B-139985, JUL. 29, 1959

B-139985: Jul 29, 1959

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THE "OATH OF OFFICE" IS THAT WHICH IS REQUIRED UNDER THE PROVISIONS OF 5 U.S.C. 16. DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES. THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME. THAT I WILL WELL AND FAITHFULLY DISCHARGE THE DUTIES OF THE OFFICE ON WHICH I AM ABOUT TO ENTER. SO HELP ME GOD.'" THE EXECUTION OF A VALID OATH OF OFFICE GENERALLY IS A CONDITION PRECEDENT TO THE PAYMENT OF COMPENSATION. GROSS WAS ERRONEOUS. THAT HIS "EXPLANATORY DECLARATION" OF RELIGIOUS FAITH IS NOT REGARDED AS A "MENTAL RESERVATION" WITHIN THE MEANING OF THAT PHRASE AS CONTAINED IN 5 U.S.C. 16. NOR SUCH AS WOULD PRECLUDE HIS EMPLOYMENT BECAUSE SUCH STATEMENT IS NOW REGARDED AS MERELY EXPLANATORY OF HIS RELIGIOUS BELIEFS.

B-139985, JUL. 29, 1959

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

ON JUNE 18, 1959, THE ACTING SECRETARY REQUESTED OUR DECISION WHETHER, IN THE CIRCUMSTANCES OUTLINED BELOW, THE "EXPLANATORY DECLARATION" SUBMITTED BY DR. ROBERT E. GROSS OF SYRACUSE, NEW YORK, WOULD BE CONSIDERED BY OUR OFFICE TO BE A "MENTAL RESERVATION" AND SO INVALIDATE THE OATH OF OFFICE HE SIGNED ON MARCH 4, 1959, AS TO REQUIRE US TO OBJECT TO PAYMENT OF COMPENSATION TO DR. GROSS. THE MATTER CONCERNS THE CIVIL OFFICER APPOINTMENT AFFIDAVITS, STANDARD FORM 61A, WHICH DR. GROSS EXECUTED INCIDENT TO THE OFFER TO HIM OF AN APPOINTMENT AS A RESERVE OFFICER IN THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE. THE "OATH OF OFFICE" IS THAT WHICH IS REQUIRED UNDER THE PROVISIONS OF 5 U.S.C. 16.

DR. GROSS EXECUTED THE AFFIDAVITS FORM BUT ATTACHED THERETO HIS "EXPLANATORY DECLARATION," AS FOLLOWS:

"IN TAKING THIS OATH I MAKE NO MENTAL RESERVATION. I AM A MEMBER OF THE REFORMED PRESBYTERIAN CHURCH OF NORTH AMERICA, AND I DECLARE THAT I OWE A SUPREME ALLEGIANCE TO THE LORD JESUS CHRIST, AND IN MAKING THAT DECLARATION I TAKE THE SAME GOD AS MY WITNESS, INVOKING HIS ASSISTANCE TO HELP ME RENDER DUE OBEDIENCE TO MY COUNTRY IN ALL TEMPORAL MATTERS.

"AND I DO FURTHER DECLARE THAT I DO NOT NOW KNOW ANY MATTER IN WHICH I INTEND ACTUAL DISOBEDIENCE TO ANY COMMAND OF MY COUNTRY NOW KNOWN TO ME.'

SECTION 16, TITLE 5, U.S. CODE, PROVIDES THAT THE OATH OF OFFICE TO BE TAKEN BY ANY PERSON APPOINTED TO ANY OFFICE OF HONOR OR PROFIT EITHER IN THE CIVIL, MILITARY, OR NAVAL SERVICE, EXCEPT THE PRESIDENT OF THE UNITED STATES, SHALL BE AS FOLLOWS:

" "I, A B, DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF EVASION; AND THAT I WILL WELL AND FAITHFULLY DISCHARGE THE DUTIES OF THE OFFICE ON WHICH I AM ABOUT TO ENTER. SO HELP ME GOD.'"

THE EXECUTION OF A VALID OATH OF OFFICE GENERALLY IS A CONDITION PRECEDENT TO THE PAYMENT OF COMPENSATION. SEE 21 COMP. GEN. 817.

THE PUBLIC HEALTH SERVICE ADVISED DR. GROSS THAT AS HE HAD SIGNED THE OATH OF OFFICE FORM AS BEING SUBJECT TO HIS PERSONAL INTERPRETATION OR RELIGIOUS CONVICTIONS HE HAD NOT COMPLIED WITH ONE OF THE CONDITIONS FOR APPOINTMENT AS A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE RESERVE CORPS. AFTER RECONSIDERATION, HOWEVER, THE ACTING SECRETARY SAYS YOUR DEPARTMENT NOW BELIEVES THE ADMINISTRATIVE ACTION IN DENYING EMPLOYMENT TO DR. GROSS WAS ERRONEOUS, AND THAT HIS "EXPLANATORY DECLARATION" OF RELIGIOUS FAITH IS NOT REGARDED AS A "MENTAL RESERVATION" WITHIN THE MEANING OF THAT PHRASE AS CONTAINED IN 5 U.S.C. 16; NOR SUCH AS WOULD PRECLUDE HIS EMPLOYMENT BECAUSE SUCH STATEMENT IS NOW REGARDED AS MERELY EXPLANATORY OF HIS RELIGIOUS BELIEFS.

IN SUPPORT OF THE PROPOSITION, THAT THE ABOVE "EXPLANATORY DECLARATION" DOES NOT INVALIDATE THE OATH OF OFFICE, A PAMPHLET--- EVIDENTLY PREPARED BY THE COMMITTEE ON THE OATH, REFORMED PRESBYTERIAN CHURCH OF NORTH AMERICA--- IS ENCLOSED WITH THE ACTING SECRETARY'S LETTER WHICH EXPOUNDS SOMEWHAT THE CONCLUSION THE SUPREME COURT REACHED IN GIROUARD V. UNITED STATES, 328 U.S. 61; OVERRULING UNITED STATES V. SCHWIMMER, UNITED STATES V. MACINTOSH, AND UNITED STATES V. BLAND, 279 U.S. 644, 283 ID. 605 AND 636, RESPECTIVELY. THE GIROUARD CASE SPECIFICALLY CONCERNED THE PROVISIONS OF SECTION 335 OF THE NATIONALITY ACT OF 1940, 54 STAT. 1137, 1157, 8 U.S.C. 735 (B) (1946 EDITION). THAT ACT REQUIRED IN NATURALIZATION PROCEEDINGS AN OATH OF ALLEGIANCE, AS FOLLOWS:

"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.'

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT, IN PERTINENT PART, AS FOLLOWS:

"* * * ONE MAY SERVE HIS COUNTRY FAITHFULLY AND DEVOTEDLY, THOUGH HIS RELIGIOUS SCRUPLES MAKE IT IMPOSSIBLE FOR HIM TO SHOULDER A RIFLE. DEVOTION TO ONE'S COUNTRY CAN BE AS REAL AND AS ENDURING AMONG NON COMBATANTS AS AMONG COMBATANTS. ONE MAY ADHERE TO WHAT HE DEEMS TO BE HIS OBLIGATION TO GOD AND YET ASSUME ALL MILITARY RISKS TO SECURE VICTORY. THE EFFORT OF WAR IS INDIVISIBLE; AND THOSE WHOSE RELIGIOUS SCRUPLES PREVENT THEM FROM KILLING ARE NO LESS PATRIOTS THAN THOSE WHOSE SPECIAL TRAITS OR HANDICAPS RESULT IN THEIR ASSIGNMENT TO DUTIES FAR BEHIND THE FIGHTING FRONT. EACH IS MAKING THE UTMOST CONTRIBUTION ACCORDING TO HIS CAPACITY. THE FACT THAT HIS RULE MAY BE LIMITED BY RELIGIOUS CONVICTIONS RATHER THAN BY PHYSICAL CHARACTERISTICS HAS NO NECESSARY BEARING ON HIS ATTACHMENT TO HIS COUNTRY OR ON HIS WILLINGNESS TO SUPPORT AND DEFEND IT TO HIS UTMOST.

"PETITIONER'S RELIGIOUS SCRUPLES WOULD NOT DISQUALIFY HIM FROM BECOMING A MEMBER OF CONGRESS OR HOLDING OTHER PUBLIC OFFICES. WHILE ARTICLE VI, CLAUSE 3 OF THE CONSTITUTION PROVIDES THAT SUCH OFFICIALS, BOTH OF THE UNITED STATES AND THE SEVERAL STATES,"SHALL BE BOUND BY OATH OR AFFIRMATION, TO SUPPORT THIS CONSTITUTION," IT SIGNIFICANTLY ADDS THAT "NO RELIGIOUS TEST SHALL EVER BE REQUIRED AS A QUALIFICATION TO ANY OFFICE OR PUBLIC TRUST UNDER THE UNITED STATES.' THE OATH REQUIRED IS IN NO MATERIAL RESPECT DIFFERENT FROM THAT PRESCRIBED FOR ALIENS UNDER THE NATIONALITY ACT. IT HAS LONG CONTAINED THE PROVISION "THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF EVASION . . .' R.S. SEC. 1757, 5 U.S.C. SEC. 16. AS MR. CHIEF JUSTICE HUGHES STATED IN HIS DISSENT IN THE MACINTOSH CASE (283 U.S. P. 631),"THE HISTORY OF THE STRUGGLE FOR RELIGIOUS LIBERTY, THE LARGE NUMBER OF CITIZENS OF OUR COUNTRY, FROM THE VERY BEGINNING, WHO HAVE BEEN UNWILLING TO SACRIFICE THEIR RELIGIOUS CONVICTIONS, AND IN PARTICULAR, THOSE WHO HAVE BEEN CONSCIENTIOUSLY OPPOSED TO WAR AND WHO WOULD NOT YIELD WHAT THEY SINCERELY BELIEVED TO BE THEIR ALLEGIANCE TO THE WILL OF GOD"--- THESE CONSIDERATIONS MAKE IT IMPOSSIBLE TO CONCLUDE "THAT SUCH PERSONS ARE TO BE DEEMED DISQUALIFIED FOR PUBLIC OFFICE IN THIS COUNTRY BECAUSE OF THE REQUIREMENT OF THE OATH WHICH MUST BE TAKEN BEFORE THEY ENTER UPON THEIR DUTIES.'

"MR. JUSTICE HOLMES STATES IN THE SCHWIMMER CASE (279 U.S. PP. 654 55): "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. I THINK THAT WE SHOULD ADHERE TO THAT PRINCIPLE WITH REGARD TO ADMISSION INTO, AS WELL AS TO LIFE WITHIN THIS COUNTRY.' THE STRUGGLE FOR RELIGIOUS LIBERTY HAS THROUGH THE CENTURIES BEEN AN EFFORT TO ACCOMMODATE THE DEMANDS OF THE STATE TO THE CONSCIENCE OF THE INDIVIDUAL. THE VICTORY FOR FREEDOM OF THOUGHT RECORDED IN OUR BILL OF RIGHTS RECOGNIZES THAT IN THE DOMAIN OF CONSCIENCE THERE IS A MORAL POWER HIGHER THAN THE STATE. THROUGHOUT THE AGES, MEN HAVE SUFFERED DEATH RATHER THAN SUBORDINATE THEIR ALLEGIANCE TO GOD TO THE AUTHORITY OF THE STATE. FREEDOM OF RELIGION GUARANTEED BY THE FIRST AMENDMENT IS THE PRODUCT OF THAT STRUGGLE. AS WE RECENTLY STATED IN UNITED STATES V. BALLARD, 322 U.S. 78, 86,"FREEDOM OF THOUGHT, WHICH INCLUDES FREEDOM OF RELIGIOUS BELIEF, IS BASIC IN A SOCIETY OF FREE MEN. BOARD OF EDUCATION V. BARNETTE, 319 U.S. 624.' THE TEST OATH IS ABHORRENT TO OUR TRADITION. OVER THE YEARS, CONGRESS HAS METICULOUSLY RESPECTED THAT TRADITION AND EVEN IN TIME OF HAS SOUGHT TO ACCOMMODATE THE MILITARY REQUIREMENTS TO THE RELIGIOUS SCRUPLES OF THE INDIVIDUAL. WE DO NOT BELIEVE THAT CONGRESS INTENDED TO REVERSE THAT POLICY WHEN IT CAME TO DRAFT THE NATURALIZATION OATH. SUCH AN ABRUPT AND RADICAL DEPARTURE FROM OUR TRADITIONS SHOULD NOT BE IMPLIED. SEE SCHNEIDERMAN V. UNITED STATES, 320 U.S. 118, 132. COGENT EVIDENCE WOULD BE NECESSARY TO CONVINCE US THAT CONGRESS TOOK THAT COURSE.

"WE CONCLUDE THAT THE SCHWIMMER, MACINTOSH AND BLAND CASES DO NOT STATE THE CORRECT RULE OF .'

THAT VIEW OF THE SUPREME COURT IS PROPERLY FOR CONSIDERATION IN CONSTRUING THE SAME LANGUAGE, NAMELY,"THAT I TAKE THIS OBLIGATION FREELY WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF EVASION," WHICH IS CONTAINED IN 5 U.S.C. 16 AND STANDARD FORM 61A. IN THAT CONNECTION WE CONCUR IN YOUR DEPARTMENT'S VIEW THAT THE "EXPLANATORY DECLARATION" IN QUESTION MERELY REPRESENTS THE RELIGIOUS BELIEF OF DR. GROSS, AND DOES NOT NEGATIVE HIS PRECEDING COMMITMENT TO SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES AND TO BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME. HENCE, THE ATTACHMENT OF SUCH DECLARATION TO HIS OATH OF OFFICE IS NOT REGARDED BY US AS A ,MENTAL RESERVATION" WITHIN THE MEANING OF 5 U.S.C. 16.

IN LIGHT OF THE ABOVE DISCUSSION AND THE HOLDING BY THE SUPREME COURT, WE CONCUR IN THE CONCLUSION STATED IN THE ACTING SECRETARY'S LETTER. HENCE, WE WOULD NOT OBJECT TO OTHERWISE PROPER PAYMENT OF COMPENSATION TO DR. GROSS UPON HIS APPOINTMENT AND THE TAKING OF THE OATH ACCOMPANIED BY THE REFERRED-TO "EXPLANATORY DECLARATION.'