United States v. Crouch

¶4AINSWORTH, Circuit Judge:

¶5Appellant William Crosby Crouch, Jr., a member of the religious sect known as Jehovah’s Witnesses and classified as a “conscientious objector” by Selective Service Local Board No. 62, Franklin, Louisiana, was convicted of having refused to report for “work contributing to the national health, safety or interest” as ordered by the Local Board, in violation of 50 U.S.C. App. § 462. Appellant entered a plea of not guilty, waived trial by jury, and was tried by the court which found him guilty. He was sentenced under the provisions of the Federal Youth Corrections Act, 18 U.S.C. § 4209.1

¶6*427Crouch contends on appeal that the Southern Baptist Hospital of New Orleans, Louisiana, to which institution he was ordered to work by the Local Board, was an unsuitable place of employment, inasmuch as it is owned and controlled by a competing religious sect, and that the order of the Board to report to that institution was illegal because it attempted to force him to aid another religious group and deprived him of his right to free exercise of his chosen religion in violation of the First Amendment.

¶7The only evidence relied upon by appellant in support of his contention is the charter of Southern Baptist Hospital. The charter shows that the hospital is a wholly owned and controlled subsidiary of the Southern Baptist Convention, and as stipulated by counsel, the Convention is composed of member Baptist churches and is a religious organization. Appellant argues that ownership, supervision and control by the Convention is tantamount to a conclusion that the hospital is a religious organization, and that employment therein of persons of his status aids a competing religion, prohibited by the Constitution as particularly enunciated in People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948). In that case a board-of-education-sponsored program of religious instructions, given during school hours to public school pupils whose parents consented thereto, was held to be violative of the “establishment clause” of the First Amendment. In holding that the program was constitutionally banned, the court characterized it as a “utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith,” and reiterated its holding in Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), that “Neither [a state or federal government] can pass laws which aid one re*428ligion, aid all religions, or prefer one religion over another.” 333 U.S. at 210, 68 S.Ct. at 465.

¶8The cases are patently distinguishable. In People of State of Illinois ex rel. McCollum v. Board of Education, supra, the constitutionally objectionable activity was admittedly the spread of religious faith by instructions paid for by taxpayers. In the instant case the objectionable activity is hospital work. The “aid” given, in the employment of registrants under the civilian work program, is not for the benefit of a religious group — it is for the sick, the health and welfare of the general public, as we will show in our subsequent discussion in this opinion.

¶9Appellant also relies on the Supreme Court decisions of Follett v. Town of McCormick, S.C., 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), and Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), which respectively struck down as unconstitutional restraints on freedom of religion, (1) a license tax on selling books as applied to a Jehovah Witness preacher, (2) a resolution requiring school children to salute and pledge allegiance to the American flag, and (3) a statute which prohibited the solicitation of funds for alleged charitable purposes without prior approval of the public welfare council secretary and his determination that the cause was a charitable one. Again, the distinction between the present case and the cited Supreme Court cases lies in the nature of the activity objected to by appellant. There is no rational basis for equating hospital work, as described in the present ease, with the establishment of a religion, aid to a religion, or the restraint of a religious freedom.2

¶10The statute provides that a registrant conscientiously opposed to active service in the armed forces may be assigned to noncombatant service. If he is also found to be conscientiously opposed to participation in such noncombatant service, as was appellant here, a registrant may in lieu of induction be assigned to perform appropriate civilian work “contributing to the maintenance of the national health, safety, or interest.” (50 U.S.C. App. § 456(j).)

¶11The instant case turns on the question of what is “appropriate civilian work.” The definition thereof is contained in 32 C.F.R. 1660.1 (Selective Service Regulation 1660.1) in pertinent part as follows:

“(a) The types of employment which may be considered under the provisions of section 6(j) of title I of the Military Selective Service Act of 1967 [formerly known as the Universal Military Training and Service Act] to be civilian work contributing to the maintenance of the national health, safety, or interest, and appropriate to be performed in lieu of induction into the armed forces by registrants who have been classified in.Class I-O shall be limited to the following:

******

“(2) Employment by a nonprofit organization, association, or corporation which is primarily engaged either in a charitable activity conducted for the benefit of the general public or in *429carrying out a program for the improvement of the public health or welfare, including educational and scientific activities in support thereof, when such activity or program is not principally for the benefit of the members of such organization, association, or corporation, or for increasing the membership thereof.” [As amended July 4, 1967.]

¶12The Government introduced evidence to show that the Southern Baptist Hospital was an appropriate place for civilian work under the pertinent Selective Service Regulations. The evidence shows that the institution is a nonprofit institution, engaged in charitable activity for the improvement of the public health or welfare. It literally fulfills the criteria of the Regulations defining “appropriate civilian work.” The Government also produced a list of approved institutions, showing that the hospital has been on the list for many years, as well as testimony of Selective Service officials to the effect that approval by the national and state directors of Selective Service is a prerequisite for placing an institution on the list as well as for assignment of a certain individual to a particular institution.

¶13Although appellant concedes that the burden of proving that the particular institution is an appropriate one is not upon the Government, he contends that the fact that the hospital is on the “approved list” is merely a presumption that it is an appropriate institution, which he has overcome by showing that the hospital is wholly owned and controlled by the Southern Baptist Convention, a religious organization competitive with his own religious sect.

¶14The District Court found, and we agree, that a showing of mere ownership and control of the hospital by the Baptist Convention was insufficient to establish that the work performed by the hospital was of a religious nature. The Government proved that the work of the hospital, a non-profit corporation, is to care for the sick and afflicted. The record is devoid of any evidence that the institution is secular in its operation. There is nothing in the record from which it may be inferred that the hospital staff members, employees or patients must be of the Baptist faith, nor is there any showing that the Baptist religion is practiced in the hospital or that religious worship is imposed on its patients or employees.

¶15At no time did appellant make known to the Local Board any objection to the institution selected, although he had adequate time in which to do so. Instead he unconditionally refused to perform civilian work of any kind under the program and chose to disobey the order to report. Appellant’s Selective Service file is a protracted and lengthy case history of attempts by the Local Board and Selective Service officials to placate and cooperate with appellant despite a series of vacillating maneuvers on his part. We agree with the Ninth Circuit that “[A] registrant may not overturn the action of the board ordering him to work on any ground not disclosed to the board. A registrant may not, as did appellant, refuse any work and then later conjure up objections to the work assigned.” Langhorne v. United States, 9 Cir., 1968, 394 F.2d 129, 130, 131.

¶16In Yaich v. United States, 9 Cir., 1960, 283 F.2d 613, as in the instant case, all types of civilian work in lieu of induction, including three specific types offered to the registrant, were refused. The Court held (at 620), “ … appellant having categorically refused any type of civilian work is in no position to claim prejudice. Failure to comply with Selective Service Regulations which do not prejudice a registrant are not grounds for upsetting conviction based on disobedience of induction or civilian work. Uffelman v. United States, 9 Cir., 1956, 230 F.2d 297; Kaline v. United States, 9 Cir., 1956, 235 F.2d 54.” See also Jessen v. United States, 10 Cir., 1957, 242 F.2d 213, 215, in which the Court upheld the validity of a local board’s order directing a Jehovah Wit*430ness registrant to report to work following his refusal to select employment from a list of eligible institutions.

¶17In Elizarraraz v. United States, 5 Cir., 1968, 400 F.2d 898, we rejected another similarly superficial defense of a Jehovah Witness who, after having refused to perform any type of civilian work, argued on appeal that his refusal was not directed to the work but only to filling in the application form presented to him and that this act did not constitute a violation of the statute. We remarked (at 902) that “The requirement to do civilian work in lieu of military induction cannot be frittered away by such defenses as those raised on this appeal.” The District Court in the present case was of the opinion that the defense was clearly an afterthought and that there was “no indication that defendant would comply with any order issued to him by the board.” Appellant’s constant wavering and his refusal to accept any work or type of work under the civilian work program persuade us to the same view.

¶18There is no constitutional right to exemption from military service because of religious belief. This right comes from Congress. Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 362, 49 L.Ed. 643 (1905). In United States v. Macintosh, 283 U.S. 605, 624, 51 S.Ct. 570, 575, 75 L.Ed. 1302 (1931), the Court, through Mr. Justice Sutherland, held:

“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. No other conclusion is compatible with the well-nigh limitless extent of the war powers as above illustrated, which include, by necessary implication, the power, in the last extremity, to compel the armed service of any citizen in the land, without regard to his objections or his views in respect of the justice or morality of the particular war or of war in general.”

¶19A fortiori, there is no constitutional right to exemption from compulsory civilian duty in lieu of military service, for, as the Seventh Circuit has said, “Since it cannot be successfully argued that Congress lacks power to require military service of all, it has the lesser power to require of registrants who invoke the privilege of exemption by claiming a 1-0 classification, civilian work calculated to strengthen the nation in time of emergency.” United States v. Hoepker, 1955, 223 F.2d 921, 923. See also Elizarraraz v. United States, supra, 400 F.2d at 902.

¶20Affirmed.

¶40GODBOLD, Circuit Judge

¶41(specially concurring):

¶42I concur in the result. But I find it necessary to state my own reasons for agreeing with the conclusion that, under the circumstances of this case, the civilian work order to Crouch did not violate the First Amendment.

¶43The conclusion that the disobeyed order was valid disposes of the case. Nothing more need be said. Nevertheless, in a dictum the broad language of which is easily subject to misunderstanding, the majority discuss the effect of appellant’s statement, made before the order was issued, that he would refuse any civilian work. This requires that I state my understanding of what the court holds.

¶441. The First Amendment Issue

¶45Crouch attacks the validity of his civilian work order under both the Establishment Clause and the Free Exercise Clause of the First Amendment.1 While I agree with the conclusion that the order was valid, it is necessary to distinguish between Crouch’s separate *431claims under the two religion clauses, for the difference between an Establishment Clause claim and a Free Exercise Clause claim may have an important bearing on the validity of a civilian work order issued by Selective Service pursuant to 50 App. U.S.C.A. § 456(j) (1968).2

¶46The Establishment Clause, which primarily serves to restrict governmental involvement with religion, delimits the institutions in which Selective Service registrants may be ordered to work and the type of work they may be ordered to perform. The standard for judging an Establishment Clause claim was stated in Abbington School District v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844, 858 (1963): “[T]o withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.”

¶47In the present case the Board’s order to perform work in the Baptist Hospital passes muster under the Ab-bington Establishment Clause test. The institutional character and operations of the Hospital amply indicate that the work Crouch was ordered to perform would not have an impermissible religious effect. Cf. Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899). The record contains no evidence that there was a purpose of advancing or inhibiting religion in assigning Crouch to the Hospital.

¶48The Free Exercise Clause forbids certain governmental impingements on an individual’s religious beliefs or religiously motivated practices. See Sherbert v. Verner, 374 U.S. 398, 402-403, 83 S.Ct. 1790, 10 L.Ed.2d 965, 969-970 (1963); Abbington School District v. Schempp, supra, 374 U.S. at 222-223, 83 S.Ct. 1560, 10 L.Ed.2d at 858.3 In analyzing the validity under the Free Exercise Clause of a Selective Service civilian work order, the work which the registrant is to perform and the institution to which he is ordered to report are not necessarily dispositive. Rather, they are factors to be weighed along with the nature of the registrant’s religious beliefs, the governmental interests at stake in having the registrant perform that work, and the alternative work assignments for that registrant which are practicably available to the government. See Sherbert v. Verner, supra,374 U.S. at 403-408, 83 S.Ct. 1790, 10 L.Ed.2d at 970-973.4

¶49In the present case Crouch’s Free Exercise Clause claim fails at the threshold, because he does not contend that working at the Baptist Hospital would be contrary to his religious beliefs or would otherwise offend his religious sen*432sibilities. He argues instead that an order requiring any individual to work at an institution wholly owned and controlled by members of a different religious denomination is “illegal per se.” Rights under the Free Exercise clause are personal and particularized, cf. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), and unless Crouch’s own religious beliefs or practices are affected he has no basis for attacking the work order under the Free Exercise Clause.

¶50Whether an order to work at a religiously affiliated institution impinges on the individual’s religious beliefs or practices will depend on the facts of the particular case.5 If the individual’s religious sensibilities are significantly affected, the Free Exercise Clause places an obligation on the government to show that “no alternatives” are practicably open other than the assignment to the particular institution. Sherbert v. Verner, supra.

¶512. The Refusal to Perform Civilian Work

¶52It is with difficulty that I seek to divine exactly what the majority mean in their discussion of the effect of appellant’s statement that he would not perform any civilian work.

¶53I am confident that my brothers do not mean that a registrant, by anything he does or says before the board, can breathe life into an invalid board order, whether the invalidity is rooted in constitutional or statutory grounds.

¶54I am confident they do not mean that a registrant may, by saying he will not accept civilian work, waive his right to attack an order on constitutional grounds, absent the standards of knowledgeable waiver, e. g. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A Baptist ordered to work as a cantor in a Jewish synagogue, if he raises a First Amendment defense at trial, cannot be convicted on the ground that he told the board he wouldn’t work anywhere. The principle is the same for statutory grounds which go to the validity of the order. 50 App. U.S.C.A. § 462(a) (1968) makes punishable a failure to comply with a valid order of the board, and an invalid order cannot be validated by a registrant’s announcement of his intentions.6

¶55There is not yet a doctrine of anticipatory breach of the criminal law, dispensing with the necessity of issuing valid orders- — civilian work orders and induction orders as well.7 Nor is there any principle which necessarily limits a registrant’s trial defenses, going to the validity of the order, to only matters pointed out to the board.

¶56The Ninth Circuit cases quoted by the majority are concerned with pre-order administrative matters not going to the validity of the work orders. In Yaich v. United States, 283 F.2d 613 (1960) the appellant was convicted for refusing to obey a civilian work order to report to the Los Angeles County Department of Charities, an institution approved as suitable by Selective Service and previously judicially determined to be suitable. *433283 F.2d at 619. Appellant claimed as a defense that at the administrative level, when the board, as required by 32 C.F.R. 1660.20(b), submitted three proposed types of civilian work, two were private charities and therefore not sanctioned by the regulations. The third was the place to which the defendant ultimately was ordered. The court found all three institutions complied with the regulations, and, in the dictum quoted by my brothers, said that in any event the defendant having categorically refused civilian work, had not been prejudiced.8

¶57In Langhorne v. United States, 394 F.2d 129 (9 Cir. 1968) the appellant took the position at administrative hearing and at the trial that he would not perform any work in lieu of military service. On appeal he raised for the first time the objection that the work to which he was assigned was not “appropriate.” The court found there was no infringement of his religious freedom, and assumed that his objection of “inappropriateness” meant not appropriate to him personally. 394 F.2d at 130 and n.3. Thus his objection did not reach constitutional dimensions nor did it concern a failure of the institution to meet standards of the statute or of the regulations. Obviously the registrant could not “conjure up objections” on appeal (or at trial either, for that matter) that his place of assignment was just not the right place for him. As the court pointed out, at the administrative level he had the opportunity to object to places suggested by the board and to make suggestions of his own.

¶58Thus neither Yaich nor Langhorne is of any broader scope than the cases referred to in footnote 8, supra. As I understand what they say, my colleagues do not attempt to extend Yaich and Langhorne beyond the very narrow scope of their particular facts.

¶59In McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), reversing 395 F.2d 906 (6th Cir. 1968), the registrant wrote his board that “I refuse to serve this country armed, and I refuse to serve it unarmed by doing alternative service.” 395 F.2d at 907. Later he stated, “I simply no longer want to have anything to do with the Selective Service System.” Id.He not only tried but perhaps even wanted to violate the Act. 395 F.2d at 910 (dissenting opinion). Nevertheless, the Supreme Court considered his challenge to the validity of his draft classification as a defense to the prosecution for refusing to obey an order to report, concluded that his classification was incorrect and therefore the order to report was invalid, and reversed and remanded for the entry of a judgment of acquittal.