William J. Brennan, Jr.

“ It has not been hitherto suggested that the authorizing resolutions of the Un-American Activities Committee extend to enabling it to perform these functions on a grant-in-aid basis to the States. Accordingly there is presented here the very same arbitrary action-the drawing of an inference of unfitness for employment from exercise of the privilege before another body, without opportunity to explain on the part of the employee, or duty on the part of the employing body to attempt to relate the employee's conduct specifically to his fitness for employment-as was involved in Slochower. ”

“ In Slochower, this Court had a substantially identical situation before it. There a local law which made a claim of the constitutional privilege 'equivalent to a resignation' was struck down as violative of the Due Process Clause of the Fourteenth Amendment. Only one word is necessary to add here to the Court's statement there of its reason for voiding the provision: 'As interpreted and applied by the state courts, it operates to discharge every (temporary) employee who invokes the Fifth Amendment. ”

“ But on this basis the case is again indistinguishable from Slochower. If it is unconstitutionally arbitrary for the State to treat every invocation of the privilege as conclusive on his fitness and in effect as an automatic discharge, then the command of the State that no temporary employee shall claim the privilege under pain of automatic discharge must be an unconstitutionally arbitrary command. A State could not, I suppose, discharge an employee for attending religious services on Sunday, see Wieman v. ”