United States v. Crouch

• Citation: 415 F.2d 425
• Decision Date: 04 September 1969
• Docket Number: No. 26946.,26946.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Crosby CROUCH, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 425 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. William Crosby CROUCH, Jr., Defendant-Appellant.

No. 26946.

United States Court of Appeals Fifth Circuit.

September 4, 1969.

John W. Hutchison, Lafayette, La., court appointed, for appellant.

Edward L. Shaheen, U. S. Atty., Q. L. Stewart, Asst. U. S. Atty., Shreveport, La., for appellee.

Before AINSWORTH and GODBOLD, Circuit Judges, and DAWKINS, District Judge.

AINSWORTH, Circuit Judge:

Appellant William Crosby Crouch, Jr., a member of the religious sect known as Jehovah's Witnesses and classified as a "conscientious objector" by Selective Service Local Board No. 62, Franklin, Louisiana, was convicted of having refused to report for "work contributing to the national health, safety or interest" as ordered by the Local Board, in violation of 50 U.S.C. App. § 462. Appellant entered a plea of not guilty, waived trial by jury, and was tried by the court which found him guilty. He was sentenced under the provisions of the Federal Youth Corrections Act, 18 U.S.C. § 4209.¹

Crouch contends on appeal that the Southern Baptist Hospital of New Orleans, Louisiana, to which institution he was ordered to work by the Local Board, was an unsuitable place of employment, inasmuch as it is owned and controlled by a competing religious sect, and that the order of the Board to report to that institution was illegal because it attempted to force him to aid another religious group and deprived him of his right to free exercise of his chosen religion in violation of the First Amendment.

The only evidence relied upon by appellant in support of his contention is the charter of Southern Baptist Hospital. The charter shows that the hospital is a wholly owned and controlled subsidiary of the Southern Baptist Convention, and as stipulated by counsel, the Convention is composed of member Baptist churches and is a religious organization. Appellant argues that ownership, supervision and control by the Convention is tantamount to a conclusion that the hospital is a religious organization, and that employment therein of persons of his status aids a competing religion, prohibited by the Constitution as particularly enunciated in People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948). In that case a board-of-education-sponsored program of religious instructions, given during school hours to public school pupils whose parents consented thereto, was held to be violative of the "establishment clause" of the First Amendment. In holding that the program was constitutionally banned, the court characterized it as a "utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith," and reiterated its holding in Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), that "Neither a state or federal government can pass laws which aid one religion, aid all religions, or prefer one religion over another." 333 U.S. at 210, 68 S.Ct. at 465.

The cases are patently distinguishable. In People of State of Illinois ex rel. McCollum v. Board of Education, supra, the constitutionally objectionable activity was admittedly the spread of religious faith by instructions paid for by taxpayers. In the instant case the objectionable activity is hospital work. The "aid" given, in the employment of registrants under the civilian work program, is not for the benefit of a religious group — it is for the sick, the health and welfare of the general public, as we will show in our subsequent discussion in this opinion.

Appellant also relies on the Supreme Court decisions of Follett v. Town of McCormick, S.C., 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), and Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), which respectively struck down as unconstitutional restraints on freedom of religion, (1) a license tax on selling books as applied to a Jehovah Witness preacher, (2) a resolution requiring school children to salute and pledge allegiance to the American flag, and (3) a statute which prohibited the solicitation of funds for alleged charitable purposes without prior approval of the public welfare council secretary and his determination that the cause was a charitable one. Again, the distinction between the present case and the cited Supreme Court cases lies in the nature of the activity objected to by appellant. There is no rational basis for equating hospital work, as described in the present case, with the establishment of a religion, aid to a religion, or the restraint of a religious freedom.²

The statute provides that a registrant conscientiously opposed to active service in the armed forces may be assigned to noncombatant service. If he is also found to be conscientiously opposed to participation in such noncombatant service, as was appellant here, a registrant may in lieu of induction be assigned to perform appropriate civilian work "contributing to the maintenance of the national health, safety, or interest." (50 U.S.C. App. § 456(j).)

The instant case turns on the question of what is "appropriate civilian work." The definition thereof is contained in 32 C.F.R. 1660.1 (Selective Service Regulation 1660.1) in pertinent part as follows:

"(a) The types of employment which may be considered under the provisions of section 6(j) of title I of the Military Selective Service Act of 1967 formerly known as the Universal Military Training and Service Act to be civilian work contributing to the maintenance of the national health, safety, or interest, and appropriate to be performed in lieu of induction into the armed forces by registrants who have been classified in Class I-O shall be limited to the following:

* * * * * *

"(2) Employment by a nonprofit organization, association, or corporation which is primarily engaged either in a charitable activity conducted for the benefit of the general public or in carrying out a program for the improvement of the public health or welfare, including educational and scientific activities in support thereof, when such activity or program is not principally for the benefit of the members of such organization, association, or corporation, or for increasing the membership thereof." As amended July 4, 1967.

The Government introduced evidence to show that the Southern Baptist Hospital was an appropriate place for civilian work under the pertinent Selective Service Regulations. The evidence shows that the institution is a nonprofit institution, engaged in charitable activity for the improvement of the public health or welfare. It literally fulfills the criteria of the Regulations defining "appropriate civilian work." The Government also produced a list of approved institutions, showing that the hospital has been on the list for many years, as well as testimony of Selective Service officials to the effect that approval by the national and state directors of Selective Service is a prerequisite for placing an institution on the list as well as for assignment of a certain individual to a particular institution.

Although appellant concedes that the burden of proving that the particular institution is an appropriate one is not upon the Government, he contends that the fact that the hospital is on the "approved list" is merely a presumption that it is an appropriate institution, which he has overcome by showing that the hospital is wholly owned and controlled by the Southern Baptist Convention, a religious organization competitive with his own religious sect.

The District Court found, and we agree, that a showing of mere ownership and control of the hospital by the Baptist Convention was insufficient to establish that the work performed by the hospital was of a religious nature. The Government proved that the work of the hospital, a non-profit corporation, is to care for the sick and afflicted. The record is devoid of any evidence that the institution is secular in its operation. There is nothing in the record from which it may be inferred that the hospital staff members, employees or patients must be of the Baptist faith, nor is there any showing that the Baptist religion is practiced in the hospital or that religious worship is imposed on its patients or employees.

At no time did appellant make known to the Local Board any objection to the institution selected, although he had adequate time in which to do so. Instead he unconditionally refused to perform civilian work of any kind under the program and chose to disobey the order to report. Appellant's Selective Service file is a protracted and lengthy case history of attempts by the Local Board and Selective Service officials to placate and cooperate with appellant despite a series of vacillating maneuvers on his part. We agree with the Ninth Circuit that "A registrant may not overturn the action of the board ordering him to work on any ground not disclosed to the board. A registrant may not, as did appellant, refuse any work and then later conjure up objections to the work assigned." Langhorne v. United States, 9 Cir., 1968, 394 F.2d 129, 130, 131.

In Yaich v. United States, 9 Cir., 1960, 283 F.2d 613, as in the instant case, all types of civilian work in lieu of induction, including three specific types offered to the registrant, were refused. The Court held (at 620), "* * * appellant having categorically refused any type of civilian work is in no position to claim prejudice. Failure to comply with Selective Service Regulations which do not prejudice a registrant are not grounds for upsetting conviction based on disobedience of induction or civilian work. Uffelman v. United States, 9 Cir., 1956, 230 F.2d 297; Kaline v. United States, 9 Cir., 1956, 235 F.2d 54." See also Jessen v. United States, 10 Cir., 1957, 242 F.2d 213, 215,...