419 F.2d 110 (1st Cir. 1969), 7355, United States v. Boardman

Docket Nº:7355.
Citation:419 F.2d 110
Party Name:UNITED STATES of America, Appellee, v. Richard Mather BOARDMAN, Defendant, Appellant.
Case Date:December 11, 1969
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 110

419 F.2d 110 (1st Cir. 1969)

UNITED STATES of America, Appellee,


Richard Mather BOARDMAN, Defendant, Appellant.

No. 7355.

United States Court of Appeals, First Circuit.

December 11, 1969

Page 111

William M. Kunstler, New York City, and Crystal C. Lloyd, with whom John G. Brooks, Boston, Mass., was on brief, for appellant.

Stanislaw R. J. Suchecki, Asst. U.S. Atty., with whom Herbert F. Travers, Jr., U.S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Defendant was convicted in the court below of failing to report for civilian work in the national interest in violation of 50 U.S.C. App. §§ 456(j), 462. Defendant concedes that he knowingly failed to obey an order of his local board, and that the order was issued in compliance with statute and regulations. His appeal raises issues concerning the free exercise of religion, the intent requisite for conviction of crime, and the division of function between judge and jury.

The record indicates that both defendant and the Selective Service System have behaved punctiliously. Defendant was originally classified II-S while an undergraduate at Antioch College. Upon graduation, his local board placed him in class I-O, the classification reserved for those conscientiously opposed to any form of military service. In the course of completing SSS Form 152 (Special Report for Class I-O Registrants), defendant indicated that his first choice for alternate service was the Chicago branch of the American Friends Service Committee. Defendant's local board replied that the Friends Service Committee was not an acceptable alternative to military service and advised defendant to apply for work in an approved program.

By that time, however, defendant had already begun work with the Committee as an adviser to draft registrants. Several months of negotiations concerning defendant's status ensued. Defendant terminated these negotiations by a letter to his local board in which he expressed his intent to refuse to cooperate any further with the Selective Service System. This step was prompted by defendant's belief that any system of conscription is unjust and that the practice of exempting conscientious objectors was merely a device for blunting the protests of those most vehemently opposed to militarism. Defendant's local board then ordered defendant to report for civilian

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work at Massachusetts General Hospital. Because of procedural irregularities, two further orders were issued, and twice more defendant refused to report. He was then indicted and convicted after a trial by jury.

On this appeal, defendant raises three objections: first, that the requirement of alternate service for conscientious objectors infringes the free exercise of religion; second, that the trial court erred in refusing to charge that the jury should consider defendant's motivation in deciding the issue of criminal intent; and finally, that the jury should have been expressly informed of its power to acquit defendant in spite of his admitted violation of the statute.

Defendant's First Amendment claim would have us make a substantial inroad on the existing law governing military service exemptions. We rehearse briefly what that law is. It has been repeatedly recognized that exemption for military service is a matter of Congressional grace rather than constitutional compulsion. United States v. Macintosh, 283 U.S. 605, 623, 51 S.Ct. 570, 75 L.Ed. 1302 (1931); In re Summers, 325 U.S. 561, 572-573, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945); Clay v. United States, 397 F.2d 901, 912 (5th Cir. 1968), vacated, 394 U.S. 310, 89 S.Ct. 1164, 22 L.Ed.2d 297 (1969), and cases cited. Since Congress can require everyone to submit to military discipline, the argument goes, it can also condition the grant of exemption on the performance of a less burdensome form of service. George v. United States, 196 F.2d 445, 450 (9th Cir.), cert. denied, 344 U.S. 843, 73 S.Ct. 58, 97 L.Ed. 656 (1952); Kramer v. United States, 147 F.2d 756, 760 (6th Cir.), cert. denied, 324 U.S. 878, 65 S.Ct. 1026, 89 L.Ed. 1429 (1945), and cases cited.

We need not decide whether to adopt this approach, however, for even if we assume that the First Amendment requires some form of exemption for those conscientiously opposed to military service, it does not follow that Congress must grant a total exemption. Congress has broad power to take all steps necessary and appropriate to raising and supporting an army. United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In exercising this power, Congress may legitimately require alternate service to alleviate the unfairness which results if conscientious objectors continue to enjoy the fruits of civilian life while their fellow citizens are conscripted for onerous and sometimes hazardous duty. Cf. Braunfeld v. Brown,366 U.S. 599, 608, 609, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). Congress may also require alternate service to avoid the difficulties implicit in granting a total exemption based on individual belief, such as the potential threat to the morale of the armed forces Howze v. United States, 272 F.2d 146, 148 (9th Cir. 1959), or the problem of distinguishing self-serving claims from beliefs which deserve the title 'conscientious'. Weightman v. United States, 142 F.2d 188, 191, 192 (1st Cir. 1944).

Defendant impliedly rejects this conventional wisdom. The First Amendment, he argues, protects religiously motivated conduct unless that conduct poses some substantial peril to the public health or safety. This stringent test, he maintains, should be applied even if the individual's objection is not to the conduct which the government seeks to compel, but to the national policy which that conduct promotes. Counsel for defendant made clear at oral argument that this principle would equally apply to one who refused to pay his income tax because of conscientious objections to the war in Vietnam.

Such a view of the First Amendment is, we think, overly...

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