Richter v. United States

• Decision Date: 29 May 1950
• Docket Number: No. 12282.,12282.
• Citation: 181 F.2d 591
• Parties: RICHTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

181 F.2d 591 (1950)

RICHTER v. UNITED STATES.

No. 12282.

United States Court of Appeals Ninth Circuit.

April 5, 1950.

Rehearing Denied May 29, 1950.

Wirin, Ressman & Okrand, Los Angeles, Cal., for appellant.

Ernest A. Tolin, U.S. Atty., Norman W. Neukom and Leila F. Bulgrin, Asst. U.S. Attys., Los Angeles, Cal., for appellee.

Before HEALY, McALLISTER,^* and ORR, Circuit Judges.

McALLISTER, Circuit Judge.

Appellant Richter was found guilty of willful failure to register for selective service under the provisions of the Selective Service Act of 1948, 50 U.S.C.A.Appendix, § 451 et seq. On appeal, Richter, a conscientious objector, claims that the Act, as applied to him, violates his right of religious freedom under the First Amendment, and is, therefore, unconstitutional. The district court proceeded, for the purpose of the case, on the assumption that appellant's beliefs were religious in character, within the meaning and protection of the First Amendment, but, nevertheless, held that they were not unconstitutionally infringed by the mere requirement of registration under the Act in question.

In advance of his principal argument, appellant contends that Congress has no constitutional power to raise a peacetime army by conscription. There is no merit to this claim. The government has the right to the military service of all of its able-bodied citizens, and may, when an emergency arises, justly exact that service from all. In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636. The power to raise and support armies is not limited to time of war. Congress has the power to compel military service of a citizen in peacetime or wartime, whenever it declares that it is necessary or that an emergency exists requiring the raising of an army. United States v. Herling, 2 Cir., 120 F.2d 236; United States v. Garst, D.C., 39 F.Supp. 367; United States v. Lambert, 3 Cir., 123 F.2d 395.

With respect to appellant's claim that the requirements of the Selective Service Act deprived him of his constitutional right of religious freedom, this claim, in one guise or another, was advanced again and again during the First World War, as well as the Second World War, and was uniformly rejected by the courts. Bronemann v. United States, 8 Cir., 138 F.2d 333. The Constitution grants no immunity from military service because of religious conviction or activities. Immunity arises solely through Congressional grace, in pursuance of a traditional American policy of deference to conscientious objection. Rase v. United States, 6 Cir., 129 F.2d 204. Congress can call everyone to the colors, and no one is exempt except by the act of grace of Congress. Local Draft Board No. 1 of Silver Bow County, Mont., v. Connors, 9 Cir., 124 F.2d 388; United States v. Newman, D.C., 44 F.Supp. 817. There is no constitutional right to exemption from military service because of conscientious objection or religious calling.

In the face of the foregoing decisions of the courts and the rule therein announced and adhered to without qualification or variation throughout the history of this nation, the claim that appellant's constitutional right of religious freedom was violated by the mere requirement to register under the Selective Service Act is obviously untenable. Congress, of course, has the power to seek information through registration or otherwise in peacetime in order to be prepared for the intelligent exercise of its power to raise armies by conscription. United States v. Rappeport, D.C., 36 F.Supp. 915. In the present phase of history, marked by wars undeclared under the law of nations, a failure to register manpower of the country would be a failure to provide for the common defense. Stone v. Christensen, et al., D.C., 36 F. Supp. 739. See also United States v. Lambert, 3 Cir., 123 F.2d 395.

The language of Mr. Justice Cardozo in Hamilton, et al. v. Regents of University of Cal., 293 U.S. 245, 55 S.Ct. 197, 206, 79 L.Ed. 343, is here pertinent. Observing that from the beginnings of our history, conscientious objectors had been exempted as an act of grace from military service, often coupled with conditions of supplying the army with a substitute or the money necessary to hire one, he stated that such imposed conditions, indirectly related to service in the field, had never been considered to be so tied to the practice of religion as to be exempt, in law or morals, from regulation by the state. "Manifestly a different doctrine," he said, "would carry us to lengths that have never yet been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war, whether for attack or for defense, or in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government. One who is a martyr to a principle — which may turn out in the end to be a delusion or an error — does not prove by his martyrdom that he has kept within the law."

In Gara v. United States, 6 Cir., 178 F.2d 38, 40, in affirming a conviction for knowingly counseling and aiding a person to refuse the registration required by the Selective Service Act of 1948, Judge Allen, speaking for the court, said: "The fact that appellant sincerely believed that it was his Christian...