United States v. Levy

• Decision Date: 08 December 1969
• Docket Number: No. 19507.,19507.
• Citation: 419 F.2d 360
• Parties: UNITED STATES of America, Appellee, v. Ronald F. LEVY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

419 F.2d 360 (1969)

UNITED STATES of America, Appellee, v. Ronald F. LEVY, Appellant.

No. 19507.

United States Court of Appeals Eighth Circuit.

December 8, 1969.

Louis Gilden, St. Louis, Mo., for appellant and filed brief.

Daniel R. O'Neill, Asst. U. S. Atty., St. Louis, Mo., for appellee, Daniel Bartlett, Jr., U. S. Atty., on the brief.

Before MATTHES, BLACKMUN and GIBSON, Circuit Judges.

GIBSON, Circuit Judge.

The appellant, Ronald Levy, was indicted, convicted upon a trial to the court and sentenced to five years imprisonment for failing to comply with an order of his Local Selective Service Board to report for and submit to induction in violation of 50 App. U.S.C. § 462.

The principal issue presented on this appeal is whether Levy was improperly denied a I-O classification as a conscientious objector by the Local Selective Service Board and by the Missouri Selective Service Appeals Board. The District Court based its determination upon the ground that the Local Board and the Appeals Board had a "basis in fact" for their determination that Levy's opposition to war was not based upon "religious training and belief" as required by the Military Selective Service Act of 1967, 50 App. U.S.C. § 451, but rather was based upon "a merely personal moral code."

There is no contention by the Government in this appeal that Levy's views were insincere, not truly held, or inconsistent. Thus, the only question before us is whether Levy's pacifist beliefs meet the statutory requirement for a conscientious objector exemption — that they be based upon religious training and belief. Levy raises several other issues involving alleged violations of procedural due process, but since we find no basis in fact for the determination by the Selective Service System and the District Court that Levy was not entitled to a conscientious objector classification, we need not reach those issues. Nor must we reach the issue discussed in United States v. Sisson, 297 F.Supp. 902 (D.Mass.1969) of whether the present statute violates the Constitution by discriminating against non-religious objectors since we find Levy's beliefs meet the religious tests under the Act as construed by the Supreme Court in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).

Levy registered for Selective Service on December 14, 1962. He filed his completed Classification Questionnaire on January 17, 1963. He received a student deferment until May 13, 1964 at which time he was classified I-A by the Local Board. On May 23, 1964 he mailed a letter to the Local Board appealing his classification on the basis of conscientious objection and student status. He filed his completed SSS Form 150 (Special Form for Conscientious Objectors) on July 7, 1964. Thereafter he was classified II-S until November 15, 1967, at which time he was classified I-A. In a letter received by the Local Board on November 24, 1967 Levy requested an appeal of this classification for the purpose of changing it to I-O. The Local Board treated this letter as a request for a personal appearance, which was held on December 20, 1967 in the presence of one Board member. On January 17, 1968 Levy was classified I-A by two Board members. On January 26, 1968 appellant appealed his classification to the State Appeals Board. On April 23, 1968 the Appeals Board also classified Levy I-A. As a result of Levy's failure to submit to induction as ordered by his Local Board, prosecution ensued on which this appeal is based.

In his Classification Questionnaire filed January 17, 1963 Levy did not request a I-O classification. However, after being classified I-A on May 13, 1964, he wrote to the Board on May 23, 1964 seeking a I-O classification. On July 7, 1964 he filed SSS Form 150, stating that he did not believe in a Supreme Being and set out his belief as follows:

"I believe that each person has a conscience to which he owes duties superior to or higher than standards which may have been established by human agencies. I believe that each person must ultimately be responsible to his own conscience or inward mentor. This religious belief finding expression in my conscience requires me to disregard elementary self interest and to accept the consequences in preference to transgressing its tenets.* I believe it is wrong to engage in any act which might bring physical injury or harm to any person and I object to participation in any war under any circumstances.

*"Paul Tillich in Theology of Culture (Oxford University Press, New York 1959, pp. 7-8) defines religion: `Religion in the largest and most basic sense of the word, is ultimate concern. And ultimate concern is manifest in all creative functions of the human spirit.\' He further states, `It is manifest in the moral sphere as the unconditional seriousness of the moral demand\'."

Levy next articulated his beliefs at a personal appearance before the draft board on December 20, 1967. There he filed a paper which reads:

"I have recognized that the term `Supreme Being\' does not necessarily imply the classical orthodox view of an omnipotent anthropomorphic God. I can now therefore claim in good conscience that I believe in a Supreme Being. The Supreme Being is the force which makes men subject to moral considerations. It is this force which makes us accountable for our actions. This force is manifested in each individual in the form of conscience. Each individual must do what his conscience prescribes since to ignore the conscience is to deny that he is subject to moral judgment; but all men are clearly subject to moral judgment. An obvious question to ask now is why not all consciences are the same, that is, why the Supreme Being does not manifest himself the same way in all people. The answer to this is that although all men are told by their consciences that they are subject to moral judgment, the conscience does not supply the information with which one must make a moral decision. Thus the conscience is that force in each individual which tells that individual to do the right thing, once that individual has decided what the right thing to do is. The conscience is the part of each individual which corresponds to the Supreme Being in mankind as a whole. To put this another way, the Supreme Being is the conscience of mankind as a whole; it is that force which makes men responsible for what they do."

At trial he testified that under no circumstances were wars right and all moral ends could be accomplished without violence. He also related an incident in which he stood between a friend and several teen-age attackers, accepting their punishment in order to protect his friend, and not fighting back.

Levy further testified he believes in a force greater than people which he thinks he can call God; he has believed this all along but previously had some uncertainty as to whether this force "* * * could be classified as God"; he does not believe Israel should use force to defend itself; his pacifist beliefs stem from the teachings of his parents who are Jewish and who brought him up in the Jewish religion, particularly from the stories of genocide in Germany, and from religious training that killing is wrong, and from conversations with other people.

Two clergymen testified in Levy's behalf, vouching both for his sincerity and for his functional belief in God.

The trial court in its findings of fact and conclusions of law stated that under the "extremely narrow" scope of judicial review of administrative action under the Military Selective Service Act of 1967,

"* * * Levy did not establish that he was entitled to an exemption as a conscientious objector. He did not establish that his claim was based upon `religious training and belief.\' * * * The record before the Local Board in this case shows conclusively that the registrant\'s claim was based on a `merely personal code.\'"

The Court further said Levy would not qualify as a conscientious objector even under United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850 (1965), and that the "decision of the Local Board to classify this defendant I-A has `basis in fact.'"

The crucial issue in this case turns upon what the present standard is for determining an individual's qualification for a conscientious objector classification. The present statute, The Military Selective Service Act of 1967, 50 U.S.C. App. § 456(j) provides:

"Nothing contained in this title * * * 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. As used in this subsection, the term `religious training and belief\' does not include essentially political, sociological, or philosophical views, or a merely personal moral code."

In attempting to interpret the breadth and meaning of this statute it is helpful to examine some of its historical antecedents.

In 1917, in order to deal with the conscientious objector problem that arose from a forced conscription for World War I, the first such conscription after the Civil War, Congress passed a law granting exemption to members of "any well recognized religious sect * * * whose * * * principles forbid its members to participate in war in any form." 40 Stat. 78 (1917). Difficulties in determining which sects qualified led to an executive order from President Wilson granting conscientious objector status to draftees conscientiously opposed to combatant service on religious or other grounds. Exec. Order No. 2823 (March 20, 1918).

The Selective Training and Service Act of 1940 as originally drafted followed the 1917 Act but was modified to provide a broader exemption. See 1966 Wis.L.Rev. 306, 311-13. The exemption as finally enacted in 1940 stated that no person would be subject to combatant training or service who "by reason of religious training and belief, is conscientiously opposed to...