See the previous post for the first in this series.

All that is in red below is from the United States Supreme Court (“SCOTUS”).  This case was the culmination of a series of challenges brought by alleged communists in the 1950-1970 era that broke down the walls keeping them out of the state bars.

It is ironic.  At our nation’s founding one could not hold office or testify in court without belief in the Almighty.  It is widely held that such beleif was necessary to become an attorney in any of the first 48 states as the time of their birth.

We were a moral and religious people.  Were.

By 1971 one could be an atheist advocating the overthrow of the United States Constitution by violence and force and, if willing to stand mute when asked your views, become an attorney.  And from there … well the sky is the limit in America.   Maybe even the POTUS.

The red font is the ever so elite and sophisticated SCOTUS releasing  Marxist hounds upon America.  Blue font are highlights that are quite pertinent to issues now being handled by the ArchAngel Institute.  Comments in {brackets} and italic black font are food for thought for our December 8 banquet.  If you enjoy this series then you will love our banquet.  Here are instructions if you wish to join us at table and help advance the thoughts and actions of  The ArchAngel Institute. We welcome all persons of good will who are concerned about perserving our constitutional order and our Christian heritage (not necesarily in that order).

Baird v. State Bar of Arizona, 401 U.S. 1 (1971)

MR. JUSTICE BLACK announced the judgment of the Court and delivered an opinion in which MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join.  {i.e. the far left side of the aisle at that time}

This is one of two cases now before us from two different States in which applicants have been denied admission to practice law solely because they refused to answer questions about their personal beliefs or their affiliations with organizations that advocate certain ideas about government. Sharp conflicts and close divisions have arisen in this Court concerning the power of  States to refuse to permit applicants to practice law in cases where bar examiners have been suspicious about applicants’ loyalties and their views on Communism and revolution. This has been an increasingly divisive and bitter issue for some years, especially since Senator Joseph McCarthy from Wisconsin stirred up anti-Communist feelings and fears by his “investigations” in the early 1950’s.  {Few SCOTUS decisions are this openly political.}

One applicant named Raphael Konigsberg was denied admission in California, and this Court reversed. Konigsberg v. State Bar, 353 U. S. 252 (1957). The State nevertheless denied him admission a second time, and this Court then affirmed by a 5-to-4 decision. 366 U. S. 366 U.S. 36 (1961). An applicant named Rudolph Schware was denied admission in New Mexico, and this Court reversed, with five Justices agreeing on one opinion, three Justices on another opinion, and one not participating. Schware v. Board of Bar Examiners, 353 U. S. 232 (1957). In another case, an applicant named George Anastaplo was denied admission in Illinois on grounds similar to those involved in Konigsberg and Schware, and the denial was affirmed by a 5-to-4 margin. In re Anastaplo, 366 U. S. 82 (1961). See also In re Summers, 325 U. S. 561 (1945). With sharp divisions in this Court, our docket and those of the Courts of Appeals have been filled for years with litigation involving inquisitions about beliefs and associations and refusals to let people practice law and hold public or even private jobs solely because public authorities have been suspicious of their ideas. Usually these denials of employment have not been based on any overt acts of misconduct or lawlessness, and the litigation has continued to raise serious questions of alleged violations of the First Amendment and other guarantees of the Bill of Rights.  {i.e., due process and equal protection under the 14th Amendment and possibly privacy under the 9th, since this is the far left writing}

The foregoing cases and others contain thousands of pages of confusing formulas, refined reasonings, and puzzling holdings that touch on the same suspicions and fears about citizenship and loyalty. However we have concluded the best way to handle this case is to narrate its simple facts and then relate them to the 45 words that make up the First Amendment.

These are the facts.

The petitioner, Sara Baird, [**facts of her good academic record and citizenship excerpted**]  was asked to state whether she had ever been a member of the Communist Party or any organization “that advocates overthrow of the United States Government by force or violence.” When she refused to answer this question, the Committee declined to process her application further or recommend her admission to the bar. The Arizona Supreme Court then denied her petition for an order to the Committee to show cause why she should not be admitted to practice law. We granted certiorari. 394 U.S. 957.

***

That [45 word] Amendment, made applicable to the States by the Fourteenth, forbids any

“law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble. . . .”

Mr. Justice Roberts, in referring to the First Amendment’s guarantee of freedom of religion, said:

“Thus, the Amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.”

Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303-304 (1940).

See also Schneider v. State, 308 U. S. 147, 308 U. S. 160-161 (1939); West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 642 (1943). And we have made it clear that:

“This conjunction of liberties is not peculiar to religious activity and institutions alone. The First Amendment gives freedom of mind the same security as freedom of conscience.”

Thomas v. Collins, 323 U. S. 516, 323 U. S. 531 (1945). The protection of the First Amendment also extends to the right of association. As we said in Schneider v. Smith, 390 U. S. 17, 390 U. S. 25 (1968):

“The First Amendment’s ban against Congress ‘abridging’ freedom of speech, the right peaceably to assemble and to petition, and the ‘associational freedom’ . . . that goes with those rights create a preserve where the views of the individual are made inviolate.”

See also Shelton v. Tucker, 364 U. S. 479, 364 U. S. 485-487 (1960); Bates v. Little Rock, 361 U. S. 516 (1960); NAACP v. Alabama, 357 U. S. 449 (1958).

The First Amendment’s protection of association prohibits a State from excluding a person from a profession or punishing him solely because he is a member of a particular political organization or because he holds certain beliefs. United Statesv. Robel, 389 U. S. 258, 389 U. S. 266 (1967); Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 607 (1967). Similarly, when a State attempts to make inquiries about a person’s beliefs or associations, its power is limited by the First Amendment. Broad and sweeping state inquiries into these protected areas, as Arizona has engaged in here, discourage citizens from exercising rights protected by the Constitution. Shelton v. Tucker, supra; Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 (1963); Cf. Speiser v. Randall, 357 U. S. 513 (1958).

When a State seeks to inquire about an individual’s beliefs and associations, a heavy burden lies upon it to show that the inquiry is necessary to protect a legitimate state interest. Gibson v. Florida Legislative Investigation Committee, supra, at 372 U. S. 546. Of course, Arizona has a legitimate interest in determining whether petitioner has the qualities of character and the professional competence requisite to the practice of law. But, here, petitioner has already supplied the Committee with extensive personal and professional information to assist its determination. By her answers to questions other than No. 25, and her listing of former employers, law school professors, and other references, she has made available to the Committee the information relevant to her fitness to practice law.  And whatever justification may be offered, a State may not inquire about a man’s views or associations solely for the purpose of withholding a right or benefit because of what he believes.

Much has been written about the application of the First Amendment to cases where penalties have been imposed on people because of their beliefs. Some of what has been written is reconcilable with what we have said here, and some of it is not. Without detailed reference to all prior cases, it is sufficient to say we hold that views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law. Clearly Arizona has engaged in such questioning here.

The practice of law is not a matter of grace, but of right for one who is qualified by his learning and his moral character. See Schware v. Board of Bar Examiners, supra, and Ex parte Garland, 4 Wall. 333 (1867). This record is wholly barren of one word, sentence, or paragraph that tends to show this lady is not morally and professionally fit to serve honorably and well as a member of the legal profession. It was error not to process her application and not to admit her to the Arizona Bar. The judgment of the Arizona Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

{And so Ms. Baird became an attorney in the State of Arizona without ever having to discuss her alleged communist views about the violent overthrow of our constitutional order.}

Given this ruling, can one be refused admission for being a pro-life Christian who affirms what the Church has taught about its role in judging man’s law since the days of the Roman Coliseum?

If you reflexively say “no” then you need to come to our December 8 banquet. If you sadly answer “yes” they you are reading the Zeitgeist correctly, friend. Come to our banquet to hear more about the chilly, early winds of a potentially new Kristallnacht that are blowing through our social order.

This entry was posted on Sunday, December 6th, 2009 at 9:59 am and is filed under December 8 banquet, Raising the bar. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.