United States v. Newman, 15430

• Decision Date: 28 April 1942
• Docket Number: 15447.,No. 15430,15430
• Citation: 44 F. Supp. 817
• Parties: UNITED STATES v. NEWMAN. SAME v. BUCHANAN.
• Court: U.S. District Court — Eastern District of Illinois

44 F. Supp. 817

UNITED STATES v. NEWMAN.

SAME v. BUCHANAN.

Nos. 15430, 15447.

District Court, E. D. Illinois.

April 28, 1942.

Arthur Roe, U. S. Atty., of Vandalia, Ill., and Ray Foreman, Asst. U. S. Atty., of Danville, Ill., for the Government.

Horace Gunn, of Danville, Ill., for defendants.

LINDLEY, District Judge.

Defendants are charged with refusal to comply with the orders of their respective draft boards. One has been classified as a conscientious objector and directed to serve in a noncombatant camp. He claims that the board should have given him complete exemption as a regularly ordained minister of religion. The other also insists that his board should have classified him as a regularly ordained minister and exempted him from all service. The evidence before the boards was disputed and contradictory. Obviously, on the face of the record, each board had before it substantial evidence to support its findings.

Before I proceed to the ultimate decision I think it well to consider the comparatively recent announcement of the Supreme Court of the United States involving liberty of religious service and of conscience and the place that citizens' conscientious scruples have in our conception of constitutional rights, and other relevant precedents.

In Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 1012, 84 L.Ed. 1375, 127 A.L.R. 1493, the Court said:

"Centuries of strife over the erection of particular dogmas as exclusive or all-comprehending faiths led to the inclusion of a guarantee for religious freedom in the Bill of Rights. The First Amendment, and the Fourteenth through its absorption of the First, sought to guard against repetition of those bitter religious struggles by prohibiting the establishment of a state religion and by securing to every sect the free exercise of its faith. So pervasive is the acceptance of this precious right that its scope is brought into question, as here, only when the conscience of individuals collides with the felt necessities of society.

"Certainly the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law. Government may not interfere with organized or individual expression of belief or disbelief. Propagation of belief — or even of disbelief in the supernatural — is protected, whether in church or chapel, mosque or synagogue, tabernacle or meetinghouse. * * *

"But the manifold character of man's relations may bring his conception of religious duty into conflict with the secular interests of his fellow-men. When does the constitutional guarantee compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good? To state the problem is to recall the truth that no single principle can answer all of life's complexities. The right to freedom of religious belief, however dissident and however obnoxious to the cherished beliefs of others — even of a majority — is itself the denial of an absolute. But to affirm that the freedom to follow conscience has itself no limits in the life of a society would deny that very plurality of principles which, as a matter of history, underlies protection of religious toleration. * * * Our present task then, as so often the case with courts, is to reconcile two rights in order to prevent either from destroying the other. * * *

"Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. The necessity for this adjustment has again and again been recognized. In a number of situations the exertion of political authority has been sustained, while basic considerations of religious freedom have been left inviolate. * * * In all these cases the general laws in question, upheld in their application to those who refused obedience from religious conviction, were manifestations of specific powers of government deemed by the legislature essential to secure and maintain that orderly, tranquil, and free society without which religious toleration itself is unattainable. * * * We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security. To deny the legislature the right to select appropriate means for its attainment presents a totally different order of problem from that of the propriety of subordinating the possible ugliness of littered streets to the free expression of opinion through distribution of handbills. * * *

"Situations like the present are phases of the profoundest problem confronting a democracy — the problem which Lincoln cast in memorable dilemma: `Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?' * * *

"Judicial review, itself a limitation on popular government, is a fundamental part of our constitutional scheme. But to the legislature no less than to courts is committed the guardianship of deeply-cherished liberties. * * * Where all the effective means of inducing political changes are left free from interference, education in the abandonment of foolish legislation is itself a training in liberty. To fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena, serves to vindicate the self-confidence of a free people."

Similar language is to be found in Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; 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; Hamilton v. Regents of University of California, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343.

In Davis v. Beason, supra 133 U.S. 333, 10 S.Ct. 300, 33 L.Ed. 637, the court, a good many years ago, said: "However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation."

In Hamilton v. Regents, supra 293 U.S. 245, 55 S.Ct. 204, 79 L.Ed. 343, the court used this language: "There need be no attempt to enumerate or comprehensively to define what is included in the `liberty' protected by the due process clause. Undoubtedly it does not include the right to entertain the beliefs, to adhere to the principles, and to teach the doctrines on which these students base their objections to the order prescribing military training." And the Supreme Court in United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 450, 73 L.Ed. 889, said: "Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country's defense detracts from the strength and safety of the government."

In Hamilton v. Regents, supra, the court commented that: "The conscientious objector is relieved from the obligation to bear arms in obedience to no constitutional provision, express or implied; but because, and only because, it has accorded with the policy of Congress thus to relieve him. * * * The privilege of the native-born conscientious objector to avoid bearing arms comes, not from the Constitution, but from the acts of Congress. That body may grant or withhold the exemption as in its wisdom it sees fit; and, if it be withheld, the native-born conscientious objector cannot successfully assert the privilege."

Justice Cardozo, concurring in that case, pointed out that from the beginning of our history, conscientious objectors have, as a matter of policy on the part of our national legislature, been exempt as an act of grace from military service, but that the exemption, when granted, had previously been coupled with the condition that they supply the army with a substitute or the necessary money to hire one. He concludes his concurring opinion by saying: "Manifestly a different doctrine 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."

These enunciations of principles we must look to as guiding posts, keeping in mind that, as the Supreme Court has announced, the grant of exemption to conscientious objectors is not a matter of constitutional right, but wholly an act of grace upon the part of Congress.

The present Act (50 U.S.C.A. Appendix § 310 et seq.) is quite similar to Section 4 of the Act of 1917 (50 U.S.C.A. Appendix § 204). It provides that local boards shall have power to hear and determine all questions or claims with respect to inclusion for, or exemption or deferment from, training and service of all individuals within their respective jurisdictions and that the decisions of such boards shall be final except where an appeal is authorized. The Act further provides that appeals may be taken to the appeal board, under rules prescribed by the President, and that an appeal may be taken to the President if a question of dependency, or of classification of conscientious objectors in certain cases, is involved. This is set forth in regulations...