United States District Court, Northern District of Illinois, E.D
October 12, 1971
IN RE PETITION FOR NATURALIZATION OF MATHILDE LEA HELENE BURKE.
The opinion of the court was delivered by: Decker, District Judge.
The narrow question presented in this case is whether an
alien's refusal to testify before the House Un-American
Activities Committee ("HUAC") disqualifies her from naturalized
Petitioner Mathilde Burke is a native and citizen of the
Netherlands. Since 1946, she has resided in this country. On June
8, 1966, she petitioned for naturalized United States
citizenship. 8 U.S.C. § 1427(a). A preliminary examination was
conducted by the Immigration and Naturalization Service. 8 U.S.C. § 1446(b).
The hearing examiner's report was forwarded to this
court with the recommendation that the naturalization petition be
denied. 8 U.S.C. § 1446(d).
The hearing examiner considered Mrs. Burke's eligibility for
naturalization under two separate statutory provisions. First, he
considered whether she had been associated with a Communist
organization within ten years of her filing for naturalization.
8 U.S.C. § 1424. He concluded that although she had belonged to
two discussion groups in 1955-1957 which taught the meaning of
Communism, the evidence did not establish that the groups were
Communist controlled. Second, the hearing examiner considered
whether Mrs. Burke was "attached to the principles of the
Constitution of the United States." 8 U.S.C. § 1427(a)(3). He
concluded that the petitioner's attitude in joining the
discussion groups was one of careless disregard of whether they
might be Communist controlled. He further held that petitioner's
careless disregard, as well as her refusal in 1965 to testify
before HUAC, conclusively established that she did not possess
the requisite attachment to the United States Constitution to
qualify her for naturalization.
Petitioner demanded, and was granted, a hearing before the
district court. 8 U.S.C. § 1447. At the hearing, counsel for the
Immigration and Naturalization Service conceded that, aside from
her refusal to testify before HUAC, there was nothing to
demonstrate that Mrs. Burke lacked attachment to the principles
of the Constitution.*fn1 Thus, the issue presented is simply
whether such a refusal to testify demonstrates a lack of
attachment to the principles of the Constitution, and thus
disqualifies petitioner from naturalized citizenship.
Courts have generally been reluctant to define what is meant by
the term "attached to the principles of the Constitution."
Stasiukevich v. Nicolls, 168 F.2d 474, 477 (1st Cir. 1948). The
very generality of the term suggests that Congress intended an
elastic definition. Tauchen v. Barber, 183 F.2d 266, 268 (9th
Cir. 1950). One court has found the necessary attachment to imply
"full adherence and loyalty to the letter and the spirit of
American institutions." United States v. Title, 132 F. Supp. 185,
187 (S.D.Cal. 1955), aff'd, 263 F.2d 28 (9th Cir. 1959). Another
has said that the term describes "those political and legal
institutions that are the enduring features of American political
society." Baumgartner v. United States, 322 U.S. 665, 673, 64
S.Ct. 1240, 1244, 88 L.Ed. 1525 (1944).
See also, Schneiderman v. United States, 320 U.S. 118, 181, 63
S.Ct. 1333, 87 L.Ed. 1796 (1943) (Chief Justice Stone,
Perhaps the most workable definition, and the one this court
finds helpful, is the one announced in In re Sittler's Petition,
197 F. Supp. 278, 280 (S.D.N.Y. 1961), aff'd, 316 F.2d 312 (2d
Cir. 1963), cert. denied, 376 U.S. 932, 84 S.Ct. 702, 11 L.Ed.2d
"Attachment to the principles of the Constitution
means merely an acceptance of the fundamental
political habits and attitudes which prevail in the
United States and a willingness to obey the laws
which may result from them. The object of the
statutory requirement is to admit as citizens only
those who are in general accord with the basic
principles of the community. (Citation.) Thus, the
statute requires a willingness on the part of the
alien to throw in his lot with our society and make
its fate his own. (Citation.)"
With the foregoing principles in mind, I will review the
evidence adduced before the examiner as well as the evidence
brought out at the hearing before the court. Since initially
entering the United States, Mrs. Burke has not been out of the
country for more than three weeks at a time. She is employed as
a qualified medical technician. She is married and is living in
Chicago with her husband and child. She has never been arrested
and has never been the subject of deportation proceedings. She
has filed her income tax returns without fail. And she has been
a member of numerous civic, professional and cultural societies.
In all these respects, Mrs. Burke has conducted herself as a
model citizen would.
Weighed against this is the one fault found by the Immigration
and Naturalization Service, that Mrs. Burke refused to testify
before HUAC in 1965. She testified at the hearing that she relied
upon the advice of her counsel in refusing to testify, and that
even though her evidence would not tend to incriminate her, she
nevertheless believed that she had the right to remain silent
under the First and Fifth Amendments. Perhaps she was mistaken
about that right. For present purposes, the issue need not be
decided. The important point is that the constitutional guarantee
against self-incrimination is not lightly to be waived,
particularly when there are circumstances in which the waiver
might be coerced. See, e.g., Spevack v. Klein, 385 U.S. 511, 87
S.Ct. 625, 17 L.Ed.2d 574 (1967); Garrity v. New Jersey,
385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).
She claimed that she was fearful of possible deportation in the
event she gave the testimony and the Immigration and
Naturalization Service placed the wrong interpretation upon it.
She was also conscious of the pressure being exerted upon her to
give her testimony as insurance against her deportation. Faced
with this dilemma, I cannot say that the choice she made
demonstrated such a lack of attachment to the Constitution as to
warrant a denial of citizenship.
It became apparent at the hearing that quite apart from her
claimed legal justification for refusing to testify before HUAC,
Mrs. Burke had a philosophical aversion for the Committee's aims
and objectives. She stated that she came to this country
following a history of persecution at the hands of the Nazis in
Europe. In her opinion, which was freely expressed, the type of
inquiry conducted by HUAC was inimical to basic tenets of a free
society. No doubt there are those native to this country who
disagree strongly with Mrs. Burke's view of HUAC. However, as Mr.
Justice Holmes wrote in a similar context, for himself and Mr.
"[I]f there is any principle of the Constitution
that more imperatively
calls for attachment than any other it is the
principle of free thought — not free thought for
those who agree with us, but freedom for the thought
that we hate. I think that we should adhere to that
principle with regard to admission into, as well as
to life within this country." United States v.
Schwimmer, 279 U.S. 644, 654-655, 49 S.Ct. 448, 451,
73 L.Ed. 889 (1929) (Dissenting opinion).
Likewise, I do not think Mrs. Burke should be denied
naturalized citizenship because of a sincerely-held philosophical
belief with which some may disagree. Certainly I would be
reluctant to deny her citizenship if she failed to comply with
all the technical requirements for naturalization because of a
sincerely-held religious belief. In re Pisciattano, 308 F. Supp. 818
(D.Conn. 1970); but see In re Petition for Naturalization of
Matz, 296 F. Supp. 927 (E.D.Cal. 1969).
Mrs. Burke's refusal to testify did not seem to upset the
investigatory function of HUAC in any way. Nor was Mrs. Burke
ever held in contempt. In short, her behavior came at a very
small social cost. I agree with what the Court said in West
Virginia State Board of Education v. Barnette, 319 U.S. 624
641-642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943).
"We can have intellectual individualism and the
rich cultural diversities that we owe to exceptional
minds only at the price of occasional eccentricity
and abnormal attitudes. When they are so harmless to
others or to the State as those we deal with here,
the price is not too great."
Because the petitioner has sufficiently demonstrated her
attachment to the principles of the United States Constitution,
the petition for naturalization is hereby granted.