20 God is transcendent.35 William A. Spurrier differs from both and associates the idea of God with "the ultimate power and reality in life." 36 None of these views, although they are statements of men recognized as outstanding leaders of contemporary Protestant theology, is clearly and self-evidently assimilable to the Supreme Being clause. Indeed, the Supreme Being clause is open to such difference in interpretation, that it may offend the due process clause on the score of vagueness and susceptibility to unequal, arbitrary, administrative variation in application. Finally, it has been suggested that the Supreme Being clause serves administrative convenience by decreasing the number of registrants entitled to exemption. This suggested justification is intolerable under constitutional principles. The crux of the guarantee of equal protection is the requirement of reasonable distinctions: the individual's right to inclusion in a favored group unless he can reasonably be distinguished from it. 2. The Constitutional principle of neutrality between the theist and non-theist (discussed supra) is paralleled by the demand from a philosophical, psychological and logical standpoint that the non-theist's conscientious belief be deemed of equal dignity and importance with the theist's. With the elimination of the statutory requirement of membership in a pacifist religious sect, conscientious objection is necessarily a matter of individual development and personal interpretation, whether the registrant is a theist or a non-theist. A theist may or may not attribute this individually-developed conscientious conviction to di 35. Barth, Evangelical Theology (1963), pp. 6, 12. 21 vine command. Thus, even Catholic writers-unquestionably theists have pointed out that the dictates of conscience are not necessarily connected with one's belief in God.37 Historically, as well as currently, philosophers of eminence regard conscience as a sense of right or wrong unrelated to a Diety. British ethical philosophy of the eighteenth century, lying in the direct background of the founders of the American nation and authors of its Constitution, tended to proclaim an intuitionist theory of conscience under which each man has an innate sense of what is right and what is wrong, just as he has an innate sense of color. Opposed to this school, some eighteenth-century European philosophers viewed reason as the sole source of conscience. The American "Founding Fathers" drew from both views they regarded conscience as innate, but supplemented or supported by human reason. Thus, aside from some particular schools of theology expounding particular theist creeds, reasoning as to the nature of conscience indicates no basis for discriminating between the conscientious convictions of theists and nontheists. So too is the conclusion from psychological learning. From the psychologists' standpoint, even if in a theist view conscience is the expression of divine command, the command must be "internalized" before it can motivate.38 Viewed psychologically, a conscientious conviction is a conscientious conviction, however its source may be conceived by the theologians or philosophers. 37. Von Hildebrand, Christian Ethics (1953), pp. 455-456. 38. Fromm, Man for Himself: An Inquiry into the Psychology of Ethics (1947), 143-145; compare Freud, Civilization and its Discontents (1930), 104-122. 22 Finally, only the metaphysicians will quibble as to whether a theist, who attributes his conscientious objection to divine command, feels more compelled thereby and endures greater emotional suffering from his disobedience than the non-theist. Thus, George Eliot (Marian Evans) is quoted in a conversation "concerning God, immortality, and duty, in which she 'pronounced with terrible earnestness how inconceivable was the first, how unbelievable was the second, how peremptory and absolute was the third.' '34 In sum, analysis from the standpoint of the various pertinent fields of knowledge, indicate no reasonable basis for discriminating between conscientious objectors who believe in a Supreme Being and those who do not. 39. Wheelwright, A Critical Introduction to Ethics (1949), 125. 23 Conclusion Amicus submits that the Supreme Being clause of the Selective Service Act of 1948 is an unconstitutional discrimination against conscientious objectors of non-theistic beliefs and an unconstitutional preference of theistic religion over non-theistic religion, in violation of the First Amendment; that the Supreme Being clause creates an arbitrary, unreasonable and impermissible classification between conscientious objectors of theistic belief and those who follow nontheistic religions in violation of the Fifth Amendment, and that the decision of the Court of Appeals should therefore be affirmed. October, 1964 Respectfully submitted, HERBERT A. WOLFF LEO ROSEN 285 Madison Avenue New York, New York 10017 Attorneys for The American Ethical Union Of Counsel: GREENBAUM, WOLFF & ERNST NANETTE DEMBITZ NANCY F. WECHSLER 19. GUTKNECHT v. UNITED STATES, 396 U.S. 295 (1969) Mr. Justice Douglas delivered the opinion of the Court. This case presents an important question under the Military Selective Service Act of 1967, 62 Stat. 604, as amended, 65 Stat. 75, 81 Stat. 100. Petitioner registered with his Selective Service Local Board and was classified I-A. Shortly thereafter he received a II-S (student) classification. In a little over a year he notified the Board that he was no longer a student and was classified I-A. Meanwhile he had asked for an exemption as a conscientious objector. The Board denied that exemption, reclasifying him as I-A, and he appealed to the State Board. While that appeal was pending, he surrendered his registration certificate and notice of classification by leaving them on the steps of the Federal Building in Minneapolis with a statement explaining he was opposed to the war in Vietnam. That was on October 16, 1967. On November 22, 1967, his appeal to the State Board was denied. On November 27, 1967, he was notified that he was I-A. On December 20, 1967, he was declared delinquent by the local board. On December 26, 1967, he was ordered to report for induction on January 24, 1968. He reported at the induction center, but in his case the normal procedure of induction was not followed. Rather, he signed a statement, "I refuse to take part, or all, [sic] of the prescribed processing." Thereafter he was indicted for wilfully and knowingly failing and neglecting "to perform a duty required of him" under the Act. He was tried without a jury, found guilty, and sentenced to four years' imprisonment. 283 F. Supp. 945. His conviction was affirmed by the Court of Appeals. 406 F. 2d 494. The case is here on a petition for a writ of certiorari. 394 U.S. 997. I Among the defenses tendered at the trial was the legality of the delinquency regulations which were applied to petitioner. It is that single question which we will consider. By the regulations promulgated under the Act a local board may declare a registrant to be a "delinquent" whenever he "has failed to perform any duty or duties required of him under the selec tive service law other than the duty to comply with an Order to Report for Induction (SSS Form No. 252) or the duty to comply with an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153) . . .” 32 CFR § 1642.4. In this case, petitioner was declared a delinquent for failing to have his registration certificate (SSS Form No. 2) and current classification notice (SSS Form No. 110) in his personal possession at all times, as required by 32 CFR §§ 1617.1 and 1623.5, respectively. The consequences of being declared a delinquent under § 1642.4 are of two types: (1) Registrants who have deferments or exemptions may be reclassified in one of the classes available for service, I-A, I-A-0, or I-O, whichever is deemed applicable. 32 CFR § 1642.12. (2) Registrants who are already classified I-A, I-A-0, or I-O, and those who are reclassified to such a status. will be given first priority in the order of call for induction, requiring them to be called even ahead of volunteers for induction. 32 CFR § 1642.13. The latter consequence deprives the registrant of his previous standing in the order of call as set out in 32 CFR § 1631.7.1 The order-of-call provision in use when petitioner was declared "delinquent" 2 is set out in 32 CFR § 1631.7(a). The provision lists, in order, six categories of registrants and provides that the registrants shall be selected and ordered to report for induction according to the order of those categories. The first category is delinquents; the next category is volunteers; the other four categories consist of nonvolunteers. In this case, the petitioner was in the third of the six categories at the time he was declared to be a "delinquent." Under the terms of 32 CFR § 1631.7 (a)(1) in effect at the time of petitioner's trial. the first in line for induction were "[d]elinquents who have attained the age of 19 years in the order of their dates of birth with the oldest being selected first." That provision has been included in the new § 1631.7 (a) promulgated after the random system of selection, discussed hereafter, was adopted. 2 The order of call provided for by 32 CFR § 1631.7 (b) concerned calls of a desig nated age group or groups," a system never used. |