Appeal from convictions under 18 U.S.C. § 1361 for destruction of government property and under 18 U.S.C. § 371 for conspiracy, following a jury trial in the United States District Court for the Northern District of New York, Howard G. Munson, Judge. Appellants claim that the convictions violated the First Amendment religion clauses and that the denial of the request to present an international law defense violated due process.
Oakes, Meskill, and Pierce, Circuit Judges.
Appellants, antinuclear protesters, were convicted after a jury trial in the United States District Court for the Northern District of New York, Howard G. Munson, Judge, of willful destruction of government property and conspiracy to destroy government property. On appeal, they argue that their convictions violated the First Amendment religion clauses and that the trial court violated due process and their right to a fair trial by erroneously precluding them from putting before the jury a defense based on international law. We affirm.
On Thanksgiving Day, November 24, 1983, at Griffiss Air Force Base, a Strategic Air Command ("SAC") installation near Rome, New York, the seven appellants engaged in a protest at Hangar 101, which housed a B-52 bomber. When the police inspected the hangar after appellants' arrests outside, they found that the aircraft's skin and bomb-bay doors had been damaged apparently by hammers and crowbars, and that the bomber and an adjacent engine maintenance shop had been spray-painted with slogans. Blades of another B-52 engine turbine rotor were knocked out of place and at least three other jet engines damaged. The damage testified to was in excess of $113,000, but this figure was evidently revised downward in the pre-sentence report to $60,000 because some of the property could be salvaged.
Appellants moved before trial to dismiss the indictment on the basis of the free exercise and establishment clauses of the First Amendment. Their motion was denied. At trial they admitted that they had surreptitiously entered the SAC base to damage government property and had committed the acts charged, but sought to defend their actions on the theory that the damaged weapons systems were developed and deployed in violation of international law, which therefore obligated them to take steps to prevent that violation. The district court, following United States v. May, 622 F.2d 1000 (9th Cir.), cert. denied, 449 U.S. 984, 101 S. Ct. 402, 66 L. Ed. 2d 247 (1980), ruled that appellants lacked standing to assert this defense.
Conviction was under 18 U.S.C. § 1361 (1982), for causing more than $100 damage to property of the United States, and id. § 371, for conspiracy. Appellants Allen, Grady and Rumpf received sentences of two-year concurrent terms on each count, appellants Smith, Rossman, Hammer and McAlister three-year concurrent terms on each count. Appeal was by appellants pro se with the assistance of legal advisers; at oral argument appellant Hammer capably presented the theories of law upon which he and his co-appellants rely.
The establishment clause claim is a novel one, both in the theory of what constitutes a religion and in the theory of what constitutes a law respecting the establishment of religion. According to appellants, there has arisen a "national religion of nuclearism . . . in which the bomb is the new source of salvation." This "religion" is said to focus on the "acceptance of nuclear weapons as sacred objects." To support the characterization of "nuclearism" as a religion, appellants interpret West Virginia State Board of Education v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943), as disapproving the establishment of the similar "religion" of "orthodox nationalism." Appellants next argue that the property protection statute, as applied in this case, unconstitutionally advances religion under Lemon v. Kurtzman, 403 U.S. 602, 612, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), and Epperson v. Arkansas, 393 U.S. 97, 107, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968), because it has the purpose and primary effect of protecting nuclear weapons -- the new nuclearism's "objects of adoration and glorification" -- and because even legislation having a secular purpose and facial neutrality, as does the statute in question, may establish religion "if in fact the State is lending direct support to a religious activity," Roemer v. Board of Public Works, 426 U.S. 736, 747, 49 L. Ed. 2d 179, 96 S. Ct. 2337 (1976). Appellants contend they should at least have had an evidentiary hearing on the issues of whether "nuclearism" is a religion and whether the application of the property protection statute lends support to that religion in violation of the establishment clause.
In recent years, the concept of religion has certainly broadened. Not long ago we defined an individual's religion as his "'ultimate concern' -- whatever that concern be." International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440 (2d Cir. 1981). Under this definition, a touchstone of a religion is the believer's categorical "'disregard [of] elementary self-interest . . . in preference to transgressing [the religion's] tenets.'" Id. (quoting United States v. Kauten, 133 F.2d 703, 708 (2d Cir. 1943)).
This expansive definition of religion has been developed primarily to protect an individual's free exercise of religion, recognizing that an individual's most sincere beliefs do not necessarily fall within traditional religious categories. In this case, however, appellants ask us to recognize as a "religion" what that religion's alleged adherents have not identified as such. We can understand appellants' opinion that those who support nuclear armaments have in reality sacrificed their self-interest to what can only be considered an "ultimate concern" -- weapons that have the power to destroy all else. But the new religion's "believers" would likely reject this interpretation of their beliefs and actions. Many nuclear weapons proponents surely belong to established religions, and most believe that our nuclear weapons program is a means to prevent nuclear war, not an end in itself. Congress no doubt believes that it is acting within its authority to "provide for the common Defence and general Welfare of the United States," U.S. Const. art. I, § 8, in authorizing nuclear weapons production. Most who support the nuclear armament program would presumably reverse their position if they felt peace would be served thereby. Indeed, the MX missile, after all, is by some called "Peacekeeper."
In essence, then, antinuclear protesters like appellants believe that nuclear weapons have no purpose but destruction, while pronuclear supporters believe that nuclear weapons help to keep the peace. The two sides in the nuclear debate thus differ primarily in their perception of the way the world works, not necessarily in their ultimate concern for peace. This difference we hold to be one of political judgment, not religious belief. See United States v. Seeger, 380 U.S. 163, 165, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965) (religious beliefs distinguished from "political, sociological, or philosophical views").
In so holding, we adopt for establishment clause purposes the conventional, majority view, rather than appellants' view, of what is religious and what is political. Consequently, we must acknowledge that "religion" can have a different meaning depending on which religion clause of the First Amendment is at issue. It may be that a person who expounds "nuclearism" as his religion, consciously worshipping these weapons as gods of destruction, would be entitled to some protection under the free exercise clause. That the Government advances what is, conceivably, someone's religion, however, does not make what most citizens consider a political or military action a violation of the establishment clause. As Professor Laurence Tribe has noted,
Clearly, the notion of religion in the free exercise clause must be expanded beyond the closely bounded limits of theism to account for the multiplying forms of recognizably legitimate religious exercise. It is equally clear, however, that in the age of the affirmative and increasingly pervasive state, a less expansive notion of religion was required for establishment clause purposes lest all "humane" programs of government be deemed constitutionally suspect.
L. Tribe, American Constitutional Law 827-28 (1978) (footnote omitted); accord Grove v. Mead School District No. 354, 753 F.2d 1528, slip op. at 15-16 (9th Cir. 1985) (Canby, J., concurring). Professor Tribe goes on to suggest that "all that is ' arguably religious ' should be considered religious in a free exercise analysis," while " anything ' arguably non-religious ' should not be considered religious in applying the establishment clause." Id. at 828 (emphasis in original). Although we need not follow him to that extreme in this ...