author: Mr. Justice White Mr. Chief Justice Burger,

text:
    STANLEY v. ILLINOIS
    No. 70-5014.
    Argued October 19, 1971
    Decided April 3, 1972
    White, J., delivered the opinion of the Court, in which BrenNan, Stewart, and Marshall, JJ., joined, and in Parts I and II of which Douglas, J., joined. Burger, C. J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 659. Powell and Rehnquist, JJ., took no part in the consideration or decision of-the case.

      Patrick T. Murphy argued the cause and filed a brief for petitioner.

      Morton E. Friedman, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Scott, Attorney General, and Joel M. Flaum, First Assistant Attorney General.

      Jonathan Weiss and E. Judson Jennings filed a brief for the Center on Social Welfare Policy and Law as amicus curiae urging reversal.

      Calvin Sawyier and Richard L. Mandel filed a brief for the Child Care Association of Illinois, Inc., as amicus curiae.

   Mr. Justice White

delivered the opinion of the Court.

Joan Stanley lived with Peter Stanley intermittently for 18 years, during which time they had three children. When Joan Stanley died, Peter Stanley lost not only her but also his children. Under Illinois law, the children of unwed fathers become wards of the State upon the death of the mother. Accordingly, upon Joan Stanley’s death, in a dependency proceeding instituted by the State of Illinois, Stanley’s children were declared wards of the State and placed with court-appointed guardians. Stanley appealed, claiming that he had never been shown to be an unfit parent and that since married fathers and unwed mothers could not be deprived of their children without such a showing, he had been deprived of the equal protection of the laws guaranteed him by the Fourteenth Amendment. The Illinois Supreme Court accepted the fact that Stanley’s own unfitness had not been established but rejected the equal protection claim, holding that Stanley could properly be separated from his children upon proof of the single fact that he and the dead mother had not been married. Stanley’s actual fitness as a father was irrelevant. In re Stanley, 45 Ill. 2d 132, 256 N. E. 2d 814 (1970).

Stanley presses his equal protection claim here. The State continues to respond that unwed fathers are presumed unfit to raise their children and that it is unnecessary to hold individualized hearings to determine whether particular fathers are in fact unfit parents before they are separated from their children. We granted certiorari, 400 U. S. 1020 (1971), to determine whether this method of procedure by presumption could be allowed to stand in light of the fact that Illinois allows married fathers — whether divorced, widowed, or separated — and mothers — even if unwed — the benefit of the presumption that they are fit to raise their children.

I

At the outset we reject any suggestion that we need not consider the propriety of the dependency proceeding that separated the Stanleys because Stanley might be able to regain custody of his children as a guardian or through adoption proceedings. The suggestion is that if Stanley has been treated differently from other parents, the difference is immaterial and not legally cognizable for the purposes of the Fourteenth Amendment. This Court has not, however, embraced the general proposition that a wrong may be done if it can be undone. Cf. Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). Surely, in the case before us, if there is delay between the doing and the undoing petitioner suffers from the deprivation of his children, and the children suffer from uncertainty and dislocation.

It is clear, moreover, that Stanley does not have the means at hand promptly to erase the adverse consequences of the proceeding in the course of which his children were declared wards of the State. It is first urged that Stanley could act to adopt his children. But under Illinois law, Stanley is treated not as a parent but as a stranger to his children, and the dependency proceeding has gone forward on the presumption that he is unfit to exercise parental rights. Insofar as we are informed, Illinois law affords him no priority in adoption proceedings. It would be his burden to establish not only that he would be a suitable parent but also that he would be the most suitable of all who might want custody of the children. Neither can we ignore that in the proceedings from which this action developed, the “probation officer,” see App. 17, the assistant state’s attorney, see id., at 29-30, and the judge charged with the case, see id., at 16-18, 23, made it apparent that Stanley, unmarried and impecunious as he is, could not now expect to profit from adoption proceedings. The Illinois Supreme Court apparently recognized some or all of these considerations, because it did not suggest that Stanley’s case was undercut by his failure to petition for adoption.

Before us, the State focuses on Stanley’s failure to petition for “custody and control” — the second route by which, it is urged, he might regain authority for his children. Passing the obvious issue whether it would be futile or burdensome for an unmarried father — without funds and already once presumed unfit — to petition for custody, this suggestion overlooks the fact that legal custody is not parenthood or adoption. A person appointed guardian in an action for custody and control is subject to removal at any time without such cause as must be shown in a neglect proceeding against a parent. Ill. Rev. Stat., c. 37, § 705-8. He may not take the children out of the jurisdiction without the court’s approval. He may be required to report to the court as to his disposition of the children’s affairs. Ill. Rev. Stat., c. 37, § 705-8. Obviously then, even if Stanley were a mere step away from “custody and control,” to give an unwed father only “custody and control” would still be to leave him seriously prejudiced by reason of his status.

We must therefore examine the question that Illinois would have us avoid: Is a presumption that distinguishes and burdens all unwed fathers constitutionally repugnant? We conclude that, as a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him and that, by denying him a hearing and extending it to all other parents whose custody of their children is challenged, the State denied Stanley the equal protection of the laws guaranteed by the Fourteenth Amendment.

II

Illinois has two principal methods of removing non-delinquent children from the homes of their parents. In a dependency proceeding it may demonstrate that the children are wards of the State because they have no surviving parent or guardian. Ill. Rev. Stat., c. 37, §§ 702-1, 702-5. In a neglect proceeding it may show that children should be wards of the State because the present parent(s) or guardian does not provide suitable care. Ill. Rev. Stat., c. 37, §§ 702-1, 702-4.

The State’s right — indeed, duty — to protect minor children through a judicial determination of their interests in a neglect proceeding is not challenged here. Rather, we are faced with a dependency statute that empowers state officials to circumvent neglect proceedings on the theory that an unwed father is not a “parent” whose existing relationship with his children must be considered. “Parents,” says the State, “means the father and mother of a legitimate child, or the survivor of them, or the natural mother of an illegitimate child, and includes any adoptive parent,” Ill. Rev. Stat., c. 37, § 701-14, but the term does not include unwed fathers.

Under Illinois law, therefore, while the children of all parents can be taken from them in neglect proceedings, that is only after notice, hearing, and proof of such unfitness as a parent as amounts to neglect, an unwed father is uniquely subject to the more simplistic dependency proceeding. By use of this proceeding, the State, on showing that the father was not married to the mother, need not prove unfitness in fact, because it is presumed at law. Thus, the unwed father’s claim of parental qualification is avoided as “irrelevant.”

In considering this procedure under the Due Process Clause, we recognize, as we have in other cases, that due process of law does not require a hearing “in every conceivable case of government impairment of private interest.” Cafeteria Workers v. McElroy, 367 U. S. 886, 894 (1961). That case explained that “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation” and firmly established that “what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Id., at 895; Goldberg v. Kelly, 397 U. S. 254, 263 (1970).

The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U. S. 77, 95 (1949) (Frankfurter, J., concurring).

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” Meyer v. Nebraska, 262 U. S. 390, 399 (1923), “basic civil rights of man,” Skinner v. Oklahoma, 316 U. S. 535, 541 (1942), and “[rjights far more precious ... than property rights,” May v. Anderson, 345 U. S. 528, 533 (1953). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U. S. 158, 166 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, at 541, and the Ninth Amendment, Griswold v. Connecticut, 381 U. S. 479, 496 (1965) (Goldberg, J., concurring).

Nor has the law refused to recognize those family relationships unlegitimized by a marriage ceremony. The Court has declared unconstitutional a state statute denying natural, but illegitimate, children a wrongful-death action for the death of their mother, emphasizing that such children cannot be denied the right of other children because familial bonds in such cases were often as warm, enduring, and important as those arising within a more formally organized family unit. Levy v. Louisiana, 391 U. S. 68, 71-72 (1968). “To say that the test of equal protection should be the ‘legal’ rather than the biological relationship is to avoid the issue. For the Equal Protection Clause necessarily limits the authority of a State to draw such ‘legal’ lines as it chooses.” Glona v. American Guarantee Co., 391 U. S. 73, 75-76 (1968).

These authorities make it clear that, at the least, Stanley’s interest in retaining custody of his children is cognizable and substantial.

For its part, the State has made its interest quite plain: Illinois has declared that the aim of the Juvenile Court Act is to protect “the moral, emotional, mental, and physical welfare of the minor and the best interests of the community” - and to “strengthen the minor’s family ties whenever possible, removing him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal . . . .” Ill. Rev. Stat., c. 37, § 701-2. These are legitimate interests, well within the power of the State to implement. We do not question the assertion that neglectful parents may be separated from their children.

But we are here not asked to evaluate the legitimacy of the state ends, rather, to determine whether the means used to achieve these ends are constitutionally defensible. What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular disputed case? We observe that the State registers no gain towards its declared goals when it separates children from the custody of fit parents. Indeed, if Stanley is a fit father, the State spites its own articulated goals when it needlessly separates him from his family.

In Bell v. Burson, 402 U. S. 535 (1971), we found a scheme repugnant to the Due Process Clause because it deprived a driver of his license without reference to the very factor (there fault in driving, here fitness as a parent) that the State itself deemed fundamental to its statutory scheme. Illinois would avoid the self-contradiction that rendered the Georgia license suspension system invalid by arguing that Stanley and all other unmarried fathers can reasonably be presumed to be unqualified to raise their children.

It may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents. It may also be that Stanley is such a parent and that his children should be placed in other hands. But all unmarried fathers are not in this category; some are wholly suited to have custody of their children. This much the State readily concedes, and nothing in this record indicates that Stanley is or has been a neglectful father who has not cared for his children. Given the opportunity to make his case, Stanley may have been seen to be deserving of custody of his offspring. Had this been so, the State’s statutory policy would have been furthered by leaving custody in him.

Carrington v. Rash, 380 U. S. 89 (1965), dealt with a similar situation. There we recognized that Texas had a powerful interest in restricting its electorate to bona fide residents. It was not disputed that most servicemen stationed in Texas had no intention of remaining in the State; most therefore could be deprived of a vote in state affairs. But we refused to tolerate a blanket exclusion depriving all servicemen of the vote, when some servicemen clearly were bona fide residents and when “more precise tests,” id., at 95, were available to distinguish members of this latter group. “By forbidding a soldier ever to controvert the presumption of non-residence,” id., at 96, the State, we said, unjustifiably effected a substantial deprivation. It viewed people one-dimensionally (as servicemen) when a finer perception could readily have been achieved by assessing a serviceman’s claim to residency on an individualized basis.

“We recognize that special problems may be involved in determining whether servicemen have actually acquired a new domicile in a State for franchise purposes. We emphasize that Texas is free to take reasonable and adequate steps, as have other States, to see that all applicants for the vote actually fulfill the requirements of bona fide residence. But [the challenged] provision goes beyond such rules. ‘[T]he presumption here created is . . . definitely conclusive — incapable of being overcome by proof of the most positive character.’ ” Id., at 96.

“All servicemen not residents of Texas before induction,” we concluded, “come within the provision’s sweep. Not one of them can ever vote in Texas, no matter” what their individual qualifications. Ibid. We found such a situation repugnant to the Equal Protection Clause.

Despite Bell and Carrington, it may be argued that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case, including Stanley’s. The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.

Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.

Bell v. Burson held that the State could not, while purporting to be concerned with fault in suspending a driver’s license, deprive a citizen of his license without a hearing that would assess fault. Absent fault, the State’s declared interest was so attenuated that administrative convenience was insufficient to excuse a hearing where evidence of fault could be considered. That drivers involved in accidents, as a statistical matter, might be very likely to have been wholly or partially at fault did not foreclose hearing and proof in specific cases before licenses were suspended.

We think the Due Process Clause mandates a similar result here. The State’s interest in caring for Stanley’s children is de minimis if Stanley is shown to be a fit father. It insists on presuming rather than proving Stanley’s unfitness solely because it is more convenient to presume than to prove. Under the Due Process Clause that advantage is insufficient to justify refusing a father a hearing when the issue at stake is the dismemberment of his family.

Ill

The State of Illinois assumes custody of the children of . married parents, divorced parents, and unmarried mothers only after a hearing and proof of neglect. The children of unmarried fathers, however, are declared dependent children without a hearing on parental fitness and without proof of neglect. Stanley’s claim in the state courts and here is that failure to afford him a hearing on his parental qualifications while extending it to other parents denied him equal protection of the laws. We have concluded that all Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. It follows that denying such a hearing to Stanley and those like him while granting it to other Illinois parents is inescapably contrary to the Equal Protection Clause.

The judgment of the Supreme Court of Illinois is reversed and the case is remanded to that court for proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Douglas joins in Parts I and II of this opinion.

Mr. Chief Justice Burger,

with whom Mr. Justice Blackmun concurs, dissenting.

The only constitutional issue raised and decided in the courts of Illinois in this case was whether the Illinois statute that omits unwed fathers from the definition of “parents” violates the Equal Protection Clause. We granted certiorari to consider whether the Illinois Supreme Court properly resolved that equal protection issue when it unanimously upheld the statute against petitioner Stanley’s attack.

No due process issue was raised in the state courts; and no due process issue was decided by any state court. As Mr. Justice Douglas said for this Court in State Farm Mutual Automobile Ins. Co. v. Duel, 324 U. S. 154, 160 (1945), “Since the [state] Supreme Court did not pass on the question, we may not do so.” We had occasion more recently to deal with this aspect of the jurisdictional limits placed upon this Court by 28 U. S. C. § 1257 when we decided Hill v. California, 401 U. S. 797 (1971). Having rejected the claim that Chimel v. California, 395 U. S. 752 (1969), should be retroactively applied to invalidate petitioner Hill’s conviction on the ground that a search incident to arrest was overly extensive in scope, the Court noted Hill’s additional contention that his personal diary, which was one of the items of evidence seized in that search, should have been excluded on Fifth Amendment grounds as well. Mr. Justice White, in his opinion for the Court, concluded that we lacked jurisdiction to consider the Fifth Amendment contention:

“Counsel for [the petitioner] conceded at oral argument that the Fifth Amendment issue was not raised at trial. Nor was the issue raised, briefed, or argued in the California appellate courts. [Footnote omitted.] The petition for certiorari likewise ignored it. In this posture of the case, the question, although briefed and argued here, is not properly before us.” 401 U. S., at 805.

In the case now before us, it simply does not suffice to say, as the Court in a footnote does say, that “we dispose of the case on the constitutional premise raised below, reaching the result by a method of analysis readily available to the state court.” Ante, at 658 n. 10. The Court’s method of analysis seems to ignore the strictures of Justices Douglas and White, but the analysis is clear: the Court holds sua sponte that the Due Process Clause requires that Stanley, the unwed biological father, be accorded a hearing as to his fitness as a parent before his children are declared wards of the state court; the Court then reasons that since Illinois recognizes such rights to due process in married fathers, it is required by the Equal Protection Clause to give such protection to unmarried fathers. This “method of analysis” is, of course, no more or less than the use of the Equal Protection Clause as a shorthand condensation of the entire Constitution: a State may not deny any constitutional right to some of its citizens without violating the Equal Protection Clause through its failure to deny such rights to all of its citizens. The limits on this Court’s jurisdiction are not properly expandable by the use of such semantic devices as that.

Not only does the Court today use dubious reasoning in dealing with limitations upon its jurisdiction, it proceeds as well to strike down the Illinois statute here involved by “answering” arguments that are nowhere to be found in the record or in the State’s brief — or indeed in the oral argument. I have been unable, for example, to discover where or when the State has advanced any argument that “it is unnecessary to hold individualized hearings to determine whether particular fathers are in fact unfit parents before they are separated from their children.” Ante, at 647. Nor can I discover where the State has “argu[ed] that Stanley and all other unmarried fathers can reasonably be presumed to be unqualified to raise their children.” Ante, at 653. Or where anyone has even remotely suggested the “argu[ment] that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case, including Stanley’s.” Ante, at 656. On the other hand, the arguments actually advanced by the State are largely ignored by the Court.

All of those persons in Illinois who may have followed the progress of this case will, I expect, experience no little surprise at the Court’s opinion handed down today. Stanley will undoubtedly be surprised to find that he has prevailed on an issue never advanced by him. The judges who dealt with this case in the state courts will be surprised to find their decisions overturned on a ground they never considered. And the legislators and other officials of the State of Illinois, as well as those attorneys of the State who are familiar with the statutory provisions here at issue, will be surprised to learn for the first time that the Illinois Juvenile Court Act establishes a presumption that unwed fathers are unfit. I must confess my own inability to find any such presumption in the Illinois Act. Furthermore, from the record of the proceedings in the Juvenile Court of Cook County in this case, I can only conclude that the judge of that court was unaware of any such presumption, for he clearly indicated that Stanley’s asserted fatherhood of the children would stand him in good stead, rather than prejudice him, in any adoption or guardianship proceeding. In short, far from any intimations of hostility toward unwed fathers, that court gave Stanley “merit points” for his acknowledgment of paternity and his past assumption of at least marginal responsibility for the children.

In regard to the only issue that I consider properly before the Court, I agree with the State’s argument that the Equal Protection Clause is not violated when Illinois gives full recognition only to those father-child relationships that arise in the context of family units bound together by legal obligations arising from marriage or from adoption proceedings. Quite apart from the religious or quasi-religious connotations that marriage has — and has historically enjoyed — for a large proportion of this Nation’s citizens, it is in law an essentially contractual relationship, the parties to which have legally enforceable rights and duties, with respect both to each other and to any children born to them. Stanley and the mother' of these children never entered such a relationship. The record is silent as to whether they ever privately exchanged such promises as would have bound them in marriage under the common law. See Cartwright v. McGown, 121 Ill. 388, 398, 12 N. E. 737, 739 (1887). In any event, Illinois has not recognized common-law marriages since 1905. Ill. Rev. Stat., c. 89, § 4. Stanley did not seek the burdens when he could have freely assumed them.

Where there is a valid contract of marriage, the law of Illinois presumes that the husband is the father of any child born to the wife during the marriage; as the father, he has legally enforceable rights and duties with respect to that child. When a child is born to an unmarried woman, Illinois recognizes the readily identifiable mother, but makes no presumption as to the identity of the biological father. It does, however, provide two ways, one voluntary and one involuntary, in which that father may be identified. First, he may marry the mother and acknowledge the child as his own; this has the legal effect of legitimating the child and gaining for the father full recognition as a parent. Ill. Rev. Stat., c. 3, § 12-8. Second, a man may be found to be the biological father of the child pursuant to a paternity suit initiated by the mother; in this case, the child remains illegitimate, but the adjudicated father is made liable for the support of the child until the latter attains age 18 or is legally adopted by another. Ill. Rev. Stat., c. 106%, § 52.

Stanley argued before the Supreme Court of Illinois that the definition of “parents,” set out in Ill. Rev. Stat., c. 37, § 701-14, as including “the father and mother of a legitimate child, or the survivor of them, or the natural mother of an illegitimate child, [or] . . . any adoptive parent,” violates the Equal Protection Clause in that it treats unwed mothers and unwed fathers differently. Stanley then enlarged upon his equal protection argument when he brought the case here; he argued before this Court that Illinois is not permitted by the Equal Protection Clause to distinguish between unwed fathers and any of the other biological parents included in the statutory definition of legal “parents.”

The Illinois Supreme Court correctly held that the State may constitutionally distinguish between unwed fathers and unwed mothers. Here, Illinois’ different treatment of the two is part of that State’s statutory scheme for protecting the welfare of illegitimate children. In almost all cases, the unwed mother is readily identifiable, generally from hospital records, and alternatively by physicians or others attending the child’s birth. Unwed fathers, as a class, are not traditionally quite so easy to identify and locate. Many of them either deny all responsibility or exhibit no interest in the child or its welfare; and, of course, many unwed fathers are simply not aware of their parenthood.

Furthermore, I believe that a State is fully justified in concluding, on the basis of common human experience, that the biological role of the mother in carrying and nursing an infant creates stronger bonds between her and the child than the bonds resulting from the male’s often casual encounter. This view is reinforced by the observable fact that most unwed mothers exhibit a concern for their offspring either permanently or at least until they are safely placed for adoption, while unwed fathers rarely burden either the mother or the child with their attentions or loyalties. Centuries of human experience buttress this view of the realities of human conditions and suggest that unwed mothers of illegitimate children are generally more dependable protectors of their children than are unwed fathers. While these, like most generalizations, are not without exceptions, they nevertheless provide a sufficient basis to sustain a statutory classification whose objective is not to penalize unwed parents but to further the welfare of illegitimate children in fulfillment of the State’s obligations as parens patriae.

Stanley depicts himself as a somewhat unusual unwed father, namely, as one who has always acknowledged and never doubted his fatherhood of these children. He alleges that he loved, cared for, and supported these children from the time of their birth until the death of their mother. He contends that he consequently must be treated the same as a married father of legitimate children. Even assuming the truth of Stanley’s allegations, I am unable to construe the Equal Protection Clause as requiring Illinois to tailor its statutory definition of “parents” so meticulously as to include such unusual unwed fathers, while at the same time excluding those unwed, and generally unidentified, biological fathers who in no way share Stanley’s professed desires.

Indeed, the nature of Stanley’s own desires is less than absolutely clear from the record in this case. Shortly after the death of the mother, Stanley turned these two children over to the care of a Mr. and Mrs. Ness; he took no action to gain recognition of himself as a father, through adoption, or as a legal custodian, through a guardianship proceeding. Eventually it came to the attention of the State that there was no living adult who had any legally enforceable obligation for the care and support of the children; it was only then that the dependency proceeding here under review took place and that Stanley made himself known to the juvenile court in connection with these two children. Even then, however, Stanley did not ask to be charged with the legal responsibility for the children. He asked only that such legal responsibility be given to no one else. He seemed, in particular, to be concerned with the loss of the welfare payments he would suffer as a result of the designation of others as guardians of the children.

Not only, then, do I see no ground for holding that Illinois’ statutory definition of “parents” on its face violates the Equal Protection Clause; I see no ground for holding that any constitutional right of Stanley has been denied in the application of that statutory definition in the case at bar.

As Mr. Justice Frankfurter once observed, “Invalidating legislation is serious business . . . .” Morey v. Doud, 354 U. S. 457, 474 (1957) (dissenting opinion). The Court today pursues that serious business by expanding its legitimate jurisdiction beyond what I read in 28 U. S. C. § 1257 as the permissible limits contemplated by Congress. In doing so, it invalidates a provision of critical importance to Illinois’ carefully drawn statutory system governing family relationships and the welfare of the minor children of the State. And in so invalidating that provision, it ascribes to that statutory system a presumption that is simply not there and embarks on a novel concept of the natural law for unwed fathers that could well have strange boundaries as yet undiscernible.

       TJncontradicted testimony of Peter Stanley, App. 22.

       Only two children are involved in this litigation.

       The Illinois Supreme Court’s opinion is not at all contrary to this conclusion. That court said: “[T]he trial court's comments clearly indicate the court’s willingness to consider a future request by the father for custody and guardianship.” 45 Ill. 2d 132, 135, 256 N. E. 2d 814, 816. (Italics added.) See also the comment of Stanley’s counsel on oral argument: “If Peter Stanley could have adopted his children, we would not be here today.” Tr. of Oral Arg. 7.

       Even while refusing to label him a “legal parent,” the State does not deny that Stanley has a special interest in the outcome of these proceedings. It is undisputed that he is the father of these children, that he lived with the two children whose custody is challenged all their lives, and that he has supported them.

       Illinois says in its brief, at 21-23.
      “[T]he only relevant consideration in determining the propriety of governmental intervention in the raising of children is whether the best interests of the child are served by such intervention.
      “In effect, Illinois has imposed a statutory presumption that the best interests of a particular group of children necessitates some governmental supervision in certain clearly defined situations. The group of children who are illegitimate are distinguishable from legitimate children not so much by their status at birth as by the factual differences in their upbringing. While a legitimate child usually is raised by both parents with the attendant familial relationships and a firm concept of home and identity, the illegitimate child normally knows only one parent — the mother. . . .
      “. . . The petitioner has premised his argument upon particular factual circumstances — a lengthy relationship with the mother . . . a familial relationship with the two children, and a general assumption that this relationship approximates that in which the natural parents are married to each other.
      “. . . Even if this characterization were accurate (the record is insufficient to support it) it would not affect the validity of the statutory definition of parent. . . . The petitioner does not deny that the children are illegitimate. The record reflects their natural mother’s death. Given these two factors, grounds exist for the State’s intervention to ensure adequate care and protection for these children. This is true whether or not this particular petitioner assimilates all or none of the normal characteristics common to the classification of fathers who are not married to the mothers of their children.”
      See also Illinois’ Brief 23 (“The comparison of married and putative fathers involves exclusively factual differences. The most significant of these are the presence or absence of the father from the home on a day-to-day basis and the responsibility imposed upon the relationship”), id.., at 24 (to the same effect), id., at 31 (quoted below in n. 6), id., at 2A-26 (physiological and other studies are cited in support of the proposition that men are not naturally inclined to childrearing), and Tr. of Oral Arg. 31 (“We submit that both based on history or [sic] culture the very real differences . . . between the married father and the unmarried father, in terms of their interests in children and their legal responsibility for their children, that the statute here fulfills the compelling governmental objective of protecting children . . .”).

       The State speaks of “the general disinterest of putative fathers in their illegitimate children” (Brief 8) and opines that “[i]n most instances, the natural father is a stranger to his children.” Brief 31.

       See In re Mark T., 8 Mich. App. 122, 154 N. W. 2d 27 (1967). There a panel of the Michigan Court of Appeals in unanimously affirming a circuit court’s determination that the father of an illegitimate son was best suited to raise the boy, said:
      “The appellants’ presentation in this case proceeds on the assumption that placing Mark for adoption is inherently preferable to rearing by his father, that uprooting him from the family which he knew from birth until he was a year and a half old, secretly institutionalizing him and later transferring him to strangers is so incontrovertibly better that no court has the power even to consider the matter. Hardly anyone would even suggest such a proposition if we were talking about a child born in wedlock.
      “We are not aware of any sociological data justifying the assumption that an illegitimate child reared by his natural father is less likely to receive a proper upbringing than one reared by his natural father who was at one time married to his mother, or that the stigma of illegitimacy is so pervasive it requires adoption by strangers and permanent termination of a subsisting relationship with the child’s father.” Id., at 146, 154 N. W. 2d, at 39.

        Cf. Reed v. Reed, 404 U. S. 71, 76 (1971). “Clearly the objective of reducing" the workload on probate courts by eliminating one class of contests is not without some legitimacy. . . . [But to] give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment.” Carrington v. Rash, 380 U. S. 89, 96 (1965), teaches the same lesson. “. . . States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State. Oyama v. California, 332 U. S. 633. By forbidding a soldier ever to controvert the presumption of non-residence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment.”

       We note in passing that the incremental cost of offering unwed fathers an opportunity for individualized hearings on fitness appears to be minimal. If unwed fathers, in the main, do not care about the disposition of their children, they will not appear to demand hearings. If they do_care, under the scheme here held invalid, Illinois would admittedly at..somelatértnfié"have'tb aff6fd"fhem a properly_ focused hearing in a custody or adoption proceeding!
      Extending opportunity for hearing Yb'unwed fathers who desire and claim competence to care for their children creates no constitutional or procedural obstacle to foreclosing those unwed fathers who are not so inclined. The Illinois law governing procedure in juvenile cases, Ill. Rev. Stat., c. 37, § 704r-l et seq., provides for personal service, notice by certified mail, or for notice by publication when personal or certified mail service cannot be had or when notice is directed to unknown respondents under the style of “All whom it may Concern.” Unwed fathers who do not promptly respond cannot complain if their children are declared wards of the State. Those who do respond retain the burden of proving their fatherhood.

       Predicating a finding of constitutional invalidity under the Equal Protection Clause of the Fourteenth Amendment on the observation that a State has accorded bedrock procedural rights to some, but not to all similarly situated, is not contradictory to our holding in Picard v. Connor, 404 U. S. 270 (1971). In that case a due process, rather than an equal protection, claim was raised in the state courts. The federal courts were, in our opinion, barred from reversing the state conviction on grounds of contravention of the Equal Protection Clause when that clause had not been referred to for consideration by the state authorities. Here, in contrast, we dispose of the case on the constitutional premise raised below, reaching the result by a method of analysis readily available to the state court.
      For the same reason the strictures of Cardinale v. Louisiana, 394 U. S. 437 (1969), and Hill v. California, 401 U. S. 797 (1971), have been fully observed.

       In reaching out to find a due process issue in this case, the Court seems to have misapprehended the entire thrust of the State’s argument. When explaining at oral argument why Illinois does not recognize the unwed father, counsel for the State presented two basic justifications for the statutory definition of “parents” here at issue. See Tr. of Oral Arg. 25-26. First, counsel noted that in the case of a married couple to whom a legitimate child is born, the two biological parents have already “signified their willingness to work together” in caring for the child by entering into the marriage contract; it is manifestly reasonable, therefore, that both of them be recognized as legal parents with rights and responsibilities in connection with the child. There has been no legally cognizable signification of such willingness on the part of unwed parents, however, and “the male and female . . . may or may not be willing to work together towards the common end of child rearing.” To provide legal recognition to both of them as “parents” would often be “to create two conflicting parties competing for legal control of the child.”
      The second basic justification urged upon us by counsel for the State was that, in order to provide for the child’s welfare, “it is necessary to impose upon at least one of the parties legal responsibility for the welfare of [the child], and since necessarily the female is present at the birth of the child and identifiable as the mother,” the State has selected the unwed mother, rather than the unwed father, as the biological parent with that legal responsibility.
      It was suggested to counsel during an ensuing colloquy with the bench that identification seemed to present no insuperable problem in Stanley’s case and that, although Stanley had expressed an interest in participating in the rearing of the children, “Illinois won’t let him.” Counsel replied that, on the contrary, “Illinois encourages him to do so if he will accept the legal responsibility for those children by a formal proceeding comparable to the marriage ceremony, in which he is evidencing through a judicial proceeding his desire to accept legal responsibility for the children,” Stanley, however, “did not ask for custody. He did not ask for legal responsibility. He only objected to someone [else] having legal control over the children.” Tr. of Oral Arg. 38, 39-40.

       The position that Stanley took at the dependency proceeding was not without ambiguity. Shortly after the mother’s death, he placed the children in the care of Mr. and Mrs. Ness, who took the children into their home. The record is silent as to whether the Ness household was an approved foster home. Through Stanley’s act, then, the Nesses were already the actual custodians of the children. At the dependency proceeding, he resisted only the court’s designation of the Nesses as the legal custodians; he did not challenge their suitability for that role, nor did he seek for himself either that role or any other role that would have imposed legal responsibility upon him. Had he prevailed, of course, the status quo would have obtained: the Nesses would have continued to play the role of actual custodians until either they or Stanley acted to alter the informal arrangement, and there would still have been no living adult with any legally enforceable obligation for the care and support of the infant children.

       The Court seems at times to ignore this statutory definition of “parents,” even though it is precisely that definition itself whose constitutionality has been brought into issue by Stanley. In preparation for finding a purported similarity between this case and Bell v. Burson, 402 U. S. 535 (1971), the Court quotes the legislatively declared aims of the Juvenile Court Act to “strengthen the minor’s family ties whenever possible, removing him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal.” (Emphasis added.) The Court then goes on to find a “self-contradiction” between that stated aim and the Act’s nonrecognition of unwed fathers. Ante, at 653. There is, of course, no such contradiction, The word “parent” in the statement of legislative purpose obviously has the meaning given to it by the definitional provision of the Act.

       When the marriage between the parents of a legitimate child is dissolved by divorce or separation, the State, of course, normally awards custody of the child to one parent or the other. This is considered necessary for the child’s welfare, since the parents are no longer legally bound together. The unmarried parents of an illegitimate child are likewise not legally bound together. Thus, even if Illinois did recognize the parenthood of both the mother and father of an illegitimate child, it would, for consistency with its practice in divorce proceedings, be called upon to award custody to one or the other of them, at least once it had by some means ascertained the identity of the father.

       As the majority notes, ante, at 646, Joan Stanley gave birth to three children during the 18 years Peter Stanley was living “intermittently” with her. At oral argument, we were told by Stanley’s counsel that the oldest of these three children had previously been declared a ward of the court pursuant to a neglect proceeding that was “proven against” Stanley at a time, apparently, when the juvenile court officials were under the erroneous impression that Peter and Joan Stanley had been married. Tr. of Oral Arg. 19.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Douglas.

license: Public Domain

text:
    CARTER et al. v. STANTON, DIRECTOR, MARION COUNTY DEPARTMENT OF PUBLIC WELFARE, et al.
    No. 70-5082.
    Argued November 8, 1971
    Decided April 3, 1972

      Jon D. Noland argued the cause for appellants. With him on the briefs were John T. Manning and David F. Shadel.

      Robert W. Oeddes argued the cause for appellee Stanton. With him on the brief were Harold W. Jones and Carl J. Meyer. Mark Peden, Deputy Attorney General of Indiana, argued the cause for appellee Ster-rett. With him on the brief were Theodore L. Sendak, Attorney General, William F. Thompson, Assistant Attorney General, and William F. Harvey.

      Solicitor General Griswold and Richard B. Stone filed a brief for the United States as amicus curiae.

   Per Curiam.

Appellants are women who contend that an Indiana welfare regulation governing eligibility for state and federal aid to dependent children contravenes the Fourteenth Amendment and the Social Security Act, 49 Stat. 627, as amended, 42 U. S. C. § 602 (a) (10). The regulation provides that a person who seeks assistance due to separation or the desertion of a spouse is not entitled to aid until the spouse has been continuously absent for at least six months, unless there are exceptional circumstances of need. Burns Ind. Admin. Rules & Regs. (52-1001 )-2 (1967). Appellants brought this action in the United States District Court for the Southern District of Indiana, basing jurisdiction on 42 U. S. C. § 1983 and 28 U. S. C. § 1343, and seeking both declaratory and injunc-tive relief. A three-judge court was convened pursuant to 28 U. S. C. § 2281. After a “preliminary hearing on defendants’ ” motion to dismiss “at which the court” received evidence upon which to resolve the matter, the court dismissed the complaint on the ground that none of the claimants had exercised her right under Indiana law to appeal from a county decision denying welfare assistance, Burns Ind. Admin. Rules & Regs. (52-1211)-1 (Supp. 1970), and therefore appellants had failed to exhaust administrative remedies. In the alternative, the court held that the pleadings did not present a substantial federal question and that the court lacked jurisdiction under 42 U. S. C. § 1983 and 28 U. S. C. §§ 2201, 2202. Carter v. Stanton, No. IP 70-C-124 (SD Ind., Dec. 11, 1970). This direct appeal followed and we noted probable jurisdiction. 402 U. S. 994 (1971).

Contrary to the State’s view, our jurisdiction of this appeal under 28 U. S. C. § 1253 is satisfactorily established. Sullivan v. Alabama State Bar, 394 U. S. 812, aff’g 295 F. Supp. 1216 (MD Ala. 1969); Whitney Stores, Inc. v. Summerford, 393 U. S. 9, aff’g 280 F. Supp. 406 (SC 1968). Also, the District Court plainly had jurisdiction of this case pursuant to 42 U. S. C. § 1983 and 28 U. S. C. § 1343. Damico v. California, 389 U. S. 416 (1967). Damico, an indistinguishable case, likewise establishes that exhaustion is not required in circumstances such as those presented here. Cf. McNeese v. Board of Education, 373 U. S. 668 (1963); Monroe v. Pape, 365 U. S. 167 (1961).

Finally, if the court’s characterization of the federal question presented as insubstantial was based on the face of the complaint, as it seems to have been, it was error. Cf. Dandridge v. Williams, 397 U. S. 471 (1970); Shapiro v. Thompson, 394 U. S. 618 (1969); Damico v. California, supra. But it appears that at the hearing on the motion to dismiss, which was based in part on the asserted failure “to state a claim upon which relief can be granted” (App. 19), matters outside the pleadings were presented and not excluded by the court. The court was therefore required by Rule 12 (b) of the Federal Rules of Civil Procedure to treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56. Under Rule 56, summary judgment cannot be granted unless there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. If this is the course the District Court followed, its order is opaque and unilluminating as to either the relevant facts or the law with respect to the merits of appellants’ claim. In this posture of the case, we are unconvinced that summary judgment was properly entered. The judgment of the District Court is therefore vacated and the case is remanded to that court for proceedings consistent with this opinion.

So ordered.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Douglas.

I agree that both this Court and the District Court have jurisdiction to entertain this case and that the appellants were not required to exhaust administrative remedies before launching their challenge. But, although the District Court should have made more complete findings of fact and conclusions of law, I would not remand simply on this score but would hold that the appellants are entitled to judgment.

The problem is simple and should be disposed of here.

The federal Act defines a “dependent child” as a “needy child . . . who has been deprived of parental support or care by reason of . . . continued absence from the home.” Indiana by its Board of Public Welfare has adopted the federal definition of “needy child.”

The term “continued absence from the home” is not defined in the federal Act, though HEW recommends “that no period of time be specified as a basis for establishing continued absence as an eligibility factor.” Indiana, however, has established by rule a definition of “continued absence” in case of “desertion or separation.” In those two instances it makes “continued absence” mean that “the absence shall have been continuous” for at least six months, except when the department of welfare finds there are “exceptional circumstances of need.”

A dependent child gets aid immediately and continuously in case the parent is incarcerated or in case the parent is inducted into the armed services. The six-month rule creates a separate class of needy children who by the federal standard may be as “needy” as those in the other two categories.

The federal Act directs that “aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.” The federal regulation requires decisions on applications to be made “promptly” and “not in excess of” 30 days and that the assistance check or notification of denial be mailed within that period. As noted, the federal Act contains no waiting period to establish “continued absence.” And the HEW Handbook, already referred to, states as respects “continued absence” that “[a] child comes within this interpretation if for any reason his parent is absent.”

Here, as in California Human Resources Dept. v. Java, 402 U. S. 121, 135, the State’s program “tends to frustrate” the Social Security Act. King v. Smith, 392 U. S. 309, “establishes that, at least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.” Townsend v. Swank, 404 U. S. 282, 286. While a State has a legitimate interest in preventing fraud, there are, as we said in Shapiro v. Thompson, 394 U. S. 618, 637, “less drastic means” available “to minimize that hazard.” Rather than remanding for a lower court determination of the law of the case, the merits ought to be decided now inasmuch as (a) the facts are essentially undisputed, (b) the appellants’ claim based on the federal Act is plainly correct, and (c) further litigation would work a hardship upon welfare recipients affected by the Indiana rule. See generally Note, Individualized Criminal Justice In The Supreme Court: A Study Of Dispositional Decision Making, 81 Harv. L. Rev. 1260 (1968); Bell, Appellate Court Opinions And The Remand Process, 2 Ga. L. Rev. 526, 536 (1968).

The Indiana regulation so plainly collides with the federal Act that I would end this frivolous defense to this welfare litigation by deciding the merits and reversing by reason of the Supremacy Clause.

       49 Stat. 629, as amended, 42 U. S. C. § 606 (a).

       Ind. State Bd. of Pub. Welfare Reg. 2-400 (a).

       Dept. of Health, Education, & Welfare Handbook of Public Assistance Administration, pt. IV, §3422.5 (1968).

       Bums, Ind. Admin. Rules & Regs. (52-1001)-2 (1967): “When the continued absence is due to desertion or separation, the absence shall have been continuous for a period of at least six [6] months prior to the date of application for assistance to dependent children; except that under exceptional circumstances of need and where it is determined that the absence of a parent is actual and bona fide an application may be filed and a child may be considered immediately eligible upon a special finding of the county department of public welfare setting forth the facts and reasons for such action.”

       42 U. S. C. §602 (a) (10).

       45 CFR §206.10 (3), 36 Fed. Reg. 3864.

       N. 3, supra.

       Part IV, §3422.2, of the Handbook provides:
      “Continued absence of the parent from the home constitutes the reason for deprivation of parental support or care under the following circumstances:
      “1. When the parent is out of the home;
      “2. When the nature of the absence is such as either to interrupt or to terminate the parent’s functioning as a provider of maintenance, physical care, or guidance for the child; and
      “3. When the known or indefinite duration of the absence precludes counting on the parent’s performance of his function in planning for the present support or care of the child.
      “A child comes within this interpretation if for any reason his parent is absent, and this absence interferes with the child’s receiving maintenance, physical care, or guidance from his parent, and precludes the parent’s being counted on for support or care of the child. For example: The child’s father has left home, without forewarning his family, and the mother really does not know why he left home, nor when or whether he will return.”


author: Mr. Chief Justice Burger Mr. Justice Stewart and Mr. Justice White, Mr. Justice Douglas, Mr. Justice Marshall,

text:
    COLE, STATE HOSPITAL SUPERINTENDENT, et al. v. RICHARDSON
    No. 70-14.
    Argued November 16, 1971
    Decided April 18, 1972

      Burger, C. J., delivered the opinion of the Court, in which Stewart, White, and BlachmuN, JJ., joined. Stewart and White, JJ., filed a concurring opinion, post, p. 687. Douglas, J., filed a dissenting opinion, post, p. 687. Marshall, J., filed a dissenting opinion, in which BreNNAN, J., joined, post, p. 691. Powell and Rehnquist, JJ., took no part in the consideration or decision of the case.

      Walter H. Mayo III, Assistant Attorney General of Massachusetts, argued the cause for appellants. With him on the brief was Robert H. Quinn, Attorney General.

      Stephen H. Oleskey argued the cause for appellee pro hac vice. With him on the brief was Harold Hestnes.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

In this appeal we review the decision of the three-judge District Court holding a Massachusetts loyalty oath unconstitutional.

The appellee, Richardson, was hired as a research sociologist by the Boston State Hospital. Appellant Cole is superintendent of the hospital. Soon after she entered on duty Mrs. Richardson was asked to subscribe to the oath required of all public employees in Massachusetts. The oath is as follows:

“I do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.”

Mrs. Richardson informed the hospital’s personnel department that she could not take the oath as ordered because of her belief that it was in violation of the United States Constitution. Approximately 10 days later appellant Cole personally informed Mrs. Richardson that under state law she could not continue as an employee of the Boston State Hospital unless she subscribed to the oath. • Again she refused. On November 25, 1968, Mrs. Richardson’s employment was terminated and she was paid through that date.

In March 1969 Mrs. Richardson filed a complaint in the United States District Court for the District of Massachusetts. The complaint alleged the unconstitutionality of the statute, sought damages and an injunction against its continued enforcement, and prayed for the convocation of a three-judge court pursuant to 28 U. S. C. §§2281 and 2284.

A three-judge District Court held the oath statute unconstitutional and enjoined the appellants from applying the statute to prohibit Mrs. Richardson from working for Boston State Hospital. The District Court found the attack on the “uphold and defend” clause, the first part of the oath, foreclosed by Knight v. Board of Regents, 269 F. Supp. 339 (SDNY 1967), aff’d, 390 U. S. 36 (1968). But it found that the “oppose the overthrow” clause was “fatally vague and unspecific,” and therefore a violation of First Amendment rights. The court granted the requested injunction but denied the claim for damages.

Appeals were then brought to this Court under 28 U. S. C. § 1253. We remanded for consideration of whether the case was moot in light of a suggestion that Mrs. Richardson’s job had been filled in the interim. 397 U. S. 238 (1970). On remand, the District Court concluded that Mrs. Richardson’s position had not been filled and that the hospital stood ready to hire her for the continuing research project except for the problem of the oath. In an unreported opinion dated July 1, 1970, it concluded that the case was not moot and reinstated its earlier judgment. Appellants again appealed, and we noted probable jurisdiction. 403 U. S. 917 (1971).

We conclude that the Massachusetts oath is constitutionally permissible, and in light of the prolonged litigation of this case we set forth our reasoning at greater length than previously.

A review of the oath cases in this Court will put the instant oath into context. We have made clear that neither federal nor state government may condition employment on taking oaths that impinge on rights guaranteed by the First and Fourteenth Amendments respectively, as for example those relating to political beliefs. Law Students Research Council v. Wadmond, 401 U. S. 154 (1971); Baird v. State Bar of Arizona, 401 U. S. 1 (1971); Connell v. Higginbotham, 403 U. S. 207, 209 (1971) (Marshall, J., concurring in result). Nor may employment' be conditioned on an oath that one has not engaged, or will not engage, in protected speech activities such as the following: criticizing institutions of government; discussing political doctrine that approves the overthrow of certain forms of government; and supporting candidates for political office. Keyishian v. Board of Regents, 385 U. S. 589 (1967); Baggett v. Bullitt, 377 U. S. 360 (1964); Cramp v. Board of Public Instruction, 368 U. S. 278 (1961). Employment may not be conditioned on an oath denying past, or abjuring future, associational activities within constitutional protection; such protected activities include membership in organizations having illegal purposes unless one knows of the purpose and shares a specific intent to promote the illegal purpose. Whitehill v. Elkins, 389 U. S. 54 (1967); Keyishian v. Board of Regents, supra; Elfbrandt v. Russell, 384 U. S. 11 (1966); Wieman v. Updegraff, 344 U. S. 183 (1952). Thus, last Term in Wadmond the Court sustained inquiry into a bar applicant’s associational activities only because it was narrowly confined to organizations that the individual had known to have the purpose of violent overthrow of the government and whose purpose the individual shared. And, finally, an oath may not be so vague that “ ‘men of common intelligence must necessarily guess at its meaning and differ as to its application, [because such an oath] violates the first essential of due process of law.’ ” Cramp v. Board of Public Instruction, 368 U. S., at 287. Concern for vagueness in the oath cases has been especially great because uncertainty as to an oath’s meaning may deter individuals from engaging in constitutionally protected activity conceivably within the scope of the oath.

An underlying, seldom articulated concern running throughout these cases is that the oaths under consideration often required individuals to reach back into their past to recall minor, sometimes innocent, activities. They put the government into “the censorial business of investigating, scrutinizing, interpreting, and then penalizing or approving the political viewpoints” and past activities of individuals. Law Students Research Council v. Wadmond, 401 U. S., at 192 (Marshall, J., dissenting).

Several cases recently decided by the Court stand out among our oath cases because they have upheld the constitutionality of oaths, addressed to the future, promising constitutional support in broad terms. These cases have begun with a recognition that the Constitution itself prescribes comparable oaths in two articles. Article II, § 1, cl. 8, provides that the President shall swear that he will “faithfully execute the Office . . . and will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.” Article VI, cl. 3, provides that all state and federal officers shall be bound by an oath “to support this Constitution.” The oath taken by attorneys as a condition of admission to the Bar of this Court identically provides in part “that I will support the Constitution of the United States”; it also requires the attorney to state that he will “conduct [himself] uprightly, and according to law.”

Bond v. Floyd, 385 U. S. 116 (1966), involved Georgia’s statutory requirement that state legislators swear to “support the Constitution of this State and of the United States,” a paraphrase of the constitutionally required oath. The Court there implicitly concluded that the First Amendment did not undercut the validity of the constitutional oath provisions. Although in theory the First Amendment might have invalidated those provisions, approval of the amendment by the same individuals who had included the oaths in the Constitution suggested strongly that they were consistent. The Court’s recognition of this consistency did not involve a departure from its many decisions striking down oaths that infringed First and Fourteenth Amendment rights. The Court read the Georgia oath as calling simply for an acknowledgment of a willingness to abide by “constitutional processes of government.” 385 U. S., at 135. Accord, Knight v. Board of Regents, 390 U. S. 36 (1968) (without opinion). Although disagreeing on other points, in Wadmond, supra, all members of the Court agreed on this point. Mr. Justice Marshall noted there, while dissenting as to other points,

“The oath of constitutional support requires an individual assuming public responsibilities to affirm . . . that he will endeavor to perform his public duties lawfully.” 401 U. S., at 192.

The Court has further made clear that an oath need not parrot the exact language of the constitutional oaths to be constitutionally proper. Thus in Ohlson v. Phillips, 397 U. S. 317 (1970), we sustained the constitutionality of a state requirement that teachers swear to “uphold” the Constitution. The District Court had concluded that the oath was simply a “ 'recognition that ours is a government of laws and not of men,’ ” and that the oath involved an affirmation of “organic law” and rejection of “the use of force to overthrow the government.” Ohlson v. Phillips, 304 F. Supp. 1152 (Colo. 1969).

The District Court in the instant case properly recognized that the first clause of the Massachusetts oath, in which the individual swears to “uphold and defend” the Constitutions of the United States and the Commonwealth, is indistinguishable from the oaths this Court has recently approved. Yet the District Court applied a highly literalistic approach to the second clause to strike it down. We view the second clause of the oath as essentially the same as the first.

The second clause of the oath contains a promise to “oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.” The District Court sought to give a dictionary meaning to this language and found “oppose” to raise the specter of vague, undefinable responsibilities actively to combat a potential overthrow of the government. That reading of the oath understandably troubled the court because of what it saw as vagueness in terms of what threats would constitute sufficient danger of overthrow to require the oath giver to actively oppose overthrow, and exactly what actions he would have to take in that respect. Cf. Ohlson v. Phillips, 304 F. Supp., at 1154 and n. 4.

But such a literal approach to the second clause is inconsistent with the Court’s approach to the “support” oaths. One could make a literal argument that “support” involves nebulous, undefined responsibilities for action in some hypothetical situations. As Mr. Justice Harlan noted in his opinion concurring in the result on our earlier consideration of this case,

“[A]lmost any word or phrase may be rendered vague and ambiguous by dissection with a semantic scalpel. . . . [But such an approach] amounts to little more than verbal calisthenics. Cf. S. Chase, The Tyranny of Words (1959); W. Empson, Seven Types of Ambiguity (1955).” Cole v. Richardson, 397 U. S. 238, 240 (1970).

We have rejected such rigidly literal notions and recognized that the purpose leading legislatures to enact such oaths, just as the purpose leading the Framers of our Constitution to include the two explicit constitutional oaths, was not to create specific responsibilities but to assure that those in positions of public trust were willing to commit themselves to live by the constitutional processes of our system, as Mr. Justice Marshall suggested in Wadmond, 401 U. S., at 192. Here the second clause does not require specific action in some hypothetical or actual situation. Plainly “force, violence or . . . any illegal or unconstitutional method” modifies “overthrow” and does not commit the oath taker to meet force with force. Just as the connotatively active word “support” has been interpreted to mean simply a commitment to abide by our constitutional system, the second clause of this oath is merely oriented to the negative implication of this notion; it is a commitment not to use illegal and constitutionally unprotected force to change the constitutional system. The second clause does not expand the obligation of the first; it simply makes clear the application of the first clause to a particular issue. Such repetition, whether for emphasis or cadence, seems to be the wont of authors of oaths. That the second clause may be redundant is no ground to strike it down ; we are not charged with correcting grammar but with enforcing a constitution.

The purpose of the oath is clear on its face. We cannot presume that the Massachusetts Legislature intended by its use of such general terms as “uphold,” “defend,” and “oppose” to impose obligations of specific, positive action on oath takers. Any such construction would raise serious questions whether the oath was so vague as to amount to a denial of due process. Connolly v. General Construction Co., 269 U. S. 385 (1926); Cramp v. Board of Public Instruction, 368 U. S., at 287.

Nor is the oath as interpreted void for vagueness. As Mr. Justice Harlan pointed out in his opinion on our earlier consideration of this case, the oath is “no more than an amenity.” 397 U. S., at 240. It is punishable only by a prosecution for perjury and, since perjury is a knowing and willful falsehood, the constitutional vice of punishment without .fair warning cannot occur here. See American Communications Assn. v. Douds, 339 U. S. 382, 413 (1950). Nor here is there any problem of the punishment inflicted by mere prosecution. See Cramp v. Board of Public Instruction, 368 U. S., at 284. There has been no prosecution under this statute since its 1948 enactment, and there is no indication that prosecutions have been planned or begun. The oath “triggered no serious possibility of prosecution” by the Commonwealth. Cole v. Richardson, 397 U. S., at 241. Were we confronted with a record of actual prosecutions or harassment through threatened prosecutions, we might be faced with a different question. Those who view the Massachusetts oath in terms of an endless “parade of horribles” would do well to bear in mind that many of the hazards of human existence that can be imagined are circumscribed by the classic observation of Mr. Justice Holmes, when confronted with the prophecy of dire consequences of certain judicial action, that it would not occur “while this Court sits.” Panhandle Oil Co. v. Knox, 277 U. S. 218, 223 (dissenting).

Appellee mounts an additional attack on the Massachusetts oath program in that it does not provide for a hearing prior to the determination not to hire the individual based on the refusal to subscribe to the oath. All of the cases in this Court that require a hearing before discharge for failure to take an oath involved impermissible oaths. In Slochower v. Board of Education, 350 U. S. 551 (1956) (not an oath case), the State sought to dismiss a professor for claiming the Fifth Amendment privilege in a United States Senate committee hearing; the Court held the State’s action invalid because the exercise of the privilege was a constitutional right from which the State could not draw any rational inference of disloyalty. Appellee relies on Nostrand v. Little, 362 U. S. 474 (1960), and Connell v. Higginbotham, 403 U. S. 207 (1971), but in those cases the Court held, only that the mere refusal to take the particular oath was not a constitutionally permissible basis for termination. In the circumstances of those cases, only by holding a hearing, showing evidence of disloyalty, and allowing the employee an opportunity to respond might the State develop a permissible basis for concluding that the employee was to be discharged.

Since there is no constitutionally protected right to overthrow a government by force, violence, or illegal or unconstitutional means, no constitutional right is infringed by an oath to abide by the constitutional system in the future. Therefore, there is no requirement that one who refuses to take the Massachusetts oath be granted a hearing for the determination of some other fact before being discharged.

The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Stewart and Mr. Justice White,

concurring.

All agree that the first part of this oath, under which a person swears to “uphold and defend” the Federal and State Constitutions, is wholly valid under the First and Fourteenth Amendments. But if “uphold” and “defend” are not words that suffer from vagueness and overbreadth, then surely neither is the word “oppose” in the second part of the oath.

When the case was here before, Mr. Justice Harlan expressed the view that “[t]his oath does not impinge on conscience or belief, except to the extent that oath taking as such may offend particular individuals.” Cole v. Richardson, 397 U. S. 238, 241 (concurring in result). We agree. And as to such individuals, the Massachusetts law clearly permits an affirmation rather than an oath. Mass. Gen. Laws, c. 264, § 14.

On this basis we join the opinion and judgment of the Court.

Mr. Justice Douglas,

dissenting.

The part of the oath that says “I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method” is plainly unconstitutional by our decisions. See Board of Education v. Barnette, 319 U. S. 624, 634.

Advocacy of basic fundamental changes in government, which might popularly be described as “overthrow,” is within the protection of the First Amendment even when it is restrictively construed. In Brandenburg v. Ohio, 395 U. S. 444, a case involving criminal syndicalism, this Court ruled that a State may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id., at 447. The same idea was put in somewhat different words in Noto v. United States, 367 U. S. 290, 297-298, that “abstract teaching” of overthrow is protected activity as contrasted to “preparing a group for violent action and steeling it to such action.” And see Yates v. United States, 354 U. S. 298, 318.

The present oath makes such advocacy a possible offense under a restrictive reading of the First Amendment.

The views expressed by Mr. Justice Black and me give the First Amendment a more expansive reading. We have condemned loyalty oaths as “manifestation [s] of a national network of laws aimed at coercing and controlling the minds of men. Test oaths are notorious tools of tyranny. When used to shackle the mind they are, or at least they should be, unspeakably odious to a free people.” Wieman v. Updegraff, 344 U. S. 183, 193 (Black, J., concurring). And see Speiser v. Randall, 357 U. S. 513, 532 (Douglas, J., concurring). We said in Brandenburg that the protection of the First Amendment as applied to the States through the Fourteenth does not depend on the “quality of advocacy,” since that “turns on the depth of the conviction.” 395 U. S., at 457 (Douglas, J., concurring). The line between the permissible control by a State and the impermissible control is “the line between ideas and overt acts.” Id., at 456. “The First Amendment . . . leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such views may be to the rest of us.” Yates v. United States, supra, at 344 (Black, J., concurring and dissenting). This oath, however, requires that appellee “oppose” that which she has an indisputable right to advocate. Yet the majority concludes that the promise of “opposition”— exacted as a condition of public employment — is a mere redundancy which does not impair appellee’s freedom of expression.

It is suggested, however, that because only the second portion of the oath is unconstitutional we should sever the two clauses and uphold the first. Even on this assumption, the entire oath must fall. This Court should, of course, base its decisions upon local law where, in so doing, we may avoid deciding federal constitutional questions. Here, we have been cited to no evidence of a legislative intent to separate the two clauses of the oath. This case is thus governed by Pedlosky v. Massachusetts Institute of Technology, 352 Mass. 127, 224 N. E. 2d 414 (1967), where the Supreme Judicial Court of Massachusetts was confronted with a two-part test oath similar in effect to the one before us. “The substance of the oath [was] not confined merely to a declaration of support of the Federal and State Constitutions. It equally concern [ed] an undertaking by the plaintiff that T will faithfully discharge the duties of the position of assistant professor of mathematics according to the best of my ability.' ” Id., at 128-129, 224 N. E. 2d, at 416. Finding the oath to be “altogether too vague a standard to enforce judicially” and being without evidence “whether the Legislature would have enacted [it] without the [invalid] provision,” the court was unable to hold that the provisions were severable, and thus unanimously struck down the entire oath. Id., at 129, 224 N. E. 2d, at 416.

I would follow the lead of the Supreme Judicial Court of Massachusetts — the court which has the final word on how the statutes of that State are to be construed — and hold that the entire oath must fall.

I conclude that whether the First Amendment is read restrictively or literally as Jefferson would have read it, the oath which the District Court struck down, 300 F. Supp. 1321, is plainly unconstitutional. I would affirm its judgment.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins, dissenting.

Appellee was discharged from her job with the Boston State Hospital solely because she refused to swear or affirm the following oath:

“I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and ... I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.” Mass. Gen. Laws, c. 264, § 14.

She brought this action in the United States District Court for the District of Massachusetts seeking declaratory and injunctive relief against enforcement of the oath as a condition of her employment. The District Court found that the oath was unconstitutionally vague and granted the relief requested by appellee. The Court now reverses the District Court and sustains the validity of the oath in its entirety. In my opinion, the second half of the oath is not only vague, but also overbroad. Accordingly, I dissent.

The first half of the oath, requiring an employee to indicate a willingness to “uphold and defend” the state and federal Constitutions, is clearly constitutional. It is nothing more than the traditional oath of support that we have unanimously upheld as a condition of public employment.

It is the second half of the oath to which I object. I find the language “I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method” to be impermissibly vague and overbroad.

It is vague because “men of common intelligence [must] speculate at their peril on its meaning.” Whitehill v. Elkins, 389 U. S. 54, 59 (1967). See also Connally v. General Construction Co., 269 U. S. 385, 391 (1926); Cline v. Frink Dairy Co., 274 U. S. 445, 465 (1927); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). The most striking problem with the oath is that it is not clear whether the last prepositional phrase modifies the verb “oppose” or the noun “overthrow.” Thus, an af-fiant cannot be certain whether he is swearing that he will “oppose” governmental overthrow by utilizing every means at his disposal, including those specifically prohibited by the laws or constitutions he has sworn to support, or whether he has merely accepted the responsibility of opposing illegal or unconstitutional overthrows. The first reading would almost surely be unconstitutional since it is well established that a State cannot compel a citizen to waive the rights guaranteed him by the Constitution in order to obtain employment. See, e. g., Pickering v. Board of Education, 391 U. S. 563 (1968); Garrity v. New Jersey, 385 U. S. 493 (1967). This reading would also make the second half of the oath inconsistent with the first half. It is far from clear to me which reading the Massachusetts Legislature intended. A reasonable man could certainly read the oath either way, and Massachusetts has not offered to make a binding clarification of its purport.

Even assuming that the second reading were unconditionally adopted by the appellants and communicated to prospective employees, the vice of vagueness is still not cured, for the affiant is left with little guidance as to the responsibilities he has assumed in taking the oath. In what form, for example, must he manifest his opposition to an overthrow? At oral argument in the District Court, the Commonwealth’s attorney asserted that citizens have three standards of obligation to their government to oppose overthrows:

“The ordinary citizen who has taken no oath has an obligation to act in extremis; a person who has taken the first part of the present oath would have a somewhat larger obligation, and one who has taken the second part has one still larger.” 300 F. Supp. 1321, 1322.

I agree with the conclusion of the District Court that “[t]he very fact that such varied standards . . . can be suggested is enough to condemn the language as hopelessly vague.” Id., at 1323.

Vagueness is also inherent in the use of the word “overthrow.” When does an affiant’s undefined responsibility under the oath require action: When an overthrow is threatened? When an overthrow is likely to be threatened? When a threatened overthrow has some chance of success? Cf. Brandenburg v. Ohio, 395 U. S. 444 (1969); Yates v. United States, 354 U. S. 298 (1957); Dennis v. United States, 341 U. S. 494 (1951). The oath answers none of these questions, and for that reason, if no other, cannot stand.

The importance of clarity and precision in an oath of this kind should not be underestimated. Chapter 264, § 14, of the Massachusetts General' Laws provides that the oath is taken subject to the pains and penalties of perjury, and § 15 of that chapter specifies that the pains and penalties may amount to one year in prison and/or a $10,000 fine.

In concluding that this oath is vague, I rely on Baggett v. Bullitt, 377 U. S. 360 (1964). One part of the oath considered in Baggett, like the Massachusetts oath, required that the affiant assert a willingness to conform future conduct to the criteria set forth in an oath taken under penalty of perjury. The Court struck down the oath in Baggett, and Mr. Justice White’s opinion for the Court explained in great detail the inordinate difficulties employees would have in attempting to conform their actions to the oath’s criteria. Id., at 371. While the oath involved herein differs somewhat from that involved in Baggett, the considerations in both cases are the same, and the results should also be the same.

I would also strike down the second half of this oath as an overbroad infringement of protected expression and conduct.

The Court’s prior decisions represent a judgment that simple affirmative oaths of support are less suspect and less evil than negative oaths requiring a disaffirmance of political ties, group affiliations, or beliefs. Compare Connell v. Higginbotham, 403 U. S. 207 (1971); Knight v. Board of Regents, 269 F. Supp. 339 (SDNY 1967), aff’d, 390 U. S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (Colo. 1967), aff’d, 390 U. S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (Colo. 1969), aff’d, 397 U. S. 317 (1970), with Whitehill v. Elkins, 389 U. S. 54 (1967); Baggett v. Bullitt, supra; Cramp v. Board of Public Instruction, 368 U. S. 278 (1961); Speiser v. Randall, 357 U. S. 513 (1958); Wieman v. Updegraff, 344 U. S. 183 (1952); Garner v. Board of Public Works, 341 U. S. 716 (1951).

Yet, I think that it is plain that affirmative oaths of loyalty, no less than negative ones, have odious connotations and that they present dangers. See Asper, The Long and Unhappy History of Loyalty Testing in Maryland, 13 Am. J. Legal Hist. 97,104 (1969); Askin, Loyalty-Oaths in Retrospect: Freedom and Reality, 1968 Wis. L. Rev. 498, 502; Note, Loyalty Oaths, 77 Yale L. J. 739, 763 (1968). We have tolerated support oaths as applied to all government employees only because we view these affirmations as an expression of “minimal loyalty to the Government.” American Communications Assn. v. Douds, 339 U. S. 382, 415 (1950). Such oaths are merely indications by the employee “in entirely familiar and traditional language, that he will endeavor to perform his public duties lawfully.” Law Students Research Council v. Wadmond, 401 U. S. 154, 192 (Marshall, J., dissenting).

It is precisely because these oaths are minimal, requiring only that nominal expression of allegiance “which, by the common law, every citizen was understood to owe his sovereign,” Knight v. Board of Regents, 269 F. Supp., at 341, that they have been sustained. That they are minimal intrusions into the freedom of government officials and employees to think, speak, and act makes them constitutional; it does not mean that greater intrusions will be tolerated. On the contrary, each time this Court has been faced with an attempt by government to make the traditional support oath more comprehensive or demanding, it has struck the oath down. See, e. g., Connell v. Higginbotham, supra; Baggett v. Bullitt, supra; cf. Bond v. Floyd, 385 U. S. 116 (1966).

When faced with an “imminent clear and present danger,” governments may be able to compel citizens to do things that would ordinarily be beyond their authority to mandate. But, such emergency governmental power is a far cry from compelling every state employee in advance of any such danger to promise in any and all circumstances to conform speech and conduct to opposing an “overthrow” of the government. The Constitution severely circumscribes the power of government to force its citizens to perform symbolic gestures of loyalty. Cf. Board of Education v. Barnette, 319 U. S. 624 (1943). Since the overbreadth of the oath tends to infringe areas of speech and conduct that may be protected by the Constitution, I believe that it cannot stand. See Whitehill v. Elkins, supra; Baggett v. Bullitt, supra; Wieman v. Updegraff, supra; Shelton v. Tucker, 364 U. S. 479 (1960).

Because only the second half of the oath is invalid, I would normally favor severing the statute and striking only the second part. See Connell v. Higginbotham, supra. However, when confronted with an oath strikingly similar to that before us, the Supreme Judicial Court of Massachusetts held that the two portions of the oath were not severable. Pedlosky v. Massachusetts Institute of Technology, 352 Mass. 127, 224 N. E. 2d 414 (1967). This Court must bow to state courts in their construction of state legislation. Therefore, we must bow to the decision of the state court and strike the oath in its entirety.

Before concluding, I add one additional word about loyalty oaths in general. They have become so prevalent in our country that few Americans have not at one time or another taken an oath to support federal and state governments. Such oaths are not only required as a condition of government employment, but often as a prerequisite to entering military service, to obtaining citizenship, to securing a passport or an educational loan or countless other government offerings. Perhaps we have become so inundated with a variety of these oaths that we tend to ignore the difficult constitutional issues that they present. It is the duty of judges, however, to endeavor to remain sensitive to these issues and not to “encourage the casual taking of oaths by upholding the discharge or exclusion from public employment of those with a conscientious and scrupulous regard for such undertakings.” Baggett v. Bullitt, supra, at 373-374.

Loyalty oaths do not have a very pleasant history in this country. Whereas they may be developed initially as a means of fostering power and confidence in government, there is a danger that they will swell “into an instrument of thought control and a means of enforcing complete political conformity.” Asper, The Long and Unhappy History of Loyalty Testing in Maryland, 13 Am. J. Legal Hist. 97, 108 (1969). Within the limits of the Constitution it is, of course, for the legislators to weigh the utility of the oaths and their potential dangers and to strike a balance. But, as a people, we should always keep in mind the words of Mr. Justice Black, concurring in Speiser v. Randall, 357 U. S., at 532:

“Loyalty oaths, as well as other contemporary ‘security measures/ tend to stifle all forms of unorthodox or unpopular thinking or expression — the kind of thought and expression which has played such a vital and beneficial role in the history of this Nation. The result is a stultifying conformity which in the end may well turn out to be more destructive to our free society than foreign agents could ever hope to be. . . . I am certain that loyalty to the United States can never be secured by the endless proliferation of ‘loyalty’ oaths; loyalty must arise spontaneously from the hearts of people who love their country and respect their government.”

Accordingly, I would affirm the decision of the District Court.

       The full text of the two relevant statutes is as follows:
      Mass. Gen. Laws, c. 264, § 14. Oath or affirmation; form; filing; exemptions

      “Every person entering the employ of the commonwealth or any political subdivision thereof, before entering upon the discharge of his duties, shall'take and subscribe to, under the pains and penalty of perjury, the following oath or affirmation:—
      “ T do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method.’
      "Such oath or affirmation shall be filed by the subscriber, if he shall be employed by the state, with the secretary of the commonwealth, if an employee of a county, with the county commissioners, and if an employe of a city or town, with the city clerk or the town clerk, as the case may be.
      “The oath or affirmation prescribed by this section shall not be required of any person who is employed by the commonwealth or a political subdivision thereof as a physician or nurse in a hospital or other health care institution and is a citizen of a foreign country.”
      C. 264, § 15. Violation of section 14; penalty

      “Violation of section fourteen shall be punished by a fine of not more than ten thousand dollars or by imprisonment for not more than one year, or both.”

        Richardson v. Cole, 300 F. Supp. 1321 (Mass. 1969).

       The District Court interpreted Mass. Gen. Laws, c. 264, § 15, which punishes a "[violation of section fourteen,” see n. 1, supra, as “presumably” punishing “a failure to ‘live up’ to the oath.” We see no basis for this interpretation. The clear purpose of § 15 is to punish the failure to comply with the directive aspects of § 14, which requires that every person entering the employ of the Commonwealth subscribe to the oath and file it with a certain state employee. Section 14, which includes the oath, says that it is taken upon the penalty of perjury but mentions nothing about a continuing criminal responsibility to “live up” to it.
      The time may come when the value of oaths in routine public employment will be thought not “worth the candle” for all the division of opinion they engender. However, while oaths are required by legislative acts it is not our function to evaluate their wisdom or utility but only to decide whether they offend the Constitution.

       The majority makes the suggestion that “we might be faced with a different question” if there were “a record of actual prosecutions or harassment through threatened prosecutions.” Ante, at 685. Here, appellee has been discharged from employment and denied her source of livelihood because of her refusal to subscribe to an unconstitutional oath. If the oath suffers from constitutional infirmities, then it matters not whether the penalties imposed for refusing to subscribe to it were criminal or the denial of employment.

       The Court is correct when it says “there is no constitutionally protected right to overthrow a government by force, violence, or illegal or unconstitutional means,” ante, at 686, but that has no bearing on the present case. What is involved here is appellee’s right to espouse and advocate ideas which may be unpopular to some. How we can honor that right to advocate while exacting the promise to “oppose,” the Court leaves unanswered.

       The majority first chides the District Court for taking “a literal approach” and “giv[ing] [the word 'oppose’] a dictionary meaning.” The majority then reads “oppose” to be a mere “negative implication of th[e] notion” of “a commitment to abide by our constitutional system” not requiring “specific, positive action.” Ante, at 683, 684. Having thus emasculated the word, the majority then labels it as “redundant” and a “repetition,” ibid., and concludes that the oath, in its entirety, is simply “to abide by the constitutional system in the future.” Ante, at 686.
      If the oath is void for vagueness or overbreadth, it is because the common meaning of its words is so imprecise or so farreaching as to place a “chilling effect” upon constitutionally protected expression. This vice — readily apparent in the present oath — is emphasized rather than avoided by the majority’s opinion. The tortured route which the majority takes to give this oath a supposedly constitutional interpretation merely emphasizes the unconstitutional effect those words would have were they to be given their natural meaning.

       The oath provided: “I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the Commonwealth of Massachusetts, and that I will faithfully discharge the duties of the position of (insert name of position) according to the best of my ability.”

       Appellee was not requested to take the oath before she began her employment. The reasons for the failure of the hospital officials to require the oath as a prerequisite to employment are not readily apparent from the record. In any event, the oath was required of all state employees at all relevant times.

       Appellee also sought damages for back wages allegedly owed. It is apparent that all back wages have now been paid. Thus, this claim is no longer in controversy. The District Court rejected ap-pellee’s belated attempt to make a claim for loss of wages due to termination, and this decision was well within its discretion under Rule 15 of the Federal Rules of Civil Procedure.

       It is clear that both speech and conduct are affected by this portion of the oath. Appellants conceded as much in their brief in the court below:
      “[I]n the event that a clear and present danger arose of the actual overthrow of the government, . . . the public employee [would] be required to use reasonable means at his disposal to attempt to thwart that effort. What he might do in such circumstances could range from the use of physical force to speaking out against the downfall of the government. The kind of response required would be commensurate with the circumstances and with the employee’s ability, his training, and the means available to him at the time.” (Emphasis added.) Quoted at 300 F. Supp., at 1322.
      The final sentence of this quotation evidences the confusion that the State confesses about the responsibilities assumed by employees in taking the oath.
      In light of the arguments that the appellants make, I find it impossible to agree with the Court that the second half of the oath adds nothing to the first. The appellants contend, contrary to the assertions of the Court, that a citizen who takes the first part of the oath has more of a duty to his government than one who takes no oath, and that one who takes the second part of the oath has a still greater duty. While the appellants are unsure as to where and how far that duty extends, they never have suggested that it simply does not exist. The argument is even made that the duty extends to the use of physical force.
      Were we faced with merely a traditional oath of support, I would join the Court. I share the Court’s dismay at having to hold state legislation unconstitutional, but I cannot ignore the thrust that a State would give its statutes. Cf. Pedlosky v. Massachusetts Institute of Technology, 352 Mass. 127, 224 N. E. 2d 414 (1967).