old struggles in which ‘‘men have suffered death rather than subordinate their allegiance to God to the authority of the State.’’ In dissent, Justice Stone argued that Congress intended to prevent the naturalization of aliens who refused to promise to bear arms because Congress had failed to make exemptions for conscientious objectors after the Court, in its previous decisions, had found no such exemption.

Although the Court in Girouard based its decision on statutory interpretation, the Court suggested that the statute would violate the First Amendment’s guarantee of religious freedom if it denied naturalization to persons who refused for religious reasons to bear arms. Girouard was consistent with other decisions of the same period in which the Court was expanding the scope of the First Amendment’s religion clauses. In 1952, Congress eliminated the ambiguity of the earlier statutes by making clear that conscientious objectors are not required to pledge that they will bear arms. The statute (Title 8, Section 1448, of the United States Code) presently provides that a conscientious objector who can prove ‘‘by clear and convincing evidence ... that he is opposed to the bearing of arms in the Armed Forces ... by reason of religious training and belief ’’ is not required to take the oath required of other applicants ‘‘to bear arms on behalf of the United States when required by the law.’’

Such a person is required only to swear that he or she would be willing to perform noncombatant duty in the armed forces or ‘‘to perform work of national importance under civilian direction when required by the law.’’ The statute states that the phrase ‘‘religious training and belief ’’ means ‘‘an individual’s belief in relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.’’ PACIFISTS AND NATURALIZATION

The limitation of the statute’s exemptions to conscientious objection based upon religious belief remains controversial, particularly because the statute’s exemption does not appear to embrace all forms of religious objections to war. In a 1992 decision, for example, a federal court denied naturalization to a Syrian Muslim, Mahmoud Kassas, who declared that he would not participate in any war against fellow Muslims. The court based its decision upon the Supreme Court’s decision in Gillette v. United States, 401 U.S. 437 (1971), in which the Court held that persons who had religiously based objections to the Vietnam War, rather than war in general, were not exempt from military service under the Selective Service Act’s exemption for persons whose objections to war were based on ‘‘religious training and belief.’’

WILLIAM G. ROSS

References and Further Reading

• Anderson, Jeffrey M., Conscience in the Court, 1931–1946: Religion as Duty and Choice, Journal of Supreme Court History 26 (2001): 1:25–52.
• Flowers, Ronald B. To Defend the Constitution: Religion, Conscientious Objection, Naturalization, and the Supreme Court. Lanham, MD: Scarecrow Press, 2003.

Cases and Statutes Cited

• Gillette v. United States, 401 U.S. 437 (1971)
• Girouard v. United States, 328 U.S. 61 (1946)
• Petition for Naturalization of Mahmoud Kassas, 788 F.Supp. 993 (M.D.Tenn. 1992)
• United States v. Bland, 283 U.S. 636 (1931)
• United States v. Macintosh, 283 U.S. 605 (1931)
• United States v. Schwimmer, 279 U.S. 644 (1929)
• 8 U.S.C. sec. 1448 (2000)