I respectfully dissent.
While the general statement of the law appearing in the third paragraph of the per curiam opinion is appropriate for the second question on Veterans Administration Form 10-2850-2, I cannot agree that it is appropriate for the first question. Question one is direct and precise. The government asks if the applicant is, or has recently been, a member of the Communist Party of the United States, or a subdivision thereof. It asks only if the applicant was a member of such Party, and not as to membership in any “other organization.”
There is no threat of punishment for mere membership in the Communist Party.
In Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971), the Supreme Court required that questions directed to a state bar applicant concerning “expressive or associational activities” must ask more than mere membership. I cannot consider Baird, however, as applicable to an inquiry that goes no further than “the Communist Party, or a subdivision of the Communist Party,” for that is controlled by Konigsberg v. State Bar, infra. Baird only applies to questions which go beyond question one, and which may suffer from over-breadth or vagueness. Similarly, question number 12 posted on the application for the Ohio bar was held to be invalid for the reasons stated in Baird. (In re Stolar, 401 U.S. 23, 30, 91 S.Ct. 713, 27 L.Ed.2d 657 (1971)).
In Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961) the Supreme Court held that a State may inquire into a bar applicant’s membership in the Communist Party under certain circumstances.
“As regards the questioning of public employees relative to Communist Party membership it has already been held that the interest in not subjecting speech and association to the deterrence of subsequent disclosure is outweighed by the State’s interest in ascertaining the fitness of the employee for the post he holds, and hence that such questioning does not infringe constitutional protections. (Citations.)” Konigsberg, supra, 366 U.S. at 52, 81 S.Ct. at 1007. Accord, Baird, supra, 401 U.S. at 9, 91 S.Ct. 702 (Stewart, J., concurring); In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135 (1961).
To be appropriate, the inquiry into Communist Party membership, as in question one, must be for a legitimate government purpose. In view of the position of trust and confidence which develops between patient and doctor, and in view of the position of authority which these doctors would have over government property, I conclude that the government has the requisite legitimate purpose necessary to pose question one.
If we assume that a requisite legitimate purpose exists for the government to determine if more than mere membership exists in a subversive organization, with knowledge of its unlawful purposes and a specific intent to further those purposes, how could there be any simpler or better method devised than to ask question one preliminarily to question two? There must be an acknowledgment, or proof, .of membership as a sine qua non to any further questioning. Because a heavy burden may exist upon the state (in inquiring into and proving an individual’s beliefs and associations), cannot mean question one is unnecessary ; for if that be so, no question as to membership could be asked.
*1157It does not satisfy me that the law as enunciated by the Supreme Court in Konigsberg, supra, Baird, supra, and Anastaplo, supra, has been followed, if this Court says that “a heavy burden lies upon the state”, or that “broad inquiries are disfavored”, and because of that, the one essential question cannot be asked.
With respect to question two, admittedly there is no reference to the applicant’s intent. Standing alone, Law Students Research Council v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), would require a decision that the question is in violation of the First Amendment. The question, however, does not stand alone: it is prefaced with instructions which appear at the top of the form. The proposed per curiam mentions this, but omits the thrust of the entire instructions. This is particularly evident by the statements appearing [in the eighth paragraph at page 4, lines 8-14]: “In the present ease, however, an applicant for residency faced with YA Form 10-2850-2 would know only that the questions were ‘preliminary.’ The nature of the inquiry that would follow an affirmative answer was not disclosed.” (Emphasis added.) My reading of the instructions contradicts such statements. After instructing an applicant (who answers affirmatively to either of the first two questions) (to obtain and complete the supplementary form, the instructions state: “Consideration will then be given to the nature of the organization, your knowledge of its aim and policy, the extent of your participation in the organization’s activities, and any other relevant facts and circumstances.” Therefore, the conclusion in the last sentences of paragraph eight that the “questions (in the supplemental form) could not ameliorate the ‘chilling’ effect of the overly broad inquiries into (the applicant’s) associations,” in questions one and two, does not, absent other grounds, convince me it is correct.
It is for these reasons that I dissent.