United States v. Hillyard

• Decision Date: 30 November 1943
• Docket Number: No. C-3879.,C-3879.
• Citation: 52 F. Supp. 612
• Parties: UNITED STATES v. HILLYARD.
• Court: U.S. District Court — District of Washington

52 F. Supp. 612

UNITED STATES v. HILLYARD.

No. C-3879.

District Court, E. D. Washington, S. D.

November 30, 1943.

Edward M. Connelly, U. S. Atty., of Spokane, Wash., for plaintiff.

A. E. Dailey, of Everett, Wash., for defendant.

SCHWELLENBACH, District Judge.

The defendant, having been duly (28 U.S.C.A. § 412) drawn as a juror, refused to serve giving as his reason his membership in Jehovah's Witnesses. The Witnesses are an unincorporated body whose teaching is that the obligations imposed by God are superior to those enacted by temporal government. Their religious belief includes a literal version of Exodus, Chap. 20, verses 3, 4, and 5, in which it is said: "Thou shalt not have strange gods before me. Thou shalt not make unto thee any graven image, nor any likeness of anything that is in heaven above, or that is in the water under the earth; Thou shalt not bow down Thyself to them, nor serve them: for I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me." While the defendant demonstrated his sincerity by expressing his willingness to submit to whatever punishment the court should impose, I felt that his refusal constituted such a challenge to the authority of the court as to require more formal inquiry and consideration. Consequently, I requested the United States Attorney for this District to prepare the necessary pleadings and issued an order citing the defendant to show cause why he should not be punished for contempt. The use of the contempt procedure in situations such as this is well established. Loubriel v. United States, 2 Cir., 9 F.2d 807; United States v. Dachis, D.C., 36 F.2d 601; 31 Am.Jur. p. 593. The compulsory attendance of jurors is necessary if the requirement of the representative character of a jury (Smith v. State of Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84) is to be met.

Defendant justifies his refusal to serve on the basis of that portion of the First Amendment to the Constitution reading: "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." The use of language of this general character was proposed by Madison, its author, in a letter to Jefferson, dated October 17, 1788, in which he said: "There is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition, would be narrowed much more than they are likely ever to be by an assumed power." "Writings of James Madison," Vol. I, p. 424. The issue here is whether the reach of this general language is sufficiently broad to justify defendant in his defiance of the court's order and his refusal to perform the very salutary duty of citizenship and to assist this court in obeying the constitutional mandate of the Seventh Amendment. I must confess an utter inability to comprehend any relationship between defendant's professed religious beliefs and his distaste for jury service. I am unable to reconcile the Jehovah's Witnesses' abhorrence for human institutions with the alacrity with which they rush into the protecting arms of our courts whenever they become involved in controversy with our civil or military authorities. At the same time, I am aware that it is the recognition of the divergences of thought and difficulties of comprehension in matters involving religion and conscience which requires the approach to a problem such as this by mental processes entirely divorced from the ordinary rules of logic.

I am convinced that in seeking an answer to the question posed here, little or no assistance can be found in the decided cases. The recent line of cases involving the distribution of literature (Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 82; Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Douglas v. Jeannette, 319 U.S. 157, 63 S.Ct. 877, 882, 87 L.Ed. 1324) must be discarded because in them there were involved ordinances purposefully directed at the religious activities of the petitioners. West Virginia State Board of Education v. Barnette et al., 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, is of little assistance because of the emphasis therein placed upon the use of the flag as a symbol. I can find no assistance in the sacramental wine case, Shapiro v. Lyle, D.C., 30 F.2d 971, or the compulsory vaccination case, Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765, or in the old polygamy cases, Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; Mormon Church v. United States, 136 U.S. 1, 10 S.Ct. 792, 34 L.Ed. 481, because in those cases there were involved violations of statutes enacted generally for the purpose of protecting the general welfare in the interests of peace and good order. Hamilton v. Regents, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343, is inapplicable because of the option exercised by students in attending universities supported in part by funds made contingent upon the requiring of compulsory military training. Selective Service cases are of no value because they are based upon the war power which transcends other constitutional limitations. See, Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A. 1918C, 361, Ann.Cas.1918B, 856; United States v. Macintosh, 283 U.S. 605, 51 S. Ct. 570, 75 L.Ed. 1302. However, the Supreme Court did point the way, in Reynolds v. United States, 98 U.S. 145, 162, 25 L.Ed. 244, when it said: "The word `religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted."

The "history of the times" is filled with instances of bigotry, intolerance, repression and persecution. The Colonists who fled from the old world to escape religious persecution brought with them none of the tolerance towards those with whom they disagreed which they had demanded from those from whom they fled. The statute books of the Colonies were replete with laws by which the majority members of each Colony attempted to enforce upon others the precepts of the particular denomination or faith to which the majority adhered. People were taxed against their will for the support of religion and, sometimes, for the purpose of particular sects to whose tenets they could not and did not subscribe. The voice of Roger Williams was as one crying in the wilderness for religious freedom. It is small wonder that he chose the name of Providence for the harborage in which he found asylum among the Indians. Thomas Jefferson described the attitude of his fellow Virginians as follows: "The first settlers were emigrants from England, of the English Church, just at a point of time when it was flushed with complete victory over the religions of all other persuasions. Possessed, as they became, of the powers of making, administering and executing the laws, they showed equal intolerance in this country with their...