Sincerity Precedents

[Rev. Joshua Snider]

Louv,

Here are cases for the low burden in establishing sincerity. The Atheist cases of Seeger and Welsh are first. Earlier where I was citing Wallace v. Jaffree I meant to be citing Frazee v. Illinois Department of Employment Security 489 U.S. 829 (1989).

One louv,
Joshua

P.S warning the following is extremely long. It contains the full decisions of the following cases not in eact order United States v. Seeger, 380 U.S. 163 (1965), Cantwell v. Connecticut, 310 U.S. 296 (1940), United States v.Ballard, 322 U.S. 78 (1944), Welsh v. United States, 398 U.S. 333 (1970), Thomas v. ReviewBd. of Indiana Employment Security Div., 450 U.S. 707 (1981) and Frazee v. Illinois Department of Employment Security 489 U.S. 829 (1989)

UNITED STATES v. SEEGER

No. 50

SUPREME COURT OF THE UNITED STATES

380 U.S. 163; 85 S. Ct. 850; 13 L. Ed. 2d 733; 1965 U.S. LEXIS 1666

November 16-17, 1964, Argued

March 8, 1965, Decided *

* Together with No. 51, United States v. Jakobson, on certiorari to the same court, and No. 29, Peter v. United States, on certiorari to the United States Court of Appeals for the Ninth Circuit.

PRIOR HISTORY: CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

DISPOSITION: 326 F.2d 846 and 325 F.2d 409, affirmed; 324 F.2d 173, reversed.

SUMMARY:

The present cases involved the construction of the provision of 6(j) of the Universal Military Training and Service Act of 1948 which, as a prerequisite of exempting a conscientious objector from military service, requires his belief in a relation to a Supreme Being involving duties superior to those arising from any human relation. In No. 50 defendant's claim to exemption as conscientious objector was denied after he, professing religious belief and faith and not disavowing, although not clearly demonstrating, any belief in a relation to a Supreme Being, stated that "the cosmic order does, perhaps, suggest a creative intelligence" and decried the tremendous "spiritual" price man must pay for his willingness to destroy human life. He was convicted in the District Court for the Southern District of New York of having refused to submit to induction in the Armed Forces. His conviction was reversed by the Court of Appeals for the Second Circuit. (326 F2d 846.) In No. 51 the registrant stated that he believed in a "Supreme Being" who was "Creator of Man" in the sense of being "ultimately responsible for the existence of" man and who was "the Supreme Reality" of which "the existence of man is the result." He was convicted in the same District Court of the same offense, and his conviction was also reversed by the Court of Appeals for the Second Circuit. (325 F2d 409.) In No. 29 the registrant, although hedging the question as to his belief in a Supreme Being, acknowledged "some power manifest in nature … the supreme expression" that helps man in ordering his life. He was also convicted of the same offense in the United States District Court for the Northern District of California and his conviction was affirmed by the Court of Appeals for the Ninth Circuit. (324 F2d 173.)

On writs of certiorari, the United States Supreme Court affirmed the judgments in Nos. 50 and 51, and reversed the judgment in No. 29. In an opinion by Clark, J., expressing the unanimous views of the Court, it was held that (1) the statute, in using the expression "Supreme Being" rather than the designation "God," was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views, (2) under this construction the test of belief "in a relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption, and (3) the registrants in all three cases met this test.

Douglas, J., concurred in a separate opinion, expressing the view that a construction of the statute contrary to the one adopted by the Court, would violate the "free exercise clause" of the First Amendment and would result in a denial of equal protection by preferring some religions over others.


SYLLABUS


These three cases involve the exemption claims under § 6 (j) of the Universal Military Training and Service Act of conscientious objectors who did not belong to an orthodox religious sect. Section 6 (j) excepts from combatant service in the armed forces those who are conscientiously opposed to participation in war by reason of their "religious training and belief," i. e., belief in an individual's relation to a Supreme Being involving duties beyond a human relationship but not essentially political, sociological, or philosophical views or a merely personal moral code. In all the cases convictions were obtained in the District Courts for refusal to submit to induction in the armed forces; in Nos. 50 and 51 the Court of Appeals reversed and in No. 29 the conviction was affirmed.

Held:

1. The test of religious belief within the meaning of the exemption in § 6 (j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. Pp. 173-180.

(a) The exemption does not cover those who oppose war from a merely personal moral code nor those who decide that war is wrong on the basis of essentially political, sociological or economic considerations rather than religious belief. P. 173.

(b) There is no issue here of atheistic beliefs and accordingly the decision does not deal with that question. Pp. 173-174.

(c) This test accords with long-established legislative policy of equal treatment for those whose objection to military service is based on religious beliefs. Pp. 177-180.

2. Local boards and courts are to decide whether the objector's beliefs are sincerely held and whether they are, in his own scheme of things, religious; they are not to require proof of the religious doctrines nor are they to reject beliefs because they are not comprehensible. Pp. 184-185.

3. Under the broad construction applicable to § 6 (j) the applications involved in these cases, none of which was based on merely personal moral codes, qualified for exemption. Pp. 185-188.

COUNSEL: Solicitor General Cox argued the cause for the United States in all cases. Assistant Attorney General Miller was with him on the briefs in all cases. Ralph S. Spritzer was with him on the briefs in Nos. 50 and 51, and Marshall Tamor Golding was with him on the briefs in No. 50.

Duane B. Beeson argued the cause and filed a brief for petitioner in No. 29.

Kenneth W. Greenawalt argued the cause and filed a brief for respondent in No. 50.

Herman Adlerstein argued the cause and filed a brief for respondent in No. 51.

Briefs of amici curiae, urging affirmance in Nos. 50 and 51 and reversal in No. 29, were filed by Alfred Lawrence Toombs and Melvin L. Wulf for the American Civil Liberties Union, and by Leo Pfeffer, Shad Polier, Will Maslow and Joseph B. Robison for the American Jewish Congress. Briefs of amici curiae, urging affirmance in No. 50, were filed by Herbert A. Wolff, Leo Rosen, Nanette Dembitz and Nancy F. Wechsler for the American Ethical Union, and by Tolbert H. McCarroll, Lester Forest and Paul Blanshard for the American Humanist Association.

JUDGES: Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg

OPINION BY: CLARK

OPINION


[*164] [***736] [**853] MR. JUSTICE CLARK delivered the opinion of the Court.

These cases involve claims of conscientious objectors under § 6 (j) of the Universal Military Training and Service Act, 50 U. S. C. App. § 456 (j) (1958 ed.), which exempts from combatant training and service in the armed forces of the United States those persons who by [*165] reason of their religious training and belief are conscientiously opposed to participation in war in any form. The cases were consolidated for argument and we consider them together although each involves different facts and circumstances. The parties raise the basic question of the constitutionality of the section which defines the term "religious training and belief," as used in the Act, as "an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, [**854] sociological, or philosophical views or a merely personal moral code." The constitutional attack is launched under the First Amendment's Establishment and Free Exercise Clauses and is twofold: (1) The section does not exempt nonreligious conscientious objectors; and (2) it discriminates between different forms of religious expression in violation of the Due Process Clause of the Fifth Amendment. Jakobson (No. 51) and Peter (No. 29) also claim that their beliefs come within the meaning of the section. Jakobson claims that he meets the standards [***737] of § 6 (j) because his opposition to war is based on belief in a Supreme Reality and is therefore an obligation superior to one resulting from man's relationship to his fellow man. Peter contends that his opposition to war derives from his acceptance of the existence of a universal power beyond that of man and that this acceptance in fact constitutes belief in a Supreme Being, qualifying him for exemption. We granted certiorari in each of the cases because of their importance in the administration of the Act. 377 U.S. 922.

[***LEdHR1A] LEdHN[1A][1A] [***LEdHR2A] LEdHN[2A][2A]

We have concluded that Congress, in using the expression "Supreme Being" rather than the designation "God," was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief [*166] "in a relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is "in a relation to a Supreme Being" and the other is not. We have concluded that the beliefs of the objectors in these cases meet these criteria, and, accordingly, we affirm the judgments in Nos. 50 and 51 and reverse the judgment in No. 29.

THE FACTS IN THE CASES.

No. 50: Seeger was convicted in the District Court for the Southern District of New York of having refused to submit to induction in the armed forces. He was originally classified 1-A in 1953 by his local board, but this classification was changed in 1955 to 2-S (student) and he remained in this status until 1958 when he was reclassified 1-A. He first claimed exemption as a conscientious objector in 1957 after successive annual renewals of his student classification. Although he did not adopt verbatim the printed Selective Service System form, he declared that he was conscientiously opposed to participation in war in any form by reason of his "religious" belief; that he preferred to leave the question as to his belief in a Supreme Being open, "rather than answer 'yes' or 'no'"; that his "skepticism or disbelief in the existence of God" did "not necessarily mean lack of faith in anything whatsoever"; that his was a "belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed." R. 69-70, 73. He cited such personages as Plato, Aristotle and Spinoza for support of his ethical belief in intellectual and moral integrity "without belief in God, except in the remotest sense." R. 73. His belief was found to be sincere, honest, [*167] and made in good faith; and his conscientious objection to be based upon individual training and belief, both of which included research in religious and cultural fields. Seeger's claim, however, was denied solely because it was not based upon a "belief in a relation to a Supreme Being" as required by § 6 (j) of the Act. At trial Seeger's counsel admitted that Seeger's belief was not in relation to a Supreme Being as commonly understood, but contended that he was entitled to the exemption because "under the present law Mr. [**855] Seeger's position would also include definitions of religion which have been [***738] stated more recently," R. 49, and could be "accommodated" under the definition of religious training and belief in the Act, R. 53. He was convicted and the Court of Appeals reversed, holding that the Supreme Being requirement of the section distinguished "between internally derived and externally compelled beliefs" and was, therefore, an "impermissible classification" under the Due Process Clause of the Fifth Amendment. 326 F.2d 846.

No. 51: Jakobson was also convicted in the Southern District of New York on a charge of refusing to submit to induction. On his appeal the Court of Appeals reversed on the ground that rejection of his claim may have rested on the factual finding, erroneously made, that he did not believe in a Supreme Being as required by § 6 (j). 325 F.2d 409.

Jakobson was originally classified 1-A in 1953 and intermittently enjoyed a student classification until 1956. It was not until April 1958 that he made claim to noncombatant classification (1-A-O) as a conscientious objector. He stated on the Selective Service System form that he believed in a "Supreme Being" who was "Creator of Man" in the sense of being "ultimately responsible for the existence of" man and who was "the Supreme Reality" of which "the existence of man is the result." R. 44. (Emphasis in the original.) He explained that his religious [*168] and social thinking had developed after much meditation and thought. He had concluded that man must be "partly spiritual" and, therefore, "partly akin to the Supreme Reality"; and that his "most important religious law" was that "no man ought ever to wilfully sacrifice another man's life as a means to any other end . . . ." R. 45-46. In December 1958 he requested a 1-O classification since he felt that participation in any form of military service would involve him in "too many situations and relationships that would be a strain on [his] conscience that [he felt he] must avoid." R. 70. He submitted a long memorandum of "notes on religion" in which he defined religion as the "sum and essence of one's basic attitudes to the fundamental problems of human existence," R. 72 (emphasis in the original); he said that he believed in "Godness" which was "the Ultimate Cause for the fact of the Being of the Universe"; that to deny its existence would but deny the existence of the universe because "anything that Is, has an Ultimate Cause for its Being." R. 73. There was a relationship to Godness, he stated, in two directions, i. e., "vertically, towards Godness directly," and "horizontally, towards Godness through Mankind and the World." R. 74. He accepted the latter one. The Board classified him 1-A-O and Jakobson appealed. The hearing officer found that the claim was based upon a personal moral code and that he was not sincere in his claim. The Appeal Board classified him 1-A. It did not indicate upon what ground it based its decision, i. e., insincerity or a conclusion that his belief was only a personal moral code. The Court of Appeals reversed, finding that his claim came within the requirements of § 6 (j). Because it could not determine whether the Appeal Board had found that Jakobson's beliefs failed to come within the statutory definition, or whether it had concluded that he lacked sincerity, it directed dismissal of the indictment.

[*169] No. 29: Forest Britt Peter was convicted in the Northern District [***739] of California on a charge of refusing to submit to induction. In his Selective Service System form he stated that he was not a member of a religious sect or organization; he failed to execute section VII of the questionnaire but attached to it a quotation expressing opposition to war, in which he stated that he concurred. In a later form he hedged the question as to his belief in a Supreme Being by saying that it depended on the definition [**856] and he appended a statement that he felt it a violation of his moral code to take human life and that he considered this belief superior to his obligation to the state. As to whether his conviction was religious, he quoted with approval Reverend John Haynes Holmes' definition of religion as "the consciousness of some power manifest in nature which helps man in the ordering of his life in harmony with its demands . . . [; it] is the supreme expression of human nature; it is man thinking his highest, feeling his deepest, and living his best." R. 27. The source of his conviction he attributed to reading and meditation "in our democratic American culture, with its values derived from the western religious and philosophical tradition." Ibid. As to his belief in a Supreme Being, Peter stated that he supposed "you could call that a belief in the Supreme Being or God. These just do not happen to be the words I use." R. 11. In 1959 he was classified 1-A, although there was no evidence in the record that he was not sincere in his beliefs. After his conviction for failure to report for induction the Court of Appeals, assuming arguendo that he was sincere, affirmed, 324 F.2d 173.

BACKGROUND OF § 6 (j).

Chief Justice Hughes, in his opinion in United States v. Macintosh, 283 U.S. 605 (1931), enunciated the rationale behind the long recognition of conscientious objection [*170] to participation in war accorded by Congress in our various conscription laws when he declared that "in the forum of conscience, duty to a moral power higher than the State has always been maintained." At 633 (dissenting opinion). In a similar vein Harlan Fiske Stone, later Chief Justice, drew from the Nation's past when he declared that

"both morals and sound policy require that the state should not violate the conscience of the individual. All our history gives confirmation to the view that liberty of conscience has a moral and social value which makes it worthy of preservation at the hands of the state. So deep in its significance and vital, indeed, is it to the integrity of man's moral and spiritual nature that nothing short of the self-preservation of the state should warrant its violation; and it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process." Stone, The Conscientious Objector, 21 Col. Univ. Q. 253, 269 (1919).

Governmental recognition of the moral dilemma posed for persons of certain religious faiths by the call to arms came early in the history of this country. Various methods of ameliorating their difficulty were adopted by the Colonies, and were later perpetuated in state statutes and constitutions. Thus by the time of the Civil War there existed a state pattern of exempting conscientious objectors on religious grounds. In the Federal Militia Act of 1862 control of conscription was left primarily in the States. However, General Order No. 99, issued by the Adjutant General pursuant to that Act, [***740] provided for striking from the conscription list those who were exempted by the States; it also established a commutation or substitution system fashioned from earlier state enactments. With the Federal Conscription Act of 1863, [*171] which enacted the commutation and substitution provisions of General Order No. 99, the Federal Government occupied the field entirely, and in the 1864 Draft Act, 13 Stat. 9, it extended exemptions to those conscientious objectors who were members of religious denominations opposed to the bearing of arms and who were prohibited from doing so by the articles of faith of their denominations. Selective Service System Monograph No. 11, Conscientious Objection 40-41 [**857] (1950). In that same year the Confederacy exempted certain pacifist sects from military duty. Id., at 46.

The need for conscription did not again arise until World War I. The Draft Act of 1917, 40 Stat. 76, 78, afforded exemptions to conscientious objectors who were affiliated with a "well-recognized religious sect or organization [then] organized and existing and whose existing creed or principles [forbade] its members to participate in war in any form . . . ." The Act required that all persons be inducted into the armed services, but allowed the conscientious objectors to perform noncombatant service in capacities designated by the President of the United States. Although the 1917 Act excused religious objectors only, in December 1917, the Secretary of War instructed that "personal scruples against war" be considered as constituting "conscientious objection." Selective Service System Monograph No. 11, Conscientious Objection 54-55 (1950). This Act, including its conscientious objector provisions, was upheld against constitutional attack in the Selective Draft Law Cases, 245 U.S. 366, 389-390 (1918).

In adopting the 1940 Selective Training and Service Act Congress broadened the exemption afforded in the 1917 Act by making it unnecessary to belong to a pacifist religious sect if the claimant's own opposition to war was based on "religious training and belief." 54 Stat. 889. Those found to be within the exemption were [*172] not inducted into the armed services but were assigned to noncombatant service under the supervision of the Selective Service System. The Congress recognized that one might be religious without belonging to an organized church just as surely as minority members of a faith not opposed to war might through religious reading reach a conviction against participation in war. Congress Looks at the Conscientious Objector (National Service Board for Religious Objectors, 1943) 71, 79, 83, 87, 88, 89. Indeed, the consensus of the witnesses appearing before the congressional committees was that individual belief -- rather than membership in a church or sect -- determined the duties that God imposed upon a person in his everyday conduct; and that "there is a higher loyalty than loyalty to this country, loyalty to God." Id., at 29-31. See also the proposals which were made to the House Military Affairs Committee but rejected. Id., at 21-23, 82-83, 85. Thus, while shifting the test from membership in such a church to one's individual belief the Congress nevertheless continued its historic practice of excusing from armed service those who believed that they owed an obligation, superior to that due the state, of not participating in war in any form.

Between 1940 and 1948 two courts [***741] of appeals 1 held that the phrase "religious training and belief" did not include philosophical, social or political policy. Then in 1948 the Congress amended the language of the statute and declared that "religious training and belief" was to be defined as "an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code." The only significant mention of [*173] this change in the provision appears in the report of the Senate Armed Services Committee recommending adoption. It said simply this: "This section reenacts substantially the same provisions as were found in subsection 5 (g) of the 1940 act. Exemption extends to anyone who, because of religious training and belief in his relation to a Supreme Being, is conscientiously opposed to combatant military service or to both combatant and noncombatant military service. (See United States v. Berman [sic], 156 F. (2d) 377, certiorari denied, 329 U.S. 795.)" S. Rep. No. [**858] 1268, 80th Cong., 2d Sess., 14.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

1 See United States v. Kauten, 133 F.2d 703 (C. A. 2d Cir. 1943); Berman v. United States, 156 F.2d 377 (C. A. 9th Cir. 1946).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

INTERPRETATION OF § 6 (j).

1. The crux of the problem lies in the phrase "religious training and belief" which Congress has defined as "belief in a relation to a Supreme Being involving duties superior to those arising from any human relation." In assigning meaning to this statutory language we may narrow the inquiry by noting briefly those scruples expressly excepted from the definition. The section excludes those persons who, disavowing religious belief, decide on the basis of essentially political, sociological or economic considerations that war is wrong and that they will have no part of it. These judgments have historically been reserved for the Government, and in matters which can be said to fall within these areas the conviction of the individual has never been permitted to override that of the state. United States v. Macintosh, supra (dissenting opinion). The statute further excludes those whose opposition to war stems from a "merely personal moral code," a phrase to which we shall have occasion to turn later in discussing the application of § 6 (j) to these cases. We also pause to take note of what is not involved in this litigation. No party claims to be an atheist or attacks the statute on this ground. The question is not, therefore, one between theistic and atheistic beliefs. We do not deal with [*174] or intimate any decision on that situation in these cases. Nor do the parties claim the monotheistic belief that there is but one God; what they claim (with the possible exception of Seeger who bases his position here not on factual but on purely constitutional grounds) is that they adhere to theism, which is the "Belief in the existence of a god or gods; . . . Belief in superhuman powers or spiritual agencies in one or many gods," as opposed to atheism. 2 Our question, therefore, is the narrow one: Does the term "Supreme Being" as used in § 6 (j) mean the orthodox God or the broader concept of a power or being, or a faith, "to which all else is subordinate or upon which all else is ultimately dependent"? Webster's New International Dictionary (Second Edition). In considering this [***742] question we resolve it solely in relation to the language of § 6 (j) and not otherwise.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

2 See Webster's New International Dictionary (Second Edition); Webster's New Collegiate Dictionary (1949).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

2. Few would quarrel, we think, with the proposition that in no field of human endeavor has the tool of language proved so inadequate in the communication of ideas as it has in dealing with the fundamental questions of man's predicament in life, in death or in final judgment and retribution. This fact makes the task of discerning the intent of Congress in using the phrase "Supreme Being" a complex one. Nor is it made the easier by the richness and variety of spiritual life in our country. Over 250 sects inhabit our land. Some believe in a purely personal God, some in a supernatural deity; others think of religion as a way of life envisioning as its ultimate goal the day when all men can live together in perfect understanding and peace. There are those who think of God as the depth of our being; others, such as the Buddhists, strive for a state of lasting rest through self-denial and inner purification; in Hindu philosophy, the Supreme Being is [*175] the transcendental reality which is truth, knowledge and bliss. Even those religious groups which have traditionally opposed war in every form have splintered into various denominations: from 1940 to 1947 there were four denominations using the name "Friends," Selective Service System Monograph No. 11, Conscientious Objection 13 (1950); the "Church of the Brethren" was the official name of the oldest and largest church body of four denominations composed of those commonly called Brethren, id., at 11; and the "Mennonite Church" was the largest of 17 denominations, including the Amish and Hutterites, grouped as [**859] "Mennonite bodies" in the 1936 report on the Census of Religious Bodies, id., at 9. This vast panoply of beliefs reveals the magnitude of the problem which faced the Congress when it set about providing an exemption from armed service. It also emphasizes the care that Congress realized was necessary in the fashioning of an exemption which would be in keeping with its long-established policy of not picking and choosing among religious beliefs.

In spite of the elusive nature of the inquiry, we are not without certain guidelines. In amending the 1940 Act, Congress adopted almost intact the language of Chief Justice Hughes in United States v. Macintosh, supra:

"The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." At 633-634. (Emphasis supplied.)

By comparing the statutory definition with those words, however, it becomes readily apparent that the Congress deliberately broadened them by substituting the phrase "Supreme Being" for the appellation "God." And in so doing it is also significant that Congress did not elaborate on the form or nature of this higher authority which it chose to designate as "Supreme Being." By so refraining it must have had in mind the admonitions of the Chief [*176] Justice when he said in the same opinion that even the word "God" had myriad meanings for men of faith:

"Putting aside dogmas with their particular conceptions of deity, freedom of conscience itself implies respect for an innate conviction of paramount duty. The battle for religious liberty has been fought and won with respect to religious beliefs and practices, which are not in conflict with good order, upon the [***743] very ground of the supremacy of conscience within its proper field." At 634.

Moreover, the Senate Report on the bill specifically states that § 6 (j) was intended to re-enact "substantially the same provisions as were found" in the 1940 Act. That statute, of course, refers to "religious training and belief" without more. Admittedly, all of the parties here purport to base their objection on religious belief. It appears, therefore, that we need only look to this clear statement of congressional intent as set out in the report. Under the 1940 Act it was necessary only to have a conviction based upon religious training and belief; we believe that is all that is required here. Within that phrase would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent. The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition. This construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well-established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets.



[*177] [***LEdHR3] LEdHN[3][3] [***LEdHR4] LEdHN[4][4]3. The Government takes the position that since Berman v. United States, supra, was cited in the Senate Report on the 1948 Act, Congress must have desired to adopt the Berman interpretation of what constitutes "religious belief." Such a claim, however, will not bear scrutiny. First, we think it clear that an explicit statement of congressional intent deserves more weight than the parenthetical citation of a case which might stand for a number of things. Congress specifically stated that it intended to re-enact substantially the same provisions as were [**860] found in the 1940 Act. Moreover, the history of that Act reveals no evidence of a desire to restrict the concept of religious belief. On the contrary the Chairman of the House Military Affairs Committee which reported out the 1940 exemption provisions stated:

"We heard the conscientious objectors and all of their representatives that we could possibly hear, and, summing it all up, their whole objection to the bill, aside from their objection to compulsory military training, was based upon the right of conscientious objection and in most instances to the right of the ministerial students to continue in their studies, and we have provided ample protection for those classes and those groups." 86 Cong. Rec. 11368 (1940).

During the House debate on the bill, Mr. Faddis of Pennsylvania made the following statement:

"We have made provision to take care of conscientious objectors. I am sure the committee has had all the sympathy in the world with those who appeared claiming to have religious scruples against rendering military service in its various degrees. Some appeared who had conscientious scruples against handling lethal weapons, but who had no [*178] scruples against performing other duties which did not actually bring them into combat. Others appeared who claimed to have conscientious scruples against participating in any of the activities that would go along with the Army. The committee [***744] took all of these into consideration and has written a bill which, I believe, will take care of all the reasonable objections of this class of people." 86 Cong. Rec. 11418 (1940).

Thus the history of the Act belies the notion that it was to be restrictive in application and available only to those believing in a traditional God.

[***LEdHR5] LEdHN[5][5]As for the citation to Berman, it might mean a number of things. But we think that Congress' action in citing it must be construed in such a way as to make it consistent with its express statement that it meant substantially to re-enact the 1940 provision. As far as we can find, there is not one word to indicate congressional concern over any conflict between Kauten and Berman. Surely, if it thought that two clashing interpretations as to what amounted to "religious belief" had to be resolved, it would have said so somewhere in its deliberations. Thus, we think that rather than citing Berman for what it said "religious belief" was, Congress cited it for what it said "religious belief" was not. For both Kauten and Berman hold in common the conclusion that exemption must be denied to those whose beliefs are political, social or philosophical in nature, rather than religious. Both, in fact, denied exemption on that very ground. It seems more likely, therefore, that it was this point which led Congress to cite Berman. The first part of the § 6 (j) definition -- belief in a relation to a Supreme Being -- was indeed set out in Berman, with the exception that the court used the word "God" rather than "Supreme Being." However, as the Government recognizes, Berman took that language word for word from Macintosh. Far from [*179] requiring a conclusion contrary to the one we reach here, Chief Justice Hughes' opinion, as we have pointed out, supports our interpretation.

Admittedly, the second half of the statutory definition -- the rejection of sociological and moral views -- was taken directly from Berman. But, as we have noted, this same view was adhered to in United States v. Kauten, supra. Indeed the Selective Service System has stated its view of the cases' significance in these terms: "The United States v. Kauten and Herman Berman v. United States cases ruled that a valid conscientious objector claim to exemption must be based solely on 'religious training and belief' and not [**861] on philosophical, political, social, or other grounds . . . ." Selective Service System Monograph No. 11, Conscientious Objection 337 (1950). See id., at 278. That the conclusions of the Selective Service System are not to be taken lightly is evidenced in this statement by Senator Gurney, Chairman of the Senate Armed Services Committee and sponsor of the Senate bill containing the present version of § 6 (j):

"The bill which is now pending follows the 1940 act, with very few technical amendments, worked out by those in Selective Service who had charge of the conscientious-objector problem during the war." 94 Cong. Rec. 7305 (1948).

Thus we conclude that in enacting § 6 (j) Congress simply made explicit what the courts of appeals had correctly found implicit in the 1940 Act. Moreover, it is perfectly reasonable that Congress should have selected Berman for its citation, since this Court denied certiorari in that case, a circumstance not present in Kauten.

[***LEdHR6] LEdHN[6][6]Section 6 (j), then, is no more [***745] than a clarification of the 1940 provision involving only certain "technical amendments," to use the words of Senator Gurney. As such it continues the congressional policy of providing exemption from military service for those whose opposition [*180] is based on grounds that can fairly be said to be "religious." 3 To hold otherwise would not only fly in the face of Congress' entire action in the past; it would ignore the historic position of our country on this issue since its founding.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

3 A definition of "religious training and belief" identical to that in § 6 (j) is found in § 337 of the Immigration and Nationality Act, 66 Stat. 258, 8 U. S. C. § 1448 (a) (1958 ed.). It is noteworthy that in connection with this Act, the Senate Special Subcommittee to Investigate Immigration and Naturalization stated: "The subcommittee realizes and respects the fact that the question of whether or not a person must bear arms in defense of his country may be one which invades the province of religion and personal conscience." Thus, it recommended that an alien not be required to vow to bear arms when he asserted "his opposition to participation in war in any form because of his personal religious training and belief." S. Rep. No. 1515, 81st Cong., 2d Sess., 742, 746.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

4. Moreover, we believe this construction embraces the ever-broadening understanding of the modern religious community. The eminent Protestant theologian, Dr. Paul Tillich, whose views the Government concedes would come within the statute, identifies God not as a projection "out there" or beyond the skies but as the ground of our very being. The Court of Appeals stated in No. 51 that Jakobson's views "parallel [those of] this eminent theologian rather strikingly." 325 F.2d, at 415-416. In his book, Systematic Theology, Dr. Tillich says:

"I have written of the God above the God of theism . . . . In such a state [of self-affirmation] the God of both religious and theological language disappears. But something remains, namely, the seriousness of that doubt in which meaning within meaninglessness is affirmed. The source of this affirmation of meaning within meaninglessness, of certitude within doubt, is not the God of traditional theism but the 'God above God,' the power of being, which works through those who have no name for it, not even the name God." II Systematic Theology 12 (1957).

[*181] Another eminent cleric, the Bishop of Woolwich, John A. T. Robinson, in his book, Honest To God (1963), states:

"The Bible speaks of a God 'up there.' No doubt its picture of a three-decker universe, of 'the heaven above, the earth beneath and the waters under the earth,' was once taken quite literally. . . ." At 11. "[Later] in place of a God who is literally or physically 'up there' we have accepted, as part of our mental [**862] furniture, a God who is spiritually or metaphysically 'out there.' . . . But now it seems there is no room for him, not merely in the inn, but in the entire universe: for there are no vacant places left. In reality, of course, our new view of the universe has made not the slightest difference. . . ." At 13-14.

"But the idea of a God spiritually or metaphysically 'out there' dies very much harder. Indeed, most people would be seriously disturbed by the thought that it should need to die at all. For it is their God, and they have nothing to put in its place. . . . Every one of us lives with some mental picture of a God 'out there,' a God who 'exists' above and beyond the world he made, a God 'to' whom we pray and to whom we 'go' when we die." At 14.

"But the signs are that we are reaching [***746] the point at which the whole conception of a God 'out there,' which has served us so well since the collapse of the three-decker universe, is itself becoming more of a hindrance than a help." At 15-16. (Emphasis in original.)

The Schema of the recent Ecumenical Council included a most significant declaration on religion: 4

[*182] "The community of all peoples is one. One is their origin, for God made the entire human race live on all the face of the earth. One, too, is their ultimate end, God. Men expect from the various religions answers to the riddles of the human condition: What is man? What is the meaning and purpose of our lives? What is the moral good and what is sin? What are death, judgment, and retribution after death?

. . . .

"Ever since primordial days, numerous peoples have had a certain perception of that hidden power which hovers over the course of things and over the events that make up the lives of men; some have even come to know of a Supreme Being and Father. Religions in an advanced culture have been able to use more refined concepts and a more developed language in their struggle for an answer to man's religious questions.

. . . .

"Nothing that is true and holy in these religions is scorned by the Catholic Church. Ceaselessly the Church proclaims Christ, 'the Way, the Truth, and the Life,' in whom God reconciled all things to Himself. The Church regards with sincere reverence those ways of action and of life, precepts and teachings which, although they differ from the ones she sets forth, reflect nonetheless a ray of that Truth which enlightens all men."

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

4 Draft declaration on the Church's relations with non-Christians, Council Daybook, Vatican II, 3d Sess., p. 282, N. C. W. C., Washington, D. C., 1965.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Dr. David Saville Muzzey, a leader in the Ethical Culture Movement, states in his book, Ethics As a Religion (1951), that "everybody except the avowed atheists (and they are comparatively few) believes in some kind of God," and that "The proper question to ask, therefore, is [*183] not the futile one, Do you believe in God? but rather, What kind of God do you believe in?" Id., at 86-87. Dr. Muzzey attempts to answer that question:

"Instead of positing a personal God, whose existence man can neither prove nor disprove, the ethical concept is founded on human experience. It is anthropocentric, not theocentric. Religion, for all the various definitions that have been given of it, must surely mean the devotion of man to the highest ideal that he can conceive. And that ideal is a community of spirits in which the latent moral potentialities of men shall have been elicited by their reciprocal endeavors to cultivate the [**863] best in their fellow men. What ultimate reality is we do not know; but we have the faith that it expresses itself in the human world as the power which inspires in men moral purpose." At 95.

"Thus the 'God' that we love is not the figure on the great white throne, but the perfect pattern, envisioned by faith, of humanity as it should be, purged of the evil elements which retard its progress toward 'the knowledge, love and practice of the right.'" At 98.

These are but a few of the views that comprise the broad spectrum of religious beliefs found among us. But they demonstrate very clearly the diverse manners in which beliefs, equally paramount in the lives of their possessors, may be articulated. They further reveal the difficulties [***747] inherent in placing too narrow a construction on the provisions of § 6 (j) and thereby lend conclusive support to the construction which we today find that Congress intended.

[***LEdHR1B] LEdHN[1B][1B]

5. We recognize the difficulties that have always faced the trier of fact in these cases. We hope that the test that we lay down proves less onerous. The examiner is furnished [*184] a standard that permits consideration of criteria with which he has had considerable experience. While the applicant's words may differ, the test is simple of application. It is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?

Moreover, it must be remembered that in resolving these exemption problems one deals with the beliefs of different individuals who will articulate them in a multitude of ways. In such an intensely personal area, of course, the claim of the registrant that his belief is an essential part of a religious faith must be given great weight. Recognition of this was implicit in this language, cited by the Berman court from State v. Amana Society, 132 Iowa 304, 109 N. W. 894 (1906):



"Surely a scheme of life designed to obviate [man's inhumanity to man], and by removing temptations, and all the allurements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service, ought not to be denounced as not pertaining to religion when its devotees regard it as an essential tenet of their religious faith." 132 Iowa, at 315, 109 N. W., at 898, cited in Berman v. United States, 156 F.2d 377, 381. (Emphasis by the Court of Appeals.)

[***LEdHR7] LEdHN[7][7]The validity of what he believes cannot be questioned. Some theologians, and indeed some examiners, might be tempted to question the existence of the registrant's "Supreme Being" or the truth of his concepts. But these are inquiries foreclosed to Government. As MR. JUSTICE DOUGLAS stated in United States v. Ballard, 322 U.S. 78, 86 (1944): "Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others." Local [*185] boards and courts in this sense are not free to reject beliefs because they consider them "incomprehensible." Their task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.

[***LEdHR8] LEdHN[8][8]But we hasten to emphasize that while the "truth" of a belief is not open to question, there remains the significant question whether it is "truly held." This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact -- a prime consideration to the validity of every claim for exemption as a conscientious objector. The Act provides a comprehensive scheme for assisting the [**864] Appeal Boards in making this determination, placing at their service the facilities of the Department of Justice, including the Federal Bureau of Investigation and hearing officers. Finally, we would point out that in Estep v. United States, 327 U.S. 114 (1946), this Court held that:

"The provision making the decisions of the local boards 'final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review [***748] which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant." At 122-123.

APPLICATION OF § 6 (j) TO THE INSTANT CASES.

[***LEdHR9] LEdHN[9][9] [***LEdHR10] LEdHN[10][10]As we noted earlier, the statutory definition excepts those registrants whose beliefs are based on a "merely personal moral code." The records in these cases, however, [*186] show that at no time did any one of the applicants suggest that his objection was based on a "merely personal moral code." Indeed at the outset each of them claimed in his application that his objection was based on a religious belief. We have construed the statutory definition broadly and it follows that any exception to it must be interpreted narrowly. 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. It follows, therefore, that if the claimed religious beliefs of the respective registrants in these cases meet the test that we lay down then their objections cannot be based on a "merely personal" moral code.

[***LEdHR11] LEdHN[11][11]In Seeger, No. 50, the Court of Appeals failed to find sufficient "externally compelled beliefs." However, it did find that "it would seem impossible to say with assurance that [Seeger] is not bowing to 'external commands' in virtually the same sense as is the objector who defers to the will of a supernatural power." 326 F.2d, at 853.It found little distinction between Jakobson's devotion to a mystical force of "Godness" and Seeger's compulsion to "goodness." Of course, as we have said, the statute does not distinguish between externally and internally derived beliefs. Such a determination would, as the Court of Appeals observed, prove impossible as a practical matter, and we have found that Congress intended no such distinction.

The Court of Appeals also found that there was no question of the applicant's sincerity. He was a product of a devout Roman Catholic home; he was a close student of Quaker beliefs from which he said "much of [his] thought is derived"; he approved of their opposition to war in any form; he devoted his spare hours to the American [*187] Friends Service Committee and was assigned to hospital duty.

[***LEdHR2B] LEdHN[2B][2B]

In summary, Seeger professed "religious belief" and "religious faith." He did not disavow any belief "in a relation to a Supreme Being"; indeed he stated that "the cosmic order does, perhaps, suggest a creative intelligence." He decried the tremendous "spiritual" price man must pay for his willingness to destroy human life. In light of his beliefs and the unquestioned sincerity with which he held them, we think the Board, had it applied the test we propose today, would have granted him the exemption. We think it clear [**865] that the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers. [***749] We are reminded once more of Dr. Tillich's thoughts:

"And if that word [God] has not much meaning for you, translate it, and speak of the depths of your life, of the source of your being, of your ultimate concern, of what you take seriously without any reservation. Perhaps, in order to do so, you must forget everything traditional that you have learned about God . . . ." Tillich, The Shaking of the Foundations 57 (1948). (Emphasis supplied.)

It may be that Seeger did not clearly demonstrate what his beliefs were with regard to the usual understanding of the term "Supreme Being." But as we have said Congress did not intend that to be the test. We therefore affirm the judgment in No. 50.

In Jakobson, No. 51, the Court of Appeals found that the registrant demonstrated that his belief as to opposition to war was related to a Supreme Being. We agree and affirm that judgment.

We reach a like conclusion in No. 29. It will be remembered that Peter acknowledged "some power manifest in [*188] nature . . . the supreme expression" that helps man in ordering his life. As to whether he would call that belief in a Supreme Being, he replied, "you could call that a belief in the Supreme Being or God. These just do not happen to be the words I use." We think that under the test we establish here the Board would grant the exemption to Peter and we therefore reverse the judgment in No. 29.

It is so ordered.

CONCUR BY: DOUGLAS

CONCUR


MR. JUSTICE DOUGLAS, concurring.

[***LEdHR12] LEdHN[12][12]If I read the statute differently from the Court, I would have difficulties. For then those who embraced one religious faith rather than another would be subject to penalties; and that kind of discrimination, as we held in Sherbert v. Verner, 374 U.S. 398, would violate the Free Exercise Clause of the First Amendment. It would also result in a denial of equal protection by preferring some religions over others -- an invidious discrimination that would run afoul of the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497.

The legislative history of this Act leaves much in the dark. But it is, in my opinion, not a tour de force if we construe the words "Supreme Being" to include the cosmos, as well as an anthropomorphic entity. If it is a tour de force so to hold, it is no more so than other instances where we have gone to extremes to construe an Act of Congress to save it from demise on constitutional grounds. In a more extreme case than the present one we said that the words of a statute may be strained "in the candid service of avoiding a serious constitutional doubt." United States v. Rumely, 345 U.S. 41, 47. 1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

1 And see Crowell v. Benson, 285 U.S. 22, 62; Ullmann v. United States, 350 U.S. 422, 433; Ashwander v. TVA, 297 U.S. 288, 341, 348 (concurring opinion).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*189] The words "a Supreme Being" have no narrow technical meaning in [***750] the field of religion. Long before the birth of our Judeo-Christian civilization the idea of God had taken hold in many forms. Mention of only two -- Hinduism and Buddhism -- illustrates the fluidity and evanescent scope of the concept. In the Hindu religion the Supreme Being is [**866] conceived in the forms of several cult Deities. The chief of these, which stand for the Hindu Triad, are Brahma, Vishnu and Siva. Another Deity, and the one most widely worshipped, is Sakti, the Mother Goddess, conceived as power, both destructive and creative. Though Hindu religion encompasses the worship of many Deities, it believes in only one single God, the eternally existent One Being with his manifold attributes and manifestations. This idea is expressed in Rigveda, the earliest sacred text of the Hindus, in verse 46 of a hymn attributed to the mythical seer Dirghatamas (Rigveda, I, 164):

"They call it Indra, Mitra, Varuna and Agni

And also heavenly beautiful Garutman:

The Real is One, though sages name it variously --

They call it Agni, Yama, Matarisvan."

See Smart, Reasons and Faiths, p. 35, n. 1 (1958); 32 Harvard Oriental Series, pp. 434-435 (Lanman ed. 1925). See generally 31 and 32 id.; Editors of Life Magazine, The World's Great Religions, Vol. 1, pp. 17-48 (1963).

Indian philosophy, which comprises several schools of thought, has advanced different theories of the nature of the Supreme Being. According to the Upanisads, Hindu sacred texts, the Supreme Being is described as the power which creates and sustains everything, and to which the created things return upon dissolution. The word which is commonly used in the Upanisads to indicate the Supreme Being is Brahman. Philosophically, the [*190] Supreme Being is the transcendental Reality which is Truth, Knowledge, and Bliss. It is the source of the entire universe. In this aspect Brahman is Isvara, a personal Lord and Creator of the universe, an object of worship. But, in the view of one school of thought, that of Sankara, even this is an imperfect and limited conception of Brahman which must be transcended: to think of Brahman as the Creator of the material world is necessarily to form a concept infected with illusion, or maya -- which is what the world really is, in highest truth. Ultimately, mystically, Brahman must be understood as without attributes, as neti neti (not this, not that). See Smart, op. cit., supra, p. 133.

Buddhism -- whose advent marked the reform of Hinduism -- continued somewhat the same concept. As stated by Nancy Wilson Ross, "God -- if I may borrow that word for a moment -- the universe, and man are one indissoluble existence, one total whole. Only THIS -- capital THIS -- is. Anything and everything that appears to us as an individual entity or phenomenon, whether it be a planet or an atom, a mouse or a man, is but a temporary manifestation of THIS in form; every activity that takes place, whether it be birth or death, loving or eating breakfast, is but a temporary manifestation of THIS in activity. When we look at things this way, naturally we cannot believe that each individual person has been endowed with a special and individual soul or self. Each one of us is but a cell, as it were, in the body of the Great Self, a cell that comes into being, performs its functions, [***751] and passes away, transformed into another manifestation. Though we have temporary individuality, that temporary, limited individuality is not either a true self or our true self. Our true self is the Great Self; our true body is the Body of Reality, or the Dharmakaya, to give it its technical Buddhist name." The World of Zen, p. 18 (1960).

[*191] Does a Buddhist believe in "God" or a "Supreme Being"? That, of course, depends on how one defines "God," as one eminent student of Buddhism has explained:

"It has often been suggested that Buddhism is an atheistic system of thought, and this assumption has [**867] given rise to quite a number of discussions. Some have claimed that since Buddhism knew no God, it could not be a religion; others that since Buddhism obviously was a religion which knew no God, the belief in God was not essential to religion. These discussions assume that God is an unambiguous term, which is by no means the case." Conze, Buddhism, pp. 38-39 (1959).

Dr. Conze then says that if "God" is taken to mean a personal Creator of the universe, then the Buddhist has no interest in the concept. Id., p. 39. But if "God" means something like the state of oneness with God as described by some Christian mystics, then the Buddhist surely believes in "God," since this state is almost indistinguishable from the Buddhist concept of Nirvana, "the supreme Reality; . . . the eternal, hidden and incomprehensible Peace." Id., pp. 39-40. And finally, if "God" means one of the many Deities in an at least superficially polytheistic religion like Hinduism, then Buddhism tolerates a belief in many Gods: "the Buddhists believe that a Faith can be kept alive only if it can be adapted to the mental habits of the average person. In consequence, we find that, in the earlier Scriptures, the deities of Brahmanism are taken for granted and that, later on, the Buddhists adopted the local Gods of any district to which they came." Id., p. 42.

When the present Act was adopted in 1948 we were a nation of Buddhists, Confucianists, and Taoists, as well as Christians. Hawaii, then a Territory, was indeed filled with Buddhists, Buddhism being "probably the major [*192] faith, if Protestantism and Roman Catholicism are deemed different faiths." Stokes and Pfeffer, Church and State in the United States, p. 560 (1964). Organized Buddhism first came to Hawaii in 1887 when Japanese laborers were brought to work on the plantations. There are now numerous Buddhist sects in Hawaii, and the temple of the Shin sect in Honolulu is said to have the largest congregation of any religious organization in the city. See Mulholland, Religion in Hawaii, pp. 44-50 (1961).

In the continental United States Buddhism is found "in real strength" in Utah, Arizona, Washington, Oregon, and California. "Most of the Buddhists in the United States are Japanese or Japanese-Americans; however, there are 'English' departments in San Francisco, Los Angeles, and Tacoma." Mead, Handbook of Denominations, p. 61 (1961). The Buddhist Churches of North America, organized in 1914 as the Buddhist Mission of North America and incorporated under the present name in 1942, represent the Jodo Shinshu Sect of Buddhism in this country. This sect is the only Buddhist group reporting information to the annual Yearbook of American Churches. In 1961, the latest year for which figures are available, this [***752] group alone had 55 churches and an inclusive membership of 60,000; it maintained 89 church schools with a total enrollment of 11,150. Yearbook of American Churches, p. 30 (1965). According to one source, the total number of Buddhists of all sects in North America is 171,000. See World Almanac, p. 636 (1965).

When the Congress spoke in the vague general terms of a Supreme Being I cannot, therefore, assume that it was so parochial as to use the words in the narrow sense urged on us. I would attribute tolerance and sophistication to the Congress, commensurate with the religious complexion of our communities. In sum, I agree with the Court that any person opposed to war on the basis of a sincere belief, which in his life fills the same place as a belief [*193] in God fills in the life of an orthodox religionist, is entitled to exemption under the statute. None comes to us an avowedly irreligious person or as an atheist; 2 one, as a sincere [**868] believer in "goodness and virtue for their own sakes." His questions and doubts on theological issues, and his wonder, are no more alien to the statutory standard than are the awe-inspired questions of a devout Buddhist.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

2 If he were an atheist, quite different problems would be presented. Cf. Torcaso v. Watkins, 367 U.S. 488.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -



REFERENCES
Who is entitled to exemption as a conscientious objector within 6(j) of the Universal Military Training and Service Act--federal cases

Annotation References:

Who is entitled to exemption as a conscientious objector within 6(j) of the Universal Military Training and Service Act. 99 L ed 443.

Resort to constitutional or legislative debates, committee reports, journals, etc., as aid in construction of statute. 70 ALR 5.

Provisions of Federal Constitution concerning establishment and freedom of religion. 96 L ed 968, 6 L ed 2d 1394.

WELSH v. UNITED STATES

No. 76

SUPREME COURT OF THE UNITED STATES

398 U.S. 333; 90 S. Ct. 1792; 26 L. Ed. 2d 308; 1970 U.S. LEXIS 23

January 20, 1970, Argued

June 15, 1970, Decided

PRIOR HISTORY:

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

DISPOSITION: 404 F.2d 1078, reversed.

SUMMARY: A draft registrant's application for an exemption as a conscientious objector was rejected by the Selective Service System on the ground that the registrant's beliefs were not "religious" under 6(j) of the Universal Military Training and Service Act, which extends exemption from military service to those who "by reason of religious training and belief" are conscientiously opposed to participation in war in any form, and which provides that religious training and belief does not include "essentially political, sociological, or philosophical views, or a merely personal moral code." The registrant's claim was based on his conscientious scruples against participating in any war and on his belief that killing was morally wrong, but he stated that his views were not "religious" in the traditional sense. The registrant was subsequently convicted of refusing to submit to induction into the Armed Forces, upon trial in the United States District Court for the Central District of California. The Court of Appeals for the Ninth Circuit, although finding that the registrant's beliefs were held with the strength of more traditional religious convictions, affirmed, since there was no religious basis for the conscientious objector claim (404 F2d 1078).

On certiorari, the United States Supreme Court reversed. Five members of the court, although not agreeing upon an opinion, agreed that the conviction should be reversed, and that the proper test in determining whether a registrant's conscientious objection to all war was "religious" under 6 (j) was whether his opposition to war stemmed from moral, ethical, or religious beliefs about what was right and wrong, it being necessary that such beliefs be held with the strength of traditional religious convictions.

Black, J., announced the judgment of the court, and in an opinion joined by Douglas, Brennan, and Marshall, JJ., expressed the view that the test for determining the validity of conscientious objector claims was proper under the terms of the statute.

Harlan, J., concurred in the result on the ground that although 6(j), properly construed under its natural reading, would limit draft exemption to those opposed to war in general because of theistic beliefs, and although the statute as so construed would violate the religious clauses of the First Amendment, nevertheless the test announced, which included sincerely held ethical or moral beliefs against participation in any war, was proper not as a matter of statutory construction, but as the touchstone for salvaging the congressional policy of long standing of exempting religious conscientious objectors, which would otherwise have to be nullified.

White, J., joined by Burger, Ch. J., and Stewart, J., dissented, expressing the view that the statute should not be construed to extend draft exemption to those who disclaimed religious objections to war and whose views represented a purely personal code not arising from religious training and belief, and that the First Amendment was not violated by limiting conscientious objector exemption to those opposed to war by reason of religious training and belief.

Blackmun, J., did not participate.


SYLLABUS: Petitioner was convicted of refusing to submit to induction into the Armed Forces despite his claim for conscientious objector status under § 6 (j) of the Universal Military Training and Service Act. That provision exempts from military service persons who by reason of "religious training and belief" are conscientiously opposed to war in any form, that term being defined in the Act as "belief in a relation to a Supreme Being involving duties superior to those arising from any human relation" but not including "essentially political, sociological, or philosophical views or a merely personal code." In his exemption application petitioner stated that he could not affirm or deny belief in a "Supreme Being" and struck the words "my religious training and" from the form. He affirmed that he held deep conscientious scruples against participating in wars where people were killed. The Court of Appeals, while noting that petitioner's "beliefs are held with the strength of more traditional religious convictions," concluded that those beliefs were not sufficiently "religious" to meet the terms of § 6 (j), and affirmed the conviction. Petitioner contends that the Act violates the First Amendment prohibition of establishment of religion and that his conviction should be set aside on the basis of United States v. Seeger, 380 U.S. 163, which held that the test of religious belief under § 6 (j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. Held: The judgment is reversed. Pp. 335-367.

MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL, concluded that:

This case is controlled by United States v. Seeger, supra, to which it is factually similar. Under Seeger, § 6 (j) is not limited to those whose opposition to war is prompted by orthodox or parochial religious beliefs. A registrant's conscientious objection to all war is "religious" within the meaning of § 6 (j) if this opposition stems from the registrant's moral, ethical, or religious beliefs about what is right and wrong and these beliefs are held with the strength of traditional religious convictions. In view of the broad scope of the word "religious," a registrant's characterization of his beliefs as "nonreligious" is not a reliable guide to those administering the exemption. Pp. 335-344.

MR. JUSTICE HARLAN concluded that:

1. The language of § 6 (j) cannot be construed (as it was in United States v. Seeger, supra, and as it is in the prevailing opinion) to exempt from military service all individuals who in good faith oppose all war, it being clear from both the legislative history and textual analysis of that provision that Congress used the words "by reason of religious training and belief" to limit religion to its theistic sense and to confine it to formal, organized worship or shared beliefs by a recognizable and cohesive group. Pp. 348-354.

2. The question of the constitutionality of § 6 (j) cannot be avoided by a construction of that provision that is contrary to its intended meaning. Pp. 354-356.

3. Section 6 (j) contravenes the Establishment Clause of the First Amendment by exempting those whose conscientious objection claims are founded on a theistic belief while not exempting those whose claims are based on a secular belief. To comport with that clause an exemption must be "neutral" and include those whose belief emanates from a purely moral, ethical, or philosophical source. Pp. 356-361.

4. In view of the broad discretion conferred by the Act's severability clause and the longstanding policy of exempting religious conscientious objectors, the Court, rather than nullifying the exemption entirely, should extend its coverage to those like petitioner who have been unconstitutionally excluded from its coverage. Pp. 361-367.

COUNSEL: J. B. Tietz argued the cause and filed briefs for petitioner.

Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Francis X. Beytagh, Jr., and Beatrice Rosenberg.

JUDGES: Burger, Black, Douglas, Harlan, Brennan, Stewart, White, Marshall; Blackmun took no part in the consideration or decision of this case.

OPINION BY: BLACK

OPINION: [*335] [***316] [**1794] MR. JUSTICE BLACK announced the judgment of the Court and delivered an opinion in which MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join.

[***LEdHR1A] [1A]


The petitioner, Elliott Ashton Welsh II, was convicted by a United States District Judge of refusing to submit to induction into the Armed Forces in violation of 50 U. S. C. App. § 462 (a), and was on June 1, 1966, sentenced to imprisonment for three years. One of petitioner's defenses to the prosecution was that § 6 (j) of the Universal Military Training and Service Act exempted him from combat and noncombat service because he was "by reason of religious training and belief . . . conscientiously opposed to participation in war in any form." n1 After finding that there was no religious basis for petitioner's conscientious objector claim, the Court of Appeals, Judge Hamley dissenting, affirmed the conviction. 404 F.2d 1078 (1968). We granted certiorari chiefly to review the contention that Welsh's conviction should be set aside on the basis of this Court's decision in United States v. Seeger, 380 U.S. 163 (1965). 396 U.S. 816 (1969). For the reasons to be stated, and without passing upon the constitutional arguments that have been raised, we vote to reverse this conviction because of its fundamental inconsistency with United States v. Seeger, supra.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 62 Stat. 612. See also 50 U. S. C. App. § 456 (j). The pertinent provision as it read during the period relevant to this case is set out infra, at 336.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The controlling facts in this case are strikingly similar to those in Seeger. Both Seeger and Welsh were brought up in religious homes and attended church in their childhood, but in neither case was this church one which taught its members not to engage in war at any time for [*336] any reason. Neither Seeger nor Welsh continued his childhood religious ties into his young manhood, and neither belonged to any religious group or adhered to the teachings of any organized religion during the period of his involvement with the Selective Service System. At the time of registration for the draft, neither had yet come to accept pacifist principles. Their views on war developed only in subsequent years, but when their ideas did fully mature both made application to their local draft boards for conscientious objector exemptions from military service under § 6 (j) of the Universal Military Training and Service Act. That section then provided, in part: n2

[***317] "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 [**1795] in any form. Religious training and belief in this connection means 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 filling out their exemption applications both Seeger and Welsh were unable to sign the statement that, as printed in the Selective Service form, stated "I am, by reason of my religious training and belief, conscientiously [*337] opposed to participation in war in any form." Seeger could sign only after striking the words "training and" and putting quotation marks around the word "religious." Welsh could sign only after striking the words "my religious training and." On those same applications, neither could definitely affirm or deny that he believed in a "Supreme Being," both stating that they preferred to leave the question open. n3 But both Seeger and Welsh affirmed on those applications that they held deep conscientious scruples against taking part in wars where people were killed. Both strongly believed that killing in war was wrong, unethical, and immoral, and their consciences forbade them to take part in such an evil practice. Their objection to participating in war in any form could not be said to come from a "still, small voice of conscience"; rather, for them that voice was so loud and insistent that both men preferred to go to jail rather than serve in the Armed Forces. There was never any question about the sincerity and depth of Seeger's convictions as a conscientious objector, and the same is true of Welsh. In this regard the Court of Appeals noted, "the government concedes that [Welsh's] beliefs are held with the strength of more traditional religious convictions." 404 F.2d, at 1081. But in both cases the Selective Service System concluded that the beliefs of these men were in some sense insufficiently "religious" to qualify them for conscientious objector exemptions under the terms of § 6 (j). Seeger's conscientious objector claim was denied "solely because it was not based upon a 'belief in a relation to a Supreme Being' as required by § 6 (j) of the Act," United States v. Seeger, 380 U.S. 163, 167 (1965), while Welsh was [*338] denied the exemption because his Appeal Board and the Department of Justice hearing officer "could find no religious basis for the registrant's beliefs, opinions and convictions." App. 52. Both Seeger and Welsh subsequently refused to submit to induction into the military and both were convicted of that offense.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n2 62 Stat. 612. An amendment to the Act in 1967, subsequent to the Court's decision in the Seeger case, deleted the reference to a "Supreme Being" but continued to provide that "religious training and belief" does not include "essentially political, sociological, or philosophical views, or a merely personal moral code." 81 Stat. 104, 50 U. S. C. App. § 456 (j) (1964 ed., Supp. IV).



n3 In his original application in April 1964, Welsh stated that he did not believe in a Supreme Being, but in a letter to his local board in June 1965, he requested that his original answer be stricken and the question left open. App. 29.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

In Seeger the Court was confronted, first, with the problem that § 6 (j) defined "religious training and belief" in terms of a "belief in a relation to a Supreme Being . . . ," a definition that arguably gave a [***318] preference to those who believed in a conventional God as opposed to those who did not. Noting the "vast panoply of beliefs" prevalent in our country, the Court construed the congressional intent as being in "keeping with its long-established policy of not picking and choosing among religious beliefs," id., at 175, and accordingly interpreted "the meaning of religious training and belief so as to embrace all religions . . . ." Id., at 165. (Emphasis added.) But, having decided that all religious conscientious objectors were entitled to the exemption, we faced the more serious problem of determining which beliefs were "religious" within the meaning of the statute. This question was particularly difficult in the case of Seeger himself. Seeger stated that his was a "belief in and devotion to goodness and [**1796] virtue for their own sakes, and a religious faith in a purely ethical creed." 380 U.S., at 166. In a letter to his draft board, he wrote:



"My decision arises from what I believe to be considerations of validity from the standpoint of the welfare of humanity and the preservation of the democratic values which we in the United States are struggling to maintain. I have concluded that war, from the practical standpoint, is futile and self-defeating, and that from the more important moral standpoint, it is unethical." 326 F.2d 846, 848 (1964).

[*339] On the basis of these and similar assertions, the Government argued that Seeger's conscientious objection to war was not "religious" but stemmed from "essentially political, sociological, or philosophical views or a merely personal moral code."

[***LEdHR2A] [2A]
[***LEdHR3] [3]
[***LEdHR4] [4]


In resolving the question whether Seeger and the other registrants in that case qualified for the exemption, the Court stated that "[the] task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious." 380 U.S., at 185. (Emphasis added.) The reference to the registrant's "own scheme of things" was intended to indicate that the central consideration in determining whether the registrant's beliefs are religious is whether these beliefs play the role of a religion and function as a religion in the registrant's life. The Court's principal statement of its test for determining whether a conscientious objector's beliefs are religious within the meaning of § 6 (j) was as follows:



"The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition." 380 U.S., at 176.

The Court made it clear that these sincere and meaningful beliefs that prompt the registrant's objection to all wars need not be confined in either source or content to traditional or parochial concepts of religion. It held that § 6 (j) "does not distinguish between externally and internally derived beliefs," id., at 186, and also held that "intensely personal" convictions which some might find "incomprehensible" or "incorrect" come within the meaning of "religious belief" in the Act. Id., at 184-185. What is necessary under Seeger for a registrant's conscientious [*340] objection to all war to be "religious" within the meaning of § 6 (j) is that this opposition to war [***319] stem from the registrant's moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions. Most of the great religions of today and of the past have embodied the idea of a Supreme Being or a Supreme Reality -- a God -- who communicates to man in some way a consciousness of what is right and should be done, of what is wrong and therefore should be shunned. If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual "a place parallel to that filled by . . . God" in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a "religious" conscientious objector exemption under § 6 (j) as is someone who derives his conscientious opposition to war from traditional religious convictions.

Applying this standard to Seeger himself, the Court noted the "compulsion to 'goodness'" [**1797] that shaped his total opposition to war, the undisputed sincerity with which he held his views, and the fact that Seeger had "decried the tremendous 'spiritual' price man must pay for his willingness to destroy human life." 380 U.S., at 186-187. The Court concluded:



"We think it clear that the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers." 380 U.S., at 187.

Accordingly, the Court found that Seeger should be granted conscientious objector status.

[***LEdHR5] [5]


In the case before us the Government seeks to distinguish our holding in Seeger on basically two grounds, [*341] both of which were relied upon by the Court of Appeals in affirming Welsh's conviction. First, it is stressed that Welsh was far more insistent and explicit than Seeger in denying that his views were religious. For example, in filling out their conscientious objector applications, Seeger put quotation marks around the word "religious," but Welsh struck the word "religious" entirely and later characterized his beliefs as having been formed "by reading in the fields of history and sociology." App. 22. The Court of Appeals found that Welsh had "denied that his objection to war was premised on religious belief" and concluded that "the Appeal Board was entitled to take him at his word." 404 F.2d, at 1082. We think this attempt to distinguish Seeger fails for the reason that it places undue emphasis on the registrant's interpretation of his own beliefs. The Court's statement in Seeger that a registrant's characterization of his own belief as "religious" should carry great weight, 380 U.S., at 184, does not imply that his declaration that his views are nonreligious should be treated similarly. When a registrant states that his objections to war are "religious," that information is highly relevant to the question of the function his beliefs have in his life. But very few registrants are fully aware of the broad scope of the word "religious" as used in § 6 (j), and accordingly a registrant's statement that his beliefs are nonreligious is a highly unreliable guide for those charged with administering [***320] the exemption. Welsh himself presents a case in point. Although he originally characterized his beliefs as nonreligious, he later upon reflection wrote a long and thoughtful letter to his Appeal Board in which he declared that his beliefs were "certainly religious in the ethical sense of the word." He explained:

"I believe I mentioned taking of life as not being, for me, a religious wrong. Again, I assumed Mr. [Brady (the Department of Justice hearing [*342] officer)] was using the word 'religious' in the conventional sense, and, in order to be perfectly honest did not characterize my belief as 'religious.'" App. 44.

[***LEdHR6] [6]
[***LEdHR7] [7]


The Government also seeks to distinguish Seeger on the ground that Welsh's views, unlike Seeger's, were "essentially political, sociological, or philosophical views or a merely personal moral code." As previously noted, the Government made the same argument about Seeger, and not without reason, for Seeger's views had a substantial political dimension. Supra, at 338-339. In this case, Welsh's conscientious objection to war was undeniably based in part on his perception of world politics. In a letter to his local board, he wrote:



"I can only act according to what I am and what I see. And I see that the military complex wastes both human and material resources, that it fosters disregard for (what I consider a paramount concern) human needs and ends; I see that the means we employ to 'defend' our 'way of life' profoundly change that way of life. I see that in our failure to recognize the political, [**1798] social, and economic realities of the world, we, as a nation, fail our responsibility as a nation." App. 30.

We certainly do not think that § 6 (j)'s exclusion of those persons with "essentially political, sociological, or philosophical views or a merely personal moral code" should be read to exclude those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy. The two groups of registrants that obviously do fall within these exclusions from the exemption are those whose beliefs are not deeply held and those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon [*343] considerations of policy, pragmatism, or expediency. In applying § 6 (j)'s exclusion of those whose views are "essentially political, sociological, or philosophical" or of those who have a "merely personal moral code," it should be remembered that these exclusions are definitional and do not therefore restrict the category of persons who are conscientious objectors by "religious training and belief." Once the Selective Service System has taken the first step and determined under the standards set out here and in Seeger that the registrant is a "religious" conscientious objector, it follows that his views cannot be "essentially political, sociological, or philosophical." Nor can they be a "merely personal moral code." See United States v. Seeger, 380 U.S., at 186.

[***LEdHR1B] [1B]
[***LEdHR8] [8]


Welsh stated that he "believe[d] the taking of life -- anyone's life -- to be morally wrong." App. 44. In his original conscientious objector application he wrote the following:

"I believe that human life is valuable in and of itself; in its living; therefore I will not injure or kill another human being. This belief (and [***321] the corresponding 'duty' to abstain from violence toward another person) is not 'superior to those arising from any human relation.' On the contrary: it is essential to every human relation. I cannot, therefore, conscientiously comply with the Government's insistence that I assume duties which I feel are immoral and totally repugnant." App. 10.

Welsh elaborated his beliefs in later communications with Selective Service officials. On the basis of these beliefs and the conclusion of the Court of Appeals that he held them "with the strength of more traditional religious convictions," 404 F.2d, at 1081, we think Welsh was clearly entitled to a conscientious objector exemption. Section [*344] 6 (j) requires no more. That section exempts from military service all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.

The judgment is

Reversed.

MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.

CONCUR BY: HARLAN

CONCUR: MR. JUSTICE HARLAN, concurring in the result.

Candor requires me to say that I joined the Court's opinion in United States v. Seeger, 380 U.S. 163 (1965), only with the gravest misgivings as to whether it was a legitimate exercise in statutory construction, and today's decision convinces me that in doing so I made a mistake which I should now acknowledge. n1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 For a discussion of those principles that determine the appropriate scope for the doctrine of stare decisis, see Moragne v. States Marine Lines, also decided today, post, p. 375; Boys Markets v. Retail Clerks Union, ante, p. 235; Helvering v. Hallock, 309 U.S. 106 (1940).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

In [**1799] Seeger the Court construed § 6 (j) of the Universal Military Training and Service Act so as to sustain a conscientious objector claim not founded on a theistic belief. The Court, in treating with the provision of the statute that limited conscientious objector claims to those stemming from belief in "a Supreme Being," there said: "Congress, in using the expression 'Supreme Being' rather than the designation 'God,' was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views," and held that the test of belief "'in a relation to a Supreme Being' is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox [*345] belief in God of one who clearly qualifies for the exemption." 380 U.S., at 165-166. Today the prevailing opinion makes explicit its total elimination of the statutorily required religious content for a conscientious objector exemption. The prevailing opinion now says: "If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time" (emphasis added), he qualifies for a § 6 (j) exemption.

[***LEdHR1C] [1C]
[***LEdHR2B] [2B]
[***LEdHR9] [9]


In my opinion, the liberties taken with the statute both in Seeger and today's decision cannot be justified in the name of the familiar [***322] doctrine of construing federal statutes in a manner that will avoid possible constitutional infirmities in them. There are limits to the permissible application of that doctrine, and, as I will undertake to show in this opinion, those limits were crossed in Seeger, and even more apparently have been exceeded in the present case. I therefore find myself unable to escape facing the constitutional issue that this case squarely presents: whether § 6 (j) in limiting this draft exemption to those opposed to war in general because of theistic beliefs runs afoul of the religious clauses of the First Amendment. For reasons later appearing I believe it does, and on that basis I concur in the judgment reversing this conviction, and adopt the test announced by MR. JUSTICE BLACK, not as a matter of statutory construction, but as the touchstone for salvaging a congressional policy of long standing that would otherwise have to be nullified.

I

Section 6 (j) provided during the period relevant to this case:

"Nothing contained in this title shall be construed to require any person to be subject to combatant [*346] 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 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." Universal Military Training and Service Act of 1948, § 6 (j), 62 Stat. 612, 50 U. S. C. App. § 456 (j).

[***LEdHR10] [10]
[***LEdHR11] [11]
[***LEdHR12A] [12A]


The issue is then whether Welsh's opposition to war is founded on "religious training and belief" and hence "belief in a relation to a Supreme Being" as Congress used those words. It is of course true that certain words are more plastic in meaning than others. "Supreme Being" is a concept of theology and philosophy, not a technical term, and consequently may be, in some circumstances, capable of bearing a contemporary construction as notions of theology and philosophy evolve. Cf. United States v. Storrs, 272 U.S. 652 (1926). This language appears, however, in a congressional enactment; it is not a phrase of the Constitution, like [**1800] "religion" or "speech," which this Court is freer to construe in light of evolving needs and circumstances. Cf. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), and my concurring opinion in Estes v. Texas, 381 U.S. 532, 595-596 (1965), and my opinion concurring in the judgment in Garner v. Louisiana, 368 U.S. 157, 185 (1961). Nor is it so broad a statutory directive, like that of the Sherman Act, that we may assume that we are free to adopt and shape policies limited only by the most general statement of purpose. Cf., e. g., Standard Oil Co. v. United States, 221 U.S. 1 (1911). It is Congress' will that must here be divined. In that endeavor [*347] it is one thing to give words a meaning not necessarily envisioned by Congress so as to adapt them to circumstances also uncontemplated by the legislature in order to achieve the legislative policy, Holy Trinity Church v. United States, 143 U.S. 457 (1892); it [***323] is a wholly different matter to define words so as to change policy. The limits of this Court's mandate to stretch concededly elastic congressional language are fixed in all cases by the context of its usage and legislative history, if available, that are the best guides to congressional purpose and the lengths to which Congress enacted a policy. Rosado v. Wyman, 397 U.S. 397 (1970). n2 The prevailing opinion today snubs both guidelines for it is apparent from a textual analysis of § 6 (j) and the legislative history that the words of this section, as used and understood by Congress, fall short of enacting the broad policy of exempting from military service all individuals who in good faith oppose all war.

[***LEdHR12B] [12B]


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n2 The difference is between the substitution of judicial judgment for a principle that is set forth by the Constitution and legislature and the application of the legislative principle to a new "form" that is no different in substance from the circumstances that existed when the principle was set forth. Cf. Katz v. United States, 389 U.S. 347 (1967). As the Court said in Weems v. United States, "Legislation, both statutory and constitutional, is enacted, . . . from an experience of evils, . . . its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. . . . [A] principle to be vital must be capable of wider application than the mischief which gave it birth." 217 U.S. 349, 373 (1910) (emphasis added).

While it is by no means always simple to discern the difference between the residual principle in legislation that should be given effect in circumstances not covered by the express statutory terms and the limitation on that principle inherent in the same words, the Court in Seeger and the prevailing opinion today read out language that, in my view, plainly limits the principle rather than illustrates the policy and circumstances that were in mind when § 6 (j) was enacted.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*348] A

The natural reading of § 6 (j), which quite evidently draws a distinction between theistic and nontheistic religions, is the only one that is consistent with the legislative history. Section 5 (g) of the 1940 Draft Act exempted individuals whose opposition to war could be traced to "religious training and belief," 54 Stat. 889, without any allusion to a Supreme Being. In United States v. Kauten, 133 F.2d 703 (C. A. 2d Cir. 1943), the Second Circuit, speaking through Judge Augustus Hand, broadly construed "religious training and belief" to include a "belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets." 133 F.2d, at 708. The view was further elaborated in subsequent decisions of the Second Circuit, see United States ex rel. Phillips v. Downer, 135 F.2d 521 (C. A. 2d Cir. 1943); United States ex rel. Reel v. [**1801] Badt, 141 F.2d 845 (C. A. 2d Cir. 1944). This expansive interpretation of § 5 (g) was rejected by a divided Ninth Circuit in Berman v. United States, 156 F.2d 377, 380-381 (1946):

"It is our opinion that the expression 'by reason of religious training and belief' . . . was written into the statute for the specific purpose of distinguishing between a conscientious social belief, or a sincere devotion to a high moralistic philosophy, and one based upon an individual's belief in his responsibility to an authority higher and beyond any worldly one.

. . . .

"In United States v. Macintosh, 283 U.S. 605 . . . Mr. [Chief] Justice [***324] Hughes in his dissent . . . said: 'The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.'"

[*349] The unmistakable and inescapable thrust of the Berman opinion, that religion is to be conceived in theistic terms, is rendered no less straightforward by the court's elaboration on the difference between beliefs held as a matter of moral or philosophical conviction and those inspired by religious upbringing and adherence to faith.

"There are those who have a philosophy of life, and who live up to it. There is evidence that this is so in regard to appellant. However, no matter how pure and admirable his standard may be, and no matter how devotedly he adheres to it, his philosophy and morals and social policy without the concept of deity cannot be said to be religion in the sense of that term as it is used in the statute. It is said in State v. Amana Society, 132 Iowa 304, 109 N. W. 894, 898 . . . : 'Surely a scheme of life designed to obviate such results (man's inhumanity to man), and by removing temptations, and all the inducements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service, ought not to be denounced as not pertaining to religion when its devotee regards it as an essential tenet of their [sic] religious faith.'" (Emphasis of Court of Appeals.) Ibid.

In the wake of this intercircuit dialogue, crystallized by the dissent in Berman which espoused the Second Circuit interpretation in Kauten, supra, Congress enacted § 6 (j) in 1948. That Congress intended to anoint the Ninth Circuit's interpretation of § 5 (g) would seem beyond question in view of the similarity of the statutory language to that used by Chief Justice Hughes in his dissenting opinion in Macintosh and quoted in Berman and the Senate report. The first half of the new language was almost word for word that of Chief Justice Hughes in [*350] Macintosh, and quoted by the Berman majority; n3 and the Senate Committee report adverted to Berman, [**1802] thus foreclosing any possible speculation as to whether Congress was aware of the possible alternatives. The report stated:



"This section reenacts substantially the same provisions as were found in subsection 5 (g) of the 1940 act. Exemption extends to anyone who, because of religious training and belief in his relationship to a Supreme Being, is conscientiously opposed to combatant military service or to both combatant and noncombatant military service. (See United States v. Berman [sic], 156 F. (2d) 377, certiorari [***325] denied, 329 U.S. 795.)" S. Rep. No. 1268, 80th Cong., 2d Sess., 14. n4

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n3 The substitution in § 6 (j) of "Supreme Being" instead of "God" as used in Macintosh does not, in my view, carry the burden, placed on it in the Seeger opinion, of demonstrating that Congress "deliberately broadened" Chief Justice Hughes' definition. "God" and "Supreme Being" are generally taken as synonymous terms meaning Deity. It is common practice to use various synonyms for the Deity. The Declaration of Independence refers to "Nature's God," "Creator," "Supreme Judge of the world," and "divine Providence." References to the Deity in preambles to the state constitutions include, for example, and use interchangeably "God," "Almighty God," "Supreme Being." A. Stokes & L. Pfeffer, Church and State in the United States 561 (1964). In Davis v. Beason, 133 U.S. 333, 342 (1890), the Court spoke of man's relations to his "Creator" and to his "Maker"; in Zorach v. Clauson, 343 U.S. 306, 313 (1952), and Engel v. Vitale, 370 U.S. 421, 424 (1962), to the "Almighty."



n4 The Seeger opinion relies on the absence of any allusion to the judicial conflict to parry the thrust of the legislative history and assigns significance to the Committee citation of Berman as manifestation of its intention to reenact § 5 (g) of the 1940 Act, and also as authority for the exclusion of those whose beliefs are grounded in secular ethics. The citation to Berman would not be conclusive of congressional purpose if Congress had simply reenacted the 1940 Act adding only the express exclusion in the last clause. But the reasoning in Seeger totally ignores the fact that Congress without other apparent reason added the "Supreme Being" language of the Berman majority in the face of the Berman dissent which espoused Judge Hand's view in Kauten. The argument in Seeger is not, moreover, strengthened by the fact that Congress in drafting the 1948 Selective Service laws placed great weight on the views of the Selective Service System which, the Court suggested, did not view Berman and Kauten as being in conflict. 380 U.S., at 179. The Selective Service System Monograph No. 11, Conscientious Objection (1950) was not before Congress when § 6 (j) was enacted and the fact that the Service relied on both Kauten and Berman for the proposition that conscientious objection must emanate from a religious and not a secular source, does not mean that it considered the Supreme Being discussion in Berman as surplusage.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*351] B

Against this legislative history it is a remarkable feat of judicial surgery to remove, as did Seeger, the theistic requirement of § 6 (j). The prevailing opinion today, however, in the name of interpreting the will of Congress, has performed a lobotomy and completely transformed the statute by reading out of it any distinction between religiously acquired beliefs and those deriving from "essentially political, sociological, or philosophical views or a merely personal moral code."

[***LEdHR13] [13]


In the realm of statutory construction it is appropriate to search for meaning in the congressional vocabulary in a lexicon most probably consulted by Congress. Resort to Webster's n5 reveals that the meanings of "religion" are: "1. The service and adoration of God or a god as expressed in forms of worship, in obedience to divine commands . . . ; 2. The state of life of a religious . . . ; 3. One of the systems of faith and worship; a form of theism; a religious faith . . . ; 4. The profession or practice of religious beliefs; religious observances collectively; pl. rites; 5. Devotion or fidelity; . . . conscientiousness; [*352] 6. An apprehension, awareness, or conviction of the existence of a supreme being, or more widely, of supernatural powers or influences controlling one's own, humanity's, or nature's destiny; also, such an apprehension, etc., accompanied by or arousing reverence, love, gratitude, the will to obey and serve, and the like . . . ." (Emphasis added.)

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n5 New International Dictionary, Unabridged (2d ed. 1934).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Of the five pertinent definitions four include the notion of either a Supreme Being or a cohesive, organized group pursuing a common spiritual purpose together. While, as the Court's opinion in Seeger points out, these definitions do not exhaust the almost infinite and [**1803] sophisticated possibilities for defining "religion," there is strong evidence that Congress restricted, in this instance, the word to its conventional sense. That it is difficult to plot the semantic penumbra of the word "religion" does not render this term so plastic in meaning that the Court is entitled, as matter of statutory construction, to conclude that any asserted and strongly held belief satisfies its requirements. [***326] It must be recognized that the permissible shadow of connotation is limited by the context in which words are used. In § 6 (j) Congress has included not only a reference to a Supreme Being but has also explicitly contrasted "religious" beliefs with those that are "essentially political, sociological, or philosophical" and a "personal moral code." This exception certainly is, at the very least, the statutory boundary, the "asymptote," of the word "religion." n6

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n6 The prevailing opinion's purported recognition of this distinction slides over the "personal moral code" exception, in § 6 (j). Thus that opinion in concluding that § 6 (j) does not exclude "those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy" but excludes individuals, whose beliefs are not deeply held, and those whose objection to war does not rest upon "moral, ethical, or religious principle," but instead rests solely upon considerations of "policy, pragmatism, or expediency," ante, at 342-343, blends morals and religion, two concepts that Congress chose to keep separate.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*353] For me this dichotomy reveals that Congress was not embracing that definition of religion that alone speaks in terms of "devotion or fidelity" to individual principles acquired on an individualized basis but was adopting, at least, those meanings that associate religion with formal, organized worship or shared beliefs by a recognizable and cohesive group. Indeed, this requirement was explicit in the predecessor to the 1940 statute. The Draft Act of 1917 conditioned conscientious objector status on membership in or affiliation with a "well-recognized religious sect or organization [then] organized and existing and whose existing creed or principles forb[ade] its members to participate in war in any form . . . ." § 4, 40 Stat 78. That § 5 (g) of the 1940 Act eliminated the affiliation and membership requirement does not, in my view, mean as the Court, in effect, concluded in Seeger that Congress was embracing a secular definition of religion. n7

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n7 The apparent purpose of the 1940 change in language was to eliminate membership as a decisive criterion in recognition of the fact that mere formal affiliation is no measure of the intensity of beliefs, and that many nominal adherents do not share or pursue the ethics of their church. That the focus was made the conscientiousness of the individual's own belief does not mean that Congress was indifferent to its source. Were this the case there would have been no occasion to allude to "religious training" in the 1940 enactment, and to contrast it with secular ethics in the 1948 statute. Yet the prevailing opinion today holds that "beliefs that are purely ethical," no matter how acquired, qualify the holder for § 6 (j) status if they are held with the requisite intensity.

However, even the prevailing opinion's ambulatory concept of "religion" does not suffice to embrace Welsh, since petitioner insisted that his beliefs had been formed "by reading in the fields of history and sociology" and "denied that his objection to war was premised on religious belief." 404 F.2d, at 1082. That opinion not only establishes a definition of religion that amounts to "Newspeak" but it refuses to listen to petitioner who is speaking the same language.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*354] Unless we are to assume an Alice-in-Wonderland world where words have no meaning, I think it fair to say that Congress' choice of language cannot fail to convey to the discerning reader the very policy choice that the prevailing opinion today completely obliterates: that between conventional religions that usually have an organized and formal structure and dogma and a cohesive group identity, even when nontheistic, and cults that [**1804] represent schools of thought and in the usual case are without formal structure or are, at most, loose and informal [***327] associations of individuals who share common ethical, moral, or intellectual views.

II

When the plain thrust of a legislative enactment can only be circumvented by distortion to avert an inevitable constitutional collision, it is only by exalting form over substance that one can justify this veering off the path that has been plainly marked by the statute. Such a course betrays extreme skepticism as to constitutionality, and, in this instance, reflects a groping to preserve the conscientious objector exemption at all cost.

[***LEdHR14] [14]
[***LEdHR15] [15]
[***LEdHR16] [16]


I cannot subscribe to a wholly emasculated construction of a statute to avoid facing a latent constitutional question, in purported fidelity to the salutary doctrine of avoiding unnecessary resolution of constitutional issues, a principle to which I fully adhere. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring). It is, of course, desirable to salvage by construction legislative enactments whenever there is good reason to believe that Congress did not intend to legislate consequences that are unconstitutional, but it is not permissible, in my judgment, to take a lateral step that robs legislation of all meaning in order to avert the collision between its plainly intended purpose and the commands of the Constitution. [*355] Cf. Yates v. United States, 354 U.S. 298 (1957). As the Court stated in Aptheker v. Secretary of State, 378 U.S. 500, 515 (1964):

"It must be remembered that 'although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .' or judicially rewriting it. Scales v. United States [367 U.S. 203, 211]. To put the matter another way, this Court will not consider the abstract question of whether Congress might have enacted a valid statute but instead must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects."

The issue comes sharply into focus in Mr. Justice Cardozo's statement for the Court in Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933):



"'A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.' . . . But avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered."

[***LEdHR17] [17]


If an important congressional policy is to be perpetuated by recasting unconstitutional legislation, as the prevailing opinion has done here, the analytically sound approach is to accept responsibility for this decision. Its justification cannot be by resort to legislative intent, as that term is usually employed, but by a different kind of legislative intent, namely the presumed grant of power to the courts to decide whether it more nearly accords with [*356] Congress' wishes to eliminate its policy altogether or extend it in order to render what Congress [***328] plainly did intend, constitutional. Compare, e. g., Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926); United States v. Reese, 92 U.S. 214 (1876), with Skinner v. Oklahoma, 316 U.S. 535 [**1805] (1942); Nat. Life Ins. Co. v. United States, 277 U.S. 508 (1928). I therefore turn to the constitutional question.

III

[***LEdHR18] [18]
[***LEdHR19] [19]


The constitutional question that must be faced in this case is whether a statute that defers to the individual's conscience only when his views emanate from adherence to theistic religious beliefs is within the power of Congress. Congress, of course, could, entirely consistently with the requirements of the Constitution, eliminate all exemptions for conscientious objectors. Such a course would be wholly "neutral" and, in my view, would not offend the Free Exercise Clause, for reasons set forth in my dissenting opinion in Sherbert v. Verner, 374 U.S. 398, 418 (1963). See Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905) (dictum); cf. McGowan v. Maryland, 366 U.S. 420 (1961); Davis v. Beason, 133 U.S. 333 (1890); Hamilton v. Board of Regents, 293 U.S. 245, 264-265 (1934); Reynolds v. United States, 98 U.S. 145 (1879); Kurland, Of Church and State and the Supreme Court, 29 U. Chi. L. Rev. 1 (1961). However, having chosen to exempt, it cannot draw the line between theistic or nontheistic religious beliefs on the one hand and secular beliefs on the other. Any such distinctions are not, in my view, compatible with the Establishment Clause of the First Amendment. See my separate opinion in Walz v. Tax Comm'n, 397 U.S. 664, 694 (1970); Epperson v. Arkansas, 393 U.S. 97 (1968); School District of Abington Township v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring); [*357] Engel v. Vitale, 370 U.S. 421 (1962); Torcaso v. Watkins, 367 U.S. 488, 495 (1961); Fowler v. Rhode Island, 345 U.S. 67 (1953). The implementation of the neutrality principle of these cases requires, in my view, as I stated in Walz v. Tax Comm'n, supra, "an equal protection mode of analysis. The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders. In any particular case the critical question is whether the scope of legislation encircles a class so broad that it can be fairly concluded that [all groups that] could be thought to fall within the natural perimeter [are included]." 397 U.S., at 696.

The "radius" of this legislation is the conscientiousness with which an individual opposes war in general, yet the statute, as I think it must be construed, excludes from its "scope" individuals motivated by teachings of nontheistic religions, n8 and individuals guided by an inner ethical [***329] voice that bespeaks secular and not "religious" reflection. It not only accords a preference to the "religious" but also disadvantages adherents of religions that do not worship a Supreme Being. The constitutional infirmity cannot be cured, moreover, even by an impermissible construction that eliminates the theistic requirement and [**1806] simply draws the line between religious and nonreligious. This in my view offends the Establishment Clause and is that kind of classification [*358] that this Court has condemned. See my separate opinion in Walz v. Tax Comm'n, supra; School District of Abington Township v. Schempp (Goldberg, J., concurring), supra; Engel v. Vitale, supra; Torcaso v. Watkins, supra.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n8 This Court has taken notice of the fact that recognized "religions" exist that "do not teach what would generally be considered a belief in the existence of God," Torcaso v. Watkins, 367 U.S. 488, 495 n. 11, e. g., "Buddhism, Taoism, Ethical Culture, Secular Humanism and others." Ibid. See also Washington Ethical Society v. District of Columbia, 101 U. S. App. D. C. 371, 249 F.2d 127 (1957); 2 Encyclopaedia of the Social Sciences 293; J. Archer, Faiths Men Live By 120-138, 254-313 (2d ed. revised by Purinton 1958); Stokes & Pfeffer, supra, n. 3, at 560.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -



[***LEdHR20A] [20A]


If the exemption is to be given application, it must encompass the class of individuals it purports to exclude, those whose beliefs emanate from a purely moral, ethical, or philosophical source. n9 The common denominator must be the intensity of moral conviction with which a belief is held. n10 Common experience teaches that among [*359] "religious" individuals some are weak and others strong adherents to tenets and this is no less true of individuals whose lives are guided by personal ethical considerations.

[***LEdHR20B] [20B]


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n9 In Sherbert v. Verner, 374 U.S. 398 (1963), the Court held unconstitutional over my dissent a state statute that conditioned eligibility for unemployment benefits on being "able to work and . . . available for work" and further provided that a claimant was ineligible "if . . . he has failed, without good cause . . . to accept available suitable work when offered him by the employment office or the employer . . . ." This, the Court held, was a violation of the Free Exercise Clause as applied to Seventh Day Adventists whose religious background forced them as a matter of conscience to decline Saturday employment. My own conclusion, to which I still adhere, is that the Free Exercise Clause does not require a State to conform a neutral secular program to the dictates of religious conscience of any group. I suggested, however, that a State could constitutionally create exceptions to its program to accommodate religious scruples. That suggestion must, however, be qualified by the observation that any such exception in order to satisfy the Establishment Clause of the First Amendment, would have to be sufficiently broad to be religiously neutral. See my separate opinion in Walz v. Tax Comm'n, supra. This would require creating an exception for anyone who, as a matter of conscience, could not comply with the statute. Whether, under a statute like that involved in Sherbert, it would be possible to demonstrate a basis in conscience for not working Saturday is quite another matter.



n10 Without deciding what constitutes a definition of "religion" for First Amendment purposes it suffices to note that it means, in my view, at least the two conceivable readings of § 6 (j) set forth in Part II, but something less than mere adherence to ethical or moral beliefs in general or a certain belief such as conscientious objection. Thus the prevailing opinion's expansive reading of "religion" in § 6 (j) does not, in my view, create an Establishment Clause problem in that it exempts all sincere objectors but does not exempt others, e. g., those who object to war on pragmatic grounds and contend that pragmatism is their creed.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -



[***LEdHR21] [21]


The Government enlists the Selective Draft Law Cases, 245 U.S. 366 (1918), as precedent for upholding the constitutionality of the religious conscientious objector provision. That case involved the power of Congress to raise armies by conscription and only incidentally the conscientious objector exemption. The language emphasized by the Government to the effect that the [***330] exemption for religious objectors and ministers constituted neither an establishment nor interference with free exercise of religion can only be considered an afterthought since the case did not involve any individuals who claimed to be nonreligious conscientious objectors. n11 This conclusory assertion, unreasoned and unaccompanied by citation, surely cannot foreclose consideration [**1807] of the question in a case that squarely presents the issue.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n11 Thus, Mr. Chief Justice White said:

"And we pass without anything but statement the proposition that an establishment of a religion or an interference with the free exercise thereof repugnant to the First Amendment resulted from the exemption clauses of the act . . . because we think its unsoundness is too apparent to require us to do more." 245 U.S., at 389-390.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -



[***LEdHR22A] [22A]
[***LEdHR23A] [23A]
[***LEdHR24A] [24A]
[***LEdHR25A] [25A]
[***LEdHR26A] [26A]
[***LEdHR27] [27]


Other authorities assembled by the Government, far from advancing its case, demonstrate the unconstitutionality of the distinction drawn in § 6 (j) between religious and nonreligious beliefs. Everson v. Board of Education, 330 U.S. 1 (1947), the Sunday Closing Law Cases, 366 U.S. 420, 582, 599, and 617 (1961), and Board [*360] of Education v. Allen, 392 U.S. 236 (1968), all sustained legislation on the premise that it was neutral in its application and thus did not constitute an establishment, notwithstanding the fact that it may have assisted religious groups by giving them the same benefits accorded to nonreligious groups. n12 To the extent that Zorach v. Clauson, 343 U.S. 306 (1952), and Sherbert v. Verner, supra, stand for the proposition that the Government may (Zorach), or must (Sherbert), shape its secular programs to accommodate the beliefs and tenets of religious [*361] groups, I think these cases unsound. n13 See generally Kurland, [***331] supra. To conform with the requirements of the First Amendment's religious clauses as reflected in the mainstream of American history, legislation must, at the very least, be neutral. See my separate opinion in Walz v. Tax Comm'n, supra.

[***LEdHR22B] [22B]
[***LEdHR23B] [23B]
[***LEdHR24B] [24B]
[***LEdHR25B] [25B]
[***LEdHR26B] [26B]


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n12 My Brother WHITE in dissent misinterprets, in my view, the thrust of Mr. Justice Frankfurter's language in the Sunday Closing Law Cases. See post, at 369. Section 6 (j) speaks directly to belief divorced entirely from conduct. It evinces a judgment that individuals who hold the beliefs set forth by the statute should not be required to bear arms, and the statutory belief that qualifies is only a religious belief. Under these circumstances I fail to see how this legislation has "any substantial legislative purpose" apart from honoring the conscience of individuals who oppose war on only religious grounds. I cannot, moreover, accept the view, implicit in the dissent, that Congress has any ultimate responsibility for construing the Constitution. It, like all other branches of government, is constricted by the Constitution and must conform its action to it. It is this Court, however, and not the Congress that is ultimately charged with the difficult responsibility of construing the First Amendment. The Court has held that universal conscription creates no free exercise problem, see cases cited, supra, at 356, and Congress can constitutionally draft individuals notwithstanding their religious beliefs. Congress, whether in response to political considerations or simply out of sensitivity for men of religious conscience, can of course decline to exercise its power to conscript to the fullest extent, but it cannot do so without equal regard for men of nonreligious conscience. It goes without saying that the First Amendment is perforce a guarantee that the conscience of religion may not be preferred simply because organized religious groups in general are more visible than the individual who practices morals and ethics on his own. Any view of the Free Exercise Clause that does not insist on this neutrality would engulf the Establishment Clause and render it vestigial.



n13 That the "released-time" program in Zorach did not utilize classroom facilities for religious instruction, unlike McCollum v. Board of Education, 333 U.S. 203 (1948), is a distinction for me without Establishment Clause substance. At the very least the Constitution requires that the State not excuse students early for the purpose of receiving religious instruction when it does not offer to nonreligious students the opportunity to use school hours for spiritual or ethical instruction of a nonreligious nature. Moreover, whether a released-time program cast in terms of improving "conscience" to the exclusion of artistic or cultural pursuits, would be "neutral" and consistent with the requirement of "voluntarism," is by no means an easy question. Such a limited program is quite unlike the broad approach of the tax exemption statute, sustained in Walz v. Tax Comm'n, supra, which included literary societies, playgrounds, and associations "for the moral or mental improvement of men."


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

IV

[***LEdHR28] [28]


Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare [**1808] it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion. Cf. Skinner v. Oklahoma, 316 U.S. 535 (1942); Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239 (1931). n14

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n14 See Skinner v. Oklahoma, where MR. JUSTICE DOUGLAS, in an opinion holding infirm under the Equal Protection Clause a state statute that required sterilization of habitual thieves who perpetrated larcenies but not those who engaged in embezzlement, noted the alternative courses of extending the statute to cover the excluded class or not applying it to the wrongfully included group. The Court declined to speculate which alternative the State would prefer to adopt and simply reversed the judgment.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*362]

[***LEdHR29A] [29A]
The appropriate disposition of this case, which is a prosecution for refusing to submit to induction and not an action for a declaratory judgment on the constitutionality of § 6 (j), is determined by the fact that at the time of Welsh's induction notice and prosecution the Selective Service was, as required by statute, exempting individuals whose beliefs were identical in all respects to those held by petitioner except that they derived from a religious source. Since this created a religious benefit not accorded to petitioner, it is clear to me that this conviction must be reversed under the Establishment Clause of the First Amendment unless Welsh is to go remediless. Cf. Iowa-Des Moines National Bank v. Bennett, supra; Smith v. Cahoon, 283 U.S. 553 (1931). n15

[***LEdHR29B] [29B]


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n15 In Iowa-Des Moines National Bank v. Bennett, Mr. Justice Brandeis speaking for the Court in a decision holding that the State had denied petitioners equal protection of the laws by taxing them more heavily than their competitors, observed that: "The right invoked is that to equal treatment; and such treatment will be attained if either their competitors' taxes are increased or their own reduced." 284 U.S., at 247. Based on the impracticality of requiring the aggrieved taxpayer at that stage to "assume the burden of seeking an increase of the taxes which . . . others should have paid," the Court held that petitioner was entitled to recover the overpayment.

The Establishment Clause case that comes most readily to mind as involving "underinclusion" is Epperson v. Arkansas, 393 U.S. 97 (1968). There the State prohibited the teaching of evolutionist theory but "did not seek to excise from the curricula of its schools and universities all discussion of the origin of man." 393 U.S., at 109. The Court held the Arkansas statute, which was framed as a prohibition, unconstitutional. Since the statute authorized no positive action, there was no occasion to consider the remedial problem. Cf. Fowler v. Rhode Island, 345 U.S. 67 (1953). Most of the other cases arising under the Establishment Clause have involved instances where the challenged legislation conferred a benefit on religious as well as secular institutions. See, e. g., Walz v. Tax Comm'n, supra; Everson v. Board of Education, supra; Board of Education v. Allen, supra. These cases, had they been decided differently, would still not have presented the remedial problem that arises in the instant case, for they were cases of alleged "overinclusion." The school prayer cases, School District of Abington Township v. Schempp, supra; and Engel v. Vitale, supra; and the released-time cases, Zorach v. Clauson, supra; McCollum v. Board of Education, supra, also failed to raise the remedial issue. In the school prayer situation the requested relief was an injunction against the saying of prayers. Moreover it is doubtful that there is any analogous secular ritual that could be performed so as to satisfy the neutrality requirement of the First Amendment and even then the practice of saying prayers in schools would still offend the principle of voluntarism that must be satisfied in First Amendment cases. See my separate opinion in Walz v. Tax Comm'n, supra. The same considerations prevented the issue from arising in the one released-time program case that held the practice unconstitutional.

In McCollum, where the Court held unconstitutional a program that permitted "religious teachers, employed by private religious groups . . . to come weekly into the school buildings during the regular hours set apart for secular teaching, and then and there for a period of thirty minutes substitute their religious teaching for the secular education provided under the compulsory education law," 333 U.S., at 205, the relief requested was an order to mandamus the authorities to discontinue the program. No question arose as to whether the program might have been saved by extending a similar privilege to other students who wished extracurricular instruction in, for example, atheistic or secular ethics and morals. Cf. my separate opinion in Walz v. Tax Comm'n, supra. Moreover as in the prayer cases, since the defect in the Illinois program was not the mere absence of neutrality but also the encroachment on "voluntarism," see ibid., it is doubtful whether there existed any remedial alternative to voiding the entire program. A further complication would have arisen in these cases by virtue of the more limited discretion this Court enjoys to extend a policy for the States even as a constitutional remedy. Cf. Skinner v. Oklahoma, supra; Morey v. Doud, 354 U.S. 457 (1957); Dorchy v. Kansas, 264 U.S. 286 (1924).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*363] This [***332] [**1809] result, while tantamount to extending the statute, is not only the one mandated by the Constitution in this case but also the approach I would take had this question been presented in an action for a declaratory judgment [*364] or "an action in equity where the enforcement of a statute awaits the final determination of the court as to validity and scope." Smith v. Cahoon, 283 U.S., at 565. n16 While the necessary remedial operation, extension, is more analogous to a graft than amputation, I think the boundaries of permissible choice may properly be considered fixed by the legislative pronouncement on severability.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n16 As long as the Selective Service continues to grant exemptions to religious conscientious objectors, individuals like petitioner are not required to submit to induction. This is tantamount to extending the present statute to cover those in petitioner's position. Alternatively the defect of underinclusion that renders this statute unconstitutional could be cured in a civil action by eliminating the exemption accorded to objectors whose beliefs are founded in religion. The choice between these two courses is not one for local draft boards nor is it one that should await civil litigation where the question could more appropriately be considered. Consequently I deem it proper to confront the issue here, even though, as a technical matter, no judgment could issue in this case ordering the Selective Service to refrain entirely from granting exemptions.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -



[***LEdHR30] [30]


Indicative of the breadth of the judicial mandate in this regard is the broad severability clause, 65 Stat. 88, which provides that "if [***333] any provision of this Act or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act and of the application of such provision to other persons and circumstances shall not be affected thereby." While the absence of such a provision would not foreclose the exercise of discretion in determining whether a legislative policy should be repaired or abandoned, cf. United States v. Jackson, 390 U.S. 570, 585 n. 27 (1968), its existence "discloses an intention to make the Act divisible and creates a presumption that, eliminating invalid parts, the legislature would have been satisfied with what remained. . . ." Champlin Rfg. Co. v. Commission, 286 U.S. 210, 235 (1932). See also Skinner [*365] v. Oklahoma, supra; Nat. Life Ins. Co. v. United States, 277 U.S. 508 (1928). n17

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n17 In Skinner the Court impliedly recognized the mandate of flexibility to repair a defective statute -- even by extension -- conferred by a broad severability clause. As already noted, the Court there declined to exercise discretion, however, since absent a clear indication of legislative preference it was for the state courts to determine the proper course.

While Mr. Justice Brandeis in a dissenting opinion in Nat. Life Ins. Co., supra, at 522, 534-535, expressed the view that a severability clause in terms like that before us now is not intended to authorize amendment by expanding the scope of legislation, his remarks must be taken in the context of a dissent to a course he deemed contrary to that Congress would have chosen. Thus, after quoting Hill v. Wallace, 259 U.S. 44, 71 (1922), to the effect that a severability clause "furnishes assurance to courts that they may properly sustain separate sections or provisions of a partly invalid act without hesitation or doubt as to whether they would have been adopted, even if the legislature had been advised of the invalidity of part but . . . does not give . . . power to amend the act," Justice Brandeis observed, that: "Even if such a clause could ever permit a court to enlarge the scope of a deduction allowed by a taxing statute, . . . the asserted unconstitutionality can be cured as readily by [excision] as by [enlargement]" and that the former would most likely have been the congressional preference in that particular case. Cf. Iowa-Des Moines National Bank v. Bennett, supra.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -



[***LEdHR31] [31]


In [**1810] exercising the broad discretion conferred by a severability clause it is, of course, necessary to measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation. Cf. Nat. Life Ins. Co. v. United States, supra (Brandeis, J., dissenting); Dorchy v. Kansas, 264 U.S. 286 (1924).

The policy of exempting religious conscientious objectors is one of longstanding tradition in this country and accords recognition to what is, in a diverse and "open" society, the important value of reconciling individuality [*366] of belief with practical exigencies whenever possible. See Girouard v. United States, 328 U.S. 61 (1946). It dates back to colonial times and has been perpetuated in state and federal conscription statutes. See Mr. Justice Cardozo's separate opinion in Hamilton v. Board of Regents, 293 U.S., at 267; Macintosh v. United States, 42 F.2d 845, 847 (1930). That it has been phrased in religious terms reflects, I assume, the fact that ethics and morals, while the concern of secular philosophy, have traditionally been matters taught by organized religion and that for most individuals spiritual and ethical nourishment is derived from that source. It further [***334] reflects, I would suppose, the assumption that beliefs emanating from a religious source are probably held with great intensity.

[***LEdHR32] [32]


When a policy has roots so deeply embedded in history, there is a compelling reason for a court to hazard the necessary statutory repairs if they can be made within the administrative framework of the statute and without impairing other legislative goals, even though they entail, not simply eliminating an offending section, but rather building upon it. n18 Thus I am prepared to accept the prevailing opinion's conscientious objector test, not as a reflection of congressional statutory intent but as patchwork [*367] of judicial making that cures the defect of underinclusion in § 6 (j) and can be administered by local boards in the usual course of business. n19 [**1811] Like the prevailing opinion, I also conclude that petitioner's beliefs are held with the required intensity and consequently vote to reverse the judgment of conviction.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n18 I reach these conclusions notwithstanding the admonition in United States v. Reese that it "is no part of [this Court's] duty" "to limit [a] statute in [such a way as] to make a new law, [rather than] enforce an old one." 92 U.S. 214, 221 (1876). See also Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926); Marchetti v. United States, 390 U.S. 39, 60 (1968). Neither of these cases involved statutes evincing a congressional intent to confer a benefit on a particular group, thus requiring the frustration of third-party beneficiary legislation when the acts were held invalid. Moreover, the saving construction in Marchetti would have thwarted, not complemented, the primary purpose of the statute by introducing practical difficulties into that enforcement of state gambling laws that the statute was designed to further.


n19 During World War I when the exemption was granted to members or affiliates of "well-recognized religious sect[s]" the Selective Service System found it impracticable to compile a list of "recognized" sects and left the matter to the discretion of the local boards. Second Report of the Provost Marshal General to the Secretary of War on the Operations of the Selective Service System to December 20, 1918, p. 56. As a result, some boards treated religious and nonreligious objectors in the same manner. Report of the Provost Marshal General to the Secretary of War on the First Draft Under the Selective-Service Act, 1917, p. 59. Finally, by presidential regulation dated March 20, 1918, it was ordered that conscientious objector status be open to all conscientious objectors without regard to any religious qualification. The experience during World War II, when draft boards were operating under the broad definition of religion in United States v. Kauten, 133 F.2d 703 (C. A. 2d Cir. 1943), also demonstrates the administrative viability of today's test. Not only would the test announced today seem manageable but it would appear easier than the arcane inquiry required to determine whether beliefs are religious or secular in nature.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

DISSENT BY: WHITE

DISSENT: MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, dissenting.

[***LEdHR33] [33]


Whether or not United States v. Seeger, 380 U.S. 163 (1965), accurately reflected the intent of Congress in providing draft exemptions for religious conscientious objectors to war, I cannot join today's construction of § 6 (j) extending draft exemption to those who disclaim religious objections to war and whose views about war represent a purely personal code arising not from religious training and belief as the statute requires but from readings in philosophy, history, and sociology. Our obligation [*368] in statutory construction cases is to enforce the will of Congress, not our own; and as MR. JUSTICE HARLAN has demonstrated, construing § 6 (j) to include Welsh exempts from the draft a class of persons to whom Congress has expressly denied an exemption.

[***335] For me that conclusion should end this case. Even if Welsh is quite right in asserting that exempting religious believers is an establishment of religion forbidden by the First Amendment, he nevertheless remains one of those persons whom Congress took pains not to relieve from military duty. Whether or not § 6 (j) is constitutional, Welsh had no First Amendment excuse for refusing to report for induction. If it is contrary to the express will of Congress to exempt Welsh, as I think it is, then there is no warrant for saving the religious exemption and the statute by redrafting it in this Court to include Welsh and all others like him.

[***LEdHR34] [34]


If the Constitution expressly provided that aliens should not be exempt from the draft, but Congress purported to exempt them and no others, Welsh, a citizen, could hardly qualify for exemption by demonstrating that exempting aliens is unconstitutional. By the same token, if the Constitution prohibits Congress from exempting religious believers, but Congress exempts them anyway, why should the invalidity of the exemption create a draft immunity for Welsh? Surely not just because he would otherwise go without a remedy along with all those others not qualifying for exemption under the statute. And not as a reward for seeking a declaration of the invalidity of § 6 (j); for as long as Welsh is among those from whom Congress expressly withheld the exemption, he has no standing to raise the establishment issue even if § 6 (j) would present no First Amendment problems if it had included Welsh and others like him. "One to whom application of a statute is constitutional will not be heard to attack the [*369] statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be [**1812] unconstitutional." United States v. Raines, 362 U.S. 17, 21 (1960). Nothing in the First Amendment prohibits drafting Welsh and other nonreligious objectors to war. Saving § 6 (j) by extending it to include Welsh cannot be done in the name of a presumed congressional will but only by the Court's taking upon itself the power to make draft-exemption policy.

[***LEdHR35] [35]


If I am wrong in thinking that Welsh cannot benefit from invalidation of § 6 (j) on Establishment Clause grounds, I would nevertheless affirm his conviction; for I cannot hold that Congress violated the Clause in exempting from the draft all those who oppose war by reason of religious training and belief. In exempting religious conscientious objectors, Congress was making one of two judgments, perhaps both. First, § 6 (j) may represent a purely practical judgment that religious objectors, however admirable, would be of no more use in combat than many others unqualified for military service. Exemption was not extended to them to further religious belief or practice but to limit military service to those who were prepared to undertake the fighting that the armed services have to do. On this basis, the exemption has neither the primary purpose nor the effect of furthering religion. As Mr. Justice Frankfurter, joined by MR. JUSTICE HARLAN, said in a separate opinion in the Sunday Closing Law Cases, 366 U.S. 420, 468 (1961), an establishment contention "can prevail only if the absence of any substantial legislative purpose other than [***336] a religious one is made to appear. See Selective Draft Law Cases, 245 U.S. 366."

Second, Congress may have granted the exemption because otherwise religious objectors would be forced into conduct that their religions forbid and because [*370] in the view of Congress to deny the exemption would violate the Free Exercise Clause or at least raise grave problems in this respect. True, this Court has more than once stated its unwillingness to construe the First Amendment, standing alone, as requiring draft exemptions for religious believers. Hamilton v. Board of Regents, 293 U.S. 245, 263-264 (1934); United States v. Macintosh, 283 U.S. 605, 623-624 (1931). But this Court is not alone in being obliged to construe the Constitution in the course of its work; nor does it even approach having a monopoly on the wisdom and insight appropriate to the task. Legislative exemptions for those with religious convictions against war date from colonial days. As Chief Justice Hughes explained in his dissent in United States v. Macintosh, supra, at 633, the importance of giving immunity to those having conscientious scruples against bearing arms has consistently been emphasized in debates in Congress and such draft exemptions are "'indicative of the actual operation of the principles of the Constitution.'" However this Court might construe the First Amendment, Congress has regularly steered clear of free exercise problems by granting exemptions to those who conscientiously oppose war on religious grounds.

If there were no statutory exemption for religious objectors to war and failure to provide it was held by this Court to impair the free exercise of religion contrary to the First Amendment, an exemption reflecting this constitutional command would be no more an establishment of religion than the exemption required for Sabbatarians in Sherbert v. Verner, 374 U.S. 398 (1963), or the exemption from the flat tax on book sellers held required for evangelists, Follett v. McCormick, 321 U.S. 573 (1944). Surely a statutory exemption for religionists required by [**1813] the Free Exercise Clause is not an invalid establishment because it fails to include nonreligious believers as well; nor would it be any less an establishment [*371] if camouflaged by granting additional exemptions for nonreligious, but "moral" objectors to war.

[***LEdHR36] [36]
[***LEdHR37] [37]


On the assumption, however, that the Free Exercise Clause of the First Amendment does not by its own force require exempting devout objectors from military service, it does not follow that § 6 (j) is a law respecting an establishment of religion within the meaning of the First Amendment. It is very likely that § 6 (j) is a recognition by Congress of free exercise values and its view of desirable or required policy in implementing the Free Exercise Clause. That judgment is entitled to respect. Congress has the power "To raise and support Armies" and "To make all Laws which shall be necessary and proper for carrying into Execution" that power. Art. I, § 8. The power to raise armies must be exercised consistently with the First Amendment which, among other things, forbids laws prohibiting the free exercise of religion. It is surely essential therefore -- surely "necessary and proper" -- in enacting [***337] laws for the raising of armies to take account of the First Amendment and to avoid possible violations of the Free Exercise Clause. If this was the course Congress took, then just as in Katzenbach v. Morgan, 384 U.S. 641 (1966), where we accepted the judgment of Congress as to what legislation was appropriate to enforce the Equal Protection Clause of the Fourteenth Amendment, here we should respect congressional judgment accommodating the Free Exercise Clause and the power to raise armies. This involves no surrender of the Court's function as ultimate arbiter in disputes over interpretation of the Constitution. But it was enough in Katzenbach "to perceive a basis upon which the Congress might resolve the conflict as it did," 384 U.S., at 653, and plainly in the case before us there is an arguable basis for § 6 (j) in the Free Exercise Clause since, without the exemption, the law would compel some members of the public to engage in combat [*372] operations contrary to their religious convictions. Indeed, one federal court has recently held that to draft a man for combat service contrary to his conscientious beliefs would violate the First Amendment. United States v. Sisson, 297 F.Supp. 902 (1969). There being substantial roots in the Free Exercise Clause for § 6 (j) I would not frustrate congressional will by construing the Establishment Clause to condition the exemption for religionists upon extending the exemption also to those who object to war on nonreligious grounds.

[***LEdHR38] [38]
[***LEdHR39] [39]
[***LEdHR40] [40]


We have said that neither support nor hostility, but neutrality, is the goal of the religion clauses of the First Amendment. "Neutrality," however, is not self-defining. If it is "favoritism" and not "neutrality" to exempt religious believers from the draft, is it "neutrality" and not "inhibition" of religion to compel religious believers to fight when they have special reasons for not doing so, reasons to which the Constitution gives particular recognition? It cannot be ignored that the First Amendment itself contains a religious classification. The Amendment protects belief and speech, but as a general proposition, the free speech provisions stop short of immunizing conduct from official regulation. The Free Exercise Clause, however, has a deeper cut: it protects conduct as well as religious belief and speech. "It safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts, -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." Cantwell v. Connecticut, 310 U.S. 296, 303-304 (1940). Although socially harmful acts [**1814] may as a rule be banned despite the Free Exercise Clause even where religiously motivated, there is an area of conduct that cannot be forbidden to religious practitioners but that may be forbidden to others. See United States v. Ballard, 322 U.S. 78 (1944); Follett v. [*373] McCormick, 321 U.S. 573 (1944). We should thus not labor to find a violation of the Establishment Clause when free exercise values prompt Congress to relieve religious believers from the burdens of the law at least in those instances where the law is not merely prohibitory but commands the performance of military duties that are forbidden by a man's religion.

[***338] In Braunfeld v. Brown, 366 U.S. 599 (1961), and Gallagher v. Crown Kosher Market, 366 U.S. 617 (1961), a majority of the Court rejected claims that Sunday closing laws placed unacceptable burdens on Sabbatarians' religious observances. It was not suggested, however, that the Sunday closing laws in 21 States exempting Sabbatarians and others violated the Establishment Clause because no provision was made for others who claimed nonreligious reasons for not working on some particular day of the week. Nor was it intimated in Zorach v. Clauson, 343 U.S. 306 (1952), that the no-establishment holding might be infirm because only those pursuing religious studies for designated periods were released from the public school routine; neither was it hinted that a public school's refusal to institute a released-time program would violate the Free Exercise Clause. The Court in Sherbert v. Verner, supra, construed the Free Exercise Clause to require special treatment for Sabbatarians under the State's unemployment compensation law. But the State could deal specially with Sabbatarians whether the Free Exercise Clause required it or not, for as MR. JUSTICE HARLAN then said -- and I agreed with him -- the Establishment Clause would not forbid an exemption for Sabbatarians who otherwise could not qualify for unemployment benefits.

[***LEdHR41] [41]


The Establishment Clause as construed by this Court unquestionably has independent significance; its function is not wholly auxiliary to the Free Exercise Clause. It bans some involvements of the State with religion that [*374] otherwise might be consistent with the Free Exercise Clause. But when in the rationally based judgment of Congress free exercise of religion calls for shielding religious objectors from compulsory combat duty, I am reluctant to frustrate the legislative will by striking down the statutory exemption because it does not also reach those to whom the Free Exercise Clause offers no protection whatsoever.

I would affirm the judgment below.

REFERENCES: Return To Full Text Opinion

Am Jur, Military and Civil Defense (1st ed 23)

14 Am Jur Pl & Pr Forms, Military, Forms 14:161-14:168

16 Am Jur Trials 257, Selective Service Litigation

US L Ed Digest, Armed Forces 7

ALR Digests, Armed Forces 3

L Ed Index to Anno, Armed Forces; Conscientious Objector

ALR Quick Index, Armed Forces

Federal Quick Index, Armed Forces; Conscientious Objector

Annotation References:

Who is entitled to exemption as a conscientious objector within 6(j) of the Universal Military Training and Service Act. 99 L Ed 443, 13 L Ed 2d 1186.

Provisions of Federal Constitution concerning establishment and freedom of religion. 96 L Ed 968, 6 L Ed 2d 1394, 21 L Ed 2d 928.






THOMAS v. REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION ET AL.
No. 79-952
SUPREME COURT OF THE UNITED STATES
450 U.S. 707; 101 S. Ct. 1425; 67 L. Ed. 2d 624; 1981 U.S. LEXIS 11; 49 U.S.L.W. 4341; 25 Fair Empl. Prac. Cas. (BNA) 629; 25 Empl. Prac. Dec. (CCH) P31,662
October 7, 1980, Argued
April 6, 1981, Decided
PRIOR HISTORY: CERTIORARI TO THE SUPREME COURT OF INDIANA.

DISPOSITION: 271 Ind. , 391 N. E. 2d 1127, reversed.
CASE SUMMARY:
PROCEDURAL POSTURE: The Supreme Court of Indiana vacated a decision of the court of appeals, which reversed respondent Review Board of the Indiana Employment Security Division's adoption of a referee's findings and conclusions and affirmation of the denial of unemployment benefits to petitioner claimant. Petitioner claimant sought and was granted certiorari.
OVERVIEW: The Review Board of the Indiana Employment Security Division (board) denied unemployment compensation benefits to the claimant, who terminated his job because his religious beliefs forbade participation in the production of armaments. The board argued that the burden on religion was only the indirect consequence of public welfare legislation. The court found that a facially neutral regulation may, in its application, offend the First Amendment if it unduly burdens the free exercise of religion. A burden existed where the state denied a benefit because of conduct mandated by religious belief. The court rejected the interests argued by the board to justify the burden on religion, finding that there was no evidence to indicate that the number of people forced to choose between benefits and religious beliefs was large enough to seriously affect unemployment and that there was no evidence in the record to indicate that it would lead to inquiries by employers into applicants' religious beliefs. Therefore, the court found that the claimant's First Amendment right to free exercise of religion was violated.
OUTCOME: The decision was reversed.
CORE TERMS: religious, religion, religious beliefs, unemployment, unemployment compensation, terminated, referee, quit, foundry, personal reasons, claimant's, tank, free exercise, weapons, roll, exercise of religion, producing, secular, good cause, turret, philosophical, disqualifying, termination, conscience, indirect, arms, state interests, correctly, armament, steel
SYLLABUS
Petitioner, a Jehovah's Witness, was initially hired to work in his employer's roll foundry, which fabricated sheet steel for a variety of industrial uses, but when the foundry was closed he was transferred to a department that fabricated turrets for military tanks. Since all of the employer's remaining departments to which transfer might have been sought were engaged directly in the production of weapons, petitioner asked to be laid off. When that request was denied, he quit, asserting that his religious beliefs prevented him from participating in the production of weapons. He applied for unemployment compensation benefits under the Indiana Employment Security Act, and testified at an administrative hearing that he believed that contributing to the production of arms violated his religion, although he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms. The hearing referee found that petitioner had terminated his employment because of his religious convictions, but held that petitioner was not entitled to benefits because his voluntary termination was not based upon a "good cause [arising] in connection with [his] work," as required by the Indiana statute. Respondent Review Board affirmed, but the Indiana Court of Appeals reversed, holding that the Indiana statute, as applied, improperly burdened petitioner's right to the free exercise of his religion. The Indiana Supreme Court vacated the Court of Appeals' decision and denied petitioner benefits, holding that he had quit voluntarily for personal reasons, his belief being more "personal philosophical choice" than religious belief. The court also concluded that in any event a termination motivated by religion is not for "good cause" objectively related to the work, as required by the Indiana statute, and that denying benefits created only an indirect burden on petitioner's free exercise right, which burden was justified by legitimate state interests.
Held: The State's denial of unemployment compensation benefits to petitioner violated his First Amendment right to free exercise of religion under Sherbert v. Verner, 374 U.S. 398. Pp. 713-720.
(a) The Indiana Supreme Court improperly relied on the facts that petitioner was "struggling" with his beliefs and that he was not able to "articulate" his belief precisely. Courts should not undertake to dissect religious beliefs on such grounds. The Indiana court also erred in apparently giving significant weight to the fact that another Jehovah's Witness with whom petitioner consulted had no scruples about working on tank turrets. The guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because such work was forbidden by his religion. The record shows that petitioner terminated his employment for religious reasons. Pp. 713-716.
(b) A person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program. It is true that the Indiana law does not compel a violation of conscience, but where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial. Pp. 716-718.
(c) The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest. However, when the inquiry is properly narrowed to focus only on the threat to state interests, neither of the purposes urged to sustain the disqualifying provision of the Indiana statute -- to avoid the widespread unemployment and consequent burden on the fund resulting if people were permitted to leave jobs for "personal" reasons, and to avoid a detailed probing by employers into job applicants' religious beliefs -- is sufficiently compelling to justify the burden upon petitioner's religious liberty. Pp. 718-719.
(d) Payment of benefits to petitioner would not involve the State in fostering a religious faith in violation of the Establishment Clause. The extension of benefits reflects no more than the governmental obligation of neutrality, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. Pp. 719-720.
COUNSEL: Blanca Bianchi de la Torre argued the cause for petitioner. With her on the briefs were Seymour H. Moskowitz and Michael Martin Mulder.

William E. Daily argued the cause for respondents. With him on the brief were Theodore L. Sendak, Attorney General of Indiana, and Janis L. Summers and Cindy A. Ellis, Deputy Attorneys General. *
* Briefs of amici curiae urging reversal were filed by Judith Levin for the American Civil Liberties Union; by Nathan Z. Dershowitz for the American Jewish Congress; and by Leo Pfeffer for the Jewish Peace Fellowship et al.
Lee Boothby filed a brief for Americans United for Separation of Church and State Fund, Inc., as amicus curiae.

JUDGES: BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined, and in Parts I, II, and III of which BLACKMUN, J., joined. BLACKMUN, J., filed a statement concurring in part and concurring in the result, post, p. 720. REHNQUIST, J., filed a dissenting opinion, post, p. 720.
OPINION BY: BURGER
OPINION
[*709] [***628] [**1427] CHIEF JUSTICE BURGER delivered the opinion of the Court.
[***LEdHR1A] [1A]We granted certiorari to consider whether the State's denial of unemployment compensation benefits to the petitioner, a Jehovah's Witness who terminated his job because his religious beliefs forbade participation in the production of armaments, constituted a violation of his First Amendment right to free exercise of religion. 444 U.S. 1070 (1980).
I
Thomas terminated his employment in the Blaw-Knox Foundry & Machinery Co. when he was transferred from the roll foundry to a department that produced turrets for military tanks. He claimed his religious beliefs prevented him from participating in the production of war materials. [**1428] The respondent Review Board denied him unemployment compensation benefits by applying disqualifying provisions of the Indiana Employment Security Act. 1
1 [HN1] Indiana Code § 22-4-15-1 (Supp. 1978) provides:
"With respect to benefit periods including extended benefit periods established subsequent to July 6, 1974, and before July 3, 1977, an individual who has voluntarily left his employment without good cause in connection with the work or who was discharged from his employment for just cause shall be ineligible for waiting period or benefit rights for the week in which the disqualifying separation occurred and until he has subsequently earned remuneration in employment equal to or exceeding the weekly benefit amount of his claim in each of ten (10) weeks. The weeks of a disqualification period remaining at the expiration of an individual's benefit period will be carried forward to an extended benefit period or to the benefit period of a subsequent claim only if the first week of such extended benefit period or subsequent benefit period falls within ten (10) consecutive weeks from the beginning of the disqualification period imposed on the prior claim."

[*710] Thomas, [***629] a Jehovah's Witness, was hired initially to work in the roll foundry at Blaw-Knox. The function of that department was to fabricate sheet steel for a variety of industrial uses. On his application form, he listed his membership in the Jehovah's Witnesses, and noted that his hobbies were Bible study and Bible reading. However, he placed no conditions on his employment; and he did not describe his religious tenets in any detail on the form.
Approximately a year later, the roll foundry closed, and Blaw-Knox transferred Thomas to a department that fabricated turrets for military tanks. On his first day at this new job, Thomas realized that the work he was doing was weapons related. He checked the bulletin board where in-plant openings were listed, and discovered that all of the remaining departments at Blaw-Knox were engaged directly in the production of weapons. Since no transfer to another department would resolve his problem, he asked for a layoff. When that request was denied, he quit, asserting that he could not work on weapons without violating the principles of his religion. The record does not show that he was offered any nonweapons work by his employer, or that any such work was available.
Upon leaving Blaw-Knox, Thomas applied for unemployment compensation benefits under the Indiana Employment Security Act. 2 At an administrative hearing where he was [*711] not represented by counsel, he testified that he believed that contributing to the production of arms violated his religion. He said that when he realized that his work on the tank turret line involved producing weapons for war, he consulted another Blaw-Knox employee -- a friend and fellow Jehovah's Witness. The friend advised him that working on weapons parts at Blaw-Know was not "unscriptural." Thomas was not able to "rest with" this view, however. He concluded that his friend's view was based upon a less strict reading of Witnesses' principles than his own.
2 Ind. Code § 22-4-1-1 et seq. (1976 and Supp. 1978).

When asked at the hearing to explain what kind of work his religious convictions would permit, Thomas said that he would have no difficulty doing the type of work that he had done at the roll foundry. He testified that he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms -- for example, as an employee of a raw material supplier or of a roll foundry. 3
3 It is reasonable to assume that some of the sheet steel processed in the roll foundry may have found its way into tanks or other weapons; the record, however, contains no evidence or finding on this point.

The hearing referee found that Thomas' religious beliefs specifically precluded him from producing or directly aiding in the manufacture [***630] of items used in warfare. 4 He [**1429] also found that Thomas had terminated his employment because of these religious convictions. The referee reported:
"Claimant continually searched for a transfer to another department which would not be so armament related; [*712] however, this did not materialize, and prior to the date of his leaving, claimant requested a layoff, which was denied; and on November 6, 1975, claimant did quit due to his religious convictions." 5
The referee concluded nonetheless that Thomas' termination was not based upon a "good cause [arising] in connection with [his] work," as required by the Indiana unemployment compensation statute. Accordingly, he was held not entitled to benefits. The Review Board adopted the referee's findings and conclusions, and affirmed the denial of benefits. 6
4 The referee indicated, App. to Pet. for Cert. 2a:
"The evidence reveals that approximate [sic] two to three weeks prior to claimant's date of leaving, the 'Roll Foundry' was closed permanently and claimant was transferred to the terret [sic] line. [He], at this time, real [sic] realized that all of the other functions at The Blaw-Knox company were engaged in producing arms for the Armament Industry. Claimant's religious beliefs specifically exempts [sic] claimants from producing or aiding in the manufacture of items used in the advancement of war."

5 Id., at 2a-3a (emphasis added by petitioner).

6 The Review Board, like the referee, found that Thomas had left his job for religious reasons, id., at 5a:
"The evidence of record indicates that claimant . . . left his employment voluntarily because his religious beliefs . . . would not allow him to continue to work producing arms . . . ."

The Indiana Court of Appeals, accepting the finding that Thomas terminated his employment "due to his religious convictions," reversed the decision of the Review Board, and held that § 22-4-15-1, as applied, improperly burdened Thomas' right to the free exercise of his religion. Accordingly, it ordered the Board to extend benefits to Thomas. 178 Ind. App. , 381 N. E. 2d 888 (1978).
The Supreme Court of Indiana, dividing 3-2, vacated the decision of the Court of Appeals, and denied Thomas benefits. 271 Ind. , 391 N. E. 2d 1127 (1979). With reference to the Indiana unemployment compensation statute, the court said:
"It is not intended to facilitate changing employment or to provide relief for those who quit work voluntarily for personal reasons. Voluntary unemployment is not compensable under the purpose of the Act, which is to provide benefits for persons unemployed through no fault of their own.
"Good cause which justifies voluntary termination must [*713] be job-related and objective in character." Id., at , 391 N. E. 2d, at 1129 (footnotes omitted).

The court held that Thomas had quit voluntarily for personal reasons, and therefore did not qualify for benefits. Id., at , 391 N. E. 2d, at 1130.
In discussing the petitioner's free exercise claim, the court stated: "A personal philosophical choice rather than a religious choice, does not rise [***631] to the level of a first amendment claim." Id., at , 391 N. E. 2d, at 1131. The court found the basis and the precise nature of Thomas' belief unclear -- but it concluded that the belief was more "personal philosophical choice" than religious belief. Nonetheless, it held that, even assuming that Thomas quit for religious reasons, he would not be entitled to benefits: under Indiana law, a termination motivated by religion is not for "good cause" objectively related to the work.
The Indiana court concluded that denying Thomas benefits would create only an indirect burden on his free exercise right and that the burden was justified by the legitimate state interest in preserving the integrity of the insurance fund and maintaining a stable work force by encouraging workers not to leave their jobs for personal reasons.
Finally, the court held that awarding unemployment compensation benefits to a person who terminates employment voluntarily for religious reasons, while denying such benefits to persons who terminate for other personal but nonreligious reasons, would violate the Establishment Clause of the First Amendment.
[**1430] The judgment under review must be examined in light of our prior decisions, particularly Sherbert v. Verner, 374 U.S. 398 (1963).
II

[***LEdHR1B] [1B] [***LEdHR2] [2] [HN2] Only beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion. Sherbert v. Verner, supra; Wisconsin [*714] v. Yoder, 406 U.S. 205, 215-216 (1972). The determination of what is a "religious" belief or practice is more often than not a difficult and delicate task, as the division in the Indiana Supreme Court attests. 7 However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.
7 See, e. g., Torcaso v. Watkins, 367 U.S. 488, 495 (1961); United States v. Ballard, 322 U.S. 78 (1944).

In support of his claim for benefits, Thomas testified:
"Q. And then when it comes to actually producing the tank itself, hammering it out; that you will not do. . . .
"A. That's right, that's right when . . . I'm daily faced with the knowledge that these are tanks . . . .
. . . .
"A. I really could not, you know, conscientiously continue to work with armaments. It would be against all of the . . . religious principles that . . . I have come to learn . . . ." 271 Ind., at , 391 N. E. 2d, at 1132.
Based upon this and other testimony, the referee held that Thomas "quit due to his religious convictions." 8 The Review Board adopted that finding, 9 and the finding is not challenged in this Court.
8 See n. 4, and text at n. 5, supra.

9 See n. 6, supra.

The [***632] Indiana Supreme Court apparently took a different view of the record. It concluded that "although the claimant's reasons for quitting were described as religious, it was unclear what his belief was, and what the religious basis of his belief was." 10 In that court's view, Thomas had made a merely "personal philosophical choice rather than a religious choice." 11
10 271 Ind., at , 391 N. E. 2d, at 1133.

11 Id., at , 391 N. E. 2d, at 1131.

[*715] [***LEdHR3] [3]In reaching its conclusion, the Indiana court seems to have placed considerable reliance on the facts that Thomas was "struggling" with his beliefs and that he was not able to "articulate" his belief precisely. It noted, for example, that Thomas admitted before the referee that he would not object to
"working for United States Steel or Inland Steel . . . [producing] the raw product necessary for the production of any kind of tank . . . [because I] would not be a direct party to whoever they shipped it to [and] would not be . . . chargeable in . . . conscience. . . ." 271 Ind., at , 391 N. E. 2d, at 1131.
The court found this position inconsistent with Thomas' stated opposition to participation in the production of armaments. But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. [HN3] Courts should not undertake to dissect religious beliefs because the believer admits that he is "struggling" with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.
[***LEdHR4] [4]The Indiana court also appears to have given significant weight to the fact that another Jehovah's Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was "scripturally" acceptable. Intrafaith differences [**1431] of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences in relation to the Religion Clauses. One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here, and [HN4] the guarantee of free exercise is not limited to beliefs which are shared by all of the members [*716] of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.
[HN5] The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion. Not surprisingly, the record before the referee and the Review Board was not made with an eye to the microscopic examination often exercised in appellate [***633] judicial review. However, judicial review is confined to the facts as found and conclusions drawn. On this record, it is clear that Thomas terminated his employment for religious reasons.
III
A
[***LEdHR1C] [1C] [***LEdHR5] [5]More than 30 years ago, the Court held that [HN6] a person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program. A state may not


"exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Everson v. Board of Education, 330 U.S. 1, 16 (1947) (emphasis deleted).
Later, in Sherbert the Court examined South Carolina's attempt to deny unemployment compensation benefits to a Sabbatarian who declined to work on Saturday. In sustaining her right to receive benefits, the Court held:


"The ruling [disqualifying Mrs. Sherbert from benefits because of her refusal to work on Saturday in violation of her faith] forces her to choose between following the [*717] precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against [her] for her Saturday worship." 374 U.S., at 404.
The respondent Review Board argues, and the Indiana Supreme Court held, that the burden upon religion here is only the indirect consequence of public welfare legislation that the State clearly has authority to enact. "Neutral objective standards must be met to qualify for compensation." 271 Ind., at , 391 N. E. 2d, at 1130. Indiana requires applicants for unemployment compensation to show that they left work for "good cause in connection with the work." Ibid.
A similar argument was made and rejected in Sherbert, however. It is true that, as in Sherbert, the Indiana law does not compel a violation of conscience. But, "this is only the beginning, not the end, of our inquiry." 374 U.S., at 403-404. In a variety of ways we have said that [HN7] "[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." Wisconsin v. Yoder, 406 U.S., at 220. Cf. Walz v. Tax Comm'n, 397 U.S. 664 (1970).

[***LEdHR6] [6]Here, as in Sherbert, the employee was put to a choice between fidelity to [**1432] religious belief or cessation of work; the coercive impact on Thomas is indistinguishable from Sherbert, where the Court held:


"[Not] only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the [***634] pressure upon her to forego that practice is unmistakable." 374 U.S., at 404.

[HN8] Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies [*718] such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
The respondents also contend that Sherbert is inapposite because, in that case, the employee was dismissed by the employer's action. But we see that Mrs. Sherbert was dismissed because she refused to work on Saturdays after the plant went to a 6-day workweek. Had Thomas simply presented himself at the Blaw-Knox plant turret line but refused to perform any assigned work, it must be assumed that he, like Sherbert, would have been terminated by the employer's action, if no other work was available. In both cases, the termination flowed from the fact that the employment, once acceptable, became religiously objectionable because of changed conditions.
B

[***LEdHR1D] [1D] [HN9] The mere fact that the petitioner's religious practice is burdened by a governmental program does not mean that an exemption accommodating his practice must be granted. The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest. However, it is still true that "[the] essence of all that has been said and written on the subject is that only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, supra, at 215.

[***LEdHR7] [7]The purposes urged to sustain the disqualifying provision of the Indiana unemployment compensation scheme are two-fold: (1) to avoid the widespread unemployment and the consequent burden on the fund resulting if people were permitted to leave jobs for "personal" reasons; 12 and (2) to [*719] avoid a detailed probing by employers into job applicants' religious beliefs. These are by no means unimportant considerations. When the focus of the inquiry is properly narrowed, however, we must conclude that the interests advanced by the State do not justify the burden placed on free exercise of religion.
12 A similar interest -- the integrity of the insurance fund -- was advanced and rejected in Sherbert v. Verner, 374 U.S. 398, 407 (1963).

There is no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create "widespread unemployment," or even to seriously affect unemployment -- and no such claim was advanced by the Review Board. Similarly, although detailed inquiry by employers into applicants' religious beliefs is undesirable, there is no evidence in the record to indicate that such inquiries will occur in Indiana, or that they have occurred in any of the states that extend benefits to people in the [***635] petitioner's position. Nor is there any reason to believe that the number of people terminating employment for religious reasons will be so great as to motivate employers to make such inquiries.
Neither of the interests advanced is sufficiently compelling to justify the burden upon Thomas' religious liberty. Accordingly, Thomas is entitled to receive benefits unless, as the respondents contend and the Indiana court held, such payment would violate the Establishment Clause.
[**1433] IV
[***LEdHR1E] [1E] [***LEdHR8] [8]The respondents contend that to compel benefit payments to Thomas involves the State in fostering a religious faith. There is, in a sense, a "benefit" to Thomas deriving from his religious beliefs, but this manifests no more than the tension between the two Religious Clauses which the Court resolved in Sherbert:
"In holding as we do, plainly we are not fostering the 'establishment' of the Seventh-day Adventist religion [*720] in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall." Sherbert v. Verner, 374 U.S., at 409.

See also Wisconsin v. Yoder, 406 U.S., at 220-221; Walz v. Tax Comm'n, 397 U.S., at 668-669; O'Hair v. Andrus, 198 U. S. App. D. C. 198, 201-204, 613 F.2d 931, 934-937 (1979) (Leventhal, J.).
Unless we are prepared to overrule Sherbert, supra, Thomas cannot be denied the benefits due him on the basis of the findings of the referee, the Review Board, and the Indiana Court of Appeals that he terminated his employment because of his religious convictions.
Reversed.
JUSTICE BLACKMUN joins Parts I, II, and III of the Court's opinion. As to Part IV thereof, he concurs in the result.
DISSENT BY: REHNQUIST
DISSENT
JUSTICE REHNQUIST, dissenting.
The Court today holds that the State of Indiana is constitutionally required to provide direct financial assistance to a person solely on the basis of his religious beliefs. Because I believe that the decision today adds mud to the already muddied waters of First Amendment jurisprudence, I dissent.
I
The Court correctly acknowledges that there is a "tension" between the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution. Although the relationship of the two Clauses has been the subject of much commentary, the "tension" is of fairly recent [*721] vintage, unknown at the time of the framing and adoption of the First Amendment. The causes of the tension, it seems to me, are threefold. First, the growth of social [***636] welfare legislation during the latter part of the 20th century has greatly magnified the potential for conflict between the two Clauses, since such legislation touches the individual at so many points in his life. Second, the decision by this Court that the First Amendment was "incorporated" into the Fourteenth Amendment and thereby made applicable against the States, Stromberg v. California, 283 U.S. 359 (1931); Cantwell v. Connecticut, 310 U.S. 296 (1940), similarly multiplied the number of instances in which the "tension" might arise. The third, and perhaps most important, cause of the tension is our overly expansive interpretation of both Clauses. By broadly construing both Clauses, the Court has constantly narrowed the channel between the Scylla and Charybdis through which any state or federal action must pass in order to survive constitutional scrutiny.
None of these developments could have been foreseen by those who framed and adopted the First Amendment. The First Amendment was adopted well before the growth of much social welfare legislation and at a time when the Federal Government was in a real sense considered a government of limited delegated powers. Indeed, the principal argument against adopting the Constitution without a "Bill of Rights" was not that such an enactment would be undesirable, but that it was unnecessary because of the limited nature of the Federal Government. So long as the Government enacts little social welfare legislation, [**1434] as was the case in 1791, there are few occasions in which the two Clauses may conflict. Moreover, as originally enacted, the First Amendment applied only to the Federal Government, not the government of the States. Barron v. Baltimore, 7 Pet. 243 (1833). The Framers could hardly anticipate Barron being superseded by the "selective incorporation" doctrine adopted by the Court, a decision which greatly expanded the number of statutes [*722] which would be subject to challenge under the First Amendment. Because those who drafted and adopted the First Amendment could not have foreseen either the growth of social welfare legislation or the incorporation of the First Amendment into the Fourteenth Amendment, we simply do not know how they would view the scope of the two Clauses.
II
The decision today illustrates how far astray the Court has gone in interpreting the Free Exercise and Establishment Clauses of the First Amendment. Although the Court holds that a State is constitutionally required to provide direct financial assistance to persons solely on the basis of their religious beliefs and recognizes the "tension" between the two Clauses, it does little to help resolve that tension or to offer meaningful guidance to other courts which must decide cases like this on a day-by-day basis. Instead, it simply asserts that there is no Establishment Clause violation here and leaves the tension between the two Religion Clauses to be resolved on a case-by-case basis. As suggested above, however, I believe that the "tension" is largely of this Court's own making, and would diminish [***637] almost to the vanishing point if the Clauses were properly interpreted.
Just as it did in Sherbert v. Verner, 374 U.S. 398 (1963), the Court today reads the Free Exercise Clause more broadly than is warranted. As to the proper interpretation of the Free Exercise Clause, I would accept the decision of Braunfeld v. Brown, 366 U.S. 599 (1961), and the dissent in Sherbert. In Braunfeld, we held that Sunday closing laws do not violate the First Amendment rights of Sabbatarians. Chief Justice Warren explained that the statute did not make unlawful any religious practices of appellants; it simply made the practice of their religious beliefs more expensive. We concluded that "[to] strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i. e., legislation which does not [*723] make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature." 366 U.S., at 606. Likewise in this case, it cannot be said that the State discriminated against Thomas on the basis of his religious beliefs or that he was denied benefits because he was a Jehovah's Witness. Where, as here, a State has enacted a general statute, the purpose and effect of which is to advance the State's secular goals, the Free Exercise Clause does not in my view require the State to conform that statute to the dictates of religious conscience of any group. As Justice Harlan recognized in his dissent in Sherbert v. Verner, supra: "Those situations in which the Constitution may require special treatment on account of religion are . . . few and far between." Id., at 423. Like him I believe that although a State could choose to grant exemptions to religious persons from state unemployment regulations, 1 a State [***638] is not constitutionally [**1435] compelled to do so. Id., at 422-423. 2
1 Even if I were to agree that Sherbert was correctly decided, I still would dissent on the grounds that today's decision unjustifiably extends Sherbert. The Indiana Employment Security Act, Ind. Code § 22-4-15-1 (Supp. 1978), provides that an "individual who has voluntarily left his employment without good cause in connection with his employment" is disqualified from receiving benefits. In this case, the Supreme Court of Indiana "found the basis and the precise nature of Thomas' belief unclear" and concluded that the belief was more "personal philosophical choice" than religious belief. Ante, at 713. The Court's failure to make clear whether it accepts or rejects this finding by the Indiana Supreme Court, the highest court of the State, suggests that a person who leaves his job for purely "personal philosophical choices" will be constitutionally entitled to unemployment benefits. If that is true, the implications of today's decision are enormous. Persons will then be able to quit their jobs, assert they did so for personal reasons, and collect unemployment insurance. We could surely expect the State's limited funds allotted for unemployment insurance to be quickly depleted.
In addition, the Court's opinion in Sherbert, 374 U.S., at 401, n. 4, seems to suggest by negative implication that where a State makes every "personal reason" for leaving a job a basis for disqualification from unemployment benefits, the State need not grant an exemption to persons such as Sherbert who do quit for "personal reasons." In this case, the Indiana Supreme Court has construed the State's unemployment statute to make every personal subjective reason for leaving a job a basis for disqualification. E. g., Geckler v. Review Bd. of the Indiana Employment Security Div., 244 Ind. 473, 193 N. E. 2d 357 (1963). This case is thus distinguishable from Sherbert. Because Thomas left his job for a personal reason, the State of Indiana should not be prohibited from disqualifying him from receiving benefits.

2 To the extent Sherbert was correctly decided, it might be argued that cases such as McCollum v. Board of Education, 333 U.S. 203 (1948); Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963); Lemon v. Kurtzman, 403 U.S. 602 (1971); and Committee for Public Education v. Nyquist, 413 U.S. 756 (1973), were wrongly decided. The "aid" rendered to religion in these latter cases may not be significantly different, in kind or degree, than the "aid" afforded Mrs. Sherbert or Thomas. For example, if the State in Sherbert could not deny compensation to one refusing work for religious reasons, it might be argued that a State may not deny reimbursement to students who choose for religious reasons to attend parochial schools. The argument would be that although a State need not allocate any funds to education, once it has done so, it may not require any person to sacrifice his religious beliefs in order to obtain an equal education. See Lemon, supra, at 665 (opinion of WHITE, J.); Nyquist, supra, at 798-805 (opinion of BURGER, C. J.). There can be little doubt that to the extent secular education provides answers to important moral questions without reference to religion or teaches that there are no answers, a person in one sense sacrifices his religious belief by attending secular schools. And even if such "aid" were not constitutionally compelled by the Free Exercise Clause, Justice Harlan may well have been right in Sherbert when he found sufficient flexibility in the Establishment Clause to permit the States to voluntarily choose to grant such benefits to individuals.

[*724] The Court's treatment of the Establishment Clause issue is equally unsatisfying. Although today's decision requires a State to provide direct financial assistance to persons solely on the basis of their religious beliefs, the Court nonetheless blandly assures us, just as it did in Sherbert, that its decision "plainly" does not foster the "establishment" of religion. Ante, at 719. I would agree that the Establishment Clause, properly interpreted, would not be violated if Indiana voluntarily [*725] chose to grant unemployment benefits to those persons who left their jobs for religious reasons. But I also believe that the decision below is inconsistent with many of our prior Establishment Clause cases. Those cases, if faithfully applied, would require us to hold that such voluntary action by a State did violate the Establishment Clause.
JUSTICE STEWART noted this point in his concurring opinion in Sherbert, 374 U.S., at 414-417. He observed that decisions like Sherbert, and the one rendered today, squarely conflict with the more extreme language of many of our prior Establishment Clause cases. In Everson v. Board of Education, 330 U.S. 1 (1949), the Court stated that the Establishment Clause bespeaks a "government . . . stripped of all power . . . to support, or otherwise to assist any or all religions . . . ," and no State "can pass laws which aid one religion . . . [or] all religions." Id., at 11, 15. In Torcaso v. Watkins, 367 U.S. 488, 495 (1961), the Court asserted that the government cannot "constitutionally pass laws or impose requirements which aid all religions as against non-believers." And in Abington [**1436] School District v. Schempp, 374 U.S. 203, 217 (1963), the Court adopted Justice Rutledge's words in Everson that the Establishment Clause forbids "'every form of public aid or [***639] support for religion.'" See also Engel v. Vitale, 370 U.S. 421, 431 (1962).
In recent years the Court has moved away from the mechanistic "no-aid-to-religion" approach to the Establishment Clause and has stated a three-part test to determine the constitutionality of governmental aid to religion. See Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Public Education v. Nyquist, 413 U.S. 756, 772-773 (1973). First, the statute must serve a secular legislative purpose. Second, it must have a "primary effect" that neither advances nor inhibits religion. And third, the State and its administration must avoid excessive entanglement with religion. Walz v. Tax Comm'n, 397 U.S. 664 (1970).
[*726] It is not surprising that the Court today makes no attempt to apply those principles to the facts of this case. If Indiana were to legislate what the Court today requires -- an unemployment compensation law which permitted benefits to be granted to those persons who quit their jobs for religious reasons -- the statute would "plainly" violate the Establishment Clause as interpreted in such cases as Lemon and Nyquist. First, although the unemployment statute as a whole would be enacted to serve a secular legislative purpose, the proviso would clearly serve only a religious purpose. It would grant financial benefits for the sole purpose of accommodating religious beliefs. Second, there can be little doubt that the primary effect of the proviso would be to "advance" religion by facilitating the exercise of religious belief. Third, any statute including such a proviso would surely "entangle" the State in religion far more than the mere grant of tax exemptions, as in Walz, or the award of tuition grants and tax credits, as in Nyquist. By granting financial benefits to persons solely on the basis of their religious beliefs, the State must necessarily inquire whether the claimant's belief is "religious" and whether it is sincerely held. Otherwise any dissatisfied employee may leave his job without cause and claim that he did so because his own particular beliefs required it.
It is unclear from the Court's opinion whether it has temporarily retreated from its expansive view of the Establishment Clause, or wholly abandoned it. I would welcome the latter. Just as I think that Justice Harlan in Sherbert correctly stated the proper approach to free exercise questions, I believe that JUSTICE STEWART, dissenting in Abington School District v. Schempp, supra, accurately stated the reach of the Establishment Clause. He explained that the Establishment Clause is limited to "government support of proselytizing activities of religious sects by throwing the weight of secular [authorities] behind the dissemination of religious tenets." Id., at 314. See McCollum v. Board of Education, 333 U.S. 203, 248 (1948) (Reed, J., dissenting) [*727] (impermissible aid is only "purposeful assistance directly to the church itself or to some religious group . . . performing ecclesiastical functions"). Conversely, governmental assistance which does not have the effect of "inducing" religious belief, [***640] but instead merely "accommodates" or implements an independent religious choice does not impermissibly involve the government in religious choices and therefore does not violate the Establishment Clause of the First Amendment. I would think that in this case, as in Sherbert, had the State voluntarily chosen to pay unemployment compensation benefits to persons who left their jobs for religious reasons, such aid would be constitutionally permissible because it redounds directly to the benefit of the individual. Accord, Wolman v. Walter, 433 U.S. 229 (1977) (upholding various disbursements made to pupils in parochial schools).
[**1437] In sum, my difficulty with today's decision is that it reads the Free Exercise Clause too broadly and it fails to squarely acknowledge that such a reading conflicts with many of our Establishment Clause cases. As such, the decision simply exacerbates the "tension" between the two Clauses. If the Court were to construe the Free Exercise Clause as it did in Braunfeld and the Establishment Clause as JUSTICE STEWART did in Schempp, the circumstances in which there would be a conflict between the two Clauses would be few and far between. Although I heartily agree with the Court's tacit abandonment of much of our rhetoric about the Establishment Clause, I regret that the Court cannot see its way clear to restore what was surely intended to have been a greater degree of flexibility to the Federal and State Governments in legislating consistently with the Free Exercise Clause. Accordingly, I would affirm the judgment of the Indiana Supreme Court.
REFERENCES




16 Am Jur 2d, Constitutional Law 464 et seq.

20 Am Jur Proof of Facts 223, Religious Prejudice

USCS, Constitution, 1st Amendment

US L Ed Digest, Constitutional Law 967

L Ed Index to Annos, Establishment of Religion; Freedom of Speech, Press, Religion and Assembly

ALR Quick Index, Religion and Religious Matters

Federal Quick Index, Establishment of Religion; Freedom of Religion; Social Security and Unemployment Compensation

Annotation References:

Supreme Court cases involving establishment and freedom of religion clauses of Federal Constitution. 37 L Ed 2d 1147.

UNITED STATES v. BALLARD ET AL.

No. 472

SUPREME COURT OF THE UNITED STATES

322 U.S. 78; 64 S. Ct. 882; 88 L. Ed. 1148; 1944 U.S. LEXIS 810

March 3, 6, 1944, Argued

April 24, 1944, Decided

PRIOR HISTORY: CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

CERTIORARI, 320 U.S. 733, to review the reversal of convictions for using the mails to defraud and conspiracy.

DISPOSITION: 138 F.2d 540, reversed.


SYLLABUS: Upon an indictment charging use of the mails to defraud, and conspiracy so to do, respondents were convicted in the District Court. The indictment charged a scheme to defraud through representations -- involving respondents' religious doctrines or beliefs -- which were alleged to be false and known by the respondents to be false. Holding that the District Court had restricted the jury to the issue of respondents' good faith and that this was error, the Circuit Court of Appeals reversed and granted a new trial. Held:

1. The only issue submitted to the jury by the District Court was whether respondents believed the representations to be true. P. 84.

2. Respondents did not acquiesce in the withdrawal from the jury of the issue of the truth of their religious doctrines or beliefs, and are not barred by the rule of Johnson v. United States, 318 U.S. 189, from reasserting here that no part of the indictment should have been submitted to the jury. P. 85.

3. The District Court properly withheld from the jury all questions concerning the truth or falsity of respondents' religious beliefs or doctrines. This course was required by the First Amendment's guarantee of religious freedom. P. 86.

The preferred position given freedom of religion by the First Amendment is not limited to any particular religious group or to any particular type of religion but applies to all. P. 87.

4. Respondents may urge in support of the judgment of the Circuit Court of Appeals points which that court reserved, but since these were not fully presented here either in the briefs or oral argument, they may more appropriately be considered by that court upon remand. P. 88.

COUNSEL: Solicitor General Fahy, with whom Assistant Attorney General Tom C. Clark, Mr. Robert S. Erdahl, and Miss Beatrice Rosenberg were on the brief, for the United States.

Messrs. Roland Rich Woolley and Joseph F. Rank, with whom Mr. Ralph C. Curren was on the brief, for respondents.

JUDGES: Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge

OPINION BY: DOUGLAS

OPINION: [*79] [**883] [***1150] MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Respondents were indicted and convicted for using, and conspiring to use, the mails to defraud. § 215 Criminal Code, 18 U. S. C. § 338; § 37 Criminal Code, 18 U. S. C. § 88. The indictment was in twelve counts. It charged a scheme to defraud by organizing and promoting the I Am movement through the use of the mails. The charge was that certain designated corporations were formed, literature distributed and sold, funds solicited, and memberships in the I Am movement sought "by means of false and fraudulent representations, pretenses and promises." The false representations charged were eighteen in number. It is sufficient at this point to say that they covered respondents' alleged religious doctrines or beliefs. They were all set forth in the first count. The following are representative:
that Guy W. Ballard, now deceased, alias Saint Germain, Jesus, George Washington, and Godfre Ray King, had been selected and thereby designated by the alleged "ascertained masters," Saint Germain, as a divine messenger; and that the words of "ascended masters" and the words of the alleged divine entity, Saint Germain, would be transmitted to mankind through the medium of the said Guy W. Ballard;

that Guy W. Ballard, during his lifetime, and Edna W. Ballard, and Donald Ballard, by reason of their alleged high spiritual attainments and righteous conduct, had been selected as divine messengers through which the words of the alleged "ascended masters," including [*80] the alleged Saint Germain, would be communicated to mankind under the teachings commonly known as the "I Am" movement;

that Guy W. Ballard, during his lifetime, and Edna W. Ballard and Donald Ballard had, by reason of supernatural attainments, the power to heal persons of ailments and diseases and to make well persons afflicted with any diseases, injuries, or ailments, and did falsely represent to persons intended to be defrauded that the three designated persons had the ability and power to cure persons of those diseases normally classified as curable and also of diseases which are ordinarily classified by the medical profession as being incurable diseases; and did further represent that the three designated persons had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons afflicted with diseases and ailments;


Each of the representations enumerated in the indictment was followed by the charge that respondents "well knew" it was false. After enumerating the eighteen misrepresentations the indictment also alleged:
At the time of making all of the afore-alleged representations by the defendants, and each of them, the defendants, and each of them, well knew that all of said aforementioned representations were false and untrue and were made with the intention on the part of the defendants, and each of them, to cheat, wrong, and defraud persons intended to be defrauded, and to obtain from persons intended to be defrauded by the defendants, money, property, and other things of value and to convert the same to the use and the benefit of the defendants, and each of them;


The indictment contained twelve counts, one of which charged a conspiracy to defraud. The first count set forth all of the eighteen representations, as we have said. Each of the other counts incorporated and realleged all of them and added no additional ones. There was a demurrer and a motion to quash, each of which asserted, among other things, that the indictment attacked the religious beliefs [*81] of respondents and [***1151] sought to restrict the free exercise of their religion in violation of the Constitution of the United States. These motions were denied by the District [**884] Court. Early in the trial, however, objections were raised to the admission of certain evidence concerning respondents' religious beliefs. The court conferred with counsel in absence of the jury and with the acquiescence of counsel for the United States and for respondents confined the issues on this phase of the case to the question of the good faith of respondents. At the request of counsel for both sides the court advised the jury of that action in the following language:


Now, gentlemen, here is the issue in this case:

First, the defendants in this case made certain representations of belief in a divinity and in a supernatural power. Some of the teachings of the defendants, representations, might seem extremely improbable to a great many people. For instance, the appearance of Jesus to dictate some of the works that we have had introduced in evidence, as testified to here at the opening transcription, or shaking hands with Jesus, to some people that might seem highly improbable. I point that out as one of the many statements.

Whether that is true or not is not the concern of this Court and is not the concern of the jury -- and they are going to be told so in their instructions. As far as this Court sees the issue, it is immaterial what these defendants preached or wrote or taught in their classes. They are not going to be permitted to speculate on the actuality of the happening of those incidents. Now, I think I have made that as clear as I can. Therefore, the religious beliefs of these defendants cannot be an issue in this court.

The issue is: Did these defendants honestly and in good faith believe those things? If they did, they should be acquitted. I cannot make it any clearer than that.

If these defendants did not believe those things, they did not believe that Jesus came down and dictated, [*82] or that Saint Germain came down and dictated, did not believe the things that they wrote, the things that they preached, but used the mail for the purpose of getting money, the jury should find them guilty. Therefore, gentlemen, religion cannot come into this case.


The District Court reiterated that admonition in the charge to the jury and made it abundantly clear. The following portion of the charge is typical:


The question of the defendants' good faith is the cardinal question in this case. You are not to be concerned with the religious belief of the defendants, or any of them. The jury will be called upon to pass on the question of whether or not the defendants honestly and in good faith believed the representations which are set forth in the indictment, and honestly and in good faith believed that the benefits which they represented would flow from their belief to those who embraced and followed their teachings, or whether these representations were mere pretenses without honest belief on the part of the defendants or any of them, and, were the representations made for the purpose of procuring money, and were the mails used for this purpose.


As we have said, counsel for the defense acquiesced in this treatment of the matter, made no objection to it during the trial, and indeed treated it without protest as the law of the case throughout the proceedings prior to the verdict. Respondents did not change their position before the District Court after verdict and contend that the truth or verity of their religious doctrines or beliefs should have been submitted to the jury. In their motion for new trial they did contend, however, that the withdrawal of these issues from the jury was error because it was in effect an amendment of the indictment. That was also one of their specifications of errors on appeal. [***1152] And other errors urged on appeal included the overruling of the demurrer to the indictment and the motion to quash, and the [*83] disallowance of proof of the truth of respondents' religious doctrines or beliefs.

The Circuit Court of Appeals reversed the judgment of conviction and granted a new trial, one judge dissenting. 138 F.2d 540. In its view the restriction of the issue in question to that of good faith was error. Its reason was that the scheme to defraud alleged in the indictment was that respondents made the eighteen alleged false representations; and that to prove that defendants devised the scheme described in the [**885] indictment "it was necessary to prove that they schemed to make some, at least, of the (eighteen) representations . . . and that some, at least, of the representations which they schemed to make were false." 138 F.2d 545. One judge thought that the ruling of the District Court was also error because it was "as prejudicial to the issue of honest belief as to the issue of purposeful misrepresentation." Id., p. 546.

The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented.

[***HR1] [1]
The United States contends that the District Court withdrew from the jury's consideration only the truth or falsity of those representations which related to religious concepts or beliefs and that there were representations charged in the indictment which fell within a different category. n1 The argument is that this latter group of [*84] representations was submitted to the jury, that they were adequate to constitute an offense under the Act, and that they were supported by the requisite evidence. It is thus sought to bring the case within the rule of Hall v. United States, 168 U.S. 632, 639-640, which held that where an indictment contained "all the necessary averments to constitute an offense created by the statute," a conviction would not be set aside because a "totally immaterial fact" was averred but not proved. We do not stop to ascertain the relevancy of that rule to this case, for we are of the view that all of the representations charged in the indictment which related at least in part to the religious doctrines or beliefs of respondents were withheld from the jury. The trial judge did not differentiate them. He referred in the charge to the "religious beliefs" and "doctrines taught by the defendants" as matters withheld from the jury. And in stating that the issue of good faith was the "cardinal question" in the case he charged, as already noted, that "The jury will be called upon to pass on the question of whether or not the defendants honestly and in good faith believed the representations which are set forth in the indictment." Nowhere in the charge were any of the separate representations submitted to [***1153] the jury. A careful reading of the whole charge leads us to agree with the Circuit Court of Appeals on this phase of the case that the only issue submitted to the jury was the question as stated by the District Court, of respondents' "belief in their representations and promises."

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 Petitioner has placed three representations in this group: (1) A portion of the scheme as to healing which we have already quoted and which alleged that respondents "had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons afflicted with diseases and ailments"; (2) The portion of the scheme relating to certain religious experiences described in certain books (Unveiled Mysteries and The Magic Presence) and concerning which the indictment alleged "that the defendants represented that Guy W. Ballard, Edna W. Ballard, and Donald Ballard actually encountered the experiences pertaining to each of their said names as related and set forth in said books, whereas in truth and in fact none of said persons did encounter the experiences"; (3) The part of the scheme concerning phonograph records sold by respondents on representations that they would bestow on purchasers "great blessings and rewards in their aim to achieve salvation" whereas respondents "well knew that said . . . records were man-made and had no ability to aid in achieving salvation."


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The United States contends that respondents acquiesced in the withdrawal from the jury of the truth of their religious [*85] doctrines or beliefs and that their consent bars them from insisting on a different course once that one turned out to be unsuccessful. Reliance for that position is sought in Johnson v. United States, 318 U.S. 189. That case stands for the proposition that, apart from situations involving an unfair trial, an appellate court will not grant a new trial to a defendant on the ground of improper introduction of evidence or improper comment by the prosecutor, where the defendant acquiesced in that course and made no objection to it. In fairness to respondents that principle cannot be applied here. The real objection of respondents is not that the truth of their religious doctrines or beliefs should have [**886] been submitted to the jury. Their demurrer and motion to quash made clear their position that that issue should be withheld from the jury on the basis of the First Amendment. Moreover, their position at all times was and still is that the court should have gone the whole way and withheld from the jury both that issue and the issue of their good faith. Their demurrer and motion to quash asked for dismissal of the entire indictment. Their argument that the truth of their religious doctrines or beliefs should have gone to the jury when the question of their good faith was submitted was and is merely an alternative argument. They never forsook their position that the indictment should have been dismissed and that none of it was good. Moreover, respondents' motion for new trial challenged the propriety of the action of the District Court in withdrawing from the jury the issue of the truth of their religious doctrines or beliefs without also withdrawing the question of their good faith. So we conclude that the rule of Johnson v. United States, supra, does not prevent respondents from reasserting now that no part of the indictment should have been submitted to the jury.

[***HR2] [2]
As we have noted, the Circuit Court of Appeals held that the question of the truth of the representations concerning [*86] respondents' religious doctrines or beliefs should have been submitted to the jury. And it remanded the case for a new trial. It may be that the Circuit Court of Appeals took that action because it did not think that the indictment could be properly construed as charging a scheme to defraud by means other than misrepresentations of respondents' religious doctrines or beliefs. Or that court may have concluded that the withdrawal of the issue of the truth of those religious doctrines or beliefs was unwarranted because it resulted in a substantial change in the character of the crime charged. But on whichever basis that court rested its action, we do not agree that the truth or verity of respondents' religious doctrines or beliefs should have been submitted to the jury. Whatever this particular indictment might require, the First Amendment precludes such a course, as the United States seems to concede. "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." Watson v. Jones, 13 Wall. 679, 728. The First Amendment has a dual aspect. It not only "forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship" but also "safeguards the free exercise of the chosen form of religion." Cantwell v. Connecticut, 310 U.S. 296, 303. "Thus the Amendment embraces two concepts, -- [***1154] freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." Id., pp. 303-304. Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. Board of Education v. Barnette, 319 U.S. 624. It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. [*87] Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the [**887] verity of his religious views. The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position. Murdock v. Pennsylvania, 319 U.S. 105. As stated in Davis v. Beason, 133 U.S. 333, 342, "With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with." See Prince [*88] v. Massachusetts, 321 U.S. 158. So we conclude that the District Court ruled properly when it withheld from the jury all questions concerning the truth or falsity of the religious beliefs or doctrines of respondents.

[***HR3] [3]
[***HR4] [4]
Respondents maintain that the reversal of the judgment of conviction was justified on other distinct grounds. The Circuit Court of Appeals did not reach those questions. Respondents may, of course, urge them here in support of the judgment of the Circuit Court of Appeals. Langnes v. Green, 282 U.S. 531, 538-539; Story Parchment Co. v. Paterson Co., 282 U.S. 555, 560, 567-568. But since attention was centered on the issues which we have discussed, the remaining questions were not fully presented to this Court either in the briefs or oral [***1155] argument. In view of these circumstances we deem it more appropriate to remand the cause to the Circuit Court of Appeals so that it may pass on the questions reserved. Lutcher & Moore Lumber Co. v. Knight, 217 U.S. 257, 267-268; Brown v. Fletcher, 237 U.S. 583. If any questions of importance survive and are presented here, we will then have the benefit of the views of the Circuit Court of Appeals. Until that additional consideration is had, we cannot be sure that it will be necessary to pass on any of the other constitutional issues which respondents claim to have reserved.

The judgment is reversed and the cause is remanded to the Circuit Court of Appeals for further proceedings in conformity to this opinion.

Reversed.

DISSENT BY: STONE; JACKSON

DISSENT: MR. CHIEF JUSTICE STONE, dissenting:

I am not prepared to say that the constitutional guaranty of freedom of religion affords immunity from criminal prosecution for the fraudulent procurement of money by false statements as to one's religious experiences, [*89] more than it renders polygamy or libel immune from criminal prosecution. Davis v. Beason, 133 U.S. 333; see Chaplinsky v. New Hampshire, 315 U.S. 568, 572; cf. Patterson v. Colorado, 205 U.S. 454, 462; Near v. Minnesota, 283 U.S. 697, 715. I cannot say that freedom of thought and worship includes freedom to procure money by making knowingly false statements about one's religious experiences. To go no further, if it were shown that a defendant in this case had asserted as a part of the alleged fraudulent scheme, that he had physically shaken hands with St. Germain in San Francisco on a day named, or that, as the indictment here alleges, by the exertion of his spiritual power he "had in fact cured . . . hundreds of persons afflicted with diseases and ailments," I should not doubt that it would be open to the Government to submit to the jury proof that he had never been in San Francisco and that no such cures had ever been effected. In any event I see no occasion for making any pronouncement on this subject in the present case.

The indictment charges respondents' use of the mails to defraud and a conspiracy to commit that offense by false statements of their religious experiences which had not in fact occurred. But it also charged that the representations were "falsely and fraudulently" made, that respondents "well [**888] knew" that these representations were untrue, and that they were made by respondents with the intent to cheat and defraud those to whom they were made. With the assent of the prosecution and the defense the trial judge withdrew from the consideration of the jury the question whether the alleged religious experiences had in fact occurred, but submitted to the jury the single issue whether petitioners honestly believed that they had occurred, with the instruction that if the jury did not so find, then it should return a verdict of guilty. On this [*90] issue the jury, on ample evidence that respondents were without belief in the statements which they had made to their victims, found a verdict of guilty. The state of one's mind is a fact as capable of fraudulent misrepresentation as is one's physical condition or the state of his bodily health. See Seven Cases v. United States, 239 U.S. 510, 517; cf. Durland v. United States, 161 U.S. 306, 313. There are no exceptions to the charge and no contention that the trial court rejected any relevant evidence which petitioners sought to offer. Since the indictment and the evidence support the conviction, it is irrelevant whether the religious experiences alleged did [***1156] or did not in fact occur or whether that issue could or could not, for constitutional reasons, have been rightly submitted to the jury. Certainly none of respondents' constitutional rights are violated if they are prosecuted for the fraudulent procurement of money by false representations as to their beliefs, religious or otherwise.

Obviously if the question whether the religious experiences in fact occurred could not constitutionally have been submitted to the jury the court rightly withdrew it. If it could have been submitted I know of no reason why the parties could not, with the advice of counsel, assent to its withdrawal from the jury. And where, as here, the indictment charges two sets of false statements, each independently sufficient to sustain the conviction, I cannot accept respondents' contention that the withdrawal of one set and the submission of the other to the jury amounted to an amendment of the indictment.

An indictment is amended when it is so altered as to charge a different offense from that found by the grand jury. Ex parte Bain, 121 U.S. 1. But here there was no alteration of the indictment, Salinger v. United States, 272 U.S. 542, 549, nor did the court's action, in effect, add anything to it by submitting to the jury matters which [*91] it did not charge. United States v. Norris, 281 U.S. 619, 622. In Salinger v. United States, supra, 548-9, we explicitly held that where an indictment charges several offenses, or the commission of one offense in several ways, the withdrawal from the jury's consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of the indictment. See also Goto v. Lane, 265 U.S. 393, 402-3; Ford v. United States, 273 U.S. 593, 602. Were the rule otherwise the common practice of withdrawing from the jury's consideration one count of an indictment while submitting others for its verdict, sustained in Dealy v. United States, 152 U.S. 539, 542, would be a fatal error.

We may assume that under some circumstances the submission to the jury of part only of the matters alleged in the indictment might result in such surprise to the defendant as to amount to the denial of a fair trial. But, as in the analogous case of a variance between pleading and proof, a conviction can be reversed only upon a showing of injury to the "substantial rights" of the accused. Berger v. United States, 295 U.S. 78, 82. Here no claim of surprise has been or could be made. The indictment plainly charged both falsity of, and lack of good faith belief in the representations made, and it was agreed at the outset of the trial, without objection from the defendants, that only the issue of respondents' good faith belief in the representations of religious experiences would be submitted to the jury. Respondents, who were represented by counsel, at no time in the course of the trial offered any objection to this limitation of the issues, or any contention that it would result in a prohibited amendment of the indictment. So far as appears from the record before [**889] us the point was raised for the first time in the specifications of errors in the Circuit Court of Appeals. It is asserted that it was argued to the District Court on [*92] motions for new trial and in arrest of judgment. If so, there was still no surprise by a ruling to which, as we have said, respondents' counsel assented when it was made.

On the issue submitted to the jury in this case it properly rendered a verdict of guilty. As no legally sufficient reason for disturbing it appears, I think the judgment below should be reversed and that of the District Court reinstated.

[***1157] MR. JUSTICE ROBERTS and MR. JUSTICE FRANKFURTER join in this opinion.

MR. JUSTICE JACKSON, dissenting:

I should say the defendants have done just that for which they are indicted. If I might agree to their conviction without creating a precedent, I cheerfully would do so. I can see in their teachings nothing but humbug, untainted by any trace of truth. But that does not dispose of the constitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes the danger of such prosecutions.

The Ballard family claimed miraculous communication with the spirit world and supernatural power to heal the sick. They were brought to trial for mail fraud on an indictment which charged that their representations were false and that they "well knew" they were false. The trial judge, obviously troubled, ruled that the court could not try whether the statements were untrue, but could inquire whether the defendants knew them to be untrue; and, if so, they could be convicted.

I find it difficult to reconcile this conclusion with our traditional religious freedoms.

In the first place, as a matter of either practice or philosophy I do not see how we can separate an issue as to what is believed from considerations as to what is believable. The most convincing proof that one believes his statements is to show that they have been true in his experience. [*93] Likewise, that one knowingly falsified is best proved by showing that what he said happened never did happen. How can the Government prove these persons knew something to be false which it cannot prove to be false? If we try religious sincerity severed from religious verity, we isolate the dispute from the very considerations which in common experience provide its most reliable answer.

In the second place, any inquiry into intellectual honesty in religion raises profound psychological problems. William James, who wrote on these matters as a scientist, reminds us that it is not theology and ceremonies which keep religion going. Its vitality is in the religious experiences of many people. "If you ask what these experiences are, they are conversations with the unseen, voices and visions, responses to prayer, changes of heart, deliverances from fear, inflowings of help, assurances of support, whenever certain persons set their own internal attitude in certain appropriate ways." n1 If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences, like some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of consciousness does not include religious insight. When one comes to trial which turns on any aspect of religious belief or representation, unbelievers among his judges are likely not to understand and are almost certain not to believe him.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 William James, Collected Essays and Reviews, pp. 427-8; see generally his Varieties of Religious Experience and The Will to Believe. See also Burton, Heyday of a Wizard.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

And then I do not know what degree of skepticism or disbelief in a religious representation amounts to actionable fraud. James points out that "Faith means belief [*94] in something concerning which doubt is still theoretically possible." n2 Belief in what one [**890] may demonstrate to the senses is not faith. All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such [***1158] matters is to a very different plane of credulity than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop's fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches and even more difficult to say how far it is reliance upon a teacher's literal belief which induces followers to give him money.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n2 William James, The Will to Believe, p. 90.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

There appear to be persons -- let us hope not many -- who find refreshment and courage in the teachings of the "I Am" cult. If the members of the sect get comfort from the celestial guidance of their "Saint Germain," however doubtful it seems to me, it is hard to say that they do not get what they pay for. Scores of sects flourish in this country by teaching what to me are queer notions. It is plain that there is wide variety in American religious taste. The Ballards are not alone in catering to it with a pretty dubious product.

The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people. But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in [*95] their humdrum lives. They live in mental confusion or moral anarchy and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.

Prosecutions of this character easily could degenerate into religious persecution. I do not doubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as for example if one represents that funds are being used to construct a church when in fact they are being used for personal purposes. But that is not this case, which reaches into wholly dangerous ground. When does less than full belief in a professed credo become actionable fraud if one is soliciting gifts or legacies? Such inquiries may discomfort orthodox as well as unconventional religious teachers, for even the most regular of them are sometimes accused of taking their orthodoxy with a grain of salt.

I would dismiss the indictment and have done with this business of judicially examining other people's faiths.







CANTWELL ET AL. v. CONNECTICUT
No. 632
SUPREME COURT OF THE UNITED STATES
310 U.S. 296; 60 S. Ct. 900; 84 L. Ed. 1213; 1940 U.S. LEXIS 591; 128 A.L.R. 1352
March 29, 1940, Argued
May 20, 1940, Decided
PRIOR HISTORY: APPEAL FROM AND CERTIORARI TO THE SUPREME COURT OF ERRORS OF CONNECTICUT.
APPEAL from, and certiorari (309 U.S. 626) to review, a judgment which sustained the conviction of all the defendants on one count of an information and the conviction of one of the defendants on another count. The convictions were challenged as denying the constitutional rights of the defendants.

DISPOSITION: 126 Conn. 1; 8 A. 2d 533, reversed.
CASE SUMMARY:
PROCEDURAL POSTURE: Defendants were convicted for unauthorized soliciting in violation of Conn. Gen. Stat. § 6294 and a co-defendant was also convicted of inciting a breach of the peace. Their convictions were affirmed. Defendants appealed; a writ of certiorari was granted to the Supreme Court of Errors of Connecticut.
OVERVIEW: Defendants were arrested after they distributed religious materials and later convicted. Defendants claimed that their activities were not within Conn. Gen. Stat. § 6294 but consisted only of distribution of books, pamphlets, and periodicals. After granting certiorari, the Supreme Court held that the applicable statute deprived defendants of their liberty without due process of law in contravention of the First and Fourteenth Amendments. The Court determined that the secretary of the public welfare council was authorized to withhold his approval if he determined that the cause was not a religious one. Such authority constituted a denial of liberty protected by the First and Fourteenth Amendments. Additionally, there was no showing that the co-defendant was noisy, truculent, overbearing or offensive when he was on a public street. The co-defendant's actions did not amount to a breach of the peace. The judgment was reversed and remanded.
OUTCOME: The judgment affirming defendants' convictions for unauthorized soliciting and inciting a breach of the peace was reversed and remanded.
CORE TERMS: religious, street, religion, certificate, solicitation, common law, exercise of religion, soliciting, pamphlet, solicit, phonograph, permission, violence, safeguard, offensive, secretary, embraces, comfort, phonograph record, listener, playing, punish, hearer, free exercise, freedom of speech, religious views, good order, guaranteed, unduly, times
SYLLABUS
1. The fundamental concept of liberty embodied in the Fourteenth Amendment embraces the liberties guaranteed by the First Amendment. P. 303.
2. The enactment by a State of any law respecting an establishment of religion or prohibiting the free exercise thereof is forbidden by the Fourteenth Amendment. P. 303.
3. Under the constitutional guaranty, freedom of conscience and of religious belief is absolute; although freedom to act in the exercise of religion is subject to regulation for the protection of society. Such regulation, however, in attaining a permissible end, must not unduly infringe the protected freedom. Pp. 303-304.
4. A state statute which forbids any person to solicit money or valuables for any alleged religious cause, unless a certificate therefor shall first have been procured from a designated official, who is required to determine whether such cause is a religious one and who may withhold his approval if he determines that it is not, is a previous restraint upon the free exercise of religion and a deprivation of liberty without due process of law in violation of the Fourteenth Amendment. P. 304.
So held as it was applied to persons engaged in distributing literature purporting to be religious, and soliciting contributions to be used for the publication of such literature.
A State constitutionally may by general and non-discriminatory legislation regulate the time, place and manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community. The statute here, however, is not such a regulation. If a certificate is issued, solicitation is permitted without other restriction; but if a certificate is denied, solicitation is altogether prohibited.
5. The fact that arbitrary or capricious action by the licensing officer is subject to judicial review can not validate the statute. A previous restraint by judicial decision after trial is as obnoxious under the Constitution as restraint by administrative action. P. 306.
6. The common law offense of breach of the peace may be committed not only by acts of violence, but also by acts and words likely to produce violence in others. P. 308.
7. Defendant, while on a public street endeavoring to interest passersby in the purchase of publications, or in making contributions, in the interest of what he believed to be true religion, induced individuals to listen to the playing of a phonograph record describing the publications. The record contained a verbal attack upon the religious denomination of which the listeners were members, provoking their indignation and a desire on their part to strike the defendant, who thereupon picked up his books and phonograph and went on his way. There was no showing that defendant's deportment was noisy, truculent, overbearing or offensive; nor was it claimed that he intended to insult or affront the listeners by playing the record; nor was it shown that the sound of the phonograph disturbed persons living nearby, drew a crowd, or impeded traffic. Held, that defendant's conviction of the common law offense of breach of the peace was violative of constitutional guarantees of religious liberty and freedom of speech. Pp. 307 et seq.
COUNSEL: Mr. Hayden C. Covington, with whom Mr. Joseph F. Rutherford was on the brief, for appellants and petitioner.

Messrs. Francis A. Pallotti, Attorney General, and Mr. Edwin S. Pickett, with whom Messrs. William L. Hadden, Richard F. Corkey, Assistant Attorney General, and Luke H. Stapleton were on the brief, for the State of Connecticut, appellee and respondent.

The purpose of the statute is to protect the public from fraud in the solicitation of money or other valuables under the guise of religion. The only activity of any alleged religious group which it is sought to regulate is such solicitation.

The statute does not impair in any way rights commonly regarded as embraced in freedom of speech.

The "liberty" of worship undoubtedly includes the right to entertain the beliefs, to adhere to the principles, and to teach the doctrines which appellants advocate. Hamilton v. Regents of the University of California, 293 U.S. 245, 262. But it is difficult to see how this statute can interfere with their freedom to worship as they see fit. It does not limit or define their mode of worship or restrict their teachings or doctrine.

The fact that appellants may believe as an article of faith that the statute contravenes their religion furnishes no constitutional basis for their violation of it. Commonwealth v. Plaisted, 148 Mass. 375; Reynolds v. United States, 98 U.S. 145.

Undoubtedly appellants' activity in distributing literature is protected by freedom of the press. But the activity which violated the statute was their solicitation of funds. The statute restricts in no way the distribution of pamphlets and literature, nor the mere receiving of contributions from those who might be inclined to donate. Whether solicitation was their primary purpose, or merely incidental to the spread of the gospel in accordance with their views, is not controlling.

Denial in the exercise of official discretion would not necessarily be final and conclusive on the person applying for a permit. Norwalk v. Connecticut Co., 89 Conn. 537, 542.

Unlike the ordinance in Schneider v. State, 308 U.S. 147, the statute does not seek to place any restriction upon communication of any views or the advocacy of any cause, nor to set up censorship in a police officer to determine what literature may be distributed or ideas communicated or who may distribute it.

The ordinance in Lovell v. Griffin, 303 U.S. 444, forbade the distribution by hand or otherwise of literature of any kind without written permission.

The acts and conduct of petitioner are within the common law definition of breach of peace. It is not necessary to show that other persons were actually provoked to the point of violence. 1 Bishop Criminal Law, 9th Ed., § 539; State v. Farrall, 29 Conn. 72; State v. Warner, 34 Conn. 276, 279; Davis v. Burgess, 54 Mich. 514, 517; Delk v. Commonwealth, 166 Ky. 39, 45; L. R. A. 1916 B, 1117. Nor is a specific intent to provoke a breach of peace essential; it is sufficient if the acts tend to produce it. State v. Shelby, 95 Minn. 65.

Acts or language which, under the circumstances, are calculated or likely to provoke another to acts of immediate violence may constitute a breach of the peace. 49 L. R. A. (N. S.) 919; Holmes v. State, 135 Ark. 187, 189; Faulkner v. State, 166 Ga. 645, 665.

The rule is as applicable where the objectionable language is communicated by means of a phonograph operated by the accused or by banner or placard. West v. Commonwealth, 208 Ky. 735.

The tendency of words or conduct depends largely upon the circumstances and is a question of fact. State v. Moser, 33 Ark. 140. The playing for audition by loyal Catholics of a record violently attacking their religion could well be found to constitute the offense charged.

While the right to propagate religious views is not to be denied, one will not be permitted to commit a breach of peace under the guise of preaching the gospel. Delk v. Commonwealth, supra, 47.

Acts and conduct in violation of social duties, subversive of good order, and contrary to the law of the land are not immune because they are claimed to have been motivated by religious belief. Reynolds v. United States, 98 U.S. 145; Commonwealth v. Plaisted, 148 Mass. 375.
JUDGES: Hughes, McReynolds, Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy
OPINION BY: ROBERTS
OPINION
[*300] [**901] [***1216] MR. JUSTICE ROBERTS delivered the opinion of the Court.
Newton Cantwell and his two sons, Jesse and Russell, members of a group known as Jehovah's Witnesses, and claiming to be ordained ministers, were arrested in New Haven, Connecticut, and each was charged by information in five counts, with statutory and common law offenses. After trial in the Court of Common Pleas of New Haven County each of them was convicted on the third count, which charged a violation of § 6294 of the General Statutes of [**902] Connecticut, 1 and on the fifth count, which charged commission of the common law offense of inciting a breach of the peace. On appeal to the Supreme Court the conviction of all three on the third count was affirmed. The conviction of Jesse Cantwell, on the fifth count, was also affirmed, but the conviction of Newton and Russell on that count was reversed and a new trial ordered as to them. 2


1 General Statutes § 6294 as amended by § 860d of the 1937 supplement.

2 126 Conn. 1; 8 A. 2d 533.

By demurrers to the information, by requests for rulings of law at the trial, and by their assignments of error in the State Supreme Court, the appellants pressed the contention that the statute under which the third count was drawn was offensive to the due process clause of the Fourteenth Amendment because, on its face and as construed and applied, it denied them freedom of speech and prohibited their free exercise of religion. In like manner [*301] they made the point that they could not be found guilty on the fifth count, without violation of the Amendment.
We have jurisdiction on appeal from the judgments on the third count, as there was drawn in question the validity of a state statute under the Federal Constitution, and the decision was in favor of validity. Since the conviction on the fifth count was not based upon a statute, but presents a substantial question under the Federal Constitution, we granted the writ of certiorari in respect of it.
The facts adduced to sustain the convictions on the third count follow. On the day of their arrest the appellants were engaged in going singly from house to house on Cassius Street in New Haven. They were individually equipped with a bag containing books and pamphlets on religious subjects, a portable phonograph and a set of records, each of [***1217] which, when played, introduced, and was a description of, one of the books. Each appellant asked the person who responded to his call for permission to play one of the records. If permission was granted he asked the person to buy the book described and, upon refusal, he solicited such contribution towards the publication of the pamphlets as the listener was willing to make. If a contribution was received a pamphlet was delivered upon condition that it would be read.
Cassius Street is in a thickly populated neighborhood, where about ninety per cent of the residents are Roman Catholics. A phonograph record, describing a book entitled "Enemies," included an attack on the Catholic religion. None of the persons interviewed were members of Jehovah's Witnesses.
The statute under which the appellants were charged provides:
[HN1] "No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable [*302] or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare council. Upon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect. Such certificate may be revoked at any time. Any person violating any provision of this section shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both."
The appellants claimed that their activities were not within the statute but consisted only of distribution of books, pamphlets, and periodicals. The State Supreme Court construed the finding of the trial court to be that "in addition to the sale of the books and the distribution of the pamphlets the defendants were also soliciting contributions or donations of money for an alleged religious cause, and thereby came within the purview of the statute." It overruled the contention that the Act, as applied to the appellants, offends the due process clause of the Fourteenth Amendment, because [**903] it abridges or denies religious freedom and liberty of speech and press. The court stated that it was the solicitation that brought the appellants within the sweep of the Act and not their other activities in the dissemination of literature. It declared the legislation constitutional as an effort by the State to protect the public against fraud and imposition in the solicitation of funds for what purported to be religious, charitable, or philanthropic causes.
The facts which were held to support the conviction of Jesse Cantwell on the fifth count were that he stopped [*303] two men in the street, asked, and received, permission to play a phonograph record, and played the record "Enemies," which attacked the religion and church of the two men, who were Catholics. Both were incensed by the contents of the record and were tempted to strike Cantwell unless he went away. On being told to be on his way he left their presence. There was no evidence that he was personally offensive or entered into any argument with those he interviewed.
The court held that the charge was not assault or breach of the peace or threats on Cantwell's part, but invoking or inciting others to breach of the peace, and that the facts supported the conviction of that offense.
[***LEdHR1] [1] [***LEdHR2] [2] [***LEdHR3] [3] [***LEdHR4] [4] [***LEdHR5] [5]First. We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention [***1218] of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. 3 [HN2] The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. [HN3] The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts, -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the [*304] second cannot be. Conduct remains subject to regulation for the protection of society. 4 The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a State may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee. 5 It is equally clear that [HN4] a State may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment. The appellants are right in their insistence that the Act in question is not such a regulation. If a certificate is procured, solicitation is permitted without restraint but, in the absence of a certificate, solicitation is altogether prohibited.
3 Schneider v. State, 308 U.S. 147, 160.

4 Reynolds v. United States, 98 U.S. 145; Davis v. Beason, 133 U.S. 333.

5 Compare Near v. Minnesota, 283 U.S. 697, 713.

The appellants urge that to require them to obtain a certificate as a condition of soliciting support for their views amounts to a prior restraint on the exercise of their religion within the meaning of the Constitution. The State insists that the Act, as construed by the Supreme Court of Connecticut, imposes no previous restraint upon the dissemination of religious views or teaching but merely safeguards against the perpetration of frauds under the cloak of [**904] religion. Conceding that this is so, the question remains whether the method adopted by Connecticut to [*305] that end transgresses the liberty safeguarded by the Constitution.
[***LEdHR6] [6] [HN5] The general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though the collection be for a religious purpose. Such regulation would not constitute a prohibited previous restraint on the free exercise of religion or interpose an inadmissible obstacle to its exercise.
It will be noted, however, that the Act requires an application to the secretary of the public welfare council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit [***1219] for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth.
The State asserts that if the licensing officer acts arbitrarily, capriciously, or corruptly, his action is subject to judicial correction. Counsel refer to the rule prevailing in Connecticut that the decision of a commission or an administrative official will be reviewed upon a claim that "it works material damage to individual or corporate rights, or invades or threatens such rights, or is so unreasonable as to justify judicial intervention, or is not consonant with justice, or that a legal duty has not [*306] been performed." 6 It is suggested that the statute is to be read as requiring the officer to issue a certificate unless the cause in question is clearly not a religious one; and that if he violates his duty his action will be corrected by a court.
6 Woodmont Assn. v. Milford, 85 Conn. 517, 522; 84 A. 307, 310; see also Connecticut Co. v. Norwalk, 89 Conn. 528, 531; 94 A. 992.

[***LEdHR7] [7]To this suggestion there are several sufficient answers. The line between a discretionary and a ministerial act is not always easy to mark and the statute has not been construed by the state court to impose a mere ministerial duty on the secretary of the welfare council. Upon his decision as to the nature of the cause, the right to solicit depends. Moreover, the availability of a judicial remedy for abuses in the system of licensing still leaves that system one of previous restraint which, in the field of free speech and press, we have held inadmissible. [HN6] A statute authorizing previous restraint upon the exercise of the guaranteed freedom by judicial decision after trial is as obnoxious to the Constitution as one providing for like restraint by administrative action. 7
7 Near v. Minnesota, 283 U.S. 697.

Nothing we have said is intended even remotely to imply that, under the cloak of religion, persons may, with impunity, commit frauds upon the public. Certainly penal laws are available to punish such conduct. Even the exercise of religion may be at some slight inconvenience in order that the State may protect its citizens from injury. Without doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. 8 The State is likewise free to regulate the time [*307] and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But [HN7] to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination [**905] by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.
8 Compare Lewis Publishing Co. v. Morgan, 229 U.S. 288, 306-310; New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 72.

[***LEdHR8] [8]Second. We hold that, in the circumstances disclosed, the conviction of Jesse Cantwell on the fifth count must be set aside. Decision as to the lawfulness of the conviction demands the weighing of two conflicting interests. The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate [***1220] information and opinion be not abridged. The State of Connecticut has an obvious interest in the preservation and protection of peace and good order within her borders. We must determine whether the alleged protection of the State's interest, means to which end would, in the absence of limitation by the Federal Constitution, lie wholly within the State's discretion, has been pressed, in this instance, to a point where it has come into fatal collision with the overriding interest protected by the federal compact.
Conviction on the fifth count was not pursuant to a statute evincing a legislative judgment that street discussion of religious affairs, because of its tendency to provoke disorder, should be regulated, or a judgment that the playing of a phonograph on the streets should in the interest of comfort or privacy be limited or prevented. Violation of an Act exhibiting such a legislative judgment and narrowly drawn to prevent the supposed evil, would pose a question differing from that we must here answer. 9 Such a declaration of the State's policy [*308] would weigh heavily in any challenge of the law as infringing constitutional limitations. Here, however, the judgment is based on a common law concept of the most general and undefined nature. The court below has held that the petitioner's conduct constituted the commission of an offense under the state law, and we accept its decision as binding upon us to that extent.
9 Compare Gitlow v. New York, 268 U.S. 652, 670-1; Thornhill v. Alabama, ante, pp. 98-105.

The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions. Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application.
Having these considerations in mind, we note that Jesse Cantwell, on April 26, 1938, was upon a public street, where he had a right to be, and where he had a right peacefully to impart his views to others. There is no showing that his deportment was noisy, truculent, overbearing or offensive. He requested of two pedestrians permission to play to them a phonograph record. The permission was granted. It is not claimed that he [*309] intended to insult or affront the hearers by playing the record. It is plain that he wished only to interest them in his propaganda. The sound of the phonograph is not shown to have disturbed residents of the street, to have drawn a crowd, or to have impeded traffic. Thus far he had invaded no right or interest of the public or of the men accosted.
The record played by Cantwell embodies a general attack on all organized religious systems as instruments of Satan and injurious to man; it then singles out the Roman Catholic Church for strictures couched in terms which naturally would offend not only persons of that persuasion, [**906] but all others who respect the honestly held religious faith of their fellows. The hearers were in fact highly offended. One of them said he felt like hitting Cantwell and the [***1221] other that he was tempted to throw Cantwell off the street. The one who testified he felt like hitting Cantwell said, in answer to the question "Did you do anything else or have any other reaction?" "No, sir, because he said he would take the victrola and he went." The other witness testified that he told Cantwell he had better get off the street before something happened to him and that was the end of the matter as Cantwell picked up his books and walked up the street.
[***LEdHR9] [9]Cantwell's conduct, in the view of the court below, considered apart from the effect of his communication upon his hearers, did not amount to a breach of the peace. [HN8] One may, however, be guilty of the offense if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer. Resort to epithets or [*310] personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.
We find in the instant case no assault or threatening of bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse. On the contrary, we find only an effort to persuade a willing listener to buy a book or to contribute money in the interest of what Cantwell, however misguided others may think him, conceived to be true religion.
In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.
The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish.
[*311] Although the contents of the record not unnaturally aroused animosity, we think that, in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner's communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question. 10
10 Compare Schenck v. United States, 249 U.S. 47, 52; Herndon v. Lowry, 301 U.S. 242, 256; Thornhill v. Alabama, ante, p. 88.

The judgment affirming the convictions on the third and fifth counts is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed.





FRAZEE v. ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY et al.
No. 87-1945
SUPREME COURT OF THE UNITED STATES
489 U.S. 829; 109 S. Ct. 1514; 103 L. Ed. 2d 914; 1989 U.S. LEXIS 1671; 57 U.S.L.W. 4397; 49 Fair Empl. Prac. Cas. (BNA) 469; 49 Empl. Prac. Dec. (CCH) P38,794; Unemployment Ins. Rep. (CCH) P21,911
March 1, 1989, Argued
March 29, 1989, Decided
PRIOR HISTORY: APPEAL FROM THE APPELLATE COURT OF ILLINOIS, THIRD DISTRICT.

DISPOSITION: 159 Ill. App. 3d 474, 512 N. E. 2d 789, reversed and remanded.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant challenged the decision of the Appellate Court of Illinois, Third District that affirmed the decision of the trial court that held the Department of Security's Board of Review's decision was not contrary to law when it rejected appellant's claim based on the Free Exercise Clause, U.S. Const. amend. I.
OVERVIEW: Appellant was presented with an employment opportunity that required him to work on Sunday. Appellant turned down the position and applied to the Department of Employment Security for unemployment benefits, claiming that there was good cause for his refusal to work on Sunday. His application was refused, and appellant challenged the denial. The Review Board affirmed the denial and informed appellant that, because appellant had not asserted a specific religious conviction, he was not entitled to benefits. The trial court and appellate court affirmed the decision. The United States Supreme Court held that the denial of appellant's unemployment compensation benefits violated the Free Exercise Clause, U.S. Const. amend. I, even though appellant had not professed that his membership in a particular religious sect did not allow him to be employed on Sunday. The Court found that appellant's refusal was based on a sincerely held religious belief and, therefore, reversed the lower courts' decision.
OUTCOME: The Court reversed the appellate court's decision and remanded the case when the Court could not find the existence of state interests sufficiently compelling to override a legitimate claim to the free exercise of religion.

DECISION: Denial of unemployment compensation benefits to nondenominational Christian who refused to work on Sunday, based on religious beliefs, held violative of First Amendment's free exercise clause.

SUMMARY: An individual who asserted that he was a Christian refused a temporary position offered him by an employment agency on the grounds that he could not work on "the Lord's day." The position would have required him to work on Sunday. He was not a member of an established religious sect or church and did not claim that his refusal to work resulted from a tenet, belief, or teaching of an established religious body. He then applied for unemployment compensation benefits to the Illinois Department of Employment Security, which denied his claim both initially and on appeal to its review board. The Department's determination was affirmed by the Circuit Court of the Tenth Judicial Circuit of Illinois, Peoria County. On further appeal, the Appellate Court of Illinois, Third District, while not questioning the sincerity of the individual in his "personal professed religious belief," affirmed, holding that the free exercise clause of the Federal Constitution's First Amendment had not been violated (159 Ill App 3d 474, 111 Ill Dec 400, 512 NE2d 789). The Illinois Supreme Court denied leave to appeal.
On appeal, the United States Supreme Court reversed and remanded. In an opinion by White, J., expressing the unanimous view of the court, it was held that the denial of unemployment compensation benefits to the individual violated the free exercise clause, since the state presented no interest which was sufficiently compelling to override the individual's free exercise of his sincerely held religious belief.
SYLLABUS
Appellant, who refused a temporary retail position because the job would have required him to work on Sunday in violation of his personal religious beliefs, applied for, and was denied, unemployment compensation benefits. The denial was affirmed by an administrative review board, an Illinois Circuit Court, and the State Appellate Court, which found that since appellant was not a member of an established religious sect or church and did not claim that his refusal to work resulted from a tenet, belief, or teaching of an established religious body, his personal professed religious belief, although unquestionably sincere, was not good cause for his refusal to work on Sunday.
Held: The denial of unemployment compensation benefits to appellant on the ground that his refusal to work was not based on tenets or dogma of an established religious sect violated the Free Exercise Clause of the First Amendment as applied to the States through the Fourteenth Amendment. Sherbert v. Verner, 374 U.S. 398, Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, and Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from the work in question, not on the consideration that each of them was a member of a particular religious sect or on any tenet of the sect forbidding such work. While membership in a sect would simplify the problem of identifying sincerely held beliefs, the notion that one must be responding to the commands of a particular religious organization to claim the protection of the Free Exercise Clause is rejected. The sincerity or religious nature of appellant's belief was not questioned by the courts below and was conceded by the State, which offered no justification for the burden that the denial of benefits placed on appellant's right to exercise his religion. The fact that Sunday work has become a way of life does not constitute a state interest sufficiently compelling to override a legitimate free-exercise claim, since there is no evidence that there will be a mass movement away from Sunday employment if appellant succeeds on his claim. Pp. 832-835.
COUNSEL: David A. French argued the cause for appellant. With him on the briefs was John W. Whitehead.

Robert J. Ruiz, Solicitor General of Illinois, argued the cause for appellees. With him on the brief were Neil F. Hartigan, Attorney General, and Diane Curry Grapsas and Marcy I. Singer, Assistant Attorneys General. *
* Briefs of amici curiae urging reversal were filed for the American Jewish Congress et al. by Amy Adelson, Lois C. Waldman, and Marc D. Stern; for the Anti-Defamation League of B'nai B'rith by Steven M. Freeman, Meyer Eisenberg, Jeffrey P. Sinensky, Jill L. Kahn, and Richard E. Shevitz; for the Council on Religious Freedom et al. by Lee Boothby, Samuel Rabinove, Richard T. Foltin, Robert W. Nixon, and Rolland Truman; and for Robert Roesser et al. by Bruce N. Cameron.

JUDGES: White, J., delivered the opinion for a unanimous Court.
OPINION BY: WHITE
OPINION
[*830] [***917] [**1515] JUSTICE WHITE delivered the opinion of the Court.
The Illinois Unemployment Insurance Act provides that "[a]n individual shall be ineligible for benefits if he has failed, without good cause, either to apply for available, [**1516] suitable work when so directed . . . or to accept suitable work when offered him . . . ." [HN1] Ill. Rev. Stat., ch. 48, para. 433 (1986). In April 1984, William Frazee refused a temporary retail position offered him by Kelly Services because the job would have required him to work on Sunday. Frazee told Kelly that, as a Christian, he could not work on "the Lord's day." Frazee then applied to the Illinois Department of Employment Security for unemployment benefits claiming that there was good cause for his refusal to work on Sunday. His application was denied. Frazee appealed [***918] the denial of benefits to the Department of Employment Security's Board of Review, which also denied his claim. The Board of Review stated: "When a refusal of work is based on religious convictions, the refusal must be based upon some tenets or dogma accepted by the individual of some church, sect, or denomination, and such a refusal based solely on an individual's personal belief is personal and noncompelling and does not render the work unsuitable." [*831] App. 18-19. The Board of Review concluded that Frazee had refused an offer of suitable work without good cause. The Circuit Court of the Tenth Judicial Circuit of Illinois, Peoria County, affirmed, finding that the agency's decision was "not contrary to law nor against the manifest weight of the evidence," thereby rejecting Frazee's claim based on the Free Exercise Clause of the First Amendment. Id., at 23.
Frazee's free exercise claim was again rejected by the Appellate Court of Illinois, Third District. 159 Ill. App. 3d 474, 512 N. E. 2d 789 (1987). The court characterized Frazee's refusal to work as resting on his "personal professed religious belief," and made it clear that it did "not question the sincerity of the plaintiff," id., at 475, 477, 512 N. E. 2d, at 790, 791. It then engaged in a historical discussion of religious prohibitions against work on the Sabbath and, in particular, on Sunday. Nonetheless, the court distinguished Sherbert v. Verner, 374 U.S. 398 (1963); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981); and Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136 (1987), from the facts of Frazee's case. Unlike the claimants in Sherbert, Thomas, and Hobbie, Frazee was not a member of an established religious sect or church, nor did he claim that his refusal to work resulted from a "tenet, belief or teaching of an established religious body." 159 Ill. App. 3d, at 477, 512 N. E. 2d, at 791. To the Illinois court, Frazee's position that he was "a Christian" and as such felt it wrong to work on Sunday was not enough. For a Free Exercise Clause claim to succeed, said the Illinois Appellate Court, "the injunction against Sunday labor must be found in a tenet or dogma of an established religious sect. [Frazee] does not profess to be a member of any such sect." Id., at 478-479, 512 N. E. 2d, at 792. The Illinois Supreme Court denied Frazee leave to appeal.
The mandatory appellate jurisdiction of this Court was invoked under 28 U. S. C. § 1257(2), since the state court [*832] rejected a challenge to the constitutionality of Illinois' statutory "good cause" requirement as applied in this case. We noted probable jurisdiction, 488 U.S. 814 (1988), and now reverse.

[***LEdHR1A] [1A]We have had more than one occasion before today to consider denials of unemployment compensation benefits to those who have refused work on the basis of their religious beliefs. In Sherbert v. Verner, supra, at 410, the Court held that a State could not "constitutionally apply the eligibility provisions [of its unemployment-compensation program] so as to constrain a worker to abandon his religious convictions respecting the day of rest." Thomas v. Review Bd. of Indiana Employment Security Div., supra, also held that [***919] the State's refusal to award unemployment compensation benefits to one who terminated his job because his religious beliefs forbade participation in the production of armaments violated the First Amendment right to free exercise. Just two years ago, in Hobbie v. [**1517] Unemployment Appeals Comm'n of Florida, supra, Florida's denial of unemployment compensation benefits to an employee discharged for her refusal to work on her Sabbath because of religious convictions adopted subsequent to employment was also declared to be a violation of the Free Exercise Clause. In each of these cases, the appellant was "forced to choose between fidelity to religious belief and . . . employment," id., at 144, and we found "the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee's choice," ibid. In each of these cases, we concluded that [HN2] the denial of unemployment compensation benefits violated the Free Exercise Clause of the First Amendment of the Constitution, as applied to the States through the Fourteenth Amendment.
It is true, as the Illinois court noted, that each of the claimants in those cases was a member of a particular religious sect, but none of those decisions turned on that consideration or on any tenet of the sect involved that forbade the work the [*833] claimant refused to perform. Our judgments in those cases rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from the work in question. Never did we suggest that unless a claimant belongs to a sect that forbids what his job requires, his belief, however sincere, must be deemed a purely personal preference rather than a religious belief. Indeed, in Thomas, there was disagreement among sect members as to whether their religion made it sinful to work in an armaments factory; but we considered this to be an irrelevant issue and hence rejected the State's submission that unless the religion involved formally forbade work on armaments, Thomas' belief did not qualify as a religious belief. Because Thomas unquestionably had a sincere belief that his religion prevented him from doing such work, he was entitled to invoke the protection of the Free Exercise Clause.

[***LEdHR2] [2] [***LEdHR3] [3]There is no doubt that [HN3] "[o]nly beliefs rooted in religion are protected by the Free Exercise Clause," Thomas, supra, at 713.Purely secular views do not suffice. United States v. Seeger, 380 U.S. 163 (1965); Wisconsin v. Yoder, 406 U.S. 205, 215-216 (1972). Nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held. [HN4] States are clearly entitled to assure themselves that there is an ample predicate for invoking the Free Exercise Clause. We do not face problems about sincerity or about the religious nature of Frazee's convictions, however. The courts below did not question his sincerity, and the State concedes it. Tr. of Oral Arg. 35. Furthermore, the Board of Review characterized Frazee's views as "religious convictions," App. 18, and the Illinois Appellate Court referred to his refusal to work on Sunday as based on a [***920] "personal professed religious belief," 159 Ill. App. 3d, at 475, 512 N. E. 2d, at 790. 1
1 From the very first report of the Illinois Division of Unemployment Insurance claims adjudicator, Frazee's refusal of Sunday work has been described as "due to his religious convictions." In his application for reconsideration of the referee's determination, Frazee stated: "I refused the job which required me to work on Sunday based on Biblical principles, scripture Exodus 20: 8, 9, 10. Remember the Sabbath day by keeping it holy. Six days you shall labour and do all your work but the seventh day is a Sabbath to the Lord your God. On it you shall not do any work."

[*834] [***LEdHR1B] [1B] [***LEdHR4] [4] [***LEdHR5A] [5A]Frazee asserted that he was a Christian, but did not claim to be a member of a particular Christian sect. It is also true that there are assorted Christian denominations that do not profess to be compelled by their religion to refuse Sunday work, but this does not diminish Frazee's protection flowing from the Free Exercise Clause. Thomas settled that much. [HN5] Undoubtedly, membership in an organized religious denomination, especially one with a specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that to claim the protection of the Free Exercise Clause, one [**1518] must be responding to the commands of a particular religious organization. Here, Frazee's refusal was based on a sincerely held religious belief. Under our cases, he was entitled to invoke First Amendment protection. 2

[***LEdHR5B] [5B]
2 We noted in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715 (1981), that an asserted belief might be "so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause." But that avails the State nothing in this case. As the discussion of the Illinois Appellate Court itself indicates, claims by Christians that their religion forbids Sunday work cannot be deemed bizarre or incredible.

[***LEdHR6] [6]The State does not appear to defend this aspect of the decision below. In its brief and at oral argument, the State conceded that the Free Exercise Clause does not demand adherence to a tenet or dogma of an established religious sect. Instead, the State proposes its own test for identifying a "religious" belief, asserts that Frazee has not met such a test, and asks that we affirm on this basis. We decline to address this submission; for as the case comes to us, Frazee's conviction was recognized as religious but found to be inadequate [*835] because it was not claimed to represent a tenet of a religious organization of which he was a member. That ground for decision was clearly erroneous.
The State offers no justification for the burden that the denial of benefits places on Frazee's right to exercise his religion. The Illinois Appellate Court ascribed great significance to America's weekend way of life. The Illinois court asked: "What would Sunday be today if professional football, baseball, basketball, and tennis were barred. Today Sunday is not only a day for religion, but for recreation and labor. Today the supermarkets are open, service stations dispense fuel, utilities continue to serve the people and factories continue to belch smoke and tangible products," concluding that "[i]f all Americans were to abstain from working on Sunday, chaos would result." 159 Ill. App. 3d, at 478, 512 N. E. 2d, at 792. We are unpersuaded, however, that there will be a mass movement away from Sunday employ if William Frazee succeeds in his claim.

[***LEdHR1C] [1C] [***LEdHR7] [7]As was the case in Thomas [***921] where there was "no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create 'widespread unemployment,' or even to seriously affect unemployment," 450 U.S., at 719, there is nothing before us in this case to suggest that Sunday shopping, or Sunday sporting, for that matter, will grind to a halt as a result of our decision today. And, as we have said in the past, there may exist state interests sufficiently compelling to override a legitimate claim to the free exercise of religion. No such interest has been presented here.
The judgment of the Appellate Court of Illinois for the Third District is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.

[Rev Sister Lilli]

HOLY SMOKE, GOD BLESS BROTHER JOSHUA for this extensive work/ time/ effort/ and devotion that went into preparing all that.

Brother you are beautiful!!! We as a family here are blessed by you.

Keep on Keeping on bro
Louv
Lilli

[Rev. Joshua Snider]

Louv Sister Lilli,

I just pasted these from my source into Word 2003 and then repasted them here. Everything takes time though doesn't it. Thank you for your apreciation. If it makes it easier for us to learn about our rights it is well worth the effort.

I went back and broke things up so that it is easier to see where the cases start and end and I put a list of the cases in there too, although the list isn't in the right order.

The anotations are a bit tricky but one of the best ways to learn them is probably by comparing these to hard copies from the law library.

One louv,
Joshua

[Rev. John]

nice work.... bumpity bump bump