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United States v. Jakobson

November 22, 1963


Author: Friendly

Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge.

Arno Sascha Jakobson appeals from a judgment, entered in the Southern District of New York by Judge Palmieri, sitting without a jury, convicting him of refusal to submit to induction for combatant training as ordered by his Selective Service System Local Board, in violation of 50 U.S.C.App. § 462(a). He maintains that the notice of induction was invalid under § 6(j) of the Universal Military Training and Service Act, 50 U.S.C.App. § 456(j), which provides that the Selective Service Act shall not "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 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."

Jakobson's parents were Jews who migrated to the United States in his early youth. When about 13 years of age, he became estranged from the Jewish faith, avowedly because of his distaste for what he considered the "bloodthirsty nationalism" exhibited in certain portions of the Old Testament, such as the Book of Joshua. He registered with his Local Board on September 2, 1953, a few days after his eighteenth birthday. In his classification questionnaire he made no claim of conscientious objection in the item provided for that purpose but did claim physical disqualification because of a back injury, a claim which he supported shortly thereafter by a note from his physician. When his Local Board classified him 1-A, he sought and obtained a student deferment, a status in which, save for one short interval, he remained until February 9, 1956, when he was reclassified 1-A. Nearly two years later he was ordered to report for a preinduction physical examination. He presented a second physician's certificate describing his back condition but was found qualified for service and was so notified by the Local Board on March 18, 1958.

A month later Jakobson advised the Local Board that he believed himself exempt as a conscientious objector. With a 15-page addendum and three supporting letters, he filed the Special Form for Conscientious Objectors (SSS Form 150), claiming exemption from combatant service only; he answered the question "Do you believe in a Supreme Being" in the affirmative, with explanations of which we shall say more hereafter. At a hearing before the Local Board in the fall, he stated that even noncombatant service would result in "too many situations and relationships that would be a strain on my conscience * * *" and sought a 1-O classification which would exempt him from all military service but would subject him to a like period of civilian work contributing to the maintenance of the national health, safety, or interest; he also filed with the Board a 43-page discussion of his views.

The Local Board did not question Jakobson's sincerity but concluded that his claim was not based upon religious training and belief as defined in the statute; somewhat inconsistently with this view, it granted him classification 1-A-O, for noncombatant service, to which he was entitled only if he met the statutory test. Jakobson appealed. The Appeal Board tentatively determined that he was not entitled to classification as a conscientious objector in any form, and forwarded the file for an advisory recommendation by the Department of Justice, 32 C.F.R. § 1626.25(b). After an investigation by a hearing officer, and a generally favorable F.B.I. report on the evaluation of Jakobson by his acquaintances, the Department made the following recommendation to the Appeal Board:

"The Hearing Officer concluded that the registrant is not opposed to participation in combatant or noncombatant military training and service by reason of his religious training and belief; that his claim is based upon a personal moral code and that he is not sincere in his claim. He recommended that the appeal of the registrant based upon grounds of conscientious objection be not sustained.

"The Department of Justice finds that the registrant's claim is not sustained. It, therefore, recommends that the registrant's claim be not sustained by your Board."

Jakobson then sent a further communication to the Appeal Board, again explaining why he regarded his convictions as religious and seeking to excuse his tardiness in advancing his conscientious objection claim (and the change in his request from a 1-A-O to a 1-O classification). One reason offered was that when about six months before his pre-induction physical examination, he inquired of the clerk of the Local Board as to qualifications for a conscientious objector exemption, he was told this was given "only to individuals with a long and overtly-provable pacifist background" who could produce letters from ministers; he added that since his family background was not pacifist, he had been forced to face this difficult problem by himself, "from scratch," when it arose. On December 9, 1958, the Appeal Board classified him 1-A. After unsuccessful efforts to carry the matter further, he was ordered to submit to induction, but, on completion of his induction physical, refused to take the step forward which symbolizes submission to induction. For this refusal he was indicted and convicted.

The Department of Justice had recommended denial of Jakobson's claim on two grounds: that he lacked sincerity, and that his objections were not based on religious training and belief within the meaning of the statute. The Appeal Board did not indicate on what ground it relied. If we were certain that the denial of exemption rested on a finding of insincerity, Jakobson's five year delay in claiming conscientious objection and his shift of position after making the claim would oblige us to affirm his conviction. The finality which the Act bestows on the decisions of the local and appeal boards, 50 U.S.C.App. § 460(b) (3), precludes judicial rejection of their findings as invalid unless "there is no basis in fact for the classification" given to the registrant, Estep v. United States, 327 U.S. 114, 122-123, 66 S. Ct. 423, 427, 90 L. Ed. 567 (1946), and "any fact which casts doubt on the veracity of the registrant is relevant." Witmer v. United States, 348 U.S. 375, 381-382, 75 S. Ct. 392, 395-396, 99 L. Ed. 428 (1955). In Jakobson's case, as in Witmer's, there were enough "objective facts before the Appeal Board to * * * cast doubt on the sincerity of his claim," 348 U.S. at 382, 75 S. Ct. at 396, 99 L. Ed. 428, see also United States v. Corliss, 280 F.2d 808, [Heise] 812, [Herold] 816 (2 Cir.), cert. denied, 364 U.S. 884, 81 S. Ct. 167, 5 L. Ed. 2d 105 (1960). It is immaterial that on the cold record alone we would not have found Jakobson insincere or that the Local Board, which saw him, did not doubt his honesty. The resolution of conflicting inferences from personal observation and from the undisputed history was for the Appeal Board, as, indeed, it would be even if the scope of judicial inquiry were considerably broader than it is here. See F.C.C. v. Allentown Broadcasting Corp., 349 U.S. 358, 364-365, 75 S. Ct. 855, 99 L. Ed. 1147 (1955).

On the other hand, if the Appeal Board, although believing Jakobson to be sincere, based its classification on the ground that his conscientious objection was not the result of religious training and belief, we would be compelled to reverse the conviction and direct dismissal of the indictment. For we rule it an erroneous construction of the statute to conclude that Jakobson's beliefs fell outside its definition of religion.

To summarize Jakobson's religious views is not altogether easy. He begins by defining religion as the sum and essence of one's basic attitudes to the fundamental problems of human existence. He recognizes an ultimate cause or creator of all existence which he terms "Godness." In theory an individual's relationship to Godness can take one or the other of two forms, a "vertical" relationship in which man relates directly to Godness, or a "horizontal" one in which man relates to Godness indirectly by binding himself to the qualities of Godness that exist in every creation in Mankind and throughout the world. For himself Jakobson rejects the vertical "one-to-one" relationship because God is unknowable to man, and because action and spiritual growth purportedly based on a direct relationship with Godness must thus lead to error since man can reason but imperfectly about the unfathomable. Moreover, he finds objectionable the egocentric two-dimensional view which the vertical relationship fosters. For him Godness can be approached only through psychic involvement in the three-dimensional world. Inward turning causes spiritual diminution, egocentricity, and passive "putting up with" the evils of the world rather than an active attempt to change it. The way to arrive closer to Godness is by approaching the universals inherent in existence. The individual must deal directly with life, death, health, love, time - the "givens" of existence stemming from the Ultimate Cause - as he finds them in himself and others.

Jakobson sees himself as faced with an inescapable choice between acceptance or rejection of the order of the universe; for him this is the central problem of religion. He explains the positions of acceptance and rejection by reference to the characters of Ivan and Zossima in "The Brothers Karamazov." Ivan accepts God but rejects the world because of the evil in it; he can go on living and can love particular individuals, but can only withdraw from the evil that he sees. Ivan doesn't oppose but passively and unhappily acquiesces; with such a position one could go to war by disavowing any personal responsibility. Zossima represents acceptance, which Jakobson defines as total affirmation of the basic blessedness of the fact of being - of goodness and "yesness." The taking of human life is incompatible with acceptance, which sees in all humanity "Godness" - the quality of having been created by the Ultimate Cause. Jakobson adopts the position of acceptance.

The definition of "religious training and belief" in § 6(j), somewhat unusual for a statute, is the end product of a long development. Without going back further into history, we shall start with the Draft Act of 1917, 40 Stat. 78. This exempted "a member of any well-recognized religious sect or organization at present organized and existing and whose existing creed or principles forbid its members to participate in war in any form and whose religious convictions are against war or participation therein in accordance with the creed or principles of said religious organization * * *" The constitutionality of this provision under the First Amendment was upheld, rather summarily, in Arver v. United States, 245 U.S. 366, 389-390, 38 S. Ct. 159, 62 L. Ed. 349 (1918). The corresponding provision in the bills that became the Selective Service Act of 1940 were similarly restrictive.*fn1 However, in the course of enactment Congress broadened the ...

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