United States ex rel. Confield v. Tillson, Civ. A. No. 1535.

• Decision Date: 30 April 1970
• Docket Number: Civ. A. No. 1535.
• Citation: 312 F. Supp. 831
• Parties: UNITED STATES of America ex rel., Pvt. Stuart A. CONFIELD, United States Army, SSAN: XXX-XX-XXXX, Co. B, 8th Bn., USASESS, Fort Gordon, Georgia, Petitioner, v. John C. F. TILLSON, III, Major General, United States Army, Commanding General, Fort Gordon, Georgia, and Stanley R. Resor, Secretary of the Army, Respondents.
• Court: U.S. District Court — Southern District of Georgia

312 F. Supp. 831

UNITED STATES of America ex rel., Pvt. Stuart A. CONFIELD, United States Army, SSAN: XXX-XX-XXXX, Co. B, 8th Bn., USASESS, Fort Gordon, Georgia, Petitioner, v. John C. F. TILLSON, III, Major General, United States Army, Commanding General, Fort Gordon, Georgia, and Stanley R. Resor, Secretary of the Army, Respondents.

Civ. A. No. 1535.

United States District Court, S. D. Georgia, Augusta Division.

April 30, 1970.

John H. Ruffin, Jr., Augusta, Ga., Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., for petitioner.

R. Jackson B. Smith, Jr., U. S. Atty., William T. Morton, Asst. U. S. Atty., Augusta, Ga., for respondents.

ORDER

LAWRENCE, Chief Judge.

Petitioner seeks release from military service as a conscientious objector. He was inducted into the Army in March, 1969, and underwent Basic Combat Training at Fort Dix, receiving a rating of excellent in conduct and efficiency. He was assigned to the Signal School at Fort Gordon in July of the same year.

On October 1, 1969, Private Confield applied for discharge on conscientious objectorship grounds. His application ended its journey through channels on January 21, 1970, when the Conscientious Objector Review Board concurred in the disapproval of same. It said that Private Confield based his objection on "a particular war" and was only a pacifist when it suited his particular purposes.¹ The decision was also based on lack of sincerity in his professed beliefs and the fact that his objections were based on philosophical views and a personal moral code unrelated to religious beliefs.

Of all the reviewing officers and officials² only his immediate commanding officer recommended approval of the application. Captain McGreevy believed that he "appears to be very sincere" with "strong feelings" as to "wanton taking of any life."

The job imposed on the Federal Courts, as well as on draft boards and the armed services, is no easy one in these cases. The articulate service man undoubtedly possesses an advantage in conscientious objector proceedings so far as the District Judges are concerned. At least that has been my experience. The Fourth Circuit has recently cautioned that: "Entitlement to that status is not limited to those registrants who have read United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), and its progeny, and can express their views with them as models, or to those registrants who have counsel familiar with selective service law available to assist them."

Private Confield is highly articulate. He received his elementary and high school education in the public schools of Newark and in 1968 graduated at Rutgers University. Later he taught English in high school. He was born in the Jewish religion. His father is living. The family apparently was not especially religious. Confield says that while he was "born and raised a Jew * * * I am no longer a devotee of Judaism." At the time of his induction he did not claim conscientious objector status. He had never had military training before and described basic combat training as a "shock." His views on war have crystallized since he has been in the Army.

He says that "human life is sacred" and "I do not wish to kill." Life is his religion and he worships "Beauty, innocence, freedom, love, peace." It amounts, he claims, "to a religious interpretation concerning my relation to the world. My sensitive god of life occupies a place within myself that is equal or parallel to the place the Christian God occupies in any orthodox Christian * * * My god of sensitivity connects me with the universe and expresses a meaning for it as amply as does the God of Christianity, if not more, for I become the universe. My god of life is knowable and unquestionable; I do not need to debate, via theological and metaphysical treatises, his existence, because I feel him hard in me, and in the things he connects me to."

At the trial Confield testified that he regards himself as a god within himself and that he feels at one with a flower or a person.³ He compares such emotions with the "religious emotion" of the Shakers or that produced by the "wine and crackers" of Holy Communion and contends there is no difference. When the Court asked at the hearing whether he was a pantheist, Confield replied by describing himself as an anthropomorphist.

He says he has kept these beliefs to himself but that he is now forced to confess them since service in the Army is a threat to his personal beliefs. I asked Private Confield whether he had ever written anything in school or college consistent with what he is now claiming. Subsequently, he furnished the Court with several of his poems. They are imaginative, sensitive, fresh in content and self-revealing.⁴

The Selective Service Act of 1967 provides (50 U.S.C. App. § 456) that no person is required to be subject to combatant training in the armed services who, "by reason of religious training and belief is conscientiously opposed to participation in war in any form." Construing the statute in the form in which it then existed, the Supreme Court has said in United States v. Seeger, 380 U.S. 163, at 176, 85 S.Ct. 850, at 859:

"Within that phrase would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent. The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition."

In United States v. Shacter, D.C., 293 F.Supp. 1057 a District Judge had before him a case somewhat similar to the present except that it involved an indictment for failure to report for induction. Defendant had been brought up in the Jewish faith. He believed that man's life is sacred and claimed the mortality of the human soul was central to his belief. While Shacter was an atheist he said that his feelings were religious and that he was not less religious than a man who believed in God. Judge Harvey concluded that the defendant's claimed beliefs occupy the same place in his life as an orthodox belief in God holds in the life of one clearly qualified for exemption.

The defendant in United States v. Haffner, D.C., 301 F.Supp. 828 did not believe in an anthropomorphic god but thought that "god is within man" and that "When a man dies his god also dies, therefore to kill a man is to kill a god." Haffner was not a member of any religious sect and did not claim such source for his beliefs. Judge Pence dismissed the indictment, pointing out that "the humanism of this defendant no less entitles him to conscientious objector status than the humanism of Seeger, Jakobson or Shacter, or the pantheism of St. Clair."⁵

I believe Confield to be sincere in his beliefs. As in United States v. Foran, D.C., 305 F.Supp. 1322, 1326, his testimony "reflected an honest and unprepared mind, not rehearsed or memorized language of court decisions." In that case the Court found that while Foran no longer believed in God, his strong moral aversion to violence was in part based on the early religious training he received in Catholicism. See, similarly, Fleming v. United States, 10 Cir., 344 F.2d 912, 916. The disqualification from exemption by reason of a "merely personal code" must be the sole basis of the objector's beliefs. Seeger, supra; United States ex rel. Brooks v. Clifford, 4 Cir., 409 F.2d 700, 708. Pantheism should not be considered such a code or merely a philosophical view. United States v. St. Clair, supra; United...