dissenting.
Although I concur in this Court’s policy of requiring the inclusion in federal jury lists in California of women qualified for service as jurors of the highest court of law in that State, I believe that we are not justified in dismissing the indictment returned in this case in 1941 merely because women were not included in such lists at that time. In the absence of a binding statutory or court rule then requiring such inclusion of women, the District Court was compelled to exercise its own discretion in including or excluding them. Without depending on the breadth of the discretion which should be allowed to a District Court under those circumstances, I submit that the reasons for the District Court action strengthen the position that this Court should not now retroactively disapprove the established local federal practice which conformed almost exactly with the established state practice.
Ever since its first Judicature Act, Congress has subordinated federal practice to state law in determining the qualifications of federal jurors. In that Act it said: “the jurors shall have the same qualifications as are requisite for jurors by the laws of the State of which they are citizens, to serve in the highest courts of law of such State, . . .” Section 29, Act of September 24, 1789, 1 Stat. 73, 88. Similarly, the present law reads: “Jurors to serve in the courts of the United States, in each State respectively, shall have the same qualifications, subject to *204the provisions hereinafter contained, and be entitled to the same exemptions, as jurors of the highest.court of law in such State may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned.” Section 275, Judicial Code, 36 Stat. 1087, 1164, 28 U. S. C. § 411.1
There is no constitutional, statutory or court rule or policy requiring women to be placed on all federal jury lists. Congress might have required such a course and might have set up complete federal qualifications for federal jurors, but it never has done so. Instead, it has provided that state action shall determine most of the qualifications for federal jury service. As a result, it would be reversible error for the federal courts to include women on federal juries in those states which do not make women eligible for service as jurors of the highest court of law in such states. Cf. Crowley v. United States, 194 U. S. 461. This is an inescapable recognition by Congress that it sees nothing seriously prejudicial in the continued use of exclusively male federal juries in states where women are not eligible for state jury duty. The availability of appropriate accommodations for the two sexes has been treated as a material factor in determining whether women and men shall be called for jury duty. Acts and Resolves of R. I. (1939), c. 700, § 37; People v. Shannon, 203 Cal. 139, 263 P. 522. See Report to the Judicial Conference of the *205Committee on the Selection of Jurors (1942), p. 23. Subordination of the need for women on federal juries to the availability of physical accommodations for them is a tacit recognition that no fundamental infraction of the rights of litigants is involved in the continuance of exclusively male juries.
In some employments, women are distinguished from men, as a matter of law, in connection with their hours and conditions of work. West Coast Hotel Co. v. Parrish, 300 U. S. 379. These distinctions are due to considerations not applicable to jury service. The general and increasing absence of sound reasons for distinctions between men and' women in matters of suffrage, office holding, education, economic status, civil liberties, church membership, cultural activities, and even war service, emphasizes the lack of reason for making a point of the presence or absence of either sex, as such, on either grand or petit juries. See Miller, The Woman Juror (1922), 2 Ore. L. Rev. 30,40.
By a general practice of not calling women for jury duty although eligible for such duty, the state courts of California, in effect, have granted women' a substantial exemption from that duty. People v. Parman, 14 Cal. 2d 17, 92 P. 2d 387; People v. Shannon, supra. See United States v. Ballard, 35 F. Supp. 105, 107. The California courts thus have treated men and women as equally qualified and have assumed that litigants will have an adequate impartial jury, regardless of the sex of the jurors, provided the jurprs otherwise are qualified to serve. Cf. Hyde v. United States, 225 U. S. 347, 374; Agnew v. United States, 165 U. S. 36, 44. While such a state practice is not binding upon the federal courts as a matter of law, yet it is persuasive as indicating that litigants need not be treated as having been prejudiced when a Federal District Court has conformed its practice to that of the state. For the *206state rule see People v. Parman, supra; In re Mana, 178 Cal. 213, 172 P. 986; People v. Manuel, 41 Cal. App. 153, 182 P. 306.
The error in the federal practice cannot be the exclusion of women, as such,.because such exclusion not only is permitted but is required by federal statute in states where they are not eligible for state jury duty. The error, if any, must consist of the failure to require the listing of women, as well as men, for all federal jury service in a state which permits such listing for state jury service, even though the state regards such listing as directory to and not mandatory upon the state courts.
There are ample grounds for distinguishing Thiel v. Southern Pacific Co., 328 U. S. 217, from this case. For example, in the Thiel case, the Court acted in the absence of actual notice that the objectionable practice had been discontinued,2 whereas, here, we have notice that the practice objected to was changed more than two years ago to conform, at least substantially, to the approved practice. Also, in the Thiel case, the procedure complained of consisted of the exclusion of an economic group, thereby detracting from the representative character of the jury list, in a manner contrary to the tradition and purpose of the jury system. Here the exclusion of women, as such, from jury service not only was in accordance with the traditional practice, but is in accordance with the congressionally approved future practice in the federal and state courts of about 40% of the states. This shows that the only objectionable practice here was that, after the State had established a directory system of eligibility of women for state *207jury service, the federal court did not at once enlarge that policy into a mandatory requirement that all qualified women be placed upon all federal jury lists.
For these reasons, I am unable to concur in the judgment setting aside the indictment and verdict. The convictions in this case should be affirmed, and I concur in the statement by Mr. Chief Justice Stone: “Certainly none of respondents5 constitutional rights are violated if they are prosecuted for the fraudulent procurement of money by false representations as to their beliefs, religious or otherwise.55 United States v. Ballard, 322 U. S. 78, 90.
Mr. Chief Justice Vinson and Mr. Justice Frankfurter join in this dissent.Mr. Justice Jackson joins in it except in so far as the final paragraph relates to an affirmance of the convictions.
The federal courts, therefore, are bound by state definitions of jurors’ qualifications subject to federal constitutional and statutory limitations. It has been argued that the Fifth and Sixth Amendments to the Constitution guarantee the continuance of the exclusively male common law federal juries, but it is now generally agreed that women are qualified to serve on federal juries wherever the states have declared them qualified as jurors of the highest court of law in their respective states. See United States v. Wood, 299 U. S. 123, 145; Tynan v. United States, 297 F. 177, 178-179, cert. denied, 266 U. S. 604; Hoxie v. United States, 15 F. 2d 762, cert. denied, 273 U. S. 755.
It now appears, however, that, beginning in 1943, the practice objected to in the Thiel case has been discontinued. Louis E. Goodman, U. S. District Judge, N. D., Calif., Federal Jury Selections as Affected by Thiel v. Southern Pacific Company, 21 Journal of the State Bar of California 352,357.