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UNITED STATES v. KENSTLER

February 18, 1966

UNITED STATES of America
v.
Daniel M. KENSTLER



The opinion of the court was delivered by: DUMBAULD

 Defendant was tried without a jury, pursuant to agreement between the defendant and the government, approved by the Court. This procedure is valid. Patton v. United States, 281 U.S. 276, 296, 50 S. Ct. 253, 74 L. Ed. 854 (1930); Singer v. United States, 380 U.S. 24, 33, 36, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965).

 It is contended that under Section 1626.41 of the Regulations a registrant shall not be inducted during the time that an appeal is pending, and that defendant had taken an appeal but that the Appeal Board had not performed its mandatory duty under Section 1626.26 to "classify" the defendant. It is also contended that the Draft Board's classification of I-O (conscientious objector) was arbitrary, capricious, and contrary to law in that defendant should have been classified as 4-D (full time minister).

 The record discloses that defendant was classified I-O three times, on June 11, 1962, July 10, 1962, and August 22, 1962. Defendant questions only the August 22, 1962, classification, contending that by that time his status had changed.

 At the outset it should be observed that military service, like taxation, is part of the price of civilization. Borden Co. v. Clearfield Cheese Co., 244 F. Supp. 366, 367 (W.D.Pa.1965). Regulation of both burdens is a legislative task, and in both fields the courts are concerned only with effectuating the intent of Congress. A taxpayer is under no moral obligation to pay more than Congress has exacted, as Judge Learned Hand long ago pointed out in a frequently quoted passage. Helvering v. Gregory, 69 F.2d 809, 810 (C.C.A.2, 1934); aff'd 293 U.S. 465, 469, 55 S. Ct. 266, 79 L. Ed. 596 (1935). Cf. Thurman Arnold, The Folklore of Capitalism (1937) 324. The draft, like taxation, is an intensely practical matter, and our decision in this case is not to be governed by logic, reason, morality, political expediency, equity or justice, but simply and solely by ascertainment of what Congress has prescribed.

 We emphasize that there is no constitutional right to exemption or immunity from the burden of national defense. The exemptions which the law allows are derived solely as a matter of grace from the choice of Congress, just as exemptions from jury duty are wisely accorded to certain groups by legislative choice. Dickinson v. United States, 346 U.S. 389, 395, 74 S. Ct. 152, 98 L. Ed. 132 (1953).

 As a matter of historical interest, it may be noted that in Madison's original proposals, and in those passed by the House, there was a provision, which was deleted in the Senate, that "no one religiously scrupulous of bearing arms, shall be compelled to render military service in person". This was part of what is now the Second Amendment, dealing with the right of the people to bear arms. Dumbauld, The Bill of Rights and What It Means Today (1957), 37, 46, 211, 214.

 There is, of course, a constitutional right to freedom of religion under the First Amendment; but, unless Congress ordains otherwise, that right to worship must be exercised on the battlefield or in a space capsule if that is where the worshipper happens to be at the time in the course of due discharge of his obligations as a citizen.

 It should also be noted that religion affords no defense against the normal exertion of the police power. It is not a shield against vaccination as a public health measure. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29, 31, 25 S. Ct. 358, 49 L. Ed. 643 (1905). It does not preclude the application of child labor laws to children selling literature in the streets at night. Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166-169, 64 S. Ct. 438, 88 L. Ed. 645 (1944). It is not an open sesame to sexual or alcoholic indulgence. Reynolds v. United States, 98 U.S. 145, 162-166, 25 L. Ed. 244 (1879); Davis v. Beason, 133 U.S. 333, 342-345, 10 S. Ct. 299, 33 L. Ed. 637 (1890); Cleveland v. United States, 329 U.S. 14, 20, 67 S. Ct. 13, 91 L. Ed. 12 (1946); Shapiro v. Lyle, 30 F.2d 971, 973 (W.D.Wash.N.D.1929).

 As a matter of fact, Congress has, in accordance with long-standing policy, excused from "combatant training and service" any person who "by reason of religious training and belief, is conscientiously opposed to participation in war in any form." 50 U.S.C.A.App. 456(j); United States v. Seeger, 380 U.S. 163, 170, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965). This provision authorizes such objectors to be assigned to civilian work of national interest. It was such an order, dated March 12, 1965, ordering defendant to report on March 23, 1965, that defendant here challenges.

 Congress also in 50 U.S.C.A.App. 456(g) exempted regular or duly ordained ministers of religion from training and service (without prescribing any requirement for civilian work). These terms are defined in 50 U.S.C.A.App. 466(g) as follows:

 
"(g) (1) The term 'duly ordained minister of religion' means a person who has been ordained, in accordance with the ceremonial, ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization.
 
(2) The term 'regular minister of religion' means one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained as a minister of religion, and who is ...

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