In re Weitzman, 19446.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 426 F.2d 439
• Docket Number: No. 19446.,19446.
• Parties: In the Matter of the Petition for Naturalization of Brenda Barbara WEITZMAN.
• Decision Date: 07 April 1970

426 F.2d 439 (1970)

In the Matter of the Petition for Naturalization of Brenda Barbara WEITZMAN.

No. 19446.

United States Court of Appeals, Eighth Circuit.

April 7, 1970.

Thomas C. Kayser, of Robins, Davis & Lyons, St. Paul, Minn., for appellant.

Paul Nejelski, Atty., Dept. of Justice, Washington, D. C., for appellee.

Before BLACKMUN, LAY and HEANEY, Circuit Judges.

PER CURIAM.

The three of us who heard this appeal have, it turns out, separate and distinct approaches. Two (Judges Blackmun and Heaney) conclude that the constitutional issue is to be reached. One (Judge Lay) concludes that it need not be reached. The two who reach the constitutional issue find themselves apart in the resolution of that issue. Accordingly, Judges Lay and Heaney, for differing reasons, vote to reverse the district court's denial of the applicant's petition for naturalization and Judge Blackmun votes to affirm that denial. The trial court is thus reversed by a divided vote. Our separate opinions are appended.

BLACKMUN, Circuit Judge.

For me, the issue before us is narrow and specific. Is it constitutionally offensive to deny naturalization to an alien solely because her conscientious objection, within the language of the applicable statute, is concededly based on nothing other than "a merely personal moral code" and arises not at all "by reason of religious training and belief"? We are advised that the case is one of first impression at the appellate level.

Brenda Barbara Weitzman, nee Aronowitz, now age 27, appeals from the district court's denial of her petition for citizenship. In re Weitzman, 284 F. Supp. 514 (D.Minn.1968). The appeal purports to rest solely on the asserted unconstitutionality, and not on any possible construction, of § 337(a) of the Immigration and Nationality Act of June 27, 1952, 8 U.S.C. § 1448(a).¹ On her appeal Mrs. Weitzman specifically abandons her additional argument, advanced in the trial court, that her opposition to the bearing of arms was "by reason of religious training and belief", as that phrase is employed in § 337 (a) and as it was construed in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), in the somewhat different setting of a criminal proceeding under § 6(j) of the Universal Military Training and Service Act, 50 U.S.C. App. § 456(j) (1958 ed.). The applicant's appellate brief states flatly that she has requested her counsel to appeal only the constitutional issue and that now "She agrees with that portion of the district court's decision finding that she is not a religious person."²

The naturalization papers. Mrs. Weitzman's petition for naturalization was filed in the District of Minnesota on October 31, 1966. It recited: She was born May 14, 1942, in South Africa and was a citizen of that country. She was married in Tel Aviv, Israel, on February 12, 1962, to Ronald Weitzman, who was born in the United States. She lawfully entered this country at New York City on June 12, 1963, for permanent residence. She was "attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States." She was "willing, if required by law, to bear arms on behalf of the United States, to perform noncombatant service in the Armed Forces of the United States, and to perform work of national importance under civilian direction (unless exempted therefrom)." She signed the oath of allegiance on the petition. This recited that she would bear arms on behalf of the United States or perform noncombatant service in the armed forces or perform work of national importance under civilian direction, all "when required by the law".

Mrs. Weitzman's earlier "Application to File Petition for Naturalization" recited that since her entry she had resided in California and Minnesota and that she had two children born in Los Angeles on December 29, 1962, and August 16, 1964, respectively. She answered affirmatively questions whether she believed in the Constitution and form of government of the United States and whether she was willing to take the full oath of allegiance to the United States. She also answered affirmatively questions whether she was willing to perform noncombatant services in the armed forces and to perform work of national importance under civilian direction. She answered negatively, however, the question whether she was willing to bear arms; to this was added, "My objection to the bearing of arms is based on a belief in a Supreme Being."

Agreed facts. The parties submitted an agreed statement of the case as permitted by Rule 10(d), Federal Rules of Appellate Procedure. This recited that the following facts, among others, were developed during the preliminary examination before the designated naturalization examiner and during the de novo hearing before the district judge:

"The petitioner is of Jewish parentage and in her early years went to State schools which had religious instruction in the Protestant faith such as daily prayers and Bible lesssons sic. She was usually excused from this instruction, because she was not at that time a Christian. At approximately 15 or 16 years of age, she converted to the Baptist faith in her search for a more meaningful life and in order to discover man\'s relationship to the universe. However, soon after this conversion, she found that conventional, traditional religious answers did not satisfy her. Although she has not been a formal member of any religious body since that time, she maintains a relatively knowledgeable understanding of traditionally religious principles and beliefs.

"Petitioner graduated from high school in South Africa. * * * At the time of her hearing in the District Court, she was enrolled at the University of Minnesota and was completing her freshman year.

"The petitioner described her pacifism at the District Court hearing as follows:

"`My pacifism is not based on any religious or cosmological beliefs. I am a pacifist because of a biological push not a theological pull. As a human being, I have an instinctive aversion to killing other human beings. I believe that this instinct is natural and present in all human beings and is necessary for the preservation of our species.

* * * * * *

"`Organized aggression can lead to the destruction of the species, especially as technology gives man the means to put a great distance between pressing a button or pulling a trigger and viewing the actual destruction of another human being; such cold-blooded murder is unnatural.

"`The instinct to kill for self-preservation is biologically natural. My pacifism is basically biological and instinctive. It is not cognitive.

* * * * * *

"`Why am I a pacifist? Perhaps it is because I am a mother. I like to think, however, that it is simply because I am a human being.

"`Man perceives an order in the Universe, but this does not mean that nature is ordered. In his mind, man orders the Universe to make predictions which enable him to survive. The very fact that man survives is evidence that order exists — but this order is a result of accumulation of chance events. In some instances, the chance that something will happen is so great that we perceive it as a certainty, although the chance exists, however, sic remote, that this event will not occur. * * *

"`To say that order is rational, is to assume a thinking mind controlling the Universe. This is what men believed in the Eighteenth Century. I find it impossible to believe.\'

At several points during her testimony, the petitioner referred to her pacifism as something `instinctual\' or `emotional\', and not particularly rational. She states that her pacifism was `biological\' and that she had an `instinctive revulsion against killing a member of my species.\'

"Petitioner described herself as `a pacifist in all respects\' and not just in selected circumstances or wars. She also testified that a basis for her belief was that she was a mother who, in having children, had created life:

"`I have passed on genetic material to two children who are going to pass it on, I hope, to other children and other people, and this is creating our species, and by going to bear arms, I am going out to negate what I have done.\'

"In defining the basis for her pacifist beliefs, she testified that she did not believe in any supernatural power, Supreme Being, or superior relationship. She stated that she does not know who or what is responsible for human life or human existance sic. When asked if she was an atheist, petitioner responded as follows:

"`Well, that word has negative connotations that I think none of us like. It is a word I do not particularly care to use. It puts me in a box, perhaps, more than I would rather like to be there. I would say I do not believe in supernatural power.\'

In response to a question asking if she was `religious\', she replied:

"`Well, if you mean religious as someone who belongs to an organized group and goes to a particular place at a set time to meet with others of this group to perform certain rituals, no, I am not religious. * * I have a certain manner of acting, presuppositions which I use when I make decisions. I don\'t know that I would call this a religion.\'

"The District Court found that the petitioner was completely sincere in her beliefs and that her credibility was beyond doubt."

In factual summary, therefore, we have an applicant who is willing to take the citizenship oath prescribed by § 337(a) to the extent of clauses (1), (2), (3), (4), and (5) (C), the latter being the alternative directed to willingness "to perform work of national importance under civilian direction when required by the law." She is not willing, however, to subscribe to clause (5) (A) or to clause (5) (B). The statute permits the avoidance of clauses (5) (A) and (5) (B) and the use of the alternative (5) (C) if the applicant is otherwise qualified and "shows by clear and convincing evidence to the satisfaction of the...