(concurring) :
In joining my brethren in the disposition of this case I wish to add a brief statement of my reasons.
Whether the ritual of an oath or affirmation of loyalty, with or without sanctions for perjury, is a wise or effective means to the unquestionably legitimate end of protecting the state against subversion is not the issue before us. The question is the legality of the particular requirement demanded of the plaintiff, not its desirability.
I am inclined to agree with the plaintiff that the prescribed oath or statement is not to be judged in isolation, but in conjunction with the statute, for in the absence of a statute, there would be no authority for demanding any statement “under penalty of perjury.” If it were not for Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565 (1951), I would not lightly dismiss the plaintiff’s argument that the reference to Article 85A, with its language about “subversive persons” and “subversive organizations,” has a material bearing on the question before us, even though the oath itself does not expressly embody these terms. But the question comes to us freighted with a history, and the role of the statute in respect to the oath has been authoritatively interpreted.
In Gerende the Court upheld an oath which was in terms more comprehensive than the one before us. The Court embraced what it regarded as a restrictive interpretation of the Ober Law by the Maryland Court of Appeals, and upon that premise, and upon the condition that the Attorney General would advise the state authorities to accept as sufficient an affidavit in the narrow terms stipulated by the court, sustained the statute and the affidavit pursuant thereto. Whatever we might otherwise have thought, the Supreme Court has authoritatively decided that the broader language of the statute, which concededly would make it invalid, see Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316 (1964), is not controlling, but the less comprehensive language of the oath, as directed by the Attorney General, governs.
The plaintiff maintains first that the Supreme Court was mistaken in its analysis of the decision of the Maryland Court of Appeals in Shub v. Simpson, 196 Md. 177, 76 A.2d 332 (1950), and he further points to the logic employed in the later holdings in Baggett v. Bullitt, supra, and Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238 (1966), in support of his thesis that the Court must sooner or later disavow Gerende.
I acknowledge the force of the plaintiff’s arguments as to the doubts concerning the present status of Gerende created by the recent decisions of the Supreme Court.1 It may well be that on renewed *598consideration the Supreme Court would today hold the statute and the oath, even as recently further modified by the Attorney General, too vague to meet constitutional standards. However, it is one thing for a lower court to project an estimate of the future course of Supreme Court decisions on a point not theretofore specifically ruled upon; it is quite another to assume that an earlier decision of the Supreme Court on the very question now pending before the inferior tribunal has been overruled sub silentio. Judicial discipline requires that such assumptions be not too freely made, especially when the Supreme Court seems to have been careful to avoid an outright overruling. If Gerende is ripe for final dispatch, the task is for the Supreme Court, not a subordinate court.
Thus, despite the doubts engendered by the course of subsequent adjudications, I think the contentions made by the plaintiff here are more properly addressed to the Supreme Court. I am obliged, therefore, to join in today’s order of dismissal rather than anticipate the abandonment of Gerende.
. Keyishian v. Board of Regents, 255 F. Supp. 981 (W.D.N.Y. Jan. 5, 1966), prob. juris, noted, 384 U.S. 998, 86 S.Ct. 1921 (1966), decided prior to the Supreme Court’s decision in Elfbrandt, may be distinguishable from the case at bar. There *598is no New York equivalent to the “loyalty pledge,” subject to penalties for perjury, that is before us today. Furthermore, as the three-judge district court emphasized, New York State, in requiring of a prospective employee the assurance that he has complied with the laws under attack in Keyishian, affords the applicant an opportunity to be heard, should he be in doubt as to the coverage of the statutes.