United States v. Morico, 669

• Decision Date: 31 July 1969
• Docket Number: No. 669,Docket 33254.,669
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Philip MORICO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

415 F.2d 138 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. William Philip MORICO, Defendant-Appellant.

No. 669, Docket 33254.

United States Court of Appeals Second Circuit.

Argued June 10, 1969.

Decided July 31, 1969.

Catherine G. Roraback, New Haven, Conn., for defendant-appellant.

J. Daniel Sagarin, Asst. U. S. Atty., New Haven, Conn. (Jon O. Newman, U. S. Atty., for the District of Connecticut, Hartford, Conn., and Richard P. Crane, Jr., Asst. U. S. Atty., New Haven, Conn., of counsel), for plaintiff-appellee.

Before MOORE, SMITH and ANDERSON, Circuit Judges.

MOORE, Circuit Judge:

William Philip Morico (appellant) appeals from his conviction after a jury trial for refusal to submit to induction into military service. Appellant challenges the refusal of his draft board to exempt him as a conscientious objector and its failure to specify reasons for the denial of his claim.

Appellant first requested conscientious objector status on the day he was ordered to report for physical examination and filed the request only after he was found to be physically fit. He appeared personally before his local board on September 13, 1965, which thereafter unanimously denied his request and confirmed his I-A classification, i.e., available for induction. No findings of fact or other record of the board's reasons for the decision were made.

He appealed to the state appeals board and his board referred his file to the United States Department of Justice for investigation and recommendation in accordance with statutory procedures in effect at that time. 50 U.S.C. App. § 456(j).¹ An F. B. I. Investigation was made and a resume of the investigation was furnished to appellant. A hearing was scheduled and the examiner concluded that appellant's objections to serving, and to war generally, were religiously founded and sincerely held and "recommended that the conscientious objector claim of the defendant be sustained." The Department of Justice, after reviewing the evidence, including the examiner's recommendation, disagreed and gave its opinion to the appeals board that his claim was not sincere and was not founded on religious training and belief.

The appeals board on May 11, 1967, unanimously denied appellant's conscientious objector claim and classified him I-A. After another physical examination, he was found physically fit and ordered to report on March 21, 1968, for induction. At that time he refused to take the symbolic step forward, resulting in this prosecution.

Although the court below stated "there is really no objective factual basis for finding that he is insincere in his professed beliefs," the court felt that "the rejection was based on the religiosity of his beliefs" (Appendix, 25a). In considering the highly restrictive standard of review in cases of this type — namely, that there be "no basis in fact for the classification" — the court concluded that the board was justified in holding appellant's professed beliefs lacking in the requisite religious foundation. Some of the factors that tended to support that conclusion, relied on below, were the non-religious atmosphere in which appellant's beliefs crystallized, the proximity of this crystallization to his first notice of physical examination and the essentially political, sociological and philosophical character of the beliefs. While appellant testified to a great reliance on religion as the driving force of his beliefs at his trial, the crucial time for judging the religiosity of his claim, the court said, is the time of his conversations before the local board and appeals board. This is not challenged by the appellant. The trial judge found that, between those conversations and the trial, "at least there was a drastic change in emphasis" and that "there just seemed to be no question that the basis for appellant's beliefs are founded at that time on political, sociological and philosophical views and on his own personal moral code rather than by religious training and belief" (27a).

Conscientious objectors are exempted from military service by virtue of 50 U. S.C. App. § 456(j). That statute 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. Religious training and belief in this connection means an individual\'s belief in relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.

Thus, to be entitled to exemption a person must have a personal conscientious opposition to war in any form and the source of his opposition must be based on religious training and belief. Essentially political, sociological or philosophical views or mere personal moral codes are not sufficient. Attempting to clarify this very difficult area, the Supreme Court in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), stated:

The use by Congress of the words "merely personal" seems to us to restrict the exception to a moral code which is not only personal but which is the sole basis for the registrant\'s belief and is in no way related to a Supreme Being. Id. at 186, 85 S.Ct. at 864.

Appellant's professed beliefs must, therefore, be judged against these criteria.

In his application to his local board for classification as a conscientious objector, appellant claimed exemption on the ground that he was "by religious training and belief, conscientiously opposed to participation in war in any form." He then elaborated his beliefs:

I believe that no nation or man has the right to dictate or force any other man or nation into any type of government or ideology which is not of his own choosing. In taking such action a nation or man is violating the rights of other men, rights given by God, which can be revoked only by God.

I further believe that a nation, by keeping an armed force and armament stockpile larger than necessary to defend its own sovereignty, is detracting from world peace as much as any aggressor, and further, such deterrent force is really no deterrent, but rather a stimulus for other nations to develop larger or equal military forces to defend themselves. Also, a nation that acts on the presumption, either officially or unofficially, that it stands for and knows the "just" and "good" over some other system or ideology is making a judgment reserved only for God.

The United States is no more a divine, just or good state than any other state. In doctrine and by the Constitution, granted the U.S. comes closest to Christian belief as any other system so far. But in actual practice, the U.S. is not the ideal Christian state. By serving my country as a member of its military system, I would symbolically and literally be standing for and supporting its ideas and actions. I cannot in good conscience do so.

Each man is responsible to God, and to himself and his fellow men as creations of God before he is responsible to any state. (Defendant\'s Exhibit 5.)

As to the source of his religious training and belief he said "My belief is a product of my general education and upbringing, and is a facet of my personality. I have been influenced by the teaching of the Catholic Church and by readings in philosophy." In another part of the form which he submitted he stated he had been a member of the Roman Catholic Church "from birth, later by choice." (Defendant's Exhibit 5.)

It is apparent, however, that the mere statement by appellant that "by religious training and belief I am conscientiously opposed to participation in war in any form" cannot be conclusive on whether his professed beliefs actually meet the statutory standards because all that that statement does is to repeat and partially rephrase the language of the statute itself. Although it is a factor to be considered, the real inquiry must be directed at the substance of his beliefs. These professed beliefs are to be reviewed, not on the basis of whether the Court shares his views or even whether the Court believes that they are valid, see United States v. Purvis, 403 F.2d 555, 563 (2d Cir., 1968), but simply on the basis of whether they have the proper religious foundation.

By excluding views which were "essentially political, sociological, or philosophical," Congress intended to limit exemption from military service only to those having a religious opposition to war.² Appellant's convictions consist...