George v. United States, 13095.

• Decision Date: 23 May 1952
• Docket Number: No. 13095.,13095.
• Citation: 196 F.2d 445
• Parties: GEORGE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

196 F.2d 445 (1952)

GEORGE v. UNITED STATES.

No. 13095.

United States Court of Appeals, Ninth Circuit.

April 21, 1952.

Rehearing Denied May 23, 1952.

COPYRIGHT MATERIAL OMITTED

Wirin, Rissman & Okrand and Richard W. Petherbridge, Los Angeles, Cal., for appellant.

Walter S. Binns, U. S. Atty., Ray H. Kinnison, Asst. U. S. Atty., Richard F. Hayden, Asst. U. S. Atty., all of Los Angeles, Cal., for appellee.

Before MATHEWS and ORR, Circuit Judges, and YANKWICH, District Judge.

YANKWICH, District Judge.

The appellant, Joseph Harmon George, registered under the Selective Service Act of 1948, 50 U.S.C.A.Appendix, § 453. On May 9, 1951, an indictment was returned against him on two counts of violation of the Selective Service Act, 50 U.S.C.A.Appendix, § 462, charging him with (1) failure to report for induction and (2) failure to file a classification questionnaire. After waiver of jury, Rule 23(c), Federal Rules of Criminal Procedure, 18 U.S.C.A., and trial by the court, he was found guilty on both counts on June 13, 1951. On July 9, 1951, he was sentenced to imprisonment for a period of three years on each count of the indictment, the sentences to run concurrently.

The facts surrounding the offense are not in dispute. Indeed, the entire record on appeal consists of an agreed statement upon appeal made in accordance with the rules. Rule 39(b) (1), Federal Rules of Criminal Procedure; Rule 76, Federal Rules of Civil Procedure, 28 U.S.C.A.

Appellant was born on December 14, 1931. The violation charged in Count 1 of the indictment occurred on March 28, 1951; that in Count 2 on January 9, 1951.

In the court below, the defendant attacked the validity of the indictment on Constitutional grounds, on motion to dismiss, made under the rules. Rules 6(b) (2), 12(b) (1) and (2), Federal Rules of Criminal Procedure.

In this court, he challenges the conviction on the same grounds.

The most serious of these relates to his contention that the provision of the Selective Service Act of 1948 relating to the exemption of certain persons who, by reason of religious training and belief, are conscientiously opposed to participation in war of any form, 50 U.S.C.A.Appendix, § 456(j), violates the guaranty of freedom of religion contained in the First Amendment to the Constitution of the United States.

The argument is rather sketchy. It is difficult to ascertain whether the claimed violation consisted in making a law "respecting an establishment of religion" or whether it is a preference given to one religious group over another, which amounts to a prohibition of "the free exercise of religion" under the First Amendment. Whichever it is, it is untenable.

I

Conscience and the State.

The problem of religious pacifists is one which has troubled theologians, legislators and jurists in the United States for a long period of time. The problem becomes acute at war-time when the nation is confronted with those whose religious training and belief forbids participation in war in any form. (See, C. C. McCown, "Conscience and the State", 1944, 52 Cal.Law Rev., p. 1; Julien Cornell, "The Conscientious Objector and the Law", 1943; Julien Cornell, "Conscience and the State", 1944.) Early in the history of the colonies persecution and discrimination characterized the attitude of the community towards religious pacifists and dissenters such as the Quakers (James Truslow Adams, "Provincial Society 1690-1763," 1927, pp. 63-150; being in Vol. III of "A History of American Life", edited by Arthur M. Schlessigner and Dixon Ryan Fox; Evarts Bontell Green, "The Revolutionary Generation, 1761-1790," 1927, pp. 282-283; being Vol. IV in the same series). At the time of the establishment of the Constitution, and especially following its adoption, an era of greater tolerance came into being. It manifested itself by granting to religious pacifists exemption from military duty. The first Constitution of New York, adopted in 1777, exempted from the state militia

"all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same may, in the judgment of the legislature, be worth." Art. XL quoted by Mr. Chief Justice Hughes in the dissenting opinion in United States v. Macintosh, 1931, 283 U.S. 605, 632-633, 51 S.Ct. 570, 578, 75 L.Ed. 1302.

Similar exemptions are found in some of the early constitutions of other colonies and in later state constitutions. Macintosh v. United States, 1930, 2 Cir., 42 F.2d 845, 847-848, Footnotes 1 and 2; and see references in the concurring opinion of Mr. Justice Cardozo in Hamilton v. Regents, 1934, 293 U.S. 245, 266-268, 55 S.Ct. 197, 79 L. Ed. 343.

The Selective Service Act of 1917 exempted from military service regular or duly ordained ministers of religion and

"students who at the time of the approval of this Act are preparing for the ministry in recognized theological or divinity schools".

And, in addition, it provided that nothing in the Act

"shall be construed to require or compel any person to serve in any of the forces herein provided for who is found to be a member of any well-recognized religious sect or organization at present organized and existing and whose existing creed or principles forbid its members to participate in war in any form and whose religious convictions are against war or participation therein in accordance with the creed or principles of said religious organizations," 40 Stat. 76, Chapter 15, Sec. 4.

Under this Act, except as to ordained ministers of religion and theological students, there is no recognition of individual conscientious objections. The exemption applies to persons who belong to a group which forbids participation in war, and whose own religious convictions accord with those of the group. The Selective Service Act of 1940, 50 U.S.C.A.Appendix, § 305(g), and the amended Act of 1948, 50 U.S.C.A.Appendix, § 456(j), introduced the personal element by making individual religious conviction the test whether the individual belongs to a group, the tenets of which forbade participation in war or not. The 1940 Act did not define religious training and belief. The 1948 Act does define it. As it now stands, the provision reads:

"Nothing contained in this title (Sections 451-454 and 455-471 of this Appendix) shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual\'s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code." 50 U.S. C.A.Appendix, § 456(j).

The agreed statement of facts recites that the defendant believes in a Supreme Being. He insists, however, that having granted exemption on religious grounds, the Congress had no right to define "religious training and belief" or deny it to non-religious opponents of war. The appellant insists that the definition is restrictive and that by inserting it, the guarantees of the First Amendment are violated.

If the contention be that the exemption was a law "respecting an establishment of religion," the answer was given emphatically by a unanimous court in Arver v. U. S. Selective Draft Cases, 1918, 245 U.S. 366, 389-390, 38 S.Ct. 159, 165, 62 L.Ed. 349:

"And we pass without anything but statement the proposition that an establishment of a religion or an interference with the free exercise thereof repugnant to the First Amendment resulted from the exemption clauses of the act to which we at the outset referred because we think its unsoundness is too apparent to require us to do more."

It is established constitutional doctrine of long standing that exemptions of this character do not spring from the Constitution, but from the Congress. In Jacobson v. Commonwealth of Massachusetts, 1905, 197 U.S. 11, 29, 25 S.Ct. 358, 362, 49 L.Ed. 643, the Court adverted to the fact that, despite the liberties secured by the Fourteenth Amendment a person

"may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense." (Emphasis added.)

In United States v. Macintosh, 1931, 283 U.S. 605, 624, 51 S.Ct. 570, 575, 75 L.Ed. 1302, Mr. Justice Sutherland, writing for the majority of the Court, stated

"the privilege of the native-born conscientious objector to avoid bearing arms comes, not from the Constitution, but from the acts of Congress. That body may grant or withhold the exemption as in its wisdom it sees fit; and, if it be withheld, the native-born conscientious objector cannot successfully assert the privilege. No other conclusion is compatible with the wellnigh limitless extent of the war powers as above illustrated, which include, by necessary implication, the power, in the last extremity, to compel the armed service of any citizen in the land, without regard to his objections or his views in respect of the justice or morality of the particular war or of war in general."

(And see, In re Summers, 1945, 325 U.S. 561, 572-573, 65 S.Ct. 1307, 89 L.Ed. 1795.)

And this Court, in Richter v. United States, 1950, 9 Cir., 181 F.2d 591, 593, has summed up the principle in one sentence:

"There is no constitutional right to exemption from military service because of conscientious objection or religious calling."

To the same effect are: Rase v. United States, 1942, 6 Cir., 129 F.2d 204, 209-210; Berman v. United States...