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United States v. Morico

decided: July 31, 1969.


Moore, Smith and Anderson, Circuit Judges.

Author: Moore

MOORE, Circuit Judge:

William Philip Morico (appellant) appeals from his conviction after a jury trial for refusal to submit to induction into military service. Appellant challenges the refusal of his draft board to exempt him as a conscientious objector and its failure to specify reasons for the denial of his claim.

Appellant first requested conscientious objector status on the day he was ordered to report for physical examination and filed the request only after he was found to be physically fit. He appeared personally before his local board on September 13, 1965, which thereafter unanimously denied his request and confirmed his I-A classification, i.e., available for induction. No findings of fact or other record of the board's reasons for the decision were made.

He appealed to the state appeals board and his board referred his file to the United States Department of Justice for investigation and recommendation in accordance with statutory procedures in effect at that time. 50 U.S.C. App. § 456(j).*fn1 An F.B.I. investigation was made and a resume of the investigation was furnished to appellant. A hearing was scheduled and the examiner concluded that appellant's objections to serving, and to war generally, were religiously founded and sincerely held and "recommended that the conscientious objector claim of the defendant be sustained." The Department of Justice, after reviewing the evidence, including the examiner's recommendation, disagreed and gave its opinion to the appeals board that his claim was not sincere and was not founded on religious training and belief.

The appeals board on May 11, 1967, unanimously denied appellant's conscientious objector claim and classified him I-A. After another physical examination, he was found physically fit and ordered to report on March 21, 1968, for induction. At that time he refused to take the symbolic step forward, resulting in this prosecution.

Although the court below stated "there is really no objective factual basis for finding that he is insincere in his professed beliefs," the court felt that "the rejection was based on the religiosity of his beliefs" (Appendix, 25a). In considering the highly restrictive standard of review in cases of this type -- namely, that there be "no basis in fact for the classification" -- the court concluded that the board was justified in holding appellant's professed beliefs lacking in the requisite religious foundation. Some of the factors that tended to support that conclusion, relied on below, were the non-religious atmosphere in which appellant's beliefs crystallized, the proximity of this crystallization to his first notice of physical examination and the essentially political, sociological and philosophical character of the beliefs. While appellant testified to a great reliance on religion as the driving force of his beliefs at his trial, the crucial time for judging the religiosity of his claim, the court said, is the time of his conversations before the local board and appeals board. This is not challenged by the appellant. The trial judge found that, between those conversations and the trial, "at least there was a drastic change in emphasis" and that "there just seemed to be no question that the basis for [appellant's] beliefs are founded at that time on political, sociological and philosophical views and on his own personal moral code rather than by religious training and belief" (27a).

Conscientious objectors are exempted from military service by virtue of 50 U.S.C. App. § 456(j). That statute provides:

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 in any form. Religious training and belief in this connection means an individual's belief in 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.

Thus, to be entitled to exemption a person must have a personal conscientious opposition to war in any form and the source of his opposition must be based on religious training and belief. Essentially political, sociological or philosophical views or mere personal moral codes are not sufficient. Attempting to clarify this very difficult area, the Supreme Court in United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965), stated:

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. Id. at 186, 85 S. Ct. at 864.

Appellant's professed beliefs must, therefore, be judged against these criteria.

In his application to his local board for classification as a conscientious objector, appellant claimed exemption on the ground that he was "by religious training and belief, conscientiously opposed to participation in war in any form." He then elaborated his beliefs:

I believe that no nation or man has the right to dictate or force any other man or nation into any type of government or ideology which is not of his own choosing. In taking such action a nation or man is violating the rights of other ...

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