Socialist Workers Party v. Martin

• Citation: 345 F. Supp. 1132
• Decision Date: 31 July 1972
• Docket Number: Civ. A. No. 71-H-1181.
• Parties: The SOCIALIST WORKERS PARTY et al. v. Attorney General Crawford MARTIN and Mayor Louis Welch, Individually and in Their Representative Capacities.
• Court: U.S. District Court — Southern District of Texas

345 F. Supp. 1132

The SOCIALIST WORKERS PARTY et al. v. Attorney General Crawford MARTIN and Mayor Louis Welch, Individually and in Their Representative Capacities.

Civ. A. No. 71-H-1181.

United States District Court, S. D. Texas, Houston Division.

July 31, 1972.

Ronald Cohen, American Civil Liberties Union, Houston, Tex., for plaintiffs.

W. O. Shultz, Asst. Atty. Gen., Austin, Tex., for defendant Atty. Gen. Crawford Martin.

Joseph G. Rollins, Senior Asst. City Atty., Houston, Tex., for defendant Louis Welch.

Before INGRAHAM, Circuit Judge, and SINGLETON and SEALS, District Judges.

OPINION

SINGLETON, District Judge:

Plaintiffs, as candidates for city office, brought this class action as representatives of all candidates or nominees for any public office in the State of Texas. This action is based on 42 U.S. C. § 1983; 28 U.S.C. § 1343(3), (4), 2201 and the First and Fourteenth Amendments to the Constitution.

Plaintiffs pursued an arduous course in running for office. Prior to filing this action to preserve their place on the ballot as candidates for the municipal elections in the City of Houston, they filed Civil Action No. 71-H-462 attacking certain city charter provisions. After protracted litigation, an order of Justice Stewart placed plaintiffs' names on the ballot. However, before having their names placed on the ballot, plaintiffs were asked to sign a loyalty oath as required of all state candidates for office. Tex.Elec.Code art. 6.02, V.A.T.S. Plaintiffs refused to sign the oath on the basis that it requires much more of a candidate than the support of the United States Constitution which is all that is called for in Article VI thereof. After a hearing in this court, the names of the candidates were allowed to remain on the ballot without signing the required oath. The question of the validity of the oath remains open for consideration and decision.

The statute in question requires all candidates for public office in Texas to take the following oath:

"I _________, of the County of _________, State of Texas, being a candidate for the office of _________ do solemnly swear that I believe in and approve of our present representative form of government, and, if elected, I will support and defend our present representative form of government and will resist any effort or movement from any source which seeks to subvert or destroy the same or any part thereof, and I will support and defend the Constitution and laws of the United States and of the State of Texas." Tex.Elec.Code art. 6.02.

Assuming that an oath may be required of a candidate as it may be of an official already elected, the constitutional validity of the last part of the oath which reads ". . . and I will support and defend the Constitution and laws of the United States and of the State of Texas." cannot seriously be questioned. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). Article VI of the United States Constitution provides for such an affirmation of support of the existing laws and constitution:

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." U.S.Const. art. VI, cl. 3

It is the remaining portion of the oath which troubles this court and toward which the thrust of this opinion is directed. This writer feels that requiring a candidate to "believe in and approve of our present representative form of government" creates a chilling effect on political beliefs and ideas at the very moment of a public election when a democratic society needs to freely and openly explore all possible political theories and beliefs. Surely a citizen and a candidate can simultaneously support and uphold the Constitution as the framers originally proscribed, and at the same time not "believe in and approve of" the detailed organization of "our present representative form of government" and be working and campaigning to change that form of government all within the original format of our democratic society.

The use of the oath in question except that part which requires a candidate to "support and defend the Constitution and laws of the United States and of the State of Texas" creates a chilling effect on the constitutionally protected right of a citizen to seek elective public office. But see Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944).

The oath and the administration of such an oath in New York for bar candidates were upheld, because they did not result in such a chilling effect on the beliefs of the parties involved. Law Students Research Council v. Wadmond, 401 U.S. 154, 167, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971).

The Supreme Court recently ruled on the validity of a statutory loyalty oath which a substitute classroom teacher refused to take in Florida. The teacher was later dismissed for this action. Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971). The two clauses of the oath in question were very similar to those of the instant case and read as follows: (1) "that I will support the Constitution of the United States and of the State of Florida" and (2) "that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence." The High Court held that the first clause (1) was valid, but struck the second clause (2) since it resulted in the teacher's summary dismissal from public employment without a hearing or inquiry as required by the Due Process Clause. The majority opinion stated that the validity of the first clause of the Florida oath is without question citing: Knight v. Board of Regents, 269 F.Supp. 339, aff'd per curiam 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812 (1968), Hosack v. Smiley, 276 F.Supp. 876, aff'd per curiam, 390 U.S. 744, 88 S.Ct. 1442, 20 L.Ed.2d 275 (1968). However, in a concurring opinion Justices Marshall, Douglas, and Brennan expressed more than a disapproval on due process grounds of the second clause (2):

"However, in striking down the latter oath, the Court has left the clear implication that its objection runs, not against Florida's determination to exclude those who `believe in the overthrow,' but only against the State's decision to regard unwillingness to take the oath as conclusive, irrebuttable proof of the proscribed belief. Due process may rightly be invoked to condemn Florida's mechanistic approach to the question of proof. But in my view it simply does not matter what kind of evidence a State can muster to show that a job applicant `believes in the overthrow.' For state action injurious to an individual cannot be justified on account of the nature of the individual's beliefs, whether he `believes in the overthrow' or has any other sort of belief. `If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . ..' West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, 1639, 147 A.L.R. 674 (1943)." 403 U.S. 209, 91 S.Ct. 1774, 29 L.Ed.2d 421.

Surely, no less of an objection can be lodged against the requirement of an oath calling for a candidate for elective public office to "believe in and approve of" a political idea or to "support and defend our present representative form of government."

Justices Black and Douglas expressed the very essence of such an objection in Speiser v. Randall, 357 U.S. 513, 530, 78 S.Ct. 1332, 1353, 2 L.Ed.2d 1460 (1958 concurring opinion) (an oath of nonbelief in overthrow of the government for tax exemptions held invalid):

"I am convinced that this whole business of penalizing people because of their views and expressions concerning government is hopelessly repugnant to the principles of freedom upon which this Nation was founded and which have helped to make it the greatest in the world. As stated in prior cases, I believe `that the First Amendment grants an absolute right to believe in any governmental system, to discuss all governmental affairs and to argue for desired changes in the existing order. This freedom is too dangerous for bad, tyrannical governments to permit. But those who wrote and adopted our First Amendment weighed those dangers against the dangers of censorship and deliberately chose the First Amendment's unequivocal command that freedom of assembly, petition, speech and press shall not be abridged. I happen to believe this was a wise choice and that our free way of life enlists such respect and love that our Nation cannot be imperiled by mere talk.' Carlson v. Landon, 342 U.S. 524, 555-556, 72 S. Ct. 525, 542, 96 L.Ed. 547, 568 (dissenting opinion).

* * * * * *

"Since the time that Alexander Hamilton wrote concerning these oaths, the Bill of Rights was adopted; and then much later came the Fourteenth Amendment. As a result of the latter a rather broad range of liberties was newly guaranteed to the citizen against state action. Included were those contained in the First Amendment —the right to speak freely, the right to believe what one chooses, the right of conscience. Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 73 A.L.R. 1484; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 882, 891, 87 L.Ed. 1292 146 A.L.R. 81; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302. Today what one thinks or believes, what one utters and says have the full protection of the First Amendment. It is only his actions that government may examine and penalize. When we allow government to probe his beliefs and withhold from him some of the privileges of

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