attempted imposition of doctrine by the state is anathema to freemen. Moreover, our democratic society can rightfully pride itself on the first amendment guarantee of freedom of conscience, only if it asserts the special responsibility to recognize the dictates of individual

conscience.

We do not suggest that persons without formal religious training or belief who have conscientious objection to war should be given special benefits, but only that their conviction be regarded as deserving of equal treatment. We realize that one argument advanced against exempting nonreligious pacifists is that persons seeking to evade military service will seize on the conscientious objection exemption as a dodge. We do not believe this is a realistic concern because criteria for proving legitimate conscientious objection can be drawn up, including, as only one factor, consideration of membership or activity in nonreligious pacifist and other other organizations which have objection to war. The final determination unfortunately-but necessarily because it involved "conscience"-must rest on an evaluation of the individual belief.

We urge this committee to recommend to Congress an amendment to the Universal Military Training and Service Act, which would eliminate the sentence requiring a belief in a Supreme Being as a condition for deferment as a conscientious objector.

(The following information was subsequently furnished by the Department of Defense:)

DOD POSITION ON CONSCIENTIOUS OBJECTORS

We are advised by the Selective Service System that experience has demonstrated the impossibility of devising and administering of objective tests capable of establishing convictions based upon other than religious training and belief. It is therefore recommended that the provisions of law with respect to conscientious objectors not be broadened.

WHO IS A CONSCIENTIOUS OBJECTOR?

I. INTRODUCTORY REMARKS

Since colonial days the Nation has traditionally granted exemption to satisfy the consciences of those persons who by reason of religious training and belief are conscientiously opposed to participation in war in any form and not to grant exemption to the great numbers of persons who might object to war on philosophical, political, or other grounds. Even were the Nation willing to abandon this tradition the Selective Service System knows of no way that it could devise and administer an objective test capable of measuring the convictions of persons based upon other than religious grounds.

II. LEGAL ASPECTS

A. Constitutional religious freedom

The (Federal) Constitution grants no immunity from military service because of religious convictions or activities. Immunity arises solely through congressional grace in pursuance of a traditional American policy of deference to conscientious objection and holy calling. In short, it may be stated that there never has been in American history any Federal constitutional provision which exempted pacifists or even clergymen from compulsory military service; such exemption, when granted, is strictly an act of grace, and has been by specific act of the Congress of the United States.

The constitutionality of the Federal Draft Act of 1917 was upheld in the publicized Selective Draft Law cases. One of the main defenses in those cases was that it was unconstitutional for Congress to compel military service by a selective draft because the act violated the constitutional guarantee of religious freedom. The law is well settled that although government may not interfere with religious

beliefs and opinions, it can prohibit and punish religious practices which are criminal offenses. Since a violation of the Draft Act is a criminal offense, it can readily be seen that a pacifist, whose practices make him guilty of such offense, cannot claim the defense of constitutional religious freedom.

A (citizen) may be compelled, by force if need be, against his will and without regard to his personal wishes or his religious or political convictions, to take his place in the ranks of the Army of his country and risk the chance of being shot down in its defense.

B. History

1. Revolutionary War.-Under the Articles of Confederation, Congress had no power to enforce military service as its authority was absolutely limited to making calls upon the States for military forces needed to create and maintain the Army, each State being bound for its quota as called. The State in response to the calls made, met the situation by directing enforced military service on the part of its citizens.

The duty of the citizen to render military service and the power to compel him against his consent to do so was expressly sanctioned by the constitutions of at least nine of the States. Nevertheless, from as early as 1777, Quakers and some other conscientious objectors have been exempted as an act of grace from military service by provisions of a number of State statutes and State constitutions. The early statutes of Massachusetts and Maine expressly exempted Quakers who presented properly authenticated certificates of their being Quakers from their local Quaker Church.

When the Constitution of the United States was being drafted it was manifestly intended that the power to raise an army be given all to Congress, and leave none to the States, since besides the delegation to Congress of authority to raise armies, the Constitution prohibited the States, without consent of Congress, from keeping troops in times of peace or engaging in war (art. I, No. 10). Under the militia clause (art. I, No. 8) the States had the right to organize and train the militia, but the militia was subject to the paramount authority of Congress.

2. War of 1812.-From the act of the first session of Congress carrying over the Army of the Government under the Confederation to the United States under the Constitution down to 1812, the authority to raise armies was regularly exerted as a distinct and substantive power, the force being raised and recruited by enlistment. When the War of 1812 came, a bill was introduced to organize an army by compulsory draft by which it was proposed that the United States deal directly with the body of citizens subject to military duty, and call a designated number. Peace came before the bill was enacted.

3. Mexican War.-No draft was suggested because the regular U.S. Army, the militia, and volunteer commands proved adequate.

4. Civil War.-First the militia was called, then an act authorizing the President to accept 500,000 volunteers, then another act increasing the force of the militia was passed. Soon it became manifest that more men were required. As a result Congress enacted "An Act for enrolling and calling out the National Forces and for other purposes". By that act every male citizen between the ages of 25 and 45 was made subject to compulsory draft to service in a national army. Section 13 of this act provided that "any person drafted furnish an acceptable substitute to take his place in the draft or he may pay to such person as the Secretary of War may authorize to receive it, such sum not exceeding $300 as the Secretary may determine for the procuration of such substitute". Although this act did not make an express provision for exempting conscientious objectors to military service, it is now believed that it was then thought section 13 would take care of such persons.

may

5. Confederate States of America.-During the Civil War, the first Congress of the Confederate States of America, in its second session in 1862, enacted the first national express exemption of religious pacifists from military service which specifically applied to "all persons who have been and now are members of the Society of Friends and the association of Dunkards, Nazarenes, and Mennonists, in regular membership in their respective denominations: As can

be seen, this legislation was limited to members of certain named sects. This exemptionary provision of the act was interpreted by an Alabama court in 1863. The court said: "Conscientious scruples, against bearing arms, unless the party entertaining them belongs to one of the religious sects mentioned in the statute, presents to the courts no legal grounds for declaring the petitioner exempt from military duty."

6. Spanish American War.-No draft was required because the regular U.S. Army, the militia and volunteer commands proved adequate as during the days of the Mexican war.

7. World War I.—The 1917 Federal Draft Act provided: "* ** and nothing in this Act contained shall be construed to require or compel any person to serve in any of the forces herein provided for who is found to be a member of any well recognized religious sect or organization at present organized 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 previous practice of obtaining military exemption by furnishing a substitute or payment of money necessary to hire one was abolished by the 1917 Federal Draft Act. Under this act, one was a conscientious objector only if he was a member of a well-established religious sect. Thus, if one was not a member of such well-established sect, he was not a conscientious objector, even though his pacifism arose from his personal conscientious and religious beliefs.

8. World War II.-The Selective Service Act of 1940 specifically exempted any person "who, by reason of their religious training and belief is conscientiously opposed to participation in war in any form," and gave the conscientious objector the choice of becoming a member of the Armed Forces in noncombatant service or doing work of national importance under civilian direction in a public service camp.

As has been seen, under the 1917 act it was necessary to have membership in a sect or organization whose religious convictions were against war to obtain exemption. The Selective Training and Service Act of 1940 broadened the basis of exemption to include all persons who "by reason of religious training and belief" were conscientiously opposed to war in any form. The law thus embraced members of all churches, not merely those whose creed specifically forbade participation in war.

C. The Universal Military Training and Service Act of 1951

The identical language as to conscientious objectors found in the 1940 act was carried over into the 1948 Selective Service Act and into the 1951 act. In addition, the following language was added in the 1948 act in order to remove any doubt as to the religious basis for the objection: "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."

Chairman RUSSELL. Mr. Speiser, as a matter for the record, does the American Civil Liberties Union have various chapters or groups in each of the cities, or is it organized on a national level?

Mr. SPEISER. It is organized on a national level. There are affiliates in approximately 40 States. There are some additional affiliates in cities of some States in which there are not a sufficient number of people to be organized on a statewide basis.

I will be glad to send you some information, Mr. Chairman, on the organization.

Chairman RUSSELL. I was just curious in my own mind as to how you came to a meeting of the minds on your opposition to a provision such as this, whether you had a national convention that passed on it, or whether you had a national board of directors who took this position, or whether you sent around to each of your organizations that this appeared to be a meritorious case for intervention by the American Civil Liberties Union.

Mr. SPEISER. On this particular issue, the determination was made by our national board of directors.

Chairman RUSSELL. How are they chosen?

Mr. SPEISER. They are chosen by election by the affiliates who vote on ballots which are sent out to the affiliates, and also to individual members.

Chairman RUSSELL. The American Civil Liberties Union has been rather active, at times, in presenting its viewpoint through litigation in the courts. Do you know whether this particular provision has been challenged in the courts or not?

Mr. SPEISER. Yes, it has. The challenges arose prior to the Torcaso decision that I am aware of. There were a couple of challenges in the Ninth Circuit Court of Appeals in which the Ninth Circuit upheld the Supreme Being clause. However, these challenges were prior to the decision in the U.S. Supreme Court decision in the Torcaso case.

Chairman RUSSELL. Senator Inouye?

Senator INOUYE. Mr. Chairman.

Mr. Speiser, in your testimony, you do not refer to the extension. of the law for 4 years. Has your organization taken any position as to the extension of the authority for an additional 4 years? Mr. SPEISER. No, we have not.

Senator INOUYE. You are not prepared to answer whether you are for or against it?

Mr. SPEISER. No, I am not.

Senator INOUYE. It is your belief that if this provision on the Supreme Being is deleted, it will not increase the possibility of dodging the draft?

Mr. SPEISER. Well, I must be frank to say it will increase that possibility. I think there is that possibility which exists at the present time with the Supreme Being clause and with the requirement, as it has been interpreted, for religious training and belief.

I think it is possible for an individual who is bent on avoiding the draft to, far enough in advance, go to a pacifist church, to assume all the attributes of being a conscientious pacifist and escape the draft. I think that this is a possibility.

However, I think that the argument, I suppose, is not to throw out the baby with the bath water. Merely because some people will misuse it, I do not think it is a reason to not grant equal treatment to those who genuinely and conscientiously are opposed to participation in war.

I might suggest, Senator, that there is a problem here. For example, as I understand it, there are a number of religions that do not have a belief in a Supreme Being as a condition or a tenet of their particular religions. And it seems to me that, not only is there a discrimination against conscientious objectors who are members of those particular faiths, and there is apparently no consideration of that in this particular clause right here.

Senator INOUYE. Thank you very much.

It

Chairman RUSSELL. This has caused more concern, generally speaking, and has been the most difficult provision of this whole law for me to deal with since it was first enacted in 1939 or 1940. presents so many problems as far as the individual concerned is involved. I know some of the Federal judges who faced this question. As a matter of fact, I had a brother, a Federal judge, who used to stay awake at night wondering about these Jehovah's Witnesses in World War II.

Not only would they refuse to serve in the military, they refused to do anything at all.

Mr. SPEISER. Yes, I think this is true for Jehovah's Witnesses.

Chairman RUSSELL. The poor fellow is gone now, but I have never seen a man agonized more over anything he did than he was with that provision of the law: what to do with these people who would just come in, plead guilty, and there they were. He felt as if he had to do something to be fair to the thousands who were being taken into the service, by punishing those who were evading it. Yet, many of those people were in such apparent good faith that it was a real trial to a man's soul to have to punish them by sending them to the penitentiary.

Mr. SPEISER. I think the proof of their good faith was the fact that they were willing to go to jail to demonstrate their good faith.

Chairman RUSSELL. There is no question about that. There are those, though, who would rather be in jail than go to war. They are much more liable to get killed in a war than they are in jail.

Mr. SPEISER. As I said to Senator Inouye, I agree that there is certainly the possibility of some individuals taking advantage of any type of exemption, but that is not a reason for not providing for it, which the Congress, in its judgment, has determined has been a valid

reason.

I suppose the other factor is, if you do force individuals into the Armed Forces who are conscientiously opposed and who do not feel strongly enough, I suppose, to go to jail, that this does not really help the Armed Forces. They generally are not good soldiers. They are more trouble than they are worth, and this may have been a factor in Congress initially providing for deferments.

Chairman RUSSELL. Yes, we have many problems. Of course, an outstanding impression to me has been the Quakers. They will not. pick up a gun, but they will drive a truck to get a wounded man where the bravest soldier would not dare to go.

Mr. SPEISER. I think that the record of conscientious objectors, as far as bravery is concerned, is an outstanding one. Chairman RUSSELL. Yes.

Thank you very much, Mr. Speiser.

Mr. SPEISER. Thank you, Mr. Chairman.

Chairman RUSSELL. The next witness represents the American Farm Bureau Federation whose views will be presented by Mr. Matt Triggs, Assistant Legislative Director.

Come around, Mr. Triggs.

STATEMENT OF MATT TRIGGS, ASSISTANT LEGISLATIVE
DIRECTOR, AMERICAN FARM BUREAU FEDERATION

Mr. TRIGGS. Thank you, sir.

Our statement is a very brief one, and I think you have it before you. We respectfully urge that such action be taken by the committee, either in the form of an amendment to the bill or otherwise, as may be necessary to accomplish a better coordination between (1) the need to provide selective service trainees for the armed services and (2) the need to provide employment for young people in the 18-to-22 age group.

The difficult problems involved in the permanent entry of young workers into the labor force are generally reocognized and have been the subject of numerous congressional hearings.