First Unitarian Church for Los Angeles v. County of Los Angeles

PETITIONER:First Unitarian Church for Los Angeles
RESPONDENT:County of Los Angeles et al.
LOCATION:First Unitarian Church of Los Angeles

DOCKET NO.: 382
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: Supreme Court of California

CITATION: 357 US 545 (1958)
ARGUED: Apr 08, 1958
DECIDED: Jun 30, 1958
GRANTED: Oct 21, 1957

ADVOCATES:
A. L. Wirin – for the petitioners
Gordon Boller – for the respondents

Facts of the case

These are two consolidated cases concerning property tax exemption under the California Constitution and California Revenue and Taxation Code (CRTC) for real property and buildings used solely for religious worship. The California Constitution requires denial of tax exemption to any person or organization who advocates the overthrow of the U.S. Government or the State of California by violent or unlawful means. To enforce this, a provision of the CRTC requires those applying for tax exemption to sign an oath declaring that they do not engage in that prohibited activity.

In both cases, the Los Angeles assessor denied tax exemption because the churches refused to agree to the oath. The churches paid their taxes under protest and sued the County of Los Angeles for a refund. The churches argued that requiring them to agree to the oath violated the U.S. Constitution. In 382, the trial court upheld the oath and the Supreme Court of California affirmed. In 385, the court upheld the oath under the U.S. Constitution, but held that it violated the California Constitution because it excluded householders from the requirement. The Supreme Court of California reversed.

Question

Do the CRTC and California Constitution provisions requiring those applying for tax exemption to agree to an oath promising not to overthrow the government by violent means violate the First or Fourteenth Amendments?

A. L. Wirin:

— of the court is at page 35, the dissents are at page 57.

Did they deal with both the statute and the constitutional provision?

They did both, yes they did.

Now these petitioners are not the only persons or churches in California who felt themselves unable to sign the oath, there are two cases pending before Your Honors, in the form of an appeal in which this Court has not acted upon the appeal, they are on behalf of the First Methodist Church of San Leandro and the First Unitarian Church of Berkeley.

First Methodist Church of San Leandro as appears from the record in this Court, in that case deemed that Methodist discipline prevented it.

If it were to comply with Methodist discipline from complying with this requirement, the first — these two churches with leave of this Court have filed briefs amici, as has the Philadelphia yearly meeting of the Religious Society of Friends in Southern California.

The Orange Grove yearly meeting took the position that this requirement violated its conscience and its commitment to Christ and therefore that it was unable to comply with this requirement.

Now in a word, the nub of the argument which I shall present is something like this, that the requirements, particularly again the statutory requirements, open due process because unreasonable and arbitrary and more particularly those, I’m still stating the summary of my argument, that on the one hand there is no support for the legislation or the constitutional amendment in any real need or any real danger existing in California warranting this or similar legislation on the one hand.

And on the other, the requirements are so broad and sweeping, affecting thousands, hundreds of thousands more than a million persons in California, are so broad and sweeping on the one hand and so deep and offensive and intrusion into privacy and into the privacy of the spirit and the mind of man, so that a balancing of any real concern for national security of California on the one hand and off the sweeping inroads on the other by this legislation would require this Court, assuming this Court were to adopt and follow the narrowest kind of jurisdiction which it could take, assuming this Court to exercise its jurisdiction most reluctantly in view of the fact that was involved here as state legislation, as distinguished from federal legislation in giving the states the widest reasonable scope for authority in dealing with so difficult a problem as national security, assuming all these — that this legislation opens federal due process.

Felix Frankfurter:

I take your argument narrow point first.

A. L. Wirin:

Indeed, and so I proceed to do so.

Hugo L. Black:

And you eliminate due process (Inaudible)

A. L. Wirin:

We are raising questions of equal protection in our briefs.

I have been taking about the thrust of my oral argument.

Your Honors need not reach the problem of equal protection if you are — if you agree favorably to the petitioners on the narrower of issue of due process, so let me proceed to address myself to that problem.

I say to Your Honors first quickly and then I hope to demonstrate it, that there is no substantive base, there is no support in any real evil, or to borrow a phrase from one of the justices of this Court, there is no solid threat to any security in California warranting this legislation.

Felix Frankfurter:

Well I thought your second point was (Inaudible)

A. L. Wirin:

No Your Honor I must say —

Felix Frankfurter:

Then what is the narrow point?

A. L. Wirin:

Well the narrow point is that I’m arguing a due process point essentially as distinguished from the broader points of equal protection or even the broader point of religious liberty that I shall mention it, or even the broader point of freedom of speech.

I thought that due process is a comparatively narrow approach before this Court.

May I proceed Your Honor to develop it?

Felix Frankfurter:

(Inaudible)

A. L. Wirin:

I intent to Your Honor, but — I intend to.

Felix Frankfurter:

(Inaudible)

A. L. Wirin:

I intend to — I hope that my argument before it is concluded will impress Your Honor as a narrow nonetheless, so I shall proceed.

I suggest to Your Honor that there is no showing in this record and that no claim can be made by the respondent of any solid threat to the security of the nation or to security of California, which would support this kind of legislation.

The first question to ask is, what is the purpose of the legislation and here I shall advert to the arguments for the constitutional amendment and we shall see to it at these are filed within 24 or more hours from now in sufficient quantities for the justices of the Court, in urging the support of a proposal which became the constitutional amendment, it was urged, there is no valid reason why such exemptions should be allowed communists and the like.

So far as the voters of California was concerned, this — the constitutional amendment was designed to deal with the problem of communists and the like.

This contention or this position is supported by the majority of the court below which in the record at page 52 explained this legislation and these provisions and said this was California’s, and I quote “Endeavor to protect itself from subversive infiltration.”

A. L. Wirin:

Now of course I suppose when a court or a person these days talks about subversive infiltration he’s talking about the infiltration of communists.

Now I say to Your Honors that there are no facts, supporting the assumption that communists have infiltrated into the institutions of California that are entitled to tax exemption, and that this is not only not posit on fact but is pure fancy.

In the argument to the voters Your Honors, no claim was made that there were any communists who had infiltrated into the various institutions that under California law are entitled to exemption as for example charitable organizations, churches or cemetery.

Charles E. Whittaker:

(Inaudible)

A. L. Wirin:

Veterans are also entitled to exemptions and I should — I’m glad Your Honor asked that.

There is no claim so far as the argument is concerned that any of the agencies or persons that are entitled in the California law have been subject to infiltration for communist, as far as any of them are concerned.

Charles E. Whittaker:

(Inaudible)

A. L. Wirin:

The list is brought, there are many other persons entitled to exemption one of them is veterans and other are veterans of growing crops, householders are entitled to exemption, income tax payers are entitled to some exemption.

Now — but what I am saying is that there is no claim in the argument that any of the persons or organizations, no matter how many they maybe that are entitled to tax exemptions had been victimized or subjected to infiltration by communists.

On the contrary, no such claim was made in the legislature which adopted this legislation.

No single judge in any of the proceedings in the California courts suggested that there was any basis for any such claim.

On the contrary, the dissenters of the Court affirmatively stated and I refer to the record at page 60, there is no evidence that plaintiff church or any of the organizations seeking tax exemption, this is the second new paragraph, and the second sentence in the second new paragraph on page 60, there is no evidence that plaintiff church or any of the organizations seeking tax exemptions are infiltrated by communists or other disloyal persons or that they are in any danger of such infiltration, the evidence is all to the contrary.

This solemn statement by three of the seven justices was not disputed again say by the majority of the Court, on the contrary in the record at 56, the majority of the Court implicitly accepts this statement and appraisal after it — page 56 after the majority of the court recognizes the integrity and the morality of the principles of the petitioners.

It goes on to say, I’m reading from the first new paragraph, the sentence in the middle of the page, it is inconceivable that any organization actuated by the doctrine of pronouncements there declared, namely by the Unitarians would knowingly harbor within itself any person or group of persons who would engage in the subversive activities referred to.

As a matter of fact Your Honors, nowhere throughout the proceedings in the courts below and not even in the brief filed by the respondent in this case, has there been any suggestion that this legislation is needed, because of any claim that communists had infiltrated institutions that are ordinarily entitled to tax exemptions as the basis for support of this legislation.

Indeed the California legislature made no findings at any time of any danger to the institutions from communists and this is in marked contradistinction as we point out in our brief, that when California legislature was dealing with the problem of subversives in education, public education and in government, it affirmatively made elaborate findings with respect to such infiltration and such dangers, similar to the findings made by the legislature of New York in the case which was before this Court in Adler.

This case does not have findings by the legislature comparable to the findings or comments made by committees of the Congress with respect to the old declaration which was involved in the Douds case.

And the reason no findings were made and no suggestions that this danger exists in California is because there is no basis in fact for such a claim, because this claim is pure fancy.

Now I have talked thus far solely with respect to the first half of the requirement which every tax payer must avow about.

There are two halves, and they are in the conjunctive and no one may receive a tax exemption in California, unless he otherwise is entitled to it, unless he or the organization involved avows in the conjunctive or avows negatively in the disjunctive that the person or organization advocates — it doesn’t advocate the destruction of government by violence and so forth, nor advocates the support of a foreign government against the United States in the event of hostilities.

Hugo L. Black:

(Inaudible)

A. L. Wirin:

It isn’t clear, in this instance the oath was taken by an officer of a corporate body of the Unitarian Church.

Since it’s a corporation presumably an officer of the corporation could do so.

Hugo L. Black:

(Inaudible)

A. L. Wirin:

In this particular instance the church, the Unitarian Church being a congregational group and being subject to democratic procedures there was a vote by the congregation and then the church through an officer made its protest and indicated it was unwilling to take the oath.

Now I turn to the — excuse me.

Hugo L. Black:

(Inaudible)

A. L. Wirin:

There is none.

Hugo L. Black:

(Inaudible)

A. L. Wirin:

There is no provision of law, what the churches have done is for some official of the church, of the church body to — church that had signed, had done so through an official of the church body, the churches that have not signed had made their protest through an officer of the church body.

Felix Frankfurter:

(Inaudible) respective numbers of those who signed or not signed, are they?

A. L. Wirin:

Yes.

May I answer that a little bit later or I may — I intend to and I certainly shall.

Felix Frankfurter:

Not very relevant in —

A. L. Wirin:

Well I think it is and I’ll try to give Your Honor some figures in a moment.

I however want to say a word now with respect to the second half of the requirement, the one pertaining to support hostilities and so on.

Now in the first page Your Honors will note that in this provision there is nothing about the State of California.

This deals with the problem of foreign relations and what maybe advocated in California as a condition of getting tax exemption in peace time in the event of hostility, but passing that, here is a provision, new in the statute books, throughout the current cold war, which we hope is not as cold as it was some years ago, no other state in the union saw the need of adopting any such provision.

Now here again there are no findings by the California legislature, there is no suggestion by any judge in California, there is no claim by our opponents that this legislation has support in the actual advocacy by churches, by anyone in California anywhere during the last decade or more or ever in the history of California since we became a state in the union, there is no suggestion, the natural fact any person in California has actually advocated the doctrine which is set forth in this legislation.

I have called it a peacetime sedition statute, that’s what it is.

The Congress of the United States has seen no need of adopting legislation comparable to this so long as we are at peace.

Despite the numerous and thorough going investigations conducted by congressional committees and federal executive agencies, no one has suggested that anywhere in United States is there any danger from persons or organizations with the churches or otherwise preaching this doctrine which is the subject matter of the second half.

Now I’m making that argument merely to demonstrate to the Court again that certainly with respect to this completely novel provision, Californians were seeing things which no one else in the nation saw.

Felix Frankfurter:

(Inaudible)

A. L. Wirin:

It would not be, and we are proud of some of our pioneering, but not —

Felix Frankfurter:

I just wonder why you spend so much time about the newness of a statute.

A. L. Wirin:

Well, I am spending time about the newness of the statute, in order to make the argument that there is no real warrant for it and in order to make the point which I shall do so now, that while this Court has had before it, requirements involving avowals or belief or of advocacy, that’s for instance is the Douds case.

This Court supported the requirement of the Douds case because this Court found that here were present excesses from direct active conduct based upon findings or statements by the Congress that communists had infiltrated trade unions and were constituting an immediate and serious menace to the security of the nation.

And I’m making the argument Your Honor because I think prominent inference can be drawn by this Court, that whether new or old, this legislation has no reasons which are exigent or obviously compelling to warrant its constitutional support.

Hugo L. Black:

(Inaudible)

A. L. Wirin:

I certainly can say that it’s a new type of statute so far as the requirement of an oath pertaining to non-advocacy and —

Hugo L. Black:

(Inaudible)

A. L. Wirin:

Well, I do say Your Honor that so far as the requirement of a note is concerned of disavowal of advocacy, there has never been in the history of this nation any such requirement.

Hugo L. Black:

Now you’re limiting it I can understand that.

A. L. Wirin:

Well —

Hugo L. Black:

Maybe a new type of oath?

A. L. Wirin:

Yes it’s a new type of oath.

Hugo L. Black:

You mean in this country or new type of oath in the world.

A. L. Wirin:

Well I mean essentially in this country, I am not too conversant with the type of oaths required in Hitler’s Germany and I’m sure none of us would be proud of them.

Hugo L. Black:

You have quoted in your brief the old (Inaudible).

A. L. Wirin:

Oh, I understand Your Honor’s point, and I may make reference to it.

I was referring to this country Your Honor, and in this country, to my knowledge certainly in recent years, no such oath was required.

Now it is true and we refer to it in our brief particularly in an appendix in our brief that this type of oath was not unknown in Great Britain.

And that the classic test oath although essentially dealing with other problems and dealing essentially with religious problems rather than with political ones, Your Honor’s will find in the second appendix to our brief, Appendix B a reference to some of the classic oaths in Great Britain, particularly the Jacobean oath, which had provisions with respect to the use or advocacy — the use of violence, which had provisions pertaining to support all the foreign power and — by the (Inaudible) was concerned referring to the Pope.

Your Honor will find those references particularly on page 8 and page 9, page 6 and 8 and 9 of the appendix to our brief.

Felix Frankfurter:

The point of this argument is not that it’s a new one but it’s (Inaudible).

A. L. Wirin:

Your Honor, that is not quite my point because I don’t think in this country we ever adopted the worst of the test oath in Great Britain, so my point is that it never belong —

Felix Frankfurter:

(Inaudible)

A. L. Wirin:

Yes, yes.

Felix Frankfurter:

At the time of the separation from the mother country?

A. L. Wirin:

Yes.

Now if there is substance to my argument that in California there is no support, no solid support for this legislation, I move on to the second half of my argument that the method which the legislature of California resorted to in dealing with any problem, assuming a problem really existed, is so sweeping in its effect as to become unconstitutional under narrow due process requirement.

Let us look for a moment though I had said that major thrust of my argument will be with respect to the legislation.

Let us look for a moment at the constitutional amendment itself.

So far as that amendment is concerned in practice in California, it applies to every — to virtually every adult person in California because every adult person in California, they indicated in their answer to Mr. Justice Brendan is entitled to some kind of an exemption whether by way of the income tax or householder.

And therefore so far as the constitutional amendment is concerned, it applies to — well the population of California is something like 14 million, if we talk only about the adult population, it applies perhaps to some 10 million.

So far as the faith of the requirement is concerned, it is the most sweeping, that any I know of, but when we turn to the legislation, which requires oaths the number of course becomes considerably less.

We’ve indicated that the figures with respect to those who are subjected to this oath requirement in California include certainly over a million persons in California, for there are as we indicated in our brief, over a million veterans in California, who actually have secured exemption who have submitted to this oath.

And the figures further indicate there are a 11000 churches in California, there are more than 11000 churches in California, but 11000 churches have subscribed to this oath, I shall make some explanation about that perhaps later.

So you have it here a requirement, which so far as the constitutional amendment is concerned blankets the entire state and so far as the legislation is concerned involves a very substantial, a very large number.

You have a state income tax law in California?

A. L. Wirin:

We do Your Honor.

Does the state income tax law has this oath on it?

A. L. Wirin:

Yes it does.

It does, every income tax?

A. L. Wirin:

Every, every, every person except householders who seek an exemption have to take this oath.

Dependance exemption?

A. L. Wirin:

Yes.

Hugo L. Black:

What about school children?

Do they have to take it?

A. L. Wirin:

I don’t think we’ve reached that point yet Your Honor, but theoretically any person who has an income, in order to get the income tax exemption would have to subscribe to this oath.

Well now I suggest to Your Honor —

Felix Frankfurter:

Was that act covered (Inaudible) is it covered?

A. L. Wirin:

Yes it is covered in our brief.

This —

Felix Frankfurter:

(Inaudible) is the requirement of every person (Inaudible)

A. L. Wirin:

I think it is Your Honor.

Felix Frankfurter:

I am asking —

A. L. Wirin:

Well, I’m answering in this way.

I understand that the sweep of a regulation particularly one that involves opinion, that involves advocacy, that involves conscience, I want to say a word in a moment or two, that one of the considerations that this Court has in mind in balancing the need of national security on the one hand and whether the legislation is reasonable is whether it were narrowly drawn to meet a particular evil.

For instance in the Douds case, Your Honors talked about a hand full of persons who were affected, Your Honors used the phrase, “only a few are affected by this,” and therefore it seems to me that where a regulation is sweeping in its coverage and doesn’t affect a handful or a few, but involves more than a million persons, it is one of the considerations Your Honors will want to know about.

Felix Frankfurter:

(Inaudible) I thought the specific question before us was whether it’s true in order to obtain the (Inaudible), but I gather from you that that’s wrong and it’s not the question before the Court.

A. L. Wirin:

Not at all.

Your Honor is quite right.

The next cases involve the application, individual taxpayers, aren’t they, the cases that follow this.

A. L. Wirin:

Yes, but I’m in —

Felix Frankfurter:

Those are veterans.

A. L. Wirin:

Veterans.

But Your Honor I’m including for the churches —

Felix Frankfurter:

Asking for a licence (Inaudible)

A. L. Wirin:

But Your Honor —

Felix Frankfurter:

The specific question whether such requirement of an oath will be exacted from the church in order to claim the exemption that church properties have?

A. L. Wirin:

Your Honor is quite right, that’s the ultimate question for Your Honors to decide.

I’m making the argument that in arriving at that ultimate question, you may take into consideration the general sweep of this regulation as to what those offers are —

William J. Brennan, Jr.:

But that’s the general sweep of the constitutional provision, not so much of the particular statute under which this exemption is —

A. L. Wirin:

The figures which I gave to Your Honor of a million veterans, and the 11000 churches then another number that I don’t know apply to the legislation.

William J. Brennan, Jr.:

Well, so this legislation you have at your appendix A?

A. L. Wirin:

Precisely.

William J. Brennan, Jr.:

This deals with property tax, doesn’t it?

A. L. Wirin:

It deals —

William J. Brennan, Jr.:

Property tax, how do we get the income taxpayer oath into that?

Talks about claim, any exemption from any property tax (Inaudible)

Hugo L. Black:

That’s the statute, Section 32 —

A. L. Wirin:

Yes.

Hugo L. Black:

The constitutional provision is not to limit it, that’s where you can get to income tax argument, is it not, in the constitution?

A. L. Wirin:

My understanding is but I may have to view to my opponent for — to give the court enlightenment that those who pay income tax and those who make any declaration seeking any exemption are also required to sign this oath.

Let me reserve the right not to have answered your question as I certainly haven’t with a view of either answering it later or perhaps my colleague can help me out.

William J. Brennan, Jr.:

Well, in any event, as to this fact I gather both the veterans’ exemption as well as the exemption of the petitioners here is from property tax, isn’t it?

A. L. Wirin:

That is true.

William J. Brennan, Jr.:

As to both those classes at least the Section 32 is evolving.

A. L. Wirin:

And the figures there would certainly be something over a million because there are a million taxpayers (Inaudible).

Now let me address myself for a —

William O. Douglas:

You mean that the churches as a matter of constitutional right can get tax exemption?

A. L. Wirin:

No I don’t.

I don’t think that’s involved here.

I just claim that once tax exemption is granted, the persons who receive it must be treated fairly without imposing any unconstitutional limitations or conditions.

And that the requirement here is such an unconstitutional condition or limitation because it involves in avow with respect to the non-advocacy by the church and that leads me to deal with the narrow question —

Felix Frankfurter:

(Inaudible)

A. L. Wirin:

Let me spend a few more minutes taking about the particular constitutional problem and the particular position of the petitioners whom I represent.

Now they take the position that as churches, they have had the right from time immemorial and they still have that right, free from coercion, or restraint, or prohibition, or inhibition of any kind, no matter how direct or indirect, no matter how manifest or subtle from the state so far as the preaching of their doctrines are concerned.

And that these doctrines include particularly the right of churches to preach to their followers and to the world, the commands of God and the demands of morality.

And that requiring churches as a condition of securing this ancient and traditional and accredited tax exemption recognized by every state in the union, recognized and existing in California for over a century, that churches must be free not to preach whatever doctrine they may want, certainly not to engage in any conduct they may want without accountability to seizure but free from accountability to the State of California and to seizure prior to any advocacy as to what their principles and their religious doctrines are.

The churches are unwilling and unable particularly in the light of the history of test oaths to which I have made some reference, prior to advocacy to declare in advance as a condition of getting tax exemption as to what doctrines the churches will not advocate.

For of course once they do that, they can readily subject themselves to accountability to the state for the doctrines that they do advocate.

Now I don’t want to engage now in a long discussion about the metaphor used by this Court of separation of church and state, but certainly throughout our history, this Court has acknowledged that there are many situations when the state may not demand of a person or of an institution to avow prior to advocacy pertaining to the belief or the advocacy of the person or institution.

And so here we think that the requirement, particularly the oath requirement now, violates constitutional limitation because the effect of such a requirement is to make full freedom of expression on matters sacred and important to the community, a little bit the less likely if churches have to attest to their non advocacy as a condition of securing a tax exemption.

Let me make this suggestion to the Court as I sit down and reserve a few moments for reply.

On page 6 of our reply brief in the appendix, we have set forth a statement by the Northern California-Nevada Council of Churches with respect to this requirement, as we have on pages just previous to that by the American Baptist Association, the Methodist Discipline, the position of the American Unitarian Association, the position for instance on page 3 of some 600 Protestant ministers who are in the Southern California Council of Protestant Churches, which appears for instance at the footnote 5 on page 3.

And finally let me call Your Honors’ attention because I think it demonstrates the point that I’m urging, to the language of the Northern California-Nevada Council of Churches representing all of the Protestant Churches in Northern California and Nevada, I won’t read it but it is before Your Honors, in which that group states its vigorous castigation and opposition to communism, to Marxian communism, but nonetheless protests the loyalty oath requirement and yet calls attention to the fact that most of our churches have signed this oath because of the desperate need the churches have for the funds which are involved in a tax exemption.

Now I say to Your Honors —

Where is all this?

A. L. Wirin:

This is on page 6 of the reply brief which is a vanilla colored little brief, on page 6 of the appendix and I say to Your Honors that it is impossible to appraise either in a grocer’s scale or through a Geiger counter, the pulse upon the freedom of expression of opinion in California generally and particularly in the pulpits of California where opinion and doctrine must be free, when there is a requirement which compels churches despite opposition to attest to the doctrines which they do not advocate as a condition of securing tax exemption.

(Inaudible) California constitutionally withdraw tax exemptions from churches?

A. L. Wirin:

It could.

I don’t know whether they could from all churches, I think they could from all persons, I doubt whether very much whether it could discriminate against churches in the grant of exemption Your Honor.

All churches, I’m taking about (Inaudible) denominations.

Felix Frankfurter:

Mr. Wirin, is your answer that it couldn’t give exemption to everybody else except churches, is that what you understand?

A. L. Wirin:

That’s what I understand the question to be, if there was an effort to discriminate against churches, I think —

(Inaudible)

A. L. Wirin:

Then I answer your question — Your Honor’s questions by saying that it could, but my — I might state further that our view is that once privilege, a gratuity, like a right — like a public employment which is the privilege so far as (Inaudible) is granted and then the state may not take it away for unreasonable reasons or in an arbitrary manner.

And the point of my argument is that to require a statement particularly by churches of non advocacy is abusing —

Supposing this oath as you call it had been that the church does not advocate any conduct which should be a violation of the Smith Act, would that be all right or would that be bad?

A. L. Wirin:

I think Your Honor, if there were a constitutional amendment which provided that and barred churches from securing exemption if they advocated such conduct, it probably would be good, but on the other hand I would say if it requires a declaration under oath on the part of churches, in view of the doctrine of separation of church and state, in view of the insistence by churches not to be subject to the commands of seizure prior to advocacy, I think that would be bad.

Felix Frankfurter:

May I ask you a question.

A. L. Wirin:

Yes Your Honor.

Felix Frankfurter:

Suppose there was a statutue (Inaudible) statewide unlimited, unqualified (Inaudible) but without any discrimination to that, and the (Inaudible) or from a firm, I take it, no point in taking the (Inaudible) where the firm impels — is not engaged in (Inaudible) the government of United States (Inaudible) and does not knowingly belog to any organization permitted to entitle to oath (Inaudible).

A. L. Wirin:

I would say —

Felix Frankfurter:

Before you answer (Inaudible)

A. L. Wirin:

Yes, I would think that one of the considerations that may determine constitutionality is how sweep is that — how many persons —

Felix Frankfurter:

The whole state, every taxpayer.

A. L. Wirin:

My own answer to your question is that that would be too sweeping and too offensive, an intrusion into the opinions of the people of California to warrant any real danger to national security.

Felix Frankfurter:

You mean to say that California (Inaudible).

A. L. Wirin:

My own view is that that requirement would be too broad but I further hasten to suggest to Your honor that there are two provisions both in the conjunctives and that if Your Honors were to agree that the second provision is invalid, you will not need to determine the validity of the first provision, but I think would be required to reverse the judgment.

Felix Frankfurter:

You make no distinction between these terms (Inaudible) you make no distinction.

A. L. Wirin:

I do make some distinction.

Felix Frankfurter:

And what are they, the differences?

A. L. Wirin:

The distinction is that there you would have the statute which narrowly applies to expressions of opinions which are incitements and hence legitimately run afoul of, legitimately run afoul law whereas here you have —

Felix Frankfurter:

Do you think the legislator of California (Inaudible) possibly satisfy if I do digress —

A. L. Wirin:

Well, Your Honor I must say I certainly feel that legislation which California adopts must be based on the some real existing danger rather than just pure fancy.

Felix Frankfurter:

You don’t think Congress of the United States in every state has manifested in some way that there’s some (Inaudible), and California chooses to say, we would like everybody to swear that (Inaudible) everybody that it doesn’t have to (Inaudible)

A. L. Wirin:

If Your Honors —

Felix Frankfurter:

Do you think we have to (Inaudible)

A. L. Wirin:

Your Honors have used the scales all the time, you use it with discretion and subtly but Your Honor has participated in rulings where —

Felix Frankfurter:

But I’ve made a distinction (Inaudible) an oath like this, using words like other unlawful means under specific terms that I put to you.

I thought I have (Inaudible) on this subject in the Garner case (Inaudible) that’s all unimportant, because you want to get as broader decision as possible.

Gordon Boller:

If Your Honors please, may I run back over a little of the introductory legislative and constitutional procedure which my opponent has covered.

In California, constitutional amendment may be accomplished in one of two ways.

The constitution maybe amended only by popular vote, state wide vote of the people.

The measure to accomplish such amendment may initiate with the legislature or it may initiate by petition, initiative petition signed by the people.

The measure so prepared whether by the legislature or by initiative petition, is by the Secretary of State submitted to the people.

The measure is entitled, a title given to it and which is then put on the ballot which the people vote on by the legislative counsel, a legal advisory body set up with that as one of its duties.

Upon that submission the vote is taken and the amendment becomes effective according to that vote as of the date of the election.

Now here in California there’s a provision which has been in the constitution since 1900, which was then adopted as a constitutional amendment Article 13, Section one-and-a-half, this is the so-called church exemption provision.

It’s not a general provision for exemption of church property.

It is not a provision at all exempting church property as such.

It’s an exemption of property by reason of its use, an exemption of property used solely and exclusively for religious worship.

It is not an absolute and unconditional exemption.

It is conditioned on such use.

It is further conditioned on the property not being rented and rent received for the use by the owner.

Now this constitutional amendment of property used for religious worship continued in that form with minor extensions until 1952, the exemption of property as used for religious worship was extended to cover property which was intended for such use that is property which was in the course of construction.

It was extended to include as well as the building and the land whereon situate equipment of the church.

It was extended as well to include parking areas and parking lots, but that exemption of church property, not under that category but exemption of property used solely and exclusively for religious worship continued until 1952 when one of the measures called in question here was adopted by popular vote.

The people in 1952 by statewide election adopted the constitutional provision that notwithstanding any other provision of this constitution, no person or organization which advocates the overthrow of the government of the United States by force or violence or other unlawful means, or who advocates the support of the foreign government against the United States in the event of hostilities shall receive exemption from any tax imposed by this state or any county, city or county, district and so forth.

The legislature shall enact such laws as maybe necessary to enforce the provisions of this section.

At the next session in the 1953 session of the —

Are figures on the referendum in the record, what was the vote?

Gordon Boller:

They are not.

The vote was over two to one in favor of the adoption of that constitutional amendment.

What was the total vote, do you remember it?

Gordon Boller:

It was some four million — two million, hundred and nine thousand something for and a million something of the less than half against.

Gordon Boller:

The figures are not in the record I think.

It’s a matter of public record I suppose.

Gordon Boller:

It’s a matter of public record, I ascertained it, I think I have a note of it, I think —

Felix Frankfurter:

Do you think it would make a difference if it got in by just one vote?

Gordon Boller:

It would not make a bit of difference, so far as the validity.

I can give you those figures Your Honor, you’re asking them yes, the yes vote was 2,902,695.

The no vote was 1,359,970.

At the next session of the legislature, the legislature utilized the authority given to it and adopted as a provision of the Revenue and Taxation Code Section 32, any statement written or other document in which is claimed any exemption other than the householders’ exemption from any property tax imposed by this State County and so forth shall contain a declaration that the person or organization making the statement, return, or other document does not advocate the overthrow of the government of the United States or of the State of California by force or violence or other unlawful means nor advocate the support of a foreign government against the United States in the event of hostilities.

If any such statement returned or other document does not contain such declaration, the person or organization making such statement return or other document shall not receive any exemption from the tax to which the statement return or other document pertains.

This legislation is with regard to the property taxes —

William J. Brennan, Jr.:

Is there any legislation on the income tax?

Gordon Boller:

There is not, and the income tax form I signed one within the month, it does contain any declaration of this sort.

It has been applied only to the property tax situation.

William J. Brennan, Jr.:

And that includes (Inaudible) veterans exceptions and —

Gordon Boller:

That is right, that is right.

The veteran — the exemptions are setup in the constitution, there is an exemption of the property of colleges, the property of veterans, the property of welfare organizations.

They are constitutional provisions.

Well just so I get this correctly, Mr. Wirin has spoken of some them, did he?

Gordon Boller:

I think he did.

— this income tax.

Gordon Boller:

I think he did.

Now, there is inherent right to tax exemption.

Tax exemption constitutes a benefit accorded to some that is not accorded to others, this is a special privilege.

It constitutes unequal treatment.

It’s a benefit in favor to the party receiving the exemption.

Harold Burton:

The government may — if you are going to require (Inaudible) of some and not of others on condition of exemption, it has the same effect as though you’ve taxed some one rate and you taxed some another?

Gordon Boller:

I think so.

All exemption involves that situation.

If you tax one and do not tax another, it is unequal treatment.

Harold Burton:

You would tax for example (Inaudible) $100 on a unit and those (Inaudible) tax them $200 a unit.

Gordon Boller:

No, you would exempt the one who signed to the full and you would tax the one who did not sign.

Harold Burton:

It amounts to the same thing.

Gordon Boller:

Yes.

Harold Burton:

Different types of (Inaudible)

Gordon Boller:

That’s right and the question is for Your Honors whether this is a valid classification, and we submit that it is.

Now, I’ve just said that exemption from taxation constitutes unequal treatment, a benefit and a favor to some and what is the justification for that unequal treatment?

Exemptions are granted by the public, commonly granted found throughout the country.

Tax exemptions are justified on the ground of some compensating benefit to the public body which is granting it, which compensates for the loss of the revenue which would otherwise be received.

The exemptions, for example the exemption to religious organizations, and that’s what we’re concerned with here, is justified on the ground that the teachings and influences of religion make better citizens, and that the churches and it’s activities renders a benefit to the state and to the general public, whereby the state gets back in the benefit from personal conduct and private and public morality what it looses in money.

People perform public services that they otherwise would not perform, and refrain from public misconduct, that they otherwise would not refrain from.

The benefit is expected to be found in the church’s influence and work, and the result thereof in maintaining and raising the standards of civic and private virtue and the ideals and conduct in public and in private life.

If however the influence of the exemption recipient is inamicable to such results, and if it fails to forward such purpose, the justification for the exemption is gone and the exemption should be and may validly be withheld or withdrawn.

Felix Frankfurter:

What is the relation between the extra financial burden (Inaudible) the oath, what is the relation between that extra financial burden and the public’s interest (Inaudible)?

Gordon Boller:

There will be a discouragement to that institution of engaging in such activities, and the result of such discouragement should be a lessening of that activity which is of injury to the public and to the common good.

William O. Douglas:

What do you mean that activity?

Gordon Boller:

The activity — there are two specified advocacies, we are not talking —

William O. Douglas:

Is there evidence that this group is advocating?

Gordon Boller:

There is no evidence Your Honor, and I want to —

William O. Douglas:

That’s what misled me on when you said it would discourage this activity or that activity.

Gordon Boller:

The activities of the two specified advocacies, the constitution and the statute both attempt to discourage the advocacy of the overthrow of government by force or violence or other unlawful means, the advocacy of support of a foreign government against the United States in the event of hostilities.

Those are two advocacies which constitution and statute both oppose.

Now the organization which advocates as an inamicable, unfortunate, antisocial effect upon the community in which it operates —

William J. Brennan, Jr.:

Well let’s say you want to — the purpose of this is to eliminate that activity.

Gordon Boller:

That is right, to discourage it, to keep it to the minimum, to eliminate it if possible.

William J. Brennan, Jr.:

Well to eliminate it —

Gordon Boller:

Yes.

William J. Brennan, Jr.:

— to eliminate it, or to discourage something or to eliminate something —

Gordon Boller:

Well discourage the activity.

William J. Brennan, Jr.:

Yes, doesn’t something have to exist?

Gordon Boller:

Yes.

William J. Brennan, Jr.:

Where is the evidence that it does?

Gordon Boller:

There is no evidence that it does, and that is not in issue in the case Your Honor.

That is to say on the record here, there is no allegation that these petitioners do not advocate the forbidden types of advocacy.

William O. Douglas:

Is there evidence that the churches or some churches that churches in general are subversive units in society?

Gordon Boller:

Your Honor that is not an issue in the case.

The issue is narrowly drawn as to the validity of this constitutional and this statutory measure.

The allegations of the complaints in each of the cases —

William O. Douglas:

Going back to your question that your discouraging something, I wondered what was happening that was being discouraged?

What was happening in the churches that was being discouraged here?

Gordon Boller:

The people with the proposition before them appreciated the possibility of a situation as to every claimant of tax exemption, as to any claimant of tax exemption, and made the — and adopted the provision broadly, that anyone advocating the two proscribed types of advocacy should not receive —

William J. Brennan, Jr.:

But Mr. Boller —

Gordon Boller:

— the gratuity and benefit.

William J. Brennan, Jr.:

(Inaudible) at least to appear that for some reasonable relationship of this non-advocacy provision to the elimination of something?

Gordon Boller:

It seems to me Your Honor — it seems Your Honor that the situation was self evident to the people without a taking of a poll on it, without the need of getting data on it.

They were acting in a situation in which they lived and which going to polls they elected to move with regard to — they conceived that the effect would be to heighten the moral influence in the community and better the behavior of exemption recipients.

That it would diminish —

William J. Brennan, Jr.:

That is the behavior, well that complies with something to be bettered with it, what was to be bettered?

Gordon Boller:

It was advocacy of the type which they were voting on and which —

William J. Brennan, Jr.:

(Inaudible) again that there was some evidence?

Gordon Boller:

Yes, it’s common knowledge —

William O. Douglas:

In the churches of California?

Do we take notice of that or is there evidence —

Gordon Boller:

There is no evidence.

I was starting to say that the issue is not raised in the record for just the reason that the complaint was narrowly drawn to take objection to the validity of the constitutional provision in the statute.

William O. Douglas:

It comes up on demurrer.

Gordon Boller:

It came up on demurrer then.

There was no possibility of showing.

There was no possibility of finding, because naturally there was no possibility of evidence.

The question rose as a question of law on demurrer to the petitions in the two cases.

And the question before Your Honors is the question as to the validity, a constitutional and statutory provision of the sort of this — of these specific constitutional and statutory provisions.

Supposing this declaration had been that the church, the organization doesn’t believe in communism, your position would be any different?

Gordon Boller:

It would, it —

That’s all it says, officers of the church must sign a declaration that the organization, church organization doesn’t believe in communism.

Gordon Boller:

It would raise an essentially different question Your Honor.

That would go to the question, the religious freedom question, the freedom of belief and opinion.

What is aimed at here is no infringement on belief or opinion but on action, advocating the overthrow of government.

Your Honors have the distinction well in mind —

(Inaudible) say anything about action to the overthrow of government in the statute?

Gordon Boller:

Yes.

Where does it say that?

Gordon Boller:

Oh, advocate the overthrow.

You said action.

Gordon Boller:

Yes.

Action for overthrow?

Gordon Boller:

Advocate — I take in this use here means action, incitement just as —

That’s how you read them then?

Gordon Boller:

— as in the Dennis case and the Yates case, the distinction which Your Honors have in mind between incitement and action and mere holding of opinion or belief.

Do you think the declaration as to the statute has to be construed that way in order to sustain your in order —

Gordon Boller:

Yes.

— to sustain it.

Gordon Boller:

That’s the way we do construe it, yes, yes.

And we think that that is the construction which is justified that is the interpretation which was put up on it by the California Supreme Court.

Felix Frankfurter:

May I ask you where in the form of oath that is required that the client (Inaudible) whatever the words in this case because I wanted to know who it is, the question that Justice Black asked earlier.

I would like to know who it is, swear to what?

Gordon Boller:

The oath?

Felix Frankfurter:

Where it is?

Gordon Boller:

Yes, yes.

Felix Frankfurter:

(Inaudible) my eyes, where it is?

Gordon Boller:

The oath, I don’t know that the — it is not in our record as taken as quoting the affidavit attached to the application for exemption, but —

Felix Frankfurter:

Have you got another —

Gordon Boller:

But I’m telling you, but I’m telling you yes.

I’m telling Your Honor yes.

The language of the oath follows precisely.

Felix Frankfurter:

Before the language of the oath, an oath is taken by an animate, by someone person —

Gordon Boller:

Oh yes.

Felix Frankfurter:

Or someone in person for somebody else.

Now who would be the affiant?

Gordon Boller:

The affiant would be the secretary, the President or some other officer of the corporation.

Felix Frankfurter:

What would he swear to?

Gordon Boller:

He would swear that the applicant for exemption, claim being made in the name of the church that the applicant for exemption did not advocate the overthrow of the government of the United States by force, violence or other —

Felix Frankfurter:

Could you tell me approximately what the membership if it would be membership, I am still informed in these matter, on the First Unitarian Church of Los Angeles, what is the — what is the — who constitutes that congregation?

Gordon Boller:

It’s a large — it’s a large organization.

Felix Frankfurter:

(Inaudible) of what, 500 or 5000?

Gordon Boller:

I don’t know Mr. Wirin can tell you.

A. L. Wirin:

About a 1000.

Felix Frankfurter:

A 1000?

Gordon Boller:

Yes.

Felix Frankfurter:

Now who can speak for the views of that collectivity called the First Unitarian Church —

Gordon Boller:

As Wirin stated in his operating argument a vote was taken, the ajority was in favor of declining to make the affidavit.

Felix Frankfurter:

I know they declined but —

Gordon Boller:

And then, and then I take it the officer who applied for exemption in behalf of the church represented them in making the signature.

Felix Frankfurter:

That is the first action and the meaning of that isn’t before us, but what is before us is whether they could be coerced in making such a — in having the secretary take such an oath?

What I am asking you is, how can the secretary of the First Unitarian Church (Inaudible) take an oath as to what the congregation believed?

Gordon Boller:

It didn’t believe, it’s what they do.

Felix Frankfurter:

How can he tell whether they advocate the overthrow, how can he tell that?

Gordon Boller:

Well, they have indicated to him their attitude as to the oath certainly —

Felix Frankfurter:

Well I —

Gordon Boller:

— as to what his, as to what his signature on the application, on the exemption application shall be —

Felix Frankfurter:

Well in this case that’s a coerced action in order to create this litigation.

Gordon Boller:

Not it was —

Felix Frankfurter:

That has no meaning so far as the question that I’m putting to you namely what is that the state can (Inaudible) to the secretary or the senior warden or the director of a church to swear to when he swears that this church, or that this congregation does not advocate the overthrow of the government or other unlawful means?

How can any human being of a church take an oath as to what the church believes regarding other unlawful means, how can it — and that’s —

Gordon Boller:

Well — in the first place I don’t go with Your Honor on the suggestion that it’s coerced, it’s a free choice.

Felix Frankfurter:

Well I know the free choice is that either he has to sign this for the congregation or they don’t get exemption.

Gordon Boller:

That’s right.

Felix Frankfurter:

Well —

Gordon Boller:

It’s in election and it’s election under —

Felix Frankfurter:

But if he — but if you put a choice that the state is not empowered to put that it isn’t the free choice —

Gordon Boller:

Yes.

Felix Frankfurter:

— he can reject it.

Gordon Boller:

All right, that’s — I can concede entirely Your Honors suggestion that a right may not be denied on an unconstitutional condition.

Felix Frankfurter:

Now so we get to the question of what it is or asking the secretary of a 1000 members of the Unitarian Church, how can he take an oath as to what those 1000 people think are or are not lawful or unlawful —

Gordon Boller:

I suppose — I suppose his affidavit which he is making for the purpose of getting exemption is with regard to church activity not with regard to individuals, the 1000s action.

And I —

Felix Frankfurter:

No but (Inaudible) accepting the corporate way under which — under your laws they can sign or leave, but when it comes to avowing what is the (Inaudible) or purposes of a 1000 people, how can any conscientious man go down and swear what 1000 people think or don’t think?

Gordon Boller:

Well, I don’t — I don’t think it’s the individuals, I think it’s the corporate action, the action of the institution and —

William O. Douglas:

What the church officially believes and stands for?

Gordon Boller:

What this church officially believes in and stands for as implemented in its action.

Felix Frankfurter:

Now the church — does any church stand for — I mean is it the normal manifestation of the likes of the church that it takes the position by the ordinary vote of what it thinks about political issues, is that the normal manifestation of the church?

I don’t (Inaudible)

Gordon Boller:

Well, it was the action which was taken here as to what should be the or the corporate action with regard to —

Felix Frankfurter:

That’s in order to get this litigation to this Court?

Gordon Boller:

Not to get litigation but to get our — not to get an exemption benefit, yes.

Felix Frankfurter:

Raised whether you could exact (Inaudible)

Gordon Boller:

Well —

Tom C. Clark:

Did they take any action when it filed the application for exemption?

Did the church take any action then?

Gordon Boller:

They had no difficulty in making affidavit and swearing that they were entitled to the exemption that their property was used solely and exclusively for religious worship, the —

Tom C. Clark:

Your statute requires an affidavit for that?

Gordon Boller:

They make affidavit in order to claim, the claim for exemption must be under oath.

Felix Frankfurter:

(Inaudible) if the secretary says, I’m the secretary of the First Unitarian Church, and I hereby file a piece of paper so that you may get relief whatever the sum is, $1000 a year that doesn’t require finding out what’s in the minds of the people.

Charles E. Whittaker:

Does this statue do more?

Gordon Boller:

The statute constitutes, the statue requires a declaration.

Charles E. Whittaker:

Of what?

Gordon Boller:

That the party claiming the exemption does not advocate the overthrow yes or the support of the foreign government.

Charles E. Whittaker:

(Inaudible) 1000 members.

Gordon Boller:

It does not.

They have indicated by their vote, what they wish to be either corporate action as to the claim of exemption.

Harold Burton:

(Inaudible)

Gordon Boller:

And (Inaudible) Your Honors’ questions to me, we have here a condition which was imposed by the legislature in implementing a statute for the purpose of qualifying the right.

We already have the condition recognized and utilized that claim must be made.

This is another condition which must be met.

The provision long recognized has been that the claim for exemption if not made was waived.

Statute has provided that any party entitled to exemption, must make his claim therefore or if he failed to make it, that the exemption is waived.

That is a condition which was validly imposed.

As to the veteran there is the requirement as well that he make the exemption.

That is the ordinary type of an implementing statute.

Now the state has recognized, the State of California has recognized and declared valid implementing statues of this sort.

The statute I’ve spoken of it requiring the veteran to claim his constitutional exemption under penalty of forfeiture for one of the claim, when the — that was the case of Chesney against Byram.

The veteran failed to claim the exemption, he came to court and said the Constitution gave me exemption, the legislature came along and said I must claim the exemption or I forfeited, and the Court said that’s all right, that’s an implementing statute.

The Constitution provides that public property shall not be taken or damaged for public use without compensation first provided.

Along came the legislature and said in such a situation, claim on account of such taking or injury must be made within a year or the right is gone.

That was an implementing statute.

It was not contrary to the provision of grant by the Constitution and it was upheld, (Inaudible) and so forth against the City of Los Angeles.

The constitutional provision assured the right.

The legislative provision declared that unless certain procedure was followed, the right could not be asserted.

Constitution assures the electoral franchise.

Harold Burton:

(Inaudible)

Gordon Boller:

They do and supposedly the action of the organization, the corporation will be that indicated by the majority thereof.

Harold Burton:

So if these 400 were (Inaudible)

Gordon Boller:

Depending upon, as Your Honor is pointing out what the character of the organization is and its character determined by its majority membership.

Hugo L. Black:

Who is the — suppose they had taken a different position, suppose they decided to make the (Inaudible)

Gordon Boller:

Yes.

Hugo L. Black:

Secretary was (Inaudible)

Gordon Boller:

Yes.

Hugo L. Black:

Could he be tried for perjury if it could be established that he had violated his — that he had spoken untruthfully.

Gordon Boller:

Yes.

Hugo L. Black:

How would you prove that?

Suppose it was established that (Inaudible)

Gordon Boller:

No.

Hugo L. Black:

Suppose he shows that somebody had been given up (Inaudible) could you convict the secretary?

Gordon Boller:

He would be — he is entitled to say he believes.

What the Constitution —

Hugo L. Black:

(Inaudible) you know in churches there many people of different kinds (Inaudible)

Gordon Boller:

He didn’t —

Hugo L. Black:

And this man had been (Inaudible), yet he swore that the institution didn’t do that, could you convict him of perjury?

Gordon Boller:

There is no difference — that wouldn’t involve the advocacy of overthrow by force and violence, he is stating —

Hugo L. Black:

Suppose the man got up and said he heard it, I believe in advocating the overthrow of the government, by advocating the overthrow (Inaudible), this man heard it, you’d say (Inaudible)

Gordon Boller:

Still it wouldn’t be a false oath, because he is the individual there is the exception and — exceptional individual and he is not speaking.

Hugo L. Black:

But then that had —

Gordon Boller:

For the church.

Hugo L. Black:

That he had to be all tried out under oath under — in each trial to see how many people there were who said something, how likely he was to have known it, as his secretary, how could he speak for 1000 people?

Gordon Boller:

Just as a man does who speak through acts for a corporation in any capacity I take it, that he is representing the doctrine, principle his action and the corporate name constitutes the corporate action.

Felix Frankfurter:

But the frame within which he moved, secretary of a corporation or (Inaudible) or it could be the secretary of this church (Inaudible), incorporating the churches, those activities are very narrow and confined, they deal with, relate to commercial matters, making a contract with the Secretary or the minister, making arrangements for (Inaudible) or whatnot, those are all confined, narrowly constricted, simple uncomplicated matters that do not touch (Inaudible), but that’s a very different thing from a secretary being able to say what a church congregation, what a church community believes, what associations it has and what (Inaudible), whether if some church members or most of them (Inaudible), whether that’s contestable, an organization that promotes (Inaudible).

How can unless California at least has machinery to find for ascertaining the views on such matters on the responsibility of (Inaudible), how can a secretary see that conglomerate body called a church congregation?

Gordon Boller:

Well I want to attempt to maintain the distinction between belief and action, not particular material here, the question here, the distinction between belief and action, neither the constitutional provision or the statute place any obstruction upon belief or opinion, instead they aim at action, incitement.

Felix Frankfurter:

But it says to advocate the overthrow of other unlawful means.

Gordon Boller:

Yes.

Felix Frankfurter:

Now, a church like any other organization that every member has the same moral authority and there maybe one or two members of an organization in a church who if it came to be known that he or she was and still is a member of the Communist Party, would at once bring into contradiction the thoughts and feelings of that church (Inaudible), the treasurer, if that’s who he is of the State of California, I’m sure would cut off the exemption and go to court (and have it litigated, am I (Inaudible) what I’m saying?

Gordon Boller:

The possibility of that is obviated, but just the fact that the condition prescribed for the settling of the question is the signing of the affidavit.

Hugo L. Black:

Does that suffer?

Gordon Boller:

It does so far as the — as an administrative matter it does.

Hugo L. Black:

It does so far as the man (Inaudible) concerned.

Gordon Boller:

It settles it so far as the agencies of government are concerned —

Felix Frankfurter:

(Inaudible) there is disclosure that one or two very leading members of the church in fact out of the goodness of their misinformed hearts, are members of the Communist Party, and at once your officials would say he is so influential that he really dominated the church, that’s been known hasn’t it?

One or two people are more controlling than others in the church.

How can you — how can this kind of machinery (Inaudible), unless you also provide at least the time of machinery for taking an individual’s quote, an individual expression and then remember, that isn’t before us, how can a secretary make such an avow, that nobody belongs to an organization that doesn’t advocate the overthrow to “other unlawful means,” is that —

Gordon Boller:

Force or violence or other unlawful means.

Felix Frankfurter:

Are you prepared now to tell us with explicitness what other unlawful means are?

Gordon Boller:

It would be means of the same, within the same category as force and violence.

It’s an (Inaudible) situation.

Felix Frankfurter:

Mr. Boller that there are a lot of cases which have rejected that in a particular situation (Inaudible) that’s a kind of a limping guide what statue (Inaudible)

Gordon Boller:

Force and violence or other unlawful means, other I take it —

Felix Frankfurter:

But that doesn’t mean the same kind of unlawful means.

Gordon Boller:

It takes character though, it takes character from the two preceding adjectives I assume for —

(Inaudible)

Gordon Boller:

That would not be of the same character, force or violence, other unlawful means, would be sabotage perhaps, it would be assassination.

It would be at the same character —

William J. Brennan, Jr.:

(Inaudible) [Laughter]

Gordon Boller:

Yes, I should think so, yes. [Laughter]

William J. Brennan, Jr.:

Unlawful by what law Mr. Boller?

Gordon Boller:

The law of the country I suppose, of the jurisdiction —

William J. Brennan, Jr.:

Or is that the law of New Jersey might — it’s unlawful in New Jersey that —

Gordon Boller:

Well, no I would not think so.

I would think that the reference in a California constitution or a California statute to lawful means would refer to California —

William J. Brennan, Jr.:

California law.

Gordon Boller:

California law.

Felix Frankfurter:

Well why should it be then it should outlaw people who advocate overthrowing the Government of the United States?

Why should you be so restricted in defining the means of (Inaudible) overthrow the government in Washington?

Gordon Boller:

Because it seemed reasonable to me that a statute in a constitution written in a California setting would have —

Felix Frankfurter:

What I’m suggesting is that although it maybe reasonable that when it comes to somebody making an oath, people are conscientious are making an oath, presumably one must assume they are conscientious, (Inaudible) advocates this kind of thing.

Gordon Boller:

Well, in the first place I take it that the secretary of the man making the affidavit is speaking for the organization of which he is an officer, and that he has ascertained what its action and what its attitude and what its action is.

Felix Frankfurter:

We have the doctrine that means (Inaudible) and commercial corporations, let alone the secretary of a church finding out that the political (Inaudible) or the members of the (Inaudible)

Tom C. Clark:

Does he just get an order from the Board of Trustees or some other church?

Gordon Boller:

I take it that would be —

Tom C. Clark:

After you pass that theory (Inaudible)

Gordon Boller:

I take it that would be his justification —

Tom C. Clark:

(Inaudible) Now what do they — to suggest (Inaudible) with reference to exemption, church organizations, setup the procedure where churches would take a vote in order to get that exemption?

Gordon Boller:

No.

The —

Tom C. Clark:

How does the secretary have power to do that, to get the exemption if he doesn’t have the power to file this affidavit?

Gordon Boller:

The statute merely provides that the exemption must be claimed by the claimant each year during the assessment season and prior to a certain date, and the affidavit claiming that exemption provided to him for his signature contains recital in the language of the affidavit that the claimant does not advocate the overthrow of the government by force, violence or other unlawful means.

Tom C. Clark:

Then the claimant would be the —

Gordon Boller:

The church.

Tom C. Clark:

The church?

Gordon Boller:

The church, yes.

Tom C. Clark:

Would be the —

Gordon Boller:

The property owner.

Tom C. Clark:

Would be (Inaudible)

Gordon Boller:

It would be the property owner, the church organization.

Precisely as it is with regard to an individual, if the individual claimant, whether he be a veteran or whoever else might claim —

Felix Frankfurter:

The trouble is that a church body isn’t precisely the same as an individual, that’s the difference?

Gordon Boller:

It’s the same difficulty that a corporation is not the same as a person and a normal —

William J. Brennan, Jr.:

Mr. Boller may I ask you about one other, what’s the reference in the other half of the statement, “Nor advocate the support of a foreign government against the United States in event of hostilities.”

Gordon Boller:

Yes.

William J. Brennan, Jr.:

(Inaudible)

Gordon Boller:

That I construe to mean advocating war support, war time support of an enemy of the United States.

William J. Brennan, Jr.:

Well at the time these were executed, were we at war with any foreign government?

Gordon Boller:

This was in 1952, 1953, we were not —

William J. Brennan, Jr.:

These were between 1952 and 1953.

Gordon Boller:

We were not at war no Your Honor.

William J. Brennan, Jr.:

Well then what purpose does this serve?

Gordon Boller:

It was for the purpose of assuring against such advocacy.

The attitude and the —

William J. Brennan, Jr.:

I mean that the church doesn’t get up now and say if ever we go to war with a foreign power, we advocate that we don’t support or that we support the foreign government, whoever it might be against the United States?

Gordon Boller:

That is — that’s the more difficult of the alternatives that the Constitution and statute provision carry —

Felix Frankfurter:

It’s pretty close, isn’t it, in making a prophetic statement that churches won’t be guilty of treason (Inaudible) or advocate the support of a foreign government against the United States.

Gordon Boller:

Except that it’s in the present tense.

Felix Frankfurter:

Well I said this is a prophetic statement, that is undefined future.

These are facts will not be guilty of treason.

Gordon Boller:

No it’s in the present tense I think Your Honor.

Felix Frankfurter:

Well —

Gordon Boller:

That they do not now advocate the support of a foreign government.

William O. Douglas:

I remember when we still at war with Japan (Inaudible) Hiroshima, weren’t they?

Gordon Boller:

I should think that was probably so, yes.

But —

William O. Douglas:

That kind of an act be covered by this oath?

Gordon Boller:

I wouldn’t think so, I wouldn’t think so.

I think the aid to individuals in distress, even of a foreign power at war with us —

William J. Brennan, Jr.:

How about the advocacy that we don’t use the H-bomb on hostilities, those who are actually at war, would the church would advocate it that we not use the H-bomb, would that supporting a foreign power?

Gordon Boller:

I shouldn’t think so, no.

The question of policy, government policy and action, the question of the conduct of men in office, the possibility of criticism of officials in government for venal or corrupt conduct, those are matters that are fully open to question, to criticism, to —

William J. Brennan, Jr.:

Well, doesn’t your answer Mr. Boller suggest the vagueness of the statute?

What is supportive of a foreign government, what is advocating the support of a foreign government?

Gordon Boller:

A foreign government is not something else.

It isn’t the individuals, the stressed individuals who constitute its populous for one thing.

I may run over it somewhat by elimination.

It does not constitute the individuals.

It represents the agency.

It represents the government as its states.

Gordon Boller:

It is with respect to government action.

It is not with respect to individual need, individual merit it maybe.

It is not with regard to disassociated individual conduct.

Felix Frankfurter:

Mr. Boller are you in a position to state whether (Inaudible) a foreign government in the event of hostilities, that’s so hypothetical and so (Inaudible) to the future, it is to unrelated to anything (Inaudible).

In other words I’m asking whether you’re prepared to say that (Inaudible)

Gordon Boller:

I think probably I’m speculating merely, I haven’t had the suggestion made before as Your Honor is putting it, that the claimant is signing part and is striking the balance.

Felix Frankfurter:

I suppose if you (Inaudible) ruling of your Supreme Court, the statute to provide that (Inaudible), is that right?

Gordon Boller:

I think maybe so, whether it was divisible, whether the fact that one part failed would necessarily carry down the other is —

Hugo L. Black:

What did you tell the Court (Inaudible); what would you advise as you are the advisor for the government?

Gordon Boller:

As advisor to the County Assessor of Los Angeles County, we’d tell them to grant the exemption probably.

Hugo L. Black:

That would be your opinion on it.

Gordon Boller:

Off hand, it’s been rather an off hand opinion here, yes.

William J. Brennan, Jr.:

(Inaudible) Mr. Boller your constitution says that that’s what the (Inaudible), statement has to —

Gordon Boller:

I don’t want to be led into conceding too much, I shouldn’t do that should I? [Laughter]

William J. Brennan, Jr.:

Well, I just wonder whether — perhaps your Board of Assessors might not feel no regard, I’m they have been advised that the constitution says otherwise.

Felix Frankfurter:

But if this Court says that part of the constitution is out, then that would (Inaudible)

Gordon Boller:

If the men down in Washington did that, why it would good enough for us that go along I’m sure. [Laughter]

Hugo L. Black:

Suppose the next church that came along and said we like this, they don’t like this, this is the first part, we just came, now this first part we just (Inaudible)

Gordon Boller:

Now the first part is clear, the first part is language that has been adjudicated.

There is not the uncertainty about that, that you gentlemen are suggesting as to the second.

Hugo L. Black:

You would let him off (Inaudible)

Gordon Boller:

As to that no surely not.

The answer to that can be easy and can be clear.

Felix Frankfurter:

Have you got a surplus in your treasury, you’re giving away a lot of money. [Laughter]

Gordon Boller:

The basis for this exemption, the basis for these two provisions of constitution and of statute, is not apprehension of overthrow of government, it is not peril to the government, it is not a matter of clear and present danger to the persistence and continuance of government.

It is instead danger of defeat of the purpose for which the exemption is granted.

The exemption is accorded as I suggested earlier as an aid to the general atmosphere in which a constitutional government exists, for its benefit in raising the standards of conduct and morality in private and public life, and the danger is of defeating that purpose which is sought to be accomplished by the granting of the exemption, its not a danger of overthrow of the government.

Mr. Wirin in his argument —

Well, would you strip all the language of it, it’s to keep communists out of the churches.

Gordon Boller:

No, it isn’t Your Honor.

Or to get the church’s support to keep communists out of the — keep them out from their numbers.

Gordon Boller:

No that’s quite too narrow, that’s quite to narrow Your Honor.

It’s to maintain a high attitude and teaching, high position by the church in the community as an aid toward advancing morals and virtue and integrity and ideals in the populous.

And that, that —

From this provision?

Gordon Boller:

And that the church or any other recipient of exemption benefit, who advocates these doctrines, is acting contrary to such an influence, is ceasing to meet the purpose for which the exemption is granted.

Is there any legislative discussion of this statute after the referendum?

Gordon Boller:

There is — no, there is discussion of it as indicating the purposes of the exemption in the opinion by the California court which is here under review —

So that their lawyers argue — I was wondering whether there was anything in the legislative history that shows that it’s directed towards communists or some other (Inaudible) in California.

Gordon Boller:

The only thing that bears on that at all is the argument to the voters which is to be provided to you gentlemen and that —

Does that talk about communists?

Gordon Boller:

Pardon me?

Does that talk about communists?

Gordon Boller:

It does to an extent, yes.

It speaks of the benefiting communists and others of that sort, but the purpose of legislation as I was starting to say is indicated in the opinion of the Court, if I’m reading in the record at page 51.

It first indicates reading at the bottom of the page, it first indicates a very insignificant purpose to be accomplished, the interest of the state in protecting its revenue raising program from subversive exploitation has already been considered.

Then it goes on, there are additional interests with which the state is concerned and which it is attempting to promote by granting exemptions from taxation.

Included is the interest of the state in maintaining the loyalty of its people and thus safeguarding against its violent overthrow by internal or external forces.

This legitimate objective is sought to be accomplished by placing any favored economic position and thus to promote their wellbeing and sphere of the influence, those particular persons and groups of individuals who are capable of formulating policies relating to good morals and respect for the law.

It has been said that when church properties are exempted from taxation, it must be because apart from religious considerations, churches as regarded as institutions established to inculcate principles of sound morality leading citizens to a more ready obedience to the laws.

The same maybe said about as enjoying tax exemptions.

William J. Brennan, Jr.:

Tell me Mr. Boller, it all have sum up to this and also your answer to Mr. Justice Harlan, not that there is any present infiltration of these petitioner churches or any other, that the whole purpose of this thing is to keep the churches on their toes against being infiltrated by those who might turn them away from the things that the Court has said are the objectives they are there to serve, is that it?

Gordon Boller:

To keep them away and turn them away from —

William J. Brennan, Jr.:

To keep them on their toes, to keep themselves cleansed on any possible infiltrators who might (Inaudible), is that it?

Gordon Boller:

Infiltration of communists would be one —

William J. Brennan, Jr.:

In other words, not that there are any there now, but just against the chance that some day some might come there, this would keep the churches on their toes.

Is that it?

Gordon Boller:

As I’m saying the issue in the case is not as to whether the particular church advocates or does not advocate it —

William J. Brennan, Jr.:

I appreciate that, that’s what I’m assuming.

Gordon Boller:

Yes.

William J. Brennan, Jr.:

That they don’t advocate, none of these petitioners churches does and the only reason for attaching this —

Gordon Boller:

We’re not saying that none of them does, we’re saying that is beside the point, we do not know.

William J. Brennan, Jr.:

We can assume that they do not.

At least we can assume that they will not on this record, is that right?

Gordon Boller:

Well, I don’t think we need to make — that we’re entitled to make an assumption one way or the other because there is no basis in the record for the assumption.

It has not been alleged that they do not advocate.

The complaint does not allege that they do not advocate.

The complaint doesn’t — neither brings the church within the constitutional provision, it does not bring it within the constitutional provision by alleging that they do not advocate.

It affirmatively places it outside the statute —

William J. Brennan, Jr.:

Well on this record how do you want us to approach this, on the premise if they do advocate or in the premise they do not?

Gordon Boller:

I want to approach it, disassociate it entirely from the question and without assumption one way or the other.

I think the petitioners are not entitled to say that they do not advocate, because they have not made that an issue in the case.

In consequence it was not considered in the trial court, it could not be, it was a question purely of law as has been indicated, question raised by the merits of the complaint.

Harold Burton:

Mr. Boller if the purpose of this is to keep the churches on their toes against certain things, what does that do to your doctrine of separation (Inaudible)

Gordon Boller:

Well that wasn’t my phrase, keep them on their toes. [Laughter]

William J. Brennan, Jr.:

You may borrow it though Mr. Boller.

Gordon Boller:

Its —

Hugo L. Black:

(Inaudible) I understood you to say that the purpose of the state was to require the churches to maintain high ideals and advocate high doctrine.

Gordon Boller:

Yes, yes, that’s part of the language.

Hugo L. Black:

The state wants to require the churches to maintain doctrines that the state deems to be high and (Inaudible)

Gordon Boller:

That the state —

Felix Frankfurter:

It’s an inducement for that end?

Gordon Boller:

Yes, that’s true, that’s true.

Felix Frankfurter:

All right (Inaudible)

Tom C. Clark:

(Inaudible)

Gordon Boller:

It’s an aid to them.

It’s an aid, it’s an aid to those churches who meet and forward that purpose, whose activity and life in the community forward an interest which the public and the state is interested in which is a benefit to the state and which is a justification for a gratuity, an award which is given to them.

When they fail to meet that purpose, when they fail to accomplish that end, the justification for that reward and gratuity is gone and it is justifiable and proper —

William J. Brennan, Jr.:

That is when they — when they fail to maintain the state established standards then they lose the privilege, the exemption?

Gordon Boller:

State established, yes by (Inaudible) vote of the people, it’s —

William J. Brennan, Jr.:

No, but it is a state established standard.

Gordon Boller:

Yes I think that means that.

William J. Brennan, Jr.:

Churches must guide themselves if they have the privilege of the exemption?

Gordon Boller:

Yes.

William J. Brennan, Jr.:

Is that it?

Gordon Boller:

The question of exemption —

William J. Brennan, Jr.:

I wonder then if that’s so, Justice Burton question isn’t particularly pertinent?

Gordon Boller:

The question of exemption I take it is a matter for determination of the state by its people and the question was put by one of you gentlemen to Mr. Wirin as to whether the state could withdraw exemption, assuredly it’s a matter of state policy.

Felix Frankfurter:

I should think that the state can promote whatever the purposes of the church are by giving it a natural benefit, that isn’t (Inaudible)

Gordon Boller:

Yes the exemption of churches from exemption is historical, it’s traditional.

I don’t think there’s any possibility now of questioning it on the basis of idea that it may breach the wall between the church and the state.

Hugo L. Black:

How do you, how do you escape that (Inaudible) if it’s true as perceived from your statement is — purpose of the state is to induce by attempting and (Inaudible) churches observe standards of (Inaudible) in connection with the efficacy of doctrine.

Gordon Boller:

Now your question Your Honor?

Hugo L. Black:

Question was, how do you — how can it be said that there is not a (Inaudible) church’s doctrine if this is done for the avowed purpose of requiring (Inaudible)

Gordon Boller:

It’s —

Hugo L. Black:

— or requiring to maintain high standards of doctrine.

Gordon Boller:

It’s —

Hugo L. Black:

In the judgment of the legislature.

Gordon Boller:

Now it isn’t doctrine in general, it’s just two specific advocacies.

Hugo L. Black:

I’m just trying to assess the one that the legislature has acted on up to this time.

Gordon Boller:

It’s those two —

Hugo L. Black:

But the purpose is as I understood you to see the state, that the church maintain doctrine according to the definition of those doctrines by the state legislature.

Gordon Boller:

It’s to deter two specified doctrines and question whether the specification of doctrines might be enlarged or broadened to include others is not now before us.

We do have these two doctrines and these two doctrines as (Inaudible) to the welfare of the state and so within the justification to discourage them.

Well I suppose that the church was so advises to take up advocacy of about overthrowing the government (Inaudible)

Gordon Boller:

No, I shouldn’t think so.

Thank you Your Honor.

A. L. Wirin:

May it please the Court.

First to answer (Inaudible) idea the question propounded by Mr. Justice Frankfurter and same time to answer a question not put to me but that arose in colloquy by Justice Harlan.

The three dissenters below read the statute as not drawing a distinction between incitement and advocacy and not drawing a distinction between advocacy of abstract doctrine and advocacy of a call to action.

A. L. Wirin:

Your Honors will find that on page 60 of the record, page 60 the middle paragraph.

So that we do have here at page 60 the first paragraph.

Felix Frankfurter:

What was (Inaudible)–

A. L. Wirin:

Yes.

Felix Frankfurter:

What is the point you are making?

A. L. Wirin:

The point I’m making is that at least the dissenters were of the view that the distinction between incitement and prophesy does not appear in this statute and therefore this statute is void for failing to draw that distinction.

Now as a matter of fact Your Honor, well, Mr. Justice Frankfurter, this distinction has the more significance but what is involved is not a prosecution for advocacy but what is involved the failure of someone to take an oath about it because —

Felix Frankfurter:

(Inaudible)

A. L. Wirin:

Yes, and —

Felix Frankfurter:

To take an oath about some other people.

A. L. Wirin:

First about some other people and with respect to that what are involved here with respect to the two churches, a congregation of the churches, they’re churches that have no dogma, and no creed and there is no one in the church, not the minister, not the officer, not the secretary or anyone who may speak for either for the church or for any of the members or for all of the members with respect to the advocacy either of the church or of any one of them.

Felix Frankfurter:

What you just said in the record doesn’t (Inaudible)

A. L. Wirin:

Yes, if Your Honors will look at a very excellent brief prepared in this case not by the petitioners but by the American Civil Liberties Union (Inaudible), you will find on page 24 a very helpful discussion of this matter with respect to matter that you may take judicial notice.

On page 24 of the Civil Liberties Union brief and may I hasten to remind Your Honor that in the (Inaudible) case Mr. Justice Frankfurter you said the — that the court was greatly helped by the able brief of the American Civil Liberties Union, you may find that to be true here in this case.

Felix Frankfurter:

(Inaudible)

A. L. Wirin:

Yes, page 24.4 of the brief of the American Civil Liberties Union, Mr. Gunawal who prepared it with your counsel at your desk.

Now finally with respect to the problem of severability both the constitutional amendment and the statutory requirement which we are challenging refer to the two kinds of advocacies which have been the subject of discussion and colloquy.

The statutory requirement is even more clear for it says that notwithstanding any other provision and so forth — excuse me, it provides that one must attest or avow with respect to non-advocacy of these two, of these doctrines.

Now if Your Honors were to find the doctrines with respect to support, peace time support in the event of hostilities of a) to a foreign government as against the United States to be vague.

William J. Brennan, Jr.:

Well how about — at the same time we found unlawful (Inaudible)?

A. L. Wirin:

Your Honor it’s not a clairvoyant but you say exactly what I was going to say and that is that you still have the problem of unlawful means which is in the first half of the requirement and which we think is equally vague and equally vulnerable certainly so far as requiring someone — persons of good conscious and there’s no question of (Inaudible)

William J. Brennan, Jr.:

Now if it is — if it is what about the rest of us, no advocacy, would that stand by itself?

A. L. Wirin:

Well, I think not but we would hope that Your Honors would not — I’m going to (Inaudible) maybe that’s too strong, we would hope Your Honors would not try to rewrite California legislation, we would assume that it would be fair to (Inaudible) this legislation, and if California wants to adopt other legislation, thereafter of course it is free to do so.

William J. Brennan, Jr.:

Well are you telling me that if we had to find that the support and unlawful means were both vague then we have to strike the whole statute then?

A. L. Wirin:

We would think — this is our position.

William J. Brennan, Jr.:

Nothing would be less?

A. L. Wirin:

This is our position.

Hugo L. Black:

Is there a separability clause?

A. L. Wirin:

There is no separability clause —

Felix Frankfurter:

Isn’t there a general separability clause under California courts comparable to (Inaudible)

A. L. Wirin:

I think not, not at all.

William J. Brennan, Jr.:

Well if there were —

Felix Frankfurter:

(Inaudible) strike down what — it becomes necessary in this case.

A. L. Wirin:

Well because — because Your Honor churches simply cannot and will not release some make any attestations with respect to their advocacies and we would like that as a minimum to be the result of the action of this Court.

Felix Frankfurter:

(Inaudible)

A. L. Wirin:

Some have no difficulty, a large number do have and they’re entitled to protection from this Court.

Felix Frankfurter:

How many were (Inaudible) of those who did spontaneously or without (Inaudible)

A. L. Wirin:

Well (Inaudible) Your Honor, I gave Your Honors a reference to a statement by a northern California and it’s on page 6 but they’re not figures, they’re not figures.

William J. Brennan, Jr.:

I am sure Roman Catholic Church there’s no difficulty finding.

A. L. Wirin:

Well I don’t know.

William J. Brennan, Jr.:

They did sign it.

A. L. Wirin:

As far as we know they did it.

William J. Brennan, Jr.:

Yeah.

Felix Frankfurter:

(Inaudible)

A. L. Wirin:

Do I have the figures, we have the statement that most of the churches of California sign the oath under protest and many did not, but I’m not prepared to say to Your Honors —

Felix Frankfurter:

Is this from the what you call the registrar or the official that the —

A. L. Wirin:

No, this has been the statement of the Northern California and about a council of churches which appears on page 6.

William O. Douglas:

All had to sign but one, your point would just be the same I guess.

A. L. Wirin:

I should think so, but that — I should think so but here many did not sign.

Felix Frankfurter:

I am merely suggesting that (Inaudible)

A. L. Wirin:

Of course I know.