C.A. 3d Cir. Reported below: [ 391 U.S. Page 956]
MR. JUSTICE DOUGLAS, dissenting.
In 1962 when petitioner was classified by his Local Board pursuant to the Universal Military Training and Service Act of 1948, 62 Stat. 604 (now the Military Service Act of 1967), as amended, 81 Stat. 100, 50 U.S.C. App. § 451 et seq. (1964 ed., Supp. III), he
sought classification both as a minister (see § 6 (g) and § 16 (g) of the Act) and as a conscientious objector (§ 6 (j) ). In his classification questionnaire he described himself as an ordained minister of the Jehovah's Witnesses and stated he was opposed to war in any form and conscientiously objected to participation in noncombatant service in the Armed Forces. The Local Board, in February 1962, classified petitioner as a conscientious objector but denied the ministerial exemption. Petitioner did not seek administrative appeal.
Through October 1964 petitioner wrote a series of letters to the Board describing in more detail his activities as a minister and claiming religious objection to participation in civilian work projects which may be required of registrants classified as conscientious objectors*fn1 He stated that under his religious beliefs he was no part of the world governed by secular political systems and could not accept work in a civilian program which substituted for military service. However, he did not formally request reopening of his classification.
On March 25, 1965, the Board mailed to petitioner an order to report to the Board on April 5, 1965, for instructions respecting a civilian work assignment at a state hospital. Petitioner failed to obey the order and was charged by indictment with willful failure to report, in
violation of § 12 (a) of the Act*fn2 At his non-jury trial, petitioner presented no evidence but moved for acquittal in part on the ground that civilian work under § 6 (j) of the Act could not constitutionally be required of him. The motion was denied, he was convicted and sentenced to four years' imprisonment, and the judgment was affirmed. United States v. Hart, 382 F.2d 1020 (C.A. 3d Cir.) (per curiam).
Petitioner urges that the power of Congress under Art. I, § 8, of the Constitution to "raise and support armies" does not authorize a draft in time of peace. His argument is: "There is no declared war being conducted today by the United States; thus, the justifications usually given for the draft program, as in the Selective Draft Law Cases, 245 U.S. 366 (1918) are not applicable." The Government, in response, claims "[it] has long been settled that the power to raise armies by conscription is not limited to wartime," and cites United States v. Henderson, 180 F.2d 711 (C.A. 7th Cir.), cert. denied, 339 U.S. 963, and Etcheverry v. United States, 320 F.2d 873 (C.A. 9th Cir.), cert. denied, 375 U.S. 930.
Petitioner's other contentions are that there was no basis in fact for the Local Board's denial of a minister's exemption, see United States v. Seeger, 380 U.S. 163, Estep v. United States, 327 U.S. 114; that his First Amendment rights to freedom of religion have been abridged; and that the congressional power to raise armies does not, as limited by the Necessary and Proper Clause
of Art. I, § 8, authorize draft of conscientious objectors for civilian work so long as there are men in the draft pool eligible for combatant service who are not called for induction.
The Government contends that petitioner does not have standing to attack denial of the minister's exemption because he did not take an administrative appeal of his classification by the Local Board. But the Government quite properly does not claim this bars judicial review of the peacetime draft issue; for it is clear that whatever effect the exhaustion of administrative remedies ...