The Watercolor of Religious Liberty

United States v. Macintosh does not usually appear in the religious liberty canon, but it should.  The case involved a Canadian national who emigrated to the United States as a student, was eventually ordained as a Baptist minister, and later joined the faculty of the Yale Divinity School.  He returned to Canada in advance of the First World War to serve as a military chaplain on the front.  After the war, when he came back to the United States and applied for citizenship in 1925, he was asked, pursuant to Section 4 of the Naturalization Act, to swear that he would agree to bear arms on behalf of his country.  He replied that his “first allegiance was to the will of God” and that he could not agree to bear arms categorically, in advance of knowing the particulars.  The federal district court denied his petition for naturalization on the ground that he was insufficiently “attached to the principles of the Constitution.”  In a 5-4 opinion authored by Justice Sutherland, the Supreme Court affirmed.  Chief Justice Hughes wrote the dissent.

What is wonderful about Macintosh is that in just a few quick and short strokes, the Court sets out the fundamental conflict between allegiance to state and to conscience.  All at once it evokes, on the one hand, Gobitis and Barnette, and, on the other, Reynolds, Sherbert, Smith, and Hosanna-Tabor.  But the case is not technically a Free Exercise Clause case, and so it is sometimes overlooked.  If you are looking for the grand oil masterpieces of the religion clauses, you’re liable to walk right by this unimposing gem of a watercolor. 

Allegiance to state was the majority’s theme, and while the case turned largely on the statute, the majority had this to say about the claim that the Constitution protected the right of conscientious objection:

[T]here is no such principle of the Constitution, fixed or otherwise. The conscientious objector is relieved from the obligation to bear arms in obedience to no constitutional provision, express or implied; but because, and only because, it has accorded with the policy of Congress thus to relieve him. The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native-born but he acquires no more. The privilege of the native-born conscientious objector to avoid bearing arms comes, not from the Constitution, but from the acts of Congress. That body may grant or withhold the exemption as in its wisdom it sees fit; and, if it be withheld, the native-born conscientious objector cannot successfully assert the privilege. No other conclusion is compatible with the well-nigh limitless extent of the war powers as above illustrated, which include, by necessary implication, the power, in the last extremity, to compel the armed service of any citizen in the land, without regard to his objections or his views in respect of the justice or morality of the particular war or of war in general.  

The power to compel a person to make war against his will in the name of the state!  That is about as perfect an expression of allegiance to state power as can be found (and, of course, it is consistent with Sutherland’s views in Curtiss-Wright).  Allegiance to God must conform or yield to allegiance to country:

We are a Christian people, according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God. But, also, we are a nation with the duty to survive; a nation whose Constitution contemplates war as well as peace; whose government must go forward upon the assumption, and safely can proceed upon no other, that unqualified allegiance to the nation and submission and obedience to the laws of the land, as well those made for war as those made for peace, are not inconsistent with the will of God.     

The dissent depicts with equal intensity the rival view, using to great effect the language of separate spheres of power and duty:

Much has been said of the paramount duty to the state, a duty to be recognized, it is urged, even though it conflicts with convictions of duty to God. Undoubtedly that duty to the state exists within the domain of power, for government may enforce obedience to laws regardless of scruples. When one’s belief collides with the power of the state, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation. As was stated by Mr. Justice Field, in Davis v. Beason: ‘The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.’ One cannot speak of religious liberty, with proper appreciation of its essential and historic significance, without assuming the existence of a belief in supreme allegiance to the will of God.

And the dissent concludes by appealing to the “tradition” of accommodation, called here part and parcel of the constitutional commitment to religious liberty.

The battle for religious liberty has been fought and won with respect to religious beliefs and practices, which are not in conflict with good order, upon the very ground of the supremacy of conscience within its proper field. What that field is, under our system of government, presents in part a question of constitutional law, and also, in part, one of legislative policy in avoiding unnecessary clashes with the dictates of conscience. There is abundant room for enforcing the requisite authority of law as it is enacted and requires obedience, and for maintaining the conception of the supremacy of law as essential to orderly government, without demanding that either citizens or applicants for citizenship shall assume by oath an obligation to regard allegiance to God as subordinate to allegiance to civil power. The attempt to exact such a promise, and thus to bind one’s conscience by the taking of oaths or the submission to tests, has been the cause of many deplorable conflicts. The Congress has sought to avoid such conflicts in this country by respecting our happy tradition.

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The several positions are forcefully expressed — exemplary in their way as specimens of opinion writing.  They are well worth thinking about.  And yet it seems to me that by far the least interesting and edifying question that one can ask about Macintosh is: which opinion gets it right?

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