The three of us who heard this appeal have, it turns out, separate and distinct approaches. Two (Judges Blackmun and Heaney) conclude that the constitutional issue is to be reached. One (Judge Lay) concludes that it need not be reached. The two who reach the constitutional issue find themselves apart in the resolution of that issue. Accordingly, Judges Lay and Heaney, for differing reasons, vote to reverse the district court's denial of the applicant's petition for naturalization and Judge Blackmun votes to affirm that denial. The trial court is thus reversed by a divided vote. Our separate opinions are appended.
BLACKMUN, Circuit Judge.
For me, the issue before us is narrow and specific. Is it constitutionally offensive to deny naturalization to an alien solely because her conscientious objection, within the language of the applicable statute, is concededly based on nothing other than "a merely personal moral code" and arises not at all "by reason
Brenda Barbara Weitzman, nee Aronowitz, now age 27, appeals from the district court's denial of her petition for citizenship. In re Weitzman, 284 F.Supp. 514 (D.Minn.1968). The appeal purports to rest solely on the asserted unconstitutionality, and not on any possible construction, of § 337(a) of the Immigration and Nationality Act of June 27, 1952, 8 U.S.C. § 1448(a).
The naturalization papers. Mrs. Weitzman's petition for naturalization was filed in the District of Minnesota on October 31, 1966. It recited: She was born May 14, 1942, in South Africa and was a citizen of that country. She was married in Tel Aviv, Israel, on February 12, 1962, to Ronald Weitzman, who was born in the United States. She lawfully entered this country at New York City on June 12, 1963, for permanent residence. She was "attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States." She was "willing, if required by law, to bear
Mrs. Weitzman's earlier "Application to File Petition for Naturalization" recited that since her entry she had resided in California and Minnesota and that she had two children born in Los Angeles on December 29, 1962, and August 16, 1964, respectively. She answered affirmatively questions whether she believed in the Constitution and form of government of the United States and whether she was willing to take the full oath of allegiance to the United States. She also answered affirmatively questions whether she was willing to perform noncombatant services in the armed forces and to perform work of national importance under civilian direction. She answered negatively, however, the question whether she was willing to bear arms; to this was added, "My objection to the bearing of arms is based on a belief in a Supreme Being."
Agreed facts. The parties submitted an agreed statement of the case as permitted by Rule 10(d), Federal Rules of Appellate Procedure. This recited that the following facts, among others, were developed during the preliminary examination before the designated naturalization examiner and during the de novo hearing before the district judge:
In factual summary, therefore, we have an applicant who is willing to take the citizenship oath prescribed by § 337(a) to the extent of clauses (1), (2), (3), (4), and (5) (C), the latter being the alternative directed to willingness "to perform work of national importance under civilian direction when required by the law." She is not willing, however, to subscribe to clause (5) (A) or to clause (5) (B). The statute permits the avoidance of clauses (5) (A) and (5) (B) and the use of the alternative (5) (C) if the applicant is otherwise qualified and "shows by clear and convincing evidence to the satisfaction of the naturalization court that he is opposed to any type of service in the Armed Forces of the United States by reason of religious training and belief * * *." And "religious training and belief" is defined to mean "an individual's belief in a 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."
The trial court's primary finding. Chief Judge Devitt found, 284 F.Supp. at 517, as had the examiner, that Mrs. Weitzman's "objection to rendering military
Preliminary comment. I would not wish to prejudice Mrs. Weitzman for any deficiency in her choice of words in self-description. As noted above, however, with able counsel's acquiescence she has deliberately abandoned her former alternative argument that her belief satisfies the parallelism test developed and expounded in the different context of United States v. Seeger, supra. The district court's finding, as a consequence, stands purportedly unchallenged on appeal. Compare Welsh v. United States, 404 F.2d 1078, 1086 Note (9 Cir. 1968), cert. granted, 396 U.S. 816, 90 S.Ct. 53, 24 L. Ed.2d 67.
I yield to no one in entertaining profound respect for sincere personal conscience. Conscience, perhaps, is one of the hopes of the world. I was, after all, a member of this court's panel which recently decided United States v. Levy, 419 F.2d 360 (8 Cir. 1969). At the same time I see no reason to pamper Mrs. Weitzman and to say to her that she must not choose to abandon the parallelism test on this appeal because, if she does, she may not achieve citizenship. Mrs. Weitzman obviously is a mature, intelligent, articulate woman who desires naturalization but who desires it on her own precisely proposed terms, who wants the constitutional issue forced upon us and decided, and who is capable of making an intelligent tactical choice. She has made that choice here. I feel that she deserves to have us accept it. I therefore conclude that the parallelism test is now out of her case.
This being so, it follows that, as an appellate court, we start with the established and unchallenged fact and conclusion that the applicant's willingness to subscribe to clause (5) (C) of the naturalization oath, and her unwillingness to subscribe to either clause (5) (A) or clause (5) (B) of that oath, are due to "a merely personal moral code", within the language and meaning of § 337(a). The constitutional issue Mrs. Weitzman raises is accordingly presented unfettered by any collateral fact controversy. I wistfully might hope it were otherwise, for the constitutional issue may be far more troublesome than Seeger's parallelism test. In Levy, supra, 419 F.2d at 367, we viewed the latter as perhaps necessary "to avoid constitutional objections" even though it "may significantly reduce the vitality of the personal moral code test * * *." See Mr. Justice Douglas' comment in United States v. Seeger, supra, 380 U.S. at 188, 85 S.Ct. 850 (concurring opinion).
In any event, for me, the constitutional issue, by Mrs. Weitzman's design, perhaps mischievous, perhaps not, and in her apparent desire to gain or lose all upon its resolution, stands bare and quivering before us and demands decision.
The naturalization power. This is expressly bestowed by the Constitution. Article I, Section 8, states: "The Congress shall have Power * * * To establish an uniform Rule of Naturalization * * *."
Long ago Mr. Chief Justice Marshall observed,
Later, in United States v. Wong Kim Ark, 169 U.S. 649, 668, 18 S.Ct. 456, 464, 42 L.Ed. 890 (1898), Mr. Justice Gray said,
The Justice went on to observe, 169 U.S. at 701-703, 18 S.Ct. at 464, that the power granted to Congress by the Constitution to establish a uniform rule of naturalization was vested exclusively in Congress; that citizenship by naturalization "can only be acquired by naturalization under the authority and in the forms of law"; and that the power of naturalization "is a power to confer citizenship, not a power to take it away."
Still later, the Court stated,
Similar expressions appeared in United States v. Schwimmer, 279 U.S. 644, 649-650, 49 S.Ct. 448, 73 L.Ed. 889 (1929), and United States v. Manzi, 276 U.S. 463, 467, 48 S.Ct. 328, 72 L.Ed. 654 (1928). This court, too, has stated,
Further, in contrast with a denaturalization proceeding or one for deportation, the naturalization applicant
Thus, in summary, from these expressions, we have, as applicable guiding principles: (1) that the naturalization power rests with the Congress; (2) that that power rests exclusively there; (3) that the only limitation upon the power is that it be exercised uniformly; (4) that naturalization is a privilege; (5) that it may be claimed by the alien only on the terms Congress has imposed; and (6) that the applicant, and not the government, has the burden of demonstrating his qualifications. In connection with the last, we note that § 337(a) imposes, with respect to the oaths alternative to that for the bearing of arms, a standard of "clear and convincing evidence to the satisfaction of the naturalization court * * *."
The exercise of the naturalization power. From the beginning the Congress required that the naturalization process include an oath that the candidate support the Constitution. Act of March 26, 1790, 1 Stat. 103. In 1795 Congress added a provision that the naturalization court find that the alien is "attached to the principles of the Constitution." Act of Jan. 29, 1795, 1 Stat. 414. Like provisions appeared in every subsequent naturalization statute. See, for example, Act of April 14, 1802, 2 Stat. 153; Act of May 26, 1824, 4 Stat. 69; Act of Feb. 10, 1855, 10 Stat. 604. The Naturalization Act of June 29, 1906, 34 Stat. 596, expanded the oath to include the words, "support and defend the Constitution and laws of the United States against all enemies, foreign and domestic * * *."
The Supreme Court by close votes at first upheld this interpretation on the part of the Service against challenge by a variety of citizenship applicants. United States v. Schwimmer, supra, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889 (1929), with three dissents; United States v. Macintosh, supra, 283 U.S. 605, 51 S.Ct. 570 (1931), with four dissents; United States v. Bland, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319 (1931), with four dissents. The Macintosh dissenters departed from the majority on the question whether Congress had exacted a promise to bear arms as a condition of the grant of citizenship. The dissenters felt that this requirement was not to be implied from the statute's general words. 283 U.S. at 627, 51 S.Ct. at 570.
Fifteen years later the Court, by a 5-3 vote, overruled Schwimmer, Macintosh, and Bland. Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 90 L.Ed. 1084 (1946). The Court then concluded that the promise to bear arms would have to be implied and "we could not assume that Congress intended to make such an abrupt and radical departure from our traditions unless it spoke in unequivocal terms." 328 U.S. at 64, 66 S.Ct. at 827.
Congress, by the Act of September 23, 1950, 64 Stat. 987, possibly in reaction to Girouard, amended the oath to require the applicant to promise to "bear arms on behalf of the United States or perform noncombatant service in the Armed Forces of the United States when required by law." An alternative oath was also made available for the applicant who could show by clear and convincing evidence that he was opposed to bearing arms or to performing noncombatant service "by reason of religious training and belief". See S.Rep. No. 1515, 81st Cong., 2d Sess. 741 at 745-46 (1950).
The present definition of the term "religious training and belief" came with the 1952 Act. Concededly, the incorporation of this definition into the naturalization statute was related to the standards theretofore established in selective service legislation. Initially, the Service interpreted the requirement as to religious training and belief to include only members of groups opposed to war as a matter of doctrine. This restrictive administrative interpretation, however, proved not to be judicially acceptable. In re Nissen, 146 F.Supp. 361 (D.Mass. 1956); In re Hansen, 148 F.Supp. 187 (D.Minn.1957).
Then came, collaterally for us here, the significant decision in United States v. Seeger, supra, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), concerning appeals from convictions for refusals to submit to induction in the armed forces. The controlling statutory language there [§ 6(j) of the Universal Military Training and Service Act] was then identical to that in § 337(a). The Court struggled with the meaning of "religious training and belief" and concluded,
In arriving at this conclusion the Court observed,
It went on to say,
The footnote reference in the preceding quotation reads:
One additional legislative change is of interest. Section 1(7) of the Military Selective Service Act of 1967, Pub.L. 90-40, 81 Stat. 104, struck from the language of the theretofore existing Universal Military Training and Service Act, and its definition of "religious training and belief", the reference to "an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation." Thus that statute presently states merely that "the term `religious training and belief' does not include essentially political, sociological, or philosophical views, or a merely personal moral code." 50 U.S.C. App. § 456(j). The reference to a Supreme Being is gone. It remains, however, in the naturalization statute. Despite this change, this court, in the selective service area, has continued to apply the standard promulgated in United States v. Seeger. United States v. Levy, supra, 419 F.2d at 366. We there said,
Thus, in summary, for what it may be worth, one may say that essentially from the beginning naturalization procedures, both statutory and administrative, have required that the applicant support and be attached to the principles of the Constitution. The requirement that he promise to bear arms unless he was a pacifist "by religious training and belief" received formal statutory recognition only in 1950. And with the Seeger
It is obvious, however, that with Mrs. Weitzman's renunciation of all reliance upon a religious test and with the confinement of her appeal solely to the constitutional issue as it concerns her identity with a nonreligious status, many of the problems which may arise, and of which Seeger is illustrative, in connection with the concept of religion are not present here. Our constitutional issue becomes one essentially of classification as between the religious person, however that be defined, and the expressly non-religious.
Mrs. Weitzman asserts that § 337(a), in its requirement that an applicant for citizenship who is a conscientious objector demonstrate that his pacifism is by reason of religious training and belief, despite the broad interpretation of that phrase, (1) violates the establishment clause of the first amendment, (2) violates the free exercise clause of the first amendment, and (3) denies to her the due process and equal protection guarantees of the fifth amendment. She also asserts that Congress' authority to withhold citizenship is not unlimited.
The applicant argues that § 337(a) "sanctions a religion based upon a belief in a Supreme Being." She cites Mr. Justice Black's ringing phrases in Everson v. Board of Educ., 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947),
One might, of course, initially ask whether Mrs. Weitzman, as an alien, is entitled to first amendment protections at all. The Supreme Court has stated clearly that resident aliens are to be accorded the first amendment guarantees of free speech and free press. Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 89 L.Ed. 2103 (1945). Mr. Justice Murphy, separately concurring in that case, went so far as to say that an alien who has lawfully entered the country and resides here
This language of concurrence was footnote quoted with apparent approval by the Court's majority in Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5, 73 S.Ct. 472, 97 L.Ed. 576 (1953), where the protection of the fifth amendment was held available for a resident alien. I would not presume to hold otherwise with respect to the establishment or free exercise clauses and I therefore would grant that Mrs. Weitzman is entitled to the first amendment protections to which she here lays claim.
With this preliminary inquiry behind me, Mrs. Weitzman's constitutional arguments admittedly possess some appeal. On analysis, however, I must reject them for the following reasons:
1. The above historical summary conclusively demonstrates, I feel, that the "religious training and belief" connection with conscientious objection came into the statute not at all as "an establishment of religion" or as a prohibition of the free exercise of religion but, on the contrary, as a legislative accommodation of religious freedom. Mr. Justice Clark, in the primary Seeger opinion, outlined the efforts of colonial, state, and federal governments to ameliorate the plight of persons of various faiths when called to bear arms. 380 U.S. at 169-173, 85 S.Ct. 850. The statutory requirements were forged in the 4-vote dissent written by Mr. Chief Justice Hughes in United States v. Macintosh, supra:
This source was recognized by Mr. Justice Douglas in Girouard v. United States, supra:
It seems fair to say, then, that in the light of history § 337(a) is another example of what Mr. Chief Justice Hughes referred to as "our happy tradition" of avoiding conflicts between belief and governmental necessity.
2. Along with the concept that citizenship is a privilege, although not to be granted or withheld on unconstitutional conditions, see Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), I note that the naturalized citizen, as does the native born, receives various benefits including protection in other parts of the world. Allegiance is therefore important. Baumgartner v. United States, 322 U.S. 665, 673, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944); Sittler v. United States, 316 F.2d 312, 324 (2 Cir. 1963), cert. denied, 376 U.S. 932, 84 S.Ct. 702, 11 L.Ed.2d 652. The oath provides an acceptable test of allegiance.
3. By the Constitution Congress is vested with the power "To raise and support armies * * *." Article I, Section 8, clause 12. In fiscal 1967 approximately 105,000 persons were naturalized. Report of the Attorney General, 1967, p. 462. At that rate a million new citizens are added by naturalization in a decade. This is a substantial segment of the nation's human resources. It seems entirely appropriate for Congress to regard the citizenship applicant as a potential defender of his country. While selective service legislation applies to the resident alien, it also provides him with an avenue of relief from service, 50 U.S.C. App. § 454(a); his being subject thereto thus does not detract from the propriety of Congress' relating allegiance to the naturalization process.
4. There are other examples in the naturalization area of congressional concern about aliens who wish to have this country's benefits without the burden of military service. Section 212(a) (22) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (22), excludes from admission aliens "who have departed from or who have remained outside the United States to avoid or evade training or service in the armed forces in time of war * * *." See Ramasauskas v. Flagg, 309 F.2d 290 (7 Cir. 1962). Section 314 of the Act, 8 U.S.C. § 1425, makes ineligible for citizenship a person convicted of deserting the armed forces in time of war. Section 315 of the Act, 8 U.S.C. § 1426 (see, also, 50 U.S.C. App. § 454(a)), makes ineligible for citizenship an alien who applies for exemption or discharge from service in the armed forces on the ground that he is an alien. The congressional pattern is apparent and is consistent.
5. "It has long been held that the Congress has plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden."
6. The constitutionality of the accommodation afforded religion by Congress in the military service area has been upheld by the Supreme Court. The 1917 draft laws contained an exemption for persons who were members of religious sects opposed to war in any form and who personally held those convictions. The statute was challenged on several grounds, including the establishment and free exercise clauses. Mr. Chief Justice White, in writing for a unanimous tribunal which included the renowned libertarians, Mr. Justice Holmes and Mr. Justice Brandeis, said,
This was a peremptory brushing aside, as frivolous, of the very argument which is advanced by Mrs. Weitzman here. Like rulings appear to have been made in Goldman v. United States, 245 U.S. 474, 38 S.Ct. 166, 62 L.Ed. 410 (1918); Kramer v. United States, 245 U.S. 478, 38 S.Ct. 168, 62 L.Ed. 413 (1918); Ruthenberg v. United States, 245 U.S. 480, 38 S.Ct. 168, 62 L.Ed. 414 (1918); Yanyar v. United States, 246 U.S. 649, 38 S.Ct. 332, 62 L.Ed. 920 (1918); and Stephens v. United States, 247 U.S. 504, 38 S.Ct. 579, 62 L.Ed. 1239 (1918). The issue in these World War I cases seems to me to have arisen in a more difficult context because the statute there under consideration restricted the exemption to members of qualifying religious sects and made no provision for a different kind of believer. I am in no position to rule contrarily to those cases.
7. The required separation of church and state does not compel the Congress to ignore religious beliefs or to be hostile to religion in the framing of legislation which implements a secular purpose. I regard the effort of the government to avoid an intrusion upon freedom of religion in the naturalization statute as one to remain neutral rather than to prefer religion. There are examples of this in the decided Supreme Court cases: In Everson v. Board of Educ., supra, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, the Court upheld the payment of bus fares to children attending parochial as well as public schools. In Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), the Court upheld a public school program releasing children to attend religious instruction in their places of worship. There Mr. Justice Douglas said,
In Zorach the Court did not suggest or insist that nonreligious parents had the right to have their children similarly released
8. The Blue Law cases also have some significance. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961); Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961); Gallagher v. Crown Kosher Supermarket, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961). These, it seems to me, are examples of accommodation of the religious and governmental interests involved. It is evident from the several opinions that the prevailing Justices were in agreement that an exemption from the Blue Laws limited to persons required to close on Saturday because of religious beliefs was not a violation of the first amendment.
9. If Mrs. Weitzman's constitutional arguments are to prevail, it may not follow that she is entitled to naturalization. The legal result might be to deny the benefit of conscientious objection to the religious believer, not to extend it to the nonbeliever. See and compare Quong Ham Wah Co. v. Industrial Accident Comm'n, 184 Cal. 26, 192 P. 1021 (1920), error dismissed, 255 U.S. 445, 41 S.Ct. 373, 65 L.Ed. 723 and Dellinger v. Arkansas State Bd. of Optometry, 214 Ark. 562, 217 S.W.2d 338, 340 (1949). But this result would upset all the holdings approving the "religious training and belief" conscientious objection.
10. The decided cases, as has been pointed out, demonstrate an accommodation to religious belief. They do not demonstrate an accommodation to social belief or to philosophical views or to ideas of personal morality. One in his heart may believe, in the Robin Hood tradition, that it is proper to steal from the rich and give to the poor, but we still prosecute the thief for his stealing.
11. I fail to visualize the coercion to which Mrs. Weitzman claims to be subjected. She is not forced to become naturalized. Many aliens resident in this country never do take that step. But they live in peace here and enjoy the benefits of residence within our borders. It is only when one asks for the privileges of citizenship that the condition which Congress has imposed becomes operative.
12. Mrs. Weitzman's fifth amendment arguments, of course, center in due process and the equal protection concept which is inherent in due process. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). This comes down to a question of classification and the reasonableness or arbitrariness of that classification, or, as has been said, "some relevance to the purpose for which the classification is made." Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 763, 15 L.Ed.2d 620 (1966); Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S.Ct. 505, 98 L.Ed. 660 (1954). See McDonald v. Board of Election Comm'rs, 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed. 2d 739 (1969). I cannot say that a distinction drawn between conscientious objection based on religious training and belief, on the one hand, and conscientious objection not so based, on the other, is inherently and constitutionally unreasonable. The area of conflict between the demands of government and one's personal convictions is, at best, an area where adjudication is difficult. It seems to me, however, that the dilemma for the secular
13. Mrs. Weitzman notes that the Supreme Court has observed that its decisions "have consistently held that only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms." N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). It is then said that it should be clearly demonstrated what there is about nonreligious conscientious objectors that makes them unworthy of citizenship. I would not so lightly brush aside the existence of a compelling governmental interest. The Congress obviously concluded that considerations of national survival support the statute.
14. Of course, as the applicant argues, congressional power is subject in its exercise to constitutional limitations including first amendment freedoms. It is often, however, a matter of balancing a legitimate legislative purpose against restrictions imposed on rights otherwise guaranteed by the amendment. See William E. Palmer, 52 T.C. 310, 314-315 (1969). Legislation may cast an indirect burden on the exercise of religion and still not be violative of the first amendment. See the opinion of Mr. Chief Justice Warren in Braunfeld v. Brown, supra, 366 U.S. at 606, 81 S.Ct. 1144. Certainly, then, an indirect burden on the irreligious is not necessarily violative of the amendment.
15. I search Mr. Justice Douglas' opinion for the majority in Girouard v. United States, supra, unrewardedly for any intimation that the Court's ruling that that applicant was to be admitted to citizenship was based on something other than expressed religious scruples and convictions. Those are the very terms which the Court employed. The applicant's claim to citizenship rested on principles of his Seventh Day Adventist faith. The Court could have expanded its remarks, had it chosen so to do, to scruples of general conscience. It did not do this.
16. The Supreme Court, although possessing the opportunity on more than one occasion, has declined to hold the religion-based conscientious objection in draft cases unconstitutional on first amendment grounds. The decision in the Selective Draft Law Cases, supra, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 is, of course, the prime example. The establishment and free exercise argument, in the light of the absence of an exemption for nonreligious conscientious objectors, was raised in United States v. Seeger, supra, 380 U.S. at 165, 85 S.Ct. 850, 13 L.Ed.2d 733, but, in view of the parallelism test there developed, was not adjudicated by the Supreme Court. In lower court draft cases where the challenge was made and rejected, the Supreme Court, until the current term, has not seen fit to grant certiorari. Etcheverry v. United States, 320 F.2d 873, 874 (9 Cir. 1963), cert. denied, 375 U.S. 930, 84 S.Ct. 331, 11 L.Ed.2d 263, rehearings denied 375 U.S. 989, 84 S.Ct. 515, 11 L.Ed. 2d 476, 376 U.S. 939, 84 S.Ct. 791, 11 L.Ed.2d 660 and 380 U.S. 926, 85 S.Ct. 878, 13 L.Ed.2d 813; Clark v. United States, 236 F.2d 13, 23-24 (9 Cir. 1956), cert. denied, 352 U.S. 882, 77 S.Ct. 101, 1 L.Ed.2d 80, rehearing denied 352 U.S. 937, 77 S.Ct. 219, 1 L.Ed.2d 169; George v. United States, 196 F.2d 445, 447-450 (9 Cir. 1952), cert. denied, 344 U.S. 843, 73 S.Ct. 58, 97 L.Ed. 656. (In United States v. Bendik, 220 F.2d 249, 252 (2 Cir. 1955), the constitutional challenge was rejected but, apparently, no application for certiorari was made. See footnote 2 of the Second Circuit's opinion in United States v. Seeger, 326 F.2d 846, 851 (1964)). It may be that these actions by the Court have been "in the candid service of avoiding a serious constitutional doubt". United States v. Rumely, 345 U.S. 41, 47, 73 S.Ct. 543, 546, 97 L.Ed. 770 (1953); United States v. Seeger, supra, 380 U.S. at 188, 85 S.Ct. 850
A word is in order with respect to the Sisson case. At issue there was the constitutionality of the application to Sisson of § 6(j) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 456(j). Chief Judge Wyzanski held that the free exercise and establishment clauses of the first amendment and the due process clause of the fifth amendment prohibit the application of the Act to one who is not a religious conscientious objector in a formal sense but who, nevertheless, is conscientiously opposed to American military activities only in Vietnam.
Perhaps Sisson may be distinguished from Mrs. Weitzman's case. Sisson is a criminal proceeding and it concerns a statute other than the one our applicant challenges. Sisson had been drafted and felt that service for him in Vietnam was imminent. His pacificism was selective; it was Vietnam service to which he was opposed. Mrs. Weitzman's opposition is more broadly asserted. "The rationale by which Seeger and his companions on appeal were exempted from combat service under the statute is quite sufficient for Sisson to lay valid claim to be constitutionally exempted from combat service in the Vietnam type of situation." 297 F.Supp. at 909. Mrs. Weitzman expressly disavows this. "Most important, it does not follow from a judicial decision that Sisson cannot be conscripted to kill in Vietnam that he cannot be conscripted for non-combat service there or elsewhere." 297 F.Supp. at 910. Mrs. Weitzman claims the lesser duty under clause (5) (C) of § 337(a), and would avoid obligation for noncombatant service in the armed forces.
Yet Judge Wyzanski flatly held:
I wonder. Perhaps in the draft-criminal law context this is so. The Supreme Court may soon tell us. However, in the naturalization context where the government is bestowing and not demanding, and where Mrs. Weitzman is requesting citizenship on her own terms, I would hold otherwise.
If Mrs. Weitzman's constitutional arguments are to prevail, our concepts of constitutionality have progressed far beyond the Hughes-Holmes-Brandeis days when enunciated allegiance and devotion to the country had primary and significant meaning. As a member of an inferior federal court, I feel that we cannot go that far even in this permissive day.
I would affirm.
LAY, Circuit Judge.
I think it is incumbent upon this court to pass upon the merits of Mrs. Weitzman's claimed conscientious objector status under the Immigration and Nationality Act, 8 U.S.C. § 1448. Appellant claimed during her trial that her beliefs were religious within the scope of the statute. The trial court held the beliefs were non-religious. On appeal, she does not allege error in this decision but rather challenges the constitutionality of the statute. This court should not reach a constitutional issue prematurely but pass upon the constitutionality of a statute only when the conflict is unavoidable. Thorpe v. Housing Authority, 393 U.S. 268, 283-284, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). Thus, the abandoning of a
Implicit within our reaching the constitutional issue is a determination of the factual posture of the petitioner. Without this consideration, a justiciable issue cannot be presented. To hold otherwise would allow a party, without proper standing and by indirection, to effect an advisory opinion by a court on serious constitutional issues.
Under these circumstances, the merits of whether in fact the petitioner qualifies for the exemption should not and cannot be so easily eluded. See Henry v. Mississippi, 379 U.S. 443, 449, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (concurring opinion).
I come then to a consideration of whether Mrs. Weitzman qualifies for exemption under § 1448 as a conscientious objector based upon "religious" grounds. Mrs. Weitzman refused to categorize her beliefs as "religious." However, in both the naturalization hearings of March 3, 1967, and May 11, 1967, as well as in her testimony before Judge Devitt on March 4, 1968, she refused to do so for two basic reasons, (1) for want of definition of the term "religious" and (2) because she did not belong to any organized religious sect. No one should disagree that earnest sincerity is better than glibness of tongue. Her refusal to rest her claimed exemption upon words of diffuse meaning ("religion," "Supreme Being") should be weighed in her favor, and points up the shallowness of legal decisions which rest upon formal nomenclature. A person who holds a sincere religious belief should be judged under the law by the substance of that belief and not as to what she or he may call it.
This court has recently passed upon the meaning of the term "religious" under the conscientious objector exemption of the Selective Service Act. United States v. Levy, 419 F.2d 360 (8 Cir. Dec. 8, 1969). We there equated the belief of the registrant with "some force or Supreme Being" in that the registrant said simply "that he must act according to what he believes is right, and this obligation is greater than his obligation to secular authorities." Id. at 367. And we concluded that "any type of sincerely held belief opposing war generally would be difficult to rule out under Seeger." Id. at 368.
The following language of United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), is controlling here:
At the same hearing in which Mrs. Weitzman was read the definition of "Supreme Being" from Seeger as then applied under § 6(j) of the Universal Military Training & Service Act, 50 U.S.C. App. 456(j), she was asked: "Mrs. Weitzman, do you believe in that type of Supreme Being?" Her answer: "Well, not a section of the definition. I do believe there is — over existence." And the following question was asked: "And is it because of your belief in that order of existence the reason why you will not bear arms?" She answered: "Yes."
At the May hearing she stated: "I believe in the dignity of man and in the inviolability of the human body and that each man should respect the dignity of every man and inviolability of every man's person."
The following testimony was given before Judge Devitt on March 4, 1968:
She had earlier made another significant statement:
And then she was asked:
And her answer was:
Summarizing she said:
Mrs. Weitzman is not original in what I think the law should call her "religious belief." The early Greek and Roman Stoics felt that "good" was of inner necessity. They felt that it was man's duty to obey the natural law. The Stoics related their ethics to a pantheistic cosmology. Stoicism accepted knowledge of law as "instinctive and a priori, it being perceived by means of intuitively evident `common notions.'" 8 The New Schaff-Herzog Encyclopedia of Religious Knowledge 84 (1910).
The authors of the above work also say:
The deists of the Seventeenth and Eighteenth Centuries, who relied on natural theology, borrowed from these early philosophical concepts. And the ancient oriental teachings of Confucius and Tao both taught enlightenment based upon "instinctive" natural law. J. Noss, Man's Religions (3rd ed. 1963).
Within modern Christianity, various beliefs dealing with "Humanism"
There should be little question that Mrs. Weitzman is a sincere pacifist, and in my judgment, qualifies as being one who reaches this belief on "religious" grounds.
I cannot help but mention Mrs. Weitzman's reasons as to why she desires to become a citizen of the United States. She stated before Judge Devitt:
It is true that Mrs. Weitzman seeks the privilege of citizenship and must meet certain statutory standards. Yet it appears paradoxical to me that in a country which was founded as a result of religious inquisitions, and which has so
I do not endorse the right of government to make inquiry into the religious faith of any of its citizens or potential citizens to see whether or not it is sufficiently "religious." I think this much is enshrined within the First Amendment. The dark history of religious torment over enforced dogma is too recent for us to allow a religious inquisition for the price of citizenship. I do not reach the constitutional issue. Mrs. Weitzman has established her sincere belief as a conscientious objector on the basis of conscience and sincere conviction. This should be enough. To require her to further justify this faith in scientific terms or as one of religious orthodoxy is patently wrong. Under our Constitution
In Girouard v. United States, 328 U.S. 61, 68, 66 S.Ct. 826, 829, 90 L.Ed. 1084 (1946), the Supreme Court said:
The judgment should be reversed and Mrs. Weitzman be allowed to take the naturalization oath as a conscientious objector.
HEANEY, Circuit Judge.
I would reverse. I agree that all seeking citizenship can be required to swear a willingness to bear arms in defense of this nation, but I find it difficult to accept the view that Congress can, consistent with the First Amendment, excuse some who sincerely object in conscience to taking an oath to bear arms and refuse to excuse others whose objections are just as deeply rooted.
Further evidence of its openmindedness on the issue is illustrated by the fact that it has taken certiorari in two cases in which the question is raised and an answer requested.
In my view then, we must either construe the statute as permitting all who sincerely object in conscience to bearing arms to be excused from the oath or hold that the statute is unconstitutional. I take the former course. See, United States v. Rumely, 345 U.S. 41, 47, 73 S.Ct. 543, 97 L.Ed. 770 (1953).
While it will be argued that such a construction of the statute is an unwarranted extension of Seeger, I cannot bring myself to believe that it really is.
Seeger and subsequent cases have in all but word given constitutional and
The idea that non-religious conscience deserves protection is not a new one. Chief Justice Stone advocated it in 1919:
Others in our day have selected conscience for the highest position in the order of values:
Konvitz, supra, pp. 99-101.
That it will be difficult to determine whether a person's objection to taking the oath is based on conscience is assumed, but the task cannot possibly be more difficult than ascertaining whether a conscientious objector's beliefs are religiously grounded. Besides, this country did recognize non-religious conscientious objectors during World War I for a time without apparent harm to the nation.
United States v. Seeger, supra, 380 U.S. at 180, n. 3, 85 S.Ct. at 861.
As I read this record, Mrs. Weitzman sustained the burden of proving, by clear and convincing evidence, that she is opposed to bearing arms as a matter of conscience. The trial judge found her to be completely sincere. She stated that her refusal to take the oath was based on conscience and personal moral conviction. She made it clear that she was opposed to all killing of human beings under any circumstances. In the light of these expressions of conscientious belief, Mrs. Weitzman should be permitted to take the oath and become a citizen of the United States.
(a) A person who has petitioned for naturalization shall in order to be and before being admitted to citizenship, take in open court an oath (1) to support the Constitution of the United States; (2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or citizen; (3) to support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic; (4) to bear true faith and allegiance to the same; and (5) (A) to bear arms on behalf of the United States when required by the law, or (B) to perform noncombatant service in the Armed Forces of the United States when required by the law, or (C) to perform work of national importance under civilian direction when required by the law. Any such person shall be required to take an oath containing the substance of clauses (1)-(5) of the preceding sentence, except that a person who shows by clear and convincing evidence to the satisfaction of the naturalization court that he is opposed to the bearing of arms in the Armed Forces of the United States by reason of religious training and belief shall be required to take an oath containing the substance of clauses (1)-(4) and clauses (5) (B) and (5) (C) of this subsection, and a person who shows by clear and convincing evidence to the satisfaction of the naturalization court that he is opposed to any type of service in the Armed Forces of the United States by reason of religious training and belief shall be required to take an oath containing the substance of said clauses (1)-(4) and clause (5) (C). The term `religious training and belief' as used in this section shall mean an individual's belief in a 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. * * *"
In Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), Mr. Justice Black said that the "establishment clause" of the First Amendment means at least that a state or federal government can neither "pass laws which aid one religion, aid all religions, or prefer one religion over another." He continued:
In the first "flag salute" case, Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940), Mr. Justice Stone, in dissent, expressed sentiments soon thereafter to be accepted:
And of course, in the same context, we should not overlook Justice Jackson's famous rhetoric in West Virginia State Board of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943):
Also of significance here is Mr. Justice Jackson's statement (in dissent) in Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), which observes:
A stronger argument could be made that the exemption was one that accommodated religion when the Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918), was decided. At that time, the exemption was limited to members of religious sects opposed to war in any form. Today, when the exemption is granted to any who are willing to intimate that their views are religiously based, the argument that a distinction can be made to accommodate religion is seriously weakened.
In United States v. Haughton, 413 F.2d 736 (9th Cir. 1969), the conscientious objector felt his beliefs were religious as he directed his life according to goals superior to a common existence. His personal beliefs included reverence for human life and living according to one's relative principles of good.
In Bates v. Commander, First Coast Guard District, 413 F.2d 475 (1st Cir. 1969), the conscientious objector believed that the spirit of love constituted the "Supreme existence" and that men achieve a certain holiness "when we act in awareness of our brotherhood as men."
In United States ex rel. Brooks v. Clifford, 409 F.2d 700 (4th Cir. 1969), the objector stated that he was a Humanist and that his beliefs were based upon "the principles of Goodness."
In Fleming v. United States, 344 F.2d 912 (10th Cir. 1965), the objector believed in a Supreme Being but based his objection to war upon the sanctity of human relationships.
In United States v. Shacter, 293 F.Supp. 1057 (D.Md.1968), the objector stated that the highest possible value must be placed on human life, that man's life is sacred, that mankind is a holy entity, and that the killing of man is a sin which no man can endure. He stated that his feelings were religious although he did not believe in God.
In United States v. St. Clair, 293 F.Supp. 337 (E.D.N.Y.1968), the objector stated that he was a pantheist, that his belief in a Supreme Being involved a duty to live according to his own conscience, and that his conscience prevented him from going to war.
A similar extension of the benefit of exemption from combatant service to nonreligious conscientious objectors was effected by President Wilson's Executive Order of March 20, 1918. That order directed assignment to noncombatant service for draftees who objected to participating in war because of "other conscientious scruples" as well as for those exempt under the Selective Service Act because of religious objections. U. S. War Office, Statement Concerning the Treatment of Conscientious Objectors in the Army (1919) 38-9.