Warren E. Burger: We will hear arguments next in number 1427, McDaniel v. Paty. Mr. LeClercq, I think you may proceed.
Frederic S. Leclercq: Mr. Chief Justice and may it please the Court. The appellant in this case is Paul McDaniel, a minister from Chattanooga, Tennessee. He declared as a candidate and properly filed as a candidate for delegate to the 1977 Tennessee constitutional convention at which time he was sued by one of his opponents to have his name stricken from the ballot because he was a Minister of the Gospel and a provision of the present Tennessee constitution Article 9 provides that no priest or minister of the Gospel may serve in legislative office in Tennessee and the call to the Tennessee constitutional convention of 1977, picked up that qualification for persons who were to serve as delegates to the constitutional convention. The matter was heard in the Chancery Court in Hamilton County and the chancellor enjoined the requirement as being in violation of the free exercise of religion. An appeal was taken to the Tennessee Supreme Court which remanded for not having given notice to the Attorney General, the case was then heard in the Chancery Court of Hamilton County with the Attorney General appearing and the chancellor again enjoined the provision on Establishment Clause grounds. During the period when an appeal was taken to the Tennessee Supreme Court by the State and Ms. Paty, the election was held and Reverend McDaniel won handily. He came with a few votes of having more than the other three candidates combined. The Tennessee Supreme Court heard this case and decided that Reverend McDaniel could not serve because of the provision of the Tennessee constitution and upheld the exclusion on separation grounds. Counsel then sought a stay from Mr. Justice Stewart which was denied with suggestion that application be made to the Tennessee Supreme Court which was then done and the Tennessee Supreme Court granted a stay until June 20, 1977, at which time the Tennessee Supreme Court denied a second request for a stay and Mr. Justice Stewart then granted appellant’s request for a stay. The constitutional convention began August 01, 1977 and Reverend McDaniel has been sitting as a delegate to that convention under the stay granted by Mr. Justice Stewart.
William H. Rehnquist: Is it still on session, the constitutional --?
Frederic S. Leclercq: The constitutional convention is still on session.
William H. Rehnquist: Any anticipation or anything you tell from the record about when they expected it end?
Frederic S. Leclercq: It is very difficult to predict when legislative groups in Tennessee will end.
William H. Rehnquist: Or anywhere else?
Warren E. Burger: This will happen counsel, if upon the election or upon filing as a candidate under the Tennessee law, the ordained minister renounced his ordination and resigned, would that clear him with the disability or do we not know? Is there --
Frederic S. Leclercq: Clearly, Mr. Chief Justice.
Warren E. Burger: He might be tainted for life?
Frederic S. Leclercq: You know, that issue that, we face that issue in the brief, on the waiving of this question and this was a very much question in the England, can one renounce his ministry, can one be defrocked and then run for office. It is by no means clear on the face of the Tennessee, a disqualifying provision whether that could be done. Now, this case, the issues in this case involve several provisions of a constitution. This is a voting rights case. It involves a right to be a candidate for a public office which this Court has vindicated in the past. It involves voting rights as well since the right to vote for priest or ministers of the Gospel is an important right. We face the same question in this case that was faced by the Court some years back when it addressed the question of whether the persons in the military could be fenced out from candidacy or from exercise of their voting rights.
William H. Rehnquist: In what cases have we vindicated what you describe the right to be a candidate?
Frederic S. Leclercq: Its my opinion Mr. Justice Rehnquist, that this was done in Bullock and in Lubin v. Panish and in American Party of Texas v. White. It seems to me that one can say that the rights of candidates, qua candidates were vindicated in these cases although I do not think it makes a great deal of difference even if the Court should choose to vindicate these rights as voting rights. We also have at stake here Free Exercise Rights because Reverend McDaniel has chosen to exercise his rights as a Minister of the Gospel. He has been penalized in his voting rights so you have a situation where the appellant is put in the -- to the absence of choice of either choosing between his voting rights which this Court has declared are fundamental, or his Free Exercise Rights which this Court has declared are fundamental.
William H. Rehnquist: His voting rights being his right to vote for himself?
Frederic S. Leclercq: Yes, yes or for any other minister since this has been certified as a class action by the chancellor of the Hamilton County Court.
Potter Stewart: One may be -- both may be fundamental, but only one is a constitutionally protected right, is that not correct? You read the case Minor v. Happerstett, you will find it stated there by the Court unanimously as I remember that there is no constitutional right to vote?
Frederic S. Leclercq: Well, we look --
Potter Stewart: Because that case, it may necessary the amendment of our constitution to allow woman to vote, that was an equal protection case. Court said the Equal Protection Clause gave no such right?
Frederic S. Leclercq: We look upon the --
Potter Stewart: Whereas the First Amendment protects and creates freedoms and rights to that?
Frederic S. Leclercq: Yes, but we think the voting rights cases of this Court are sufficient to -- as well to give -- to seek a vote.
Thurgood Marshall: Who was in this class?
Frederic S. Leclercq: All ministers who shall be candidates for office of delegate to the constitutional -- to there is a future constitutional conventions and all candidates for legislative office.
Thurgood Marshall: Well, how can that be a class? I thought a class was a large number of people?
Frederic S. Leclercq: Well, we think there may be a number of other ministers who --
Thurgood Marshall: Then one?
Frederic S. Leclercq: Well, Mr. Justice Marshall, it is my understanding that there are several other ministers who are serving at this time as delegates to the Tennessee constitutional convention.
Thurgood Marshall: Is that in this case? Was that -- is that in place in this case, a propaganda?
Frederic S. Leclercq: We did not know at the time that this class was certified that --
Thurgood Marshall: But I thought the class had been numbers that there was too many to name. I am not using exact language, but I think that is what the language is?
Frederic S. Leclercq: The state class action requirement is patterned upon Rule 23.
Warren E. Burger: Why does in the class include every ordained minister in the State of Tennessee, whether or not he has a present intention of running for anything?
Frederic S. Leclercq: Well, that is point well taken Your Honor.
Warren E. Burger: It is an inhibition that whole --
Frederic S. Leclercq: That has an inhibition --
Warren E. Burger: Supreme Court is in inhibition now trusting on every ordained minister in the state, is it right?
Frederic S. Leclercq: I think that the -- it -- that really would not matter very much; however, because if the class for relief or afforded as appellants are, any minister who ever wanted to seek legislative office in Tennessee would be allowed to do so.
Warren E. Burger: But it is very important to us now for our purposes whether it is hyper class action or whether it is only one man?
Frederic S. Leclercq: I think it is important for this reason. If we strike down Chapter 848 of the Tennessee Public Acts of 1976, a dealing with the call to this convention then we only deal with this particular call and it means that next year should some minister in Tennessee choose to be a candidate for legislative office that he could be excluded under this provision and it would entail the great expense that has been entailed in this or any other case that comes to this Court, to afford relief and we may not have before to at this event then which occurred here.
William H. Rehnquist: Well, this Court always if it -- suppose if we disagree with the judgment of the Supreme Court of Tennessee our mandate as always vacated and reversed for further proceedings not inconsistent with this opinion. We would not tell as I understand our practice, the Supreme Court of Tennessee what the form of mandate to send down to the Chancery Court in Hamilton County, so long as it was not inconsistent with our opinion?
Frederic S. Leclercq: Well, the only problem that I could see coming from that is that the Supreme Court of Tennessee limited the cross appeal taken by appellant from the chancellor’s ruling to this particular case and this particular statute and they relied on I believe the Storey (ph) case in Tennessee which in our brief counsel has alleged is an Epperson. The -- it is simply a quest of whether this Court is willing to resolve this question in Tennessee.
William H. Rehnquist: You have a precedent in any event. If we said -- if we simply decided it on a narrowest of grounds which --
Frederic S. Leclercq: That is quite true sir, but it is also true that chancellors and circuit judges at the local level in Tennessee may view precedents in very different lights and if this Court granted relief only as to the call for the 1976 -- 1977 convention, it is possible that some local judge may try to distinguish that away, and deny relief to some ministerial candidate for a legislative office then the election would be held and ultimately even though the state appellate court may choose to grant relief it would be faced with a very disruptive possibility of having to invalidate an election, call an election again.
Warren E. Burger: Well, you would have all the same remedies that were available to you in this case, would you not?
Frederic S. Leclercq: You know, we are very lucky that we had a good chancellor at the local level who afforded relief and allowed our candidate to run.
Warren E. Burger: I am stating of the state processes -
William H. Rehnquist: Got a good circuit justice?[Laughter]
Frederic S. Leclercq: Very fine.
Thurgood Marshall: But if the chancellor is still there, so the justice is still here?
Frederic S. Leclercq: Yeah, but we do not have him in every county in Tennessee Mr. Justice Marshall.
Thurgood Marshall: Well, if you want us to draw a decree that stop every judicial officer in the State of Tennessee from doing wrong, forget about it ?[Laughter]
Frederic S. Leclercq: We do not expect that, but we would like -- we do think that we are entitled to a decree that would prevent the state of Tennessee from ever disqualifying for candidacy for a public office. Any person because of his being a priest or a Minister of the Gospel.
John Paul Stevens: Mr. LeClercq could I ask you a question about your theory on the merits. Supposing Tennessee had a law that said that no one, simply decide they want to have a fresh look at the whole governmental structure and they would like to exclude from those participating in the constitutional convention anyone presently serving in the state legislature or in the state executive department, so they have just excluded all senior government officials, would that be permissible?
Frederic S. Leclercq: In my opinion it certainly would.
John Paul Stevens: But why would they not be forced to make the same kind of absence of choice between serving in the legislature or serving in the constitutional convention?
Frederic S. Leclercq: Because that is -- that is a matter of choosing between two secular offices and the state can decide that a man ought to spend all of his time on one secular office and not split his responsibilities, but the state under the First Amendment, under the Establishment Clause and under the Free Exercise Clause, state has no business interfering in what a person does one way or the other.
John Paul Stevens: What if their theory is that well, these people now in public office are unduly influential on the deliberations of the new body and they might think ministers are unduly persuasive, they can use certain kinds of arguments that some of the rest of us cannot use and so we better keep them out of these debates?
Frederic S. Leclercq: Well, as to the influence of ministers, I do not think that it would be permissible to exclude presidents of cooperations and many of them exert substantial influence, presidents of universities, many of them exert substantial influence and I would say that it would certainly deny ministers as a client’s equal protection to treat them differently from other persons who have equal or greater amounts of influence.
Thurgood Marshall: Okay, exclude all college presidents were valid what is the Section of a constitution?
Frederic S. Leclercq: I think it would violate Equal Protection Clause because it would be treating people who are similarly situated differently.
Thurgood Marshall: Suppose it excluded all lawyers?
Frederic S. Leclercq: Well, we have a reference to that in the brief, and in that column it was called the black learning Parliament. I think that a case could be made for excluding lawyers which could not be made for excluding ministers. I would hate to see that done.
Thurgood Marshall: But why?
Frederic S. Leclercq: Because it would be singling out an occupational class for invidious treatment without any reference to the capacity of that group to serve. Many of the lawyers who serve in legislatures, serve very honorably and with distinction and in 49 other states in the union, ministers are permitted to serve in the legislature and it is only because of anachronism that goes back to the Tennessee constitution of 1796.(Voice Overlap)
Thurgood Marshall: Do you know if anybody who could be excluded?
Frederic S. Leclercq: Well, I answered Mr. Justice Steven’s question. I think the state could certainly exclude justices of its court from serving in the legislature or any officer in government. There is no problem with the validity of the PATCH (ph) Act to similar state laws.
Thurgood Marshall: Well, what about all ministers?
Frederic S. Leclercq: Well, I think that was --
Thurgood Marshall: Well, they are -- they are chaplains in every penitentiary in North Carolina, are they not?
Frederic S. Leclercq: Well, but whereas a minister --
Thurgood Marshall: Are they?
Frederic S. Leclercq: I do not know. Ministers --
Thurgood Marshall: Assuming that they are chaplains in the state penitentiaries on the payroll of the state, they exclude?
Frederic S. Leclercq: I think the state might exclude any state officer because --
Thurgood Marshall: Even if he happens to be a minister?
Frederic S. Leclercq: How it say even if he happens to be a minister.
Warren E. Burger: On your theory he would not be singled out as a a minister, but as a state employee?
Frederic S. Leclercq: As a state employee. Yes, that would be a rationale classification, but this classification is not rationale and it singles out persons for invidious treatment because of their --
Thurgood Marshall: What do you think the First Amendment, your --?
Frederic S. Leclercq: I think it is both sir.
Thurgood Marshall: It is both.
Frederic S. Leclercq: And I -- that we submit this as a -- this that the -- of course the Free Exercise and Establishment Clauses have been incorporated or absorbed by the Fourteenth and in that sense it is both the First and the Fourteenth Amendment case.
Thurgood Marshall: And equal protection?
Frederic S. Leclercq: Yes, it is an equal protection case in that we are contending that the state has denied the voting rights and rights of political candidacy to ministers and I cited earlier the cases on which we rely on voting. I also think its a due process case on vagueness grounds. Who is there to determine, who is a minister or priest; within the meaning of this Tennessee statute.
Warren E. Burger: Well, ultimately I suppose your state Supreme Court would -- might be called upon to do it?
Frederic S. Leclercq: It is a very difficult task and it invites the very type of entanglement problems that this Court has tried to avoid, determining who is a minister --
Warren E. Burger: How many -- how many denominations make all of them members, adherence ministers of that church. There are several I believe?
Frederic S. Leclercq: Yes, there are --
Warren E. Burger: I recall in your brief you numbered all of them or not, undertook to?
Frederic S. Leclercq: No, we -- I am sure that our list was not, was not exhaustive, but it was suggestive of the -- of a number of denominations which the Mormons for example require that each member of the faith engage in a ministry of several years, when they perform religious functions. The -- a number of fundamentalist religions hire working preachers who are involved in the community and they have own job, they support themselves with a regular job, but they preach on Sunday, would such a person be disqualifying under the Tennessee Act. We think that the vagueness problems on due process grounds with the statute are very substantial.
Speaker: But there is vagueness as to your client to Mr. LeClercq (Voice Overlap)
Frederic S. Leclercq: No vagueness absolutely not.
Speaker: With respect to the 1641 legislation in England, your very interesting brief describe the historical conditions then and how important the clergy was in England at that time. If we thought that the clergy was equally important in Tennessee when this statute was passed, would you say that statute was unrational?
Frederic S. Leclercq: There is a vital distinction between the situation in England in 1641 and the situation in Tennessee in 1796 in that the church was established in England and the danger in England was that the commons which controlled the appropriation of funds, if dominated by Anglican priests, would vogue the state church great sums of money. Since we have no established church in Tennessee and never have had an established church, I think the argument would be an opposite, but I think you know that 1641 Act, with frames like that the church needs few in its. A couple other points; the constitution, the body of the constitution itself ride in the same Section with the Supremacy Clause, provides that there shall be no religious test for office. Now, there is some question as to whether that applies to state offices, or whether it applies only to federal offices, but it seems to me, coming where it does in the constitution, with the Supremacy Clause, that that clause of a constitution also affords a basis for overturning this constitution, this requirement. Now, of course the support in the decisions of this Court are not as great for that argument as it is for the arguments that I have been discussing, but I do think that that is a a respectable argument. It has been made, I believe Mr. Justice Black a number of years back uses this either a basis of a concurring or a dissenting opinion and I think a respectable argument can be made looking back to Farrand Records of the Federal Convention and even if the Court were to decide that, that clause did not apply in full force at the time it was adopted, it would be permissible for that guarantee as being a fundamental guarantee to be received through the Due Process Clause of the Fourteenth Amendment.
Speaker: May I ask one other historical question Mr. LeClercq?
Frederic S. Leclercq: Yes, sir.
Speaker: Your brief pointed out that that Thomas Jefferson once might have disagreed with your argument here and that he later changed his mind --
Frederic S. Leclercq: Which is a credit and strength.
Speaker: But you suppose anything, any provision that could have commended itself to justice, to Thomas Jefferson even for a few years and even temporarily it could be so irrational, we have to strike it down?
Frederic S. Leclercq: Well, Thomas in this view commended itself to Thomas Jefferson only at a time prior to the enactment of the first amendment and I think that explains Mr. Jefferson’s position. I think historically, one can justify these clauses in the state constitutions of 1776 because at the time the church in this county had not been disestablished and as Your Honor knows the church was not disestablished I think in Massachusetts until 1830 or 1831, so there was a very great fear of an established church, but the First Amendment with its establishment clause put those fears to rest and it is interesting that this Tennessee provision with 1796, this is only four years after the First Amendment or five years, the -- so it is, this amendment is -- this, this Tennessee provision is really contemporaneous with the First Amendment and it policy wise, it looks back to a time before the First Amendment. Now, whether or not the framers of this amendment were anti-clerical, there were some anti-clerical forces in Tennessee at that time or whether they were trying to give a preference for religion, in either case the clause would fall on establishment clause grounds. Your Honor, if I may, if there are no further questions, I would like to save the remaining time for rebuttal.
Warren E. Burger: Very well. Mr. Herrell.
Kenneth R. Herrell: Mr. Chief Justice and may it please the Court. Under the constitution that we live under in this country, we have certain fundamental rights which are gained to us or guaranteed to us by the constitution and the amendments. These are fundamental, so fundamental that they cannot be taken away from this. However, we also have other rights that we have enjoy in this country that can be somewhat preemptive because they are not absolutely guaranteed by our constitution. The case we have for consideration here today involves these two questions, these two principles which I want to explore. These cover all the issues, I believe that have been made in this case, the issue of Free Exercise of Religion, the Establishment Clause, the Equal Protection Clause and the Due Process Clause.
Warren E. Burger: They are all expressed provisions which is --
Kenneth R. Herrell: Right.
Warren E. Burger: Of a transition or they not?
Kenneth R. Herrell: Yes sir, but this -- my purpose here that I want to attempt to distinguish this case as it has been decided by this Court citing certain applications of a person’s right and they first categorically have cases where they are absolute that is the right pertaining to a belief. This cannot be changed by our concept of a constitution. This Court would not do so. However, there are certain practices which cannot be limited I think by the application of activities of a person who wants to enjoy his rights under a constitution. For instance, this Court has said in the Castle case, a case is not taken to interpret the question of a right or a belief. This Court said properly that that could not be compelled. Likewise the case has said, therefore, you have a question involving sanctions, as it was indicated in the Schempp case. That cannot be condoned. Now, as this Court has said in Cantwell the free actively to have to act is not absolute, it comes in this later category and cannot be subject to certain limitations where there are proper basis for it. For instance, in the Sherbert case, this Court said that was an indirect burden by inhabit to Free Exercise Right where there is a compelling state interest. In the Braunfeld case, the Court has said that a state may limit a person’s practice. You know it may cause some inconvenience in time and in Walz case, a valid secular objective is an appropriate subject of legislation. We submit that that is what we have for consideration before us at this time. Now, as to the Establishment Clause, I do not think that at least be said there is any question, but what the purpose of this clause is to keep the state from establishing any form of religion, any requirement for a particular religi. We submit that there has been no establishment created by the virtue of the Acts in question here, and again, under Schempp, a secular purpose is a valid basis for a legislative purpose.
Potter Stewart: What is the valid secular objective here?
Kenneth R. Herrell: That is the separation of church and state, that I want to get into.
Potter Stewart: And that is the only?
Kenneth R. Herrell: Yes sir.
Warren E. Burger: But then this brings us to attention a potential conflict between the Establishment Clause and the Free Exercise Clause, does it not?
Kenneth R. Herrell: That is correct and that is the point that I want to explore now on test that this Court has used in interpreting this kind of -- kinds of -- cases of this kind.
Thurgood Marshall: Mr. Attorney General when was this provision first enacted?
Kenneth R. Herrell: It was enacted in original constitution of Tennessee in 1796, but it was carried over basically from the constitution of North Carolina.
Thurgood Marshall: Has it been reconsidered?
Kenneth R. Herrell: No, sir.
Thurgood Marshall: Has it ever been litigated?
Kenneth R. Herrell: No, sir.
Thurgood Marshall: Do you think it is time?
Kenneth R. Herrell: Well, it is before the Court now. There are three tests that this Court can consider as been recognized previously as a basis for a test to consider the application of this test. The rationale basis test, that is the minimum test and to the other extreme there is a compelling state interest test, which is on not relevant to get into now and we submit to the Court that the proper test for this Court as laid down in Bullock is the strict scrutiny test. What basis that does a state have? Is it sufficient? The state submits that it is a sufficient basis. Under this principle, the test the system must be closed to scrutinized and found to be reasonable and necessary for the carrying out of a legitimate state purpose. We submit that this is a legitimate state purpose, that is the separation of church and state. It is recognized likewise that state cannot be arbitrary in attempting to accomplish its goals, but we submit there is no arbitrary action in this case and a criterion for different treatments must bear some relevance to the object, the object being the separation of church and state which is at issue here.
Warren E. Burger: Do you happen to know whether we have had any Presidents except one who was an ordained minister?
Kenneth R. Herrell: No, Your Honor, I do not.
Warren E. Burger: President Wilson was a Presbyterian minister of course, no other --
Kenneth R. Herrell: Recall that to our attention (Inaudible), I am not aware of any other though. Now we move onto other questions that have been raised in this case, that is a question of equal protection. As this Court has said in Walker there is no fundamental right or suspect case to consider in this case. All ministers are treated and like in similar manner. What applies to one, would apply to all. As our Court said in the case that it calls, I mean, it covers priests of all denominations and their counterparts in other religions.
William H. Rehnquist: I thought your opponent was complained not so much about the distinctions between priests and ministers as distinctions -- as the distinction between the clergy and the rest of the population?
Kenneth R. Herrell: But if we consider the state’s basis, we think that there is a sufficient basis to put them in a category to themselves that is for the separation of church and state. I would like to suggest to the Court to what it has found that there is no fundamental right to hold off and --
John Paul Stevens: Mr. Attorney General, it was in the state said that nobody who goes to church every week shall serve in the state legislature, a regular church goers are two religions have a complete separation?
Kenneth R. Herrell: I think that will violate one of their religious Tennessee where they had a right to worship or their fundamental belief --
John Paul Stevens: I believe that nothing would prevent them from pertaining to go to church, it is just could not be in the state legislature that is all?
Kenneth R. Herrell: Well, I think that that would be in the same category that we have before us.
John Paul Stevens: You say that would be equally valid or invalid like this statute?
Kenneth R. Herrell: Yes, sir. This Court has likewise said in Turner that there is no fundamental right.
Thurgood Marshall: You are not going so for as to approve the statute that says thereby believes in God, cannot (Inaudible) would you?
Kenneth R. Herrell: No, sir. That involves their fundamental belief.
Thurgood Marshall: But where this is?
Speaker: But you said they -- do I understand you to say you could say that as long as you serve in the legislature, you may not go to church more than once a month?
Kenneth R. Herrell: Well, in first place --
Speaker: That is what -- that sounds to me like what you said, at least you may not go to church every week?
Kenneth R. Herrell: Well, if you assume that premise I think that would be true yes.
Speaker: I know, but that is what I thought is that what you have answered to Mr. Justice Stevens?
Kenneth R. Herrell: Yes, sir it is. This Court too has recently said in the Williams case that there is no basis for a claim that fundamental as a political right for association, no discriminations against a group and in connection with that I would like to point out what we feel the Court defect that this case was not brought as a class action to the attention of this Court. There is no assignment made on that. The Tennessee Supreme Court said that there was not a class action involved in this. Now, this Court has had before it considerations of another cases, questions of whether religious organizations or rather all members of the organization entitled to the exceptions. Again, I want to call the attention to the fact that our Court has said that the ministers cover all beliefs that is those who would lead their people, tech them, or there would be other Christian religion or of any other religion, so from this I do not believe it can be said that you have a question of vagueness as to who is a minister. This Court under Selective Service Acts have had questions about ministers. I do not need to call that to your attention, such case involving Dickinson, and as a group, ministers have been given special attention or special privileges namely under the Selective Service Act for instance. They are exempt from service under the Selective Service Acts.
Thurgood Marshall: And I assume they also give (Inaudible) all of these meetings that you are talking about from which they are excluded?
Kenneth R. Herrell: Yes, sir and likewise we have certain benefits for members of the clergy, such as benefits from our federal income tax provisions not including all of their income. A question has been raised here as to whether there are ministers in the Tennessee general assembly, all of the prisons and the – for instance in the prisons in the state, all prisons in the state of Tennessee have ministers to serving to the needs of the inmates. That I think they have several.
Speaker: Well, are they paid by the state, provided by the state?
Kenneth R. Herrell: Yes, sir.
Speaker: Is that what you are telling us? There are some states where they permit ministers from the outside, but not necessarily making them employees of the state, I wanted to be sure that which Tennessee has?
Kenneth R. Herrell: So, by way of summary and conclusions here I want to state again that there is no attempt made to regulate or control the belief of anyone in the Tennessee relative to what they can believe so as to exclude them from the membership as a minister.
Speaker: Mr. Attorney General I just before you finish your opponent made some, places an emphasis on whether or not there was an established church in jurisdiction which had this sort of provision? Does Tennessee have an established church at the very beginning of its statehood?
Kenneth R. Herrell: To my knowledge there has not been an established church in the state of Tennessee.
Speaker: And how about this law state of Franklin that forgets it is intermediate between North Carolina and Tennessee. Was that any established Church in that state as far as you know?
Kenneth R. Herrell: Not to my knowledge and in the law State of Franklin was an initial attempt to establish a state in the State of Tennessee in the eastern part. That particular state for one reason or another gave up its charter and reverted back as a part of North Carolina and then a later attempt was made to establish the State of Tennessee which was then except --
Speaker: Franklin went back in the North Carolina I thought was part of Eastern Tennessee?
Kenneth R. Herrell: No, sir.
Speaker: I see.
Warren E. Burger: In your submission I take it that those denominations which make all of the members ministers of that church, would exclude all the members?
Kenneth R. Herrell: Yes, sir. We have to stand and say that ministers if they are those as to find in the Tennessee case, which on attack to me to, I mean the on attack to minister to the needs of their congregations. To that extent they would be included.
Warren E. Burger: Well, under the Tennessee definition must there be an identifiable congregation in order to make its leader a minister?
Kenneth R. Herrell: I do not think so unless -- if as long as he would be in that category or he would on attack to lead some of the people.
Thurgood Marshall: How could he get out from under being turned a minister under Tennessee law?
Kenneth R. Herrell: That could bring a very difficult decision that had to be made --
Thurgood Marshall: Difficult or impossible?
Kenneth R. Herrell: Well, I think you might even say impossible to the extent that once a man is qualified as minister and has those believes that he could be said to continue those in his thoughts subconsciously.
Thurgood Marshall: And be excluded?
Kenneth R. Herrell: And be excluded yes Your Honor.
Speaker: By trying to taking --
Thurgood Marshall: I assume that if he says that I am no longer Minister of the Gospel, I am adient, that would not happen?
Kenneth R. Herrell: Well, if he professes to be Methodist and does not adhere to this religion that might be a little different category.
Thurgood Marshall: Well, he might make it if he becomes an adient?
Kenneth R. Herrell: Yes, sir.
Speaker: You cannot put the thread back on a tire by running the car in reverse?
Kenneth R. Herrell: That is what I am trying to say, yes sir. Again, I want to summarize this very briefly to say that there is no attempt made to regulate the belief by this Act. There is no attempt made to regulate a practice of a religion by the Act that is in question and there is no denial of the appellant’s rights under the Equal Protection Clause of the Fourteenth Amendment and all ministers and their counterparts, all religions are excluded on provisions of Article IX Section 1 of the Tennessee Constitution. There is no fundamental right over public office. If the Court has no further questions, I have to submit.
Warren E. Burger: Very well. Do you not have anything further Mr. LeClercq?
Frederic S. Leclercq: Briefly. The separation of church and state argument which has been made by the Attorney General of Tennessee is a state doctrine and it is our position that this runs a foul of the federal separation of church and state doctrine. The question of whether this case is brought as a class action to this Court, appellant’s position on that issue is that it was properly certified as a class action by the Chancery and that the authority on which the Tennessee Court relied to deny the cross appeal of appellant was in opposite --
William H. Rehnquist: The federal question is raised by that?
Frederic S. Leclercq: It is a question of whether or not this issue must be addressed again in some other litigation after this case has been decided.
William H. Rehnquist: What federal right were you denied by the Supreme Court of Tennessee's ruling on that aspect of the case?
Frederic S. Leclercq: The rights, person similarly situated to Reverend McDaniel to assert their federally protected rights to seek legislative office in the --
William H. Rehnquist: Where do we find that enunciated in the constitution or in the cases?
Frederic S. Leclercq: It would be in the voting rights, it would be in the same Free Exercise and Establishment Rights that are being asserted here. It is also a question of economics. It is a question of whether or not counsel -- whether that there is a likelihood of this Court’s decision leaving open the way for counsel to have to come back up and do this sort of thing again on candidacy for legislative office.
William H. Rehnquist: Are you against that or for that?
Frederic S. Leclercq: I would be very much in favor of saving the money. Indeed that speaking of money, this is a 1983 action for which if appellant prevails there is a right to Attorney fees also under the Voting Right Section of the Voting Rights Act of 1975, there is a provision for an award of Attorney fees to prevailing counsel in Voting Rights litigations or it would seem to me that it would even be in the interest of the State of Tennessee to have the thing decided once and for all unless they want to pay counsel to do the same thing that has already been done. The matter of ministers having special privileges being excluded from the service, ready answer to that which we provided in our brief, is that this is to encourage the Free Exercise Rights of those who have been removed from their churches by being drafted or otherwise going into the army. The tax rights, similarly this is to advance Free Exercise Rights, the tax advantages which are afforded to ministers. The difference between the tax advantages and the service provisions relating to ministers involved in this case, is it here there is a penalty against ministers and those cases involve preferences. So one other point the -- the it -- although it is not commanded a majority view on this Court, it is the case that the appellant is a black minister and in the amended complaint it was alleged that the affect of this provision is to disproportionately exclude a black leadership from candidacy for a public office because this Court can take notice of that fact --
Thurgood Marshall: You do not have any Negro politicians in Tennessee who are not ministers?
Frederic S. Leclercq: We got a lot of them, but what we are saying is that the leadership in the black community traditionally has been overrepresented in the ministry and even though this Court --
Thurgood Marshall: You are making statements that you cannot back up and I do not think you should make it unless you got the facts to back them up, would you agree?
Frederic S. Leclercq: I believe that the --
Thurgood Marshall: You are talking about the leadership of Negroes in Tennessee, now cite your authority for that statement?
Frederic S. Leclercq: Your Honor, my time is up, but I would write to respond to --
Warren E. Burger: You may respond I took your response to mean that of the professions, Negroes are proportionately have a higher representation in the clergy than in other professions?
Frederic S. Leclercq: In law or in medicine? Black lawyers or black doctors could run for office. Black ministers cannot and since leadership --
Thurgood Marshall: And how many white ministers are in the Mormon Church? Yeah, because every member is --
Frederic S. Leclercq: I think this -- this case trans -- certainly transcends racial rounds because it affects white ministers as well as blacks.
Warren E. Burger: But does it really have anything to do with race at all? Suppose we had not known because I did not that this man was a Negro, white, Chinese or whatever. Does it make any difference to the fundamental issues that you are presenting here?
Frederic S. Leclercq: No, its just an additional reason.
Warren E. Burger: Well, then we continue to concern ourselves with the case?
Frederic S. Leclercq: Alright sir.
Warren E. Burger: Thank you gentleman. The case is submitted.


Earl Warren: Number 196, Herbert Schneider versus Willard J. Smith, Commandant of the United States Coast Guard.
Leonard Schroeter: Mr. Chief Justice --
Earl Warren: Mr. Schroeter.
Leonard Schroeter: I'm Sorry, Mr. Chief Justice and may it please the Court. This case arises as a consequence of an order of this Court which postponed further consideration of the question of probable jurisdiction to a hearing of the case in the merits. Under this Court's orders and its rules counsel should address themselves with the outside -- outset of their brief and oral argument to the question of the jurisdiction. This is in appeal from the final judgment of the three-judge Court, pursuant to 28 U.S.C. 2282. The complaint of the appellant asked the Court to declaratory an injunctive relief when constitutional grounds from the application of 50 U.S.C. 191, which is commonly known as the "Magnuson Act". It was alleged that the Act was unconstitutional and it was vague. And it was contended below that there was unconstitutional delegation to the executive of legislative power. The court below accepted jurisdiction. Now this was a proper case for the invocation of the three-judge court and thus, for this appeal. The Government concedes in their brief that this Court does have jurisdiction of the appeal. And both the Solicitor General and the appellant state that these questions are substantial and that Zemel versus Rusk is authoritative and is positive of this question. Zemel further makes it clear as thus, the issue that jurisdiction haven't been established. This Court will consider the statutory and regulatory schemes as a whole. Now, the Magnuson Act under which this case arises was introduced into Congress in July of 1950, less than one month after the Korean War began. Now, this was all of us on sure recall, a time of great anxiety of this nation. The Act has cast the House of Representatives with no debate and the Senate with virtually none. It purported to a man the World War I statute regulating the anchorage and movement of vessels during national emergency by permitting the President to exercise authority other than by the proclamation of National Emergency which he was permitted to do. And secondly, by extending the authority of the President to: ports, harbors, and waterfront facilities. The President by executive order shortly thereafter found that "The security of the United States is endangered by reason of subversive activity", and prescribed regulations that delegated his authority to the Coast Guard. A Commandant of the Coast Guard by such regulations required that as a precondition of maritime employment. The maritime workers must be issued a specially validated emergency endorsement. No person shall be issued such a document which is required for an employment nor may he be employed unless "That Commandant is satisfied that the character and habit of life of such person are such to authorize the belief that his employment would not be inimicable to the security of the United States." Now these regulations pursuant to the executive order, where the genesis of what we know as the Maritime Security Screening Program. This program is the only Government to one private employment that blankets an entire industry. It's the only program that covers private employment all together except for the defense contractor security program where the employer, is of course, the contractor of the federal government dealing with classified information. Although, originally proposed as an emergency measure by the Attorney General who requested that the authority that was given should expire on a specific date. By 1956, well over 800,000 men have been screened under this program and more than 3,700 of them have been denied employment or removed from employment. The program is wholly administered by the Coast Guard with complete, unchecked discretion in a Commandant of the Coast Guard. It seeks the lead out subversives form among all maritime workers, who presently number probably in excess of 150,000. And that includes cooks on banana boats, checkers on the docks, sweepers on the Great Lakes, the rivers of -- the navigable rivers of this country. It includes people doing every conceivable kind of job in the maritime industry in vessel above 100 ton and of course the dock workers. The way the program works, it seems to me, is well perceived by the experiences of the appellant here. By the information it's already found in the briefs and the joined appendix. Mr. Schneider failed, as a young man, during the 1940s and was a qualified -- and qualified as a marine engineer. When his children arrived he quit sailing. In 1964 his children being substantially grown, he decided to go back to the sea and he applied. Now applying meant going down to the Coast Guard and filling out certain applications. Among other things, those applications included an original questionnaire which is exhibit A 2 in the joined appendix on page 27. And the original questionnaire asks a number of basic questions like, Have you been arrested for or convicted of the offenses of treasons and sedition, espionage or sabotaging? He denied that denied also that he have ever been involved in the conspiracy. He was then asked whether he have ever been involved in any capacity by a foreign government or by any person on behalf of the foreign government. He answered that, "No". Last night, while preparing this argument for this Court, I reread this, and to my horror even though this is off of the record but I think it notes something. I realized that Mr. Schneider by innocent inadvertence may well have purged himself because for a year, he and his wife and his children lived in a Cabot in Israel. Now for the wise of me, I don't know whether the answer to this question if one works for a Cabot's in Israel and lives in a Cabot, it's really yes or no.
Earl Warren: Question?
Leonard Schroeter: That's question number 3. Mr. Schneider has no idea I'm making these concessions on his behalf. But I think it's significant that the character and quality of these questions are such a character that such an inadvertent on Mr. Schneider's part such a lack of knowledge put indeed have occurred. He was then asked whether he advocated or had ever advocated the overthrow or alteration of the Government of the United States by for surveillance or by unconstitutional means which he denied. He then had submitted to him what is commonly known as the Attorney General's list and which is listed in detail in this particular -- in the joined appendix commencing on page 27. And he was asked whether he had ever submitted material for publication which -- in which he gave a negative response. And whether he had ever been a member of or affiliated with any way any of these organizations. Now as the record subsequent -- as it subsequently appears in the record in his counsel subsequently pointed out by way, Mr. Schneider had or idealistic reason that a casual member of the Communist Party during his youth. He had drifted away from the Communist Party in the late 1940s. He had also and these were problems that he faced when he have been assessed that he'd reading this list. He had also for example had certain contacts because he was interested in politics with some problems in the defense of a well known west coast labor leader, in which he left unmentioned. He had gone to a labor school as an active member of a trade union. He had been involved in democratic politics in the State of Washington which during given periods of involved some relationships with some of the organizations listed here. He found it extraordinarily difficult to answer these questions about conduct that is 20 to 25 years older. He found the questions vague and uncertain. He did not know what to do. And as a consequence, he answered the questions in the fashion set forth on page 33 that he had been a member of many political and social organizations including several names in the list. He couldn't remember the names of most of it. He couldn't specific about any but in no event have he been a member of anything for some substantial period of time. This answer of course was given under pain and penalty of perjury. And it's also noted on page 33 of the joined appendix, it appears that the intelligence division of the Coast Guard received this questionnaire, just a few weeks after it was answered, and proceeded to check it by using the facilities of the FBI and the other Government investigated bodies that are available. There were no answers, none whatsoever. Mr. Schneider went to the Coast Guard and said, "What's going on?" "Why am I not receiving my special validation?" They wrote several letters to which there was no response. In mid March he retained counsel. And the counsel then by virtual of a number of letters which again are set fort commencing on page 17, approached the Coast Guard by mail and said -- asked what was happening and why Mr. Schneider did not receive the special validation. The Coast Guard responded saying that he's reluctant to furnish names and dates of membership had delayed their investigation now some five months. And however, they anticipated that action will be taken in the near future which presume to me that he would receive his special validation. Nonetheless, the special validation was not received. And on March 25th, Mr. Schneider received instead a group of interrogatories from the Government when she was also compelled to answer under pain and penalty of perjury are those interrogatory being contained on page 35 of the joined appendix. He is of course involved asks questions to such as listing the name of the political and social organizations to which he belong, the location, the dates of his membership, his reasons for discontinuing his membership, his present attitude 20 years later for the principles and objectives of such an organization. He was asked whether he was now or had ever been a member or affiliated in any way with the Communist Party? Whether you'd ever subscribed to a newspaper the people's world? Whether he had ever engaged in any activities on behalf of that newspaper? And then he was asked to write an essay on his present attitude towards the Communist Party, and the rights to further a philosophical essay, and his present attitude towards the principles and objectives of communism, and towards the form of the government in the United States. These sort of do it yourself worthy I suppose. In any event, all of these were under pain and penalty of perjury, to answer these questions searching his mind. Well at this point, Mr. Schneider obviously had a dilemma. It was a dilemma of his or it was a dilemma of concerns. Mr. Schneider wanted to shift but he valued his constitutional right. Counsel didn't wish to subject if the hazards of self-incrimination or for perjury indictment. So Mr. Schneider faced the consequence of answering the questions thus, subjecting himself to the hazards of such an indictment or if you chose not to answer the questions the hazard of never been able to proceed in its chosen occupation.
Abe Fortas: When that third course which course to do search some administrator of channels set fort in the regulations.
Leonard Schroeter: That third course the so-called administrative channels and I'm appreciative of the facts that you didn't use the word remedies. The administrative channels where to answer the questions. That is the only administrative channel under the regulations that are available. And indeed when the District Court of this Circuit, the Circuit Court of this channel in Graham versus Richmond had earlier said that a person need not answer such questions. The Coast Guard had immediately proceeded to create additional and rather difficult channel by saying that anybody who did not answer the question would not be certified. So there was no third alternative, sir. Except to against his conscience answer the questions with the hazards implicit in that or alternatively never secure employment.
Abe Fortas: When the appellee and you are in conflict on that term, am I correct?
Leonard Schroeter: I think not. I don't know of any of the way to read the regulations.
Abe Fortas: But doesn't the appellee argued that there is another way to read the regulations and if there is, and then the administrative remedy (Voice Overlap) --
Leonard Schroeter: Not as far as I know sir. I never heard such an argument until this -- until Your Honor suggested that it might exist.
Abe Fortas: But I was inquiring of it.
Leonard Schroeter: No, I think not sir. In any event, when further letters were to no avail I think determined to bring this action. Now all of this is in face of the fact that the Government neither contested nor produced evidence to contradict the fact that Mr. Schneider has always been and is loyal to the United States. That he has never come in any act of sabotage or espionage or any act inimical to the security of the United States. That he has not been active in any organization on the Attorney General's list for many years. It appears to me that the only thing one can safely produced from this failure to grant him special certification was a punitive effort on the part of the Coast Guard, to deprive him of his livelihood because it is an assertion of his constitutional rights. Nothing else can be perceived in the record or from the behavior or the exchange of correspondents. Now the issue post here, the central issue post is that expressed by this court in by question, whether the right to employment can be conditioned upon the surrender of the constitutional rights which could not be a bridge by directing Government action. The Court of course, this Court sites many cases and answers the question negatively. Yet, this has been and remains the central contention of the Government has been right from the beginning. They justify their contention that the question should be answered affirmatively.
Speaker: (Inaudible)
Leonard Schroeter: It gives me great comfort. I even contemplated standing up and saying, Robel and sitting down. It seems to me if decisive of this case and I was about to add that I thought that Robel certainly went directly to that point and answered it besides the claim and I hope to find it. But in addition to that of course, the Government trying to answer the other way makes two points. And there are only two that I never been able to locate in their briefs and arguments. First, they make the argument of what I would be called a missed describe exhaustion of remedy argument. And secondly, they appealed with the necessities of National Defense just as the Court's decision in Robel yesterday.
Abe Fortas: I thought you said there wasn't many? I thought you said there was any dispute on that court?
Leonard Schroeter: There is no dispute that the remedy unless I misunderstood your question, Mr. Justice Fortas.
Abe Fortas: Well, the Government does make the argument that this is a premature because Mr. Schneider has not exhausted in this administrative remedy?
Leonard Schroeter: It's the key argument but I had understood your question to me whether he could exhaust his remedies other than by answering the question interrogatory.
Abe Fortas: Does the Government say that -- if the Government concede that he has got to answer the interrogatory --
Leonard Schroeter: Yes.
Abe Fortas: --before he can pursue any other remedies?
Leonard Schroeter: Precisely. The Government -- the analogy in the sense to the criminal procedure, the government takes the position, it seems to me like the prosecutor might to the criminal first in charge with the crime. You can have your trial if you submit to incarceration and persistent questioning without the presence of the counsel. Then you're entitled for a trial. This is what the Government says. It says, "Violate your constitutional rights by answering all these interrogatories placing yourself on these hazardous positions and violating your conscientious position with respect to the First Amendment. And then, we will rule as to whether or not you can be especially validated? Now, I suggest sir that that's not administrative remedy. That's a submission it to a Government in position. So, it seems to me that Robel answered both the question as we post earlier and the appeal to the necessities of national defense when this Court said, that such an appeal unrelated to our basic constitutional principles cannot be used as a justification for their destruction.
Potter Stewart: Roble or Robel how you call it, get involved of the criminal prosecutions or anybody who (A), as a member of a semi-fashion group and (B) had employment in a defense facility. In this case, I'm now reading from the letter that you yourself oath on page 23 of the joined appendix, you said that you advised your client that it is possible for him to answer the interrogatories, you are saying. And that without any doubt, we would then receive a certification which he both desired and needs so that he may earn a living in his chosen field. There's no such absolute and flexible impediment of this man's employment unless you are wrong in the professional advice that you represented him.
Leonard Schroeter: We always hoped that our enemy will write a book and that -- and lawyers I suppose are always distressed when they see letters that they wrote for a few days after a client came in the office. I think they were hazards and very real ones. They were not the kinds of absolute impediments that contained, of course, in the criminal statute involved in Robel.
Potter Stewart: Did you advise him that he could answer the interrogatories and that if he did so, he get his job. Get what --
Leonard Schroeter: What I was seeking to say inartistically and rather badly was that it is so obvious that this man cannot constitute a security risk to anybody and that he is obviously such an upstanding, honest, decent guy that even the Coast Guard has got to understand this. This is what I was really saying. But on the other hand, this Court and I believe Your Honor in the opinion of this Court warned that one cannot always rely upon what the prosecutor might do. And I was simultaneously worried, after all the Robel indictment occurred in Seattle. And the crime in Seattle is not always everything we would want it to be and I wanted to --
Potter Stewart: That's true about the time and everything --
Leonard Schroeter: I think that's true, right. But I wanted to both be safe and yet --really, what I was trying to say to the Coast Guard is, "Look for heaven's sake, don't make this man go through the answering of these questions that were obnoxious." I don't put him in a position of jeopardy. It is planned. All you have to do, as I laid a point out in one of the letters of -- the most minimal investigation of Herbert Schneider. Would it reveal that -- that this man was a clearly good -- a man of good First Amendment character. But the horror of the situation of course, this shouldn't be put through in the first instance and the problem of counsel is that Mr. Schneider wanted to go to see. And at the same time, he wanted to protect rights that he got with pressures and that his principle of it. This was the dilemma. And really the basic principles opposed by this case it seems to me, a very fundamental kind of principle. First of all, it seems to me that we have post in this case the whole concept of the privacy of the individual. This would be claim of Government necessity which is really what the Bill of Rights I taken it all about. And an implicit in this, there are notions of the non-acceptance of assumptions or presumptions or inferences of guilt based upon people's beliefs and association. We were in this in the long terms of concepts and presumption of innocence and burdens of proof. And the recognition that I hope and believe that Courts have that people had the capacity for a change. Implicit in this is the non-assumption that individuals are tainted by the allegedly bad character of their associational relationships. The assertion it seems to me of vital -- of the vital public necessity, not just Schneider's necessity. But the public's necessity that individuals be non-intimidated in areas of beliefs, thoughts, speech, and association. Really, so the democratic political process can work, the assertion of the essential of the human personality, the right of privacy in a sense which includes the right to remain silent laws to speak, the right to be free of the indignity of inquisitorial kinds of inquiries. Also it seems implicit in this case, is the necessity and the maintenance for freedom of a rule of law. Now, what the Solicitor General of the United States in his form of capacity of Dean of my law school, had to say in a very good book called the Fifth Amendment, where he referred to the Second Chapter, "To the Law of the Land" this whole concept of due process that underlies these. The notion that we cannot maintain our democracy , if we're outside the laws the justice of this Court in his former capacity of the distinguished constitutional lawyer. I pointed out an Article by that name in the Atlantic monthly in August 1953. An article which could be read profitably today because it describes Mr. Justice Fortas' Article outside the law describes the very rights. That is inherent in the maritime screen program. So at the minimum it seems to me that we have the right to expect from our Government, my Government, your Government that it will take no steps to compel a man to place himself in jeopardy. That no one may be subjected to the possibility of the punishment by laws of employment unless probable cause is first found for an assertion of disloyalty or lack of security. So that he should be confronted in detail and with specificity as to any charges against him. They be permitted to confront his accuser that he be afforded that opportunity for consulate cross examine such accuse him. And to present evidence in his behalf that he be judged only by what's on the record and by evidence which he has the opportunity to meet that his accuser his judge, his jury not be the same or responsible with the same law with authority, and that the process provides an independent judicial review. None of these things are present in the Coast Guard regulations as they exist. Thank you.
Earl Warren: We'll recess.