The opinion
HAMLEY, Circuit Judge
(dissenting) :
As stated in the majority opinion, the Hearing Officer found “no religious ba *1087 sis for the registrant’s conscientious objector claim.” His conclusion was accepted by the Department of Justice as the basis for its recommendation to the Appeal Board that Welsh’s claim for a 1-0 or I-A-0 classification be denied. The Appeal Board implicitly followed that recommendation in denying either of these classifications. The majority holds that, under the circumstances of this case, there was no judicially cognizable administrative error in this regard which undermines the conviction. I respectfully disagree.
In reaching its conclusion, the majority addresses itself to two questions: (1) was the Appeal Board’s denial of 1-0 or I-A-0 classifications without any basis in fact? and (2) does the Appeal Board decision rest upon an unconstitutional distinction between theistic and non-theistic religious beliefs? The majority gives a negative answer to both of these questions.
Concerning the second question, I agree with the majority holding, and for the reasons stated in the majority opinion. The Appeal Board decision is not premised upon the “Supreme Being” provision of section 6(j). The Department of Justice report, on the basis of which the Appeal Board acted, noted that, under United States v. Seeger, 380 U.S. 163 , 85 S.Ct. 850 , 13 L.Ed.2d 733 , the term “Supreme Being” was given such a broad reading that, in effect, it added nothing to the “religious training and belief” clause.
But the majority has failed to discuss another facet of the constitutional question, namely whether, apart from the “Supreme Being” clause, in predicating its decision on the “religious training and belief” clause of section 6(j), the Appeal Board violated the Establishment of Religious Clause of the First Amendment.
In my opinion this latter question is clearly presented on this appeal because it is inherent in any attack upon the statute predicated upon the Establishment of Religion Clause of the First Amendment. Thus it is immaterial that, in his opening brief, Welsh did not discuss this precise issue other than to point out that the sincerity of his conscientious objection was not only established by the undisputed evidence, but was conceded by the Hearing Officer.
Defendant naturally concentrated his attention in that brief on the broad reading which Seeger gave the Supreme Being and religious training and belief clauses of the statute. If he prevailed on that argument he did not need a ruling that the statute was unconstitutional as applied, just as the Supreme Court, in Seeger , avoided the constitutional issue by giving the statute a broad reading. But there was implicit in defendant’s presentation his underlying position that, unless given that broad reading here, the statute is unconstitutional as applied. If the opening brief leaves any doubt as to defendant’s basic constitutional position, it was amply clarified in his reply brief, where defendant said:
“If this Court should hold that appellant’s belief is outside the scope of the Act, then the constitutionality of the Act is in issue. For the reasons cited by the Second Circuit at 326 F.2d 846 , appellant respectfully submits that the granting of privileges to the religious which are not granted to the nonreligious upon the same basis is an establishment of religion and violates the guarantees of the First Amendment and the Due Process clause of the Fifth Amendment.”
I believe this question is in the case and should be squarely met by the majority before it concludes that the conviction should be affimed. Indeed, it is futile to affirm without deciding this constitutional issue for, unless decided here, it can be immediately renewed in a proceeding under 28 U.S.C. § 2255 (1964). As indicated below, the only reason I do not grapple with that constitutional issue in this dissent is because I would reverse on other grounds.
As the majority points out in the note attached to their opinion, any application for relief on this ground under 28 U.S.C. § 2255 would be met by several adverse holdings of this court. But experience *1088 teaches that constitutional pronouncements by the courts are always open for reconsideration. The Ninth Circuit decisions cited in the note to the majority opinion seem to rest, in the final analysis, on the reasoning that whatever the Government may take away altogether (such as exemption from military service) it may grant on any condition it chooses (such as religious training and belief). I do not believe! this reasoning is acceptable in the present constitutional climate.
While deferment on the ground of conscientious objection is a privilege, it cannot be granted or withheld on unconstitutional grounds. United States v. Seeger, 2 Cir., 326 F.2d 846, 851 , affirmed on other grounds, 380 U.S. 163 , 85 S.Ct. 850 , 13 L.Ed.2d 733 . See also, Sherbert v. Verner, 374 U.S. 398, 404-405 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 , and note 6 and cases there cited; Baggett v. Bullitt, 377 U.S. 360, 380 , 84 S.Ct. 1316 , 12 L.Ed.2d 377 ; Keyishian v. Board of Regents, 385 U.S. 589, 605-606 , 87 S.Ct. 675 , 17 L.Ed.2d 629 . The majority recognizes this when it discusses, on the merits, the first of the two constitutional questions referred to above.
The dimensions of the constitutional problem which the majority opinion does not discuss become clear when note is taken of relevant observations in past decisions of the Supreme Court.
In Everson v. Board of Education of Township of Ewing, 330 U.S. 1 , 67 S.Ct. 504 , 91 L.Ed. 711 , the Supreme Court said:
“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.” ( 330 U. S., at 15-16 , 67 S.Ct., at 511 , emphasis supplied)
This language was quoted with approval in People of State of Ill. ex rel. McCollum v. Board of Education, 333 U. S. 203, 210 , 68 S.Ct. 461 , 92 L.Ed. 649 , in which the Court rejected a strenuous effort to have the quoted language disregarded as dicta, or to have it repudiated. In Torcaso v. Watkins, 367 U.S. 488 , 81 S.Ct. 1680 , 6 L.Ed.2d 982 , the Supreme Court again quoted the Everson language with approval, and added:
“We repeat and again reaffirm that neither a State nor the Federal Gov-erment can constitutionally force a person ‘to profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” ( 367 U.S., at 495 , 81 S.Ct., at 1683 , footnotes omitted and emphasis supplied)
The broad interpretation given by the Supreme Court in Everson to the Establishment Clause of the First Amendment, was again approved in McGowan v. State of Maryland, 366 U.S. 420, 442 , 81 S.Ct. 1101 , 6 L.Ed.2d 393 . And in Abington Tp. School District v. Schempp, 374 U.S. 203, 216 , 83 S.Ct. 1560, 1568 , 10 L.Ed.2d 844 , the Supreme Court, once more quoting Everson , stated that it has “rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another.”
None of these Supreme Court decisions dealt with the constitutionality of the “religious training and belief” provision of section 6(j) of the Act now in question. But, to say the least, the rationale of these other decisions provides fodder for a strong argument that the “religious training and belief” provision of section 6(j) cannot withstand a constitutional challenge.
It is in this setting that I turn to the first question dealt with by the majority *1089 on this branch of the case. But for the majority holding that the Appeal Board denial of 1-0 and I-A-0 classifications has a basis in fact because there is evidence to indicate that Welsh’s conscientious objections are not premised on “religious belief,” we would not have to reach the constitutional questions. It may be added that it is acceptable appellate practice to give statutory language a broad or narrow reading if, by so doing, the constitutionality of the statute can be saved. In effect, this is what the Supreme Court did in Seeger , in construing the term “Supreme Being.” As Justice Douglas said in his concurring opinion in that case:
“The legislative history of this Act leaves much in the dark. But it is, in my opinion, not a tour de force if we construe the words ‘Supreme Being’ to include the cosmos, as well as an anthropomorphic entity. If it is a tour de force so to hold, it is no more so than other instances where we have gone to extremes to construe an Act of Congress to save it from demise on constitutional grounds. In a more extreme case than the present one we said that the words of a statute may be strained ‘in the candid service of avoiding a serious constitutional doubt.’ United States v. Rumely, 345 U.S. 41, 47 , 73 S.Ct. 543 , 97 L.Ed. 770 .” ( 380 U.S. at 188 , 85 S.Ct. at 865 , footnote omitted)
In holding that there is a basis in fact for the Appeal Board’s determination that Welsh’s conscientious objection is not based on religious training and belief, the majority reasons: (1) that, under Seeger , the sufficiency of a registrant’s conscientious objection is to be measured by the strength of the objection plus the source of the objection; (2) Welsh’s objection has the requisite strength, as the Government concedes; but (3) his objection does not have the requisite source, because it is not premised upon a religious belief.
I agree that, under section 6(j) of the Act, as construed in Seeger , the conscientious objection must be of a religious nature. But, having regard for all of the circumstances of this case, I do not believe that there is a basis in fact for a determination that Welsh’s objection was not of a religious nature in the statutory sense.
It is now necessary to review, in considerable detail, the statements made by Welsh, in the administrative proceedings, concerning the basis of his conscientious objection.
In his conscientious objector form, signed on April 24, 1964, Welsh struck the words “my religious training and” from the statement of the source of his conscientious objection. He checked the “no” square opposite the question, “Do you believe in a Supreme Being?” In one item of this form, Welsh was requested to describe the nature of his belief and whether his “belief in a Supreme Being involves duties which to you are superior to those arising from any human relation.” The quoted portion of this item was not applicable to Welsh because he had already indicated that he did not believe in, a Supreme Being. This probably explains why, in an attached sheet giving his answer to this inquiry, Welsh stated that his belief that one should abstain from violence toward another person:
“is not ‘superior to those arising from any human relation.’ On the contrary, it is essential to every human relation.” (Emphasis in original.)
In this attached sheet Welsh added that he could not conscientiously comply with the Government’s insistence that he assume duties which he feels “are immoral and totally repugnant.” In answer to another inquiry in this form, Welsh attached another sheet stating, among other things, that he came to his realization that it is wrong to wilfully kill or injure another through a series of conversations with a number of pacifists.
At the time Welsh made these statements, section 6(j) defined “religious training and belief” as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising *1090 from any human relation. * * * ” The “Supreme Being” provision of the religious test was dropped from section 6(j) on June 30, 1967. 81 Stat. 100 -104.
The Supreme Court did not decide Seeger until March 8, 1965. In that decision, 380 U.S. 163 , 85 S.Ct. 850 , 13 L.Ed.2d 733 , the Supreme Court made it clear that one could have a religious belief within the meaning of section 6(j) of the Act without believing in a Supreme Being as that term is usually understood.
The Seeger decision had been issued •when Welsh next made statements to the •administrative agency concerning the basis of his conscientious objection, in a letter dated June 22, 1965. Apparently by that time he had been told that the term “Supreme Being,” as used in the statute, may have a broader meaning than he had originally supposed. Nevertheless, as indicated by footnote 3 in that letter, Welsh was still puzzled concerning the extent to which, if any, the “Supreme Being” clause affected the “religious training and belief” test of section 6(j).
In his letter of June 22, 1965, Welsh went on to explain that it is his belief that each of us possesses “some sort of ethical apparatus, a conscience, if you will.” Expressing the view that it is impossible to assert the absolute truth or falsity of an ethical law Welsh adds, in a footnote, extensive quotations from Ludwig Wittgenstein, Logiseh-philoso-phische Abhandlung, Routledge & Kegan Paul, London, 1963, page 145, translated by D. F. Pears and B. F. McGuinness. Among the quotations thus approved by Welsh is one to the effect that the sense of the world must lie outside the world. According to this writer,
“If there is any value that does have value, it must lie outside the whole sphere of what happens and is the case.”
******
“Ethics is transcendental.”
At a later point in this letter, Welsh states that, in our failure to recognize the political, social and economic realities of the world we, as a nation, fail our responsibility as a nation. He also inquires, “To what degree are we economically and socially committed to ‘look for’ aggression ? ” He added, in another footnote, “I am afraid reason has already subverted my commitment to the military ethic.”
On July 15, 1965, Welsh was interviewed by Owen J. Brady, a Department of Justice Hearing Officer. During that inquiry, Welsh submitted a copy of his letter of June 22, 1965, as “Exhibit A.” In a six-page letter dated August 23, 1965, the Department of Justice gave the Appeal Board a report based on this inquiry. Among other things, this report recites that Welsh attended a Sunday School weekly from age twelve to age sixteen or seventeen, but had not attended a church since then, except on five or six occasions. According to this report, Welsh stated that his mother made him attend Sunday School and he “never got anything out of it.”
Based on his questioning of Welsh, the Hearing Officer reported that Welsh has no belief in the existence of God or a Supreme Being, but believes in the “natural law” as a force outside of men, such force not being an entity. According to the Hearing Officer, Welsh described “natural law” as laws affecting the relationship of human beings such as the feeling of gregariousness; and was of the view that ethics are implicit within us governing the conduct of individuals. Welsh, the report states, does not believe in a life after death or in what might be called a human soul.
The report states that Welsh reiterated that he did not believe in taking a human life but he did not see it as a moral or religious wrong but simply as a social “error,” or illogical act. The Hearing Officer reported that several times Welsh denied that any of his thinking had a religious basis. Welsh, according to this report, stressed that his opinions have been formed by reading in the fields of history and sociology, and that they are purely “natural” as opposed to religious. The Hearing Officer found that the registrant is sincere in his convictions but that his ideas are incomplete *1091 and are in the process of formulation. The Hearing Officer found no religious basis for the registrant’s conscientious objector claim.
On October 13, 1965, Welsh wrote an eight-page letter to the Appeal Board commenting upon the Department of Justice report summarized above. Among other things, Welsh stated in his letter:
“ * * * I assumed Mr. Bradley was using the word ‘religious’ in the conventional sense, and, in order to be perfectly honest did not characterize my belief as ‘religious.’ I do believe the taking of life — anyone’s life — to be morally wrong. It is not anyone’s business to take anyone’s life.”
In this letter, Welsh also made the following significant comments:
“ * * * I certainly do not mean to imply, that the religious training I received there [in Sunday School] had nothing to do with the ethical or moral values I live by.” (Emphasis in original.)
“ * * * Mr. Bradley insisted upon describing what I called ‘natural law’ as a ‘force,’ whereas I simply meant ‘natural law’ to be taken as ‘the laws of nature.’ The laws of nature are ‘outside,’ or beyond the control of men, but it is to perpetuate a semantic absurdity to characterize either ‘natural law’ or ‘force’ as an ‘entity,’ and in trying to avoid doing so I may have caused Mr. Bradley to misunderstand me.”
“ * * * I believe both ethical and religious values usually arise from the same source: the individual’s concern for other individuals.”
“ * * * This concern [each individual’s concern for the rest), it seems to me, is implicit in all religious belief, even the most primitive, where, though its expression seems sometimes to be bizarre, it still acts to govern people’s relationships, one to another.”
“This, I suppose, is the crux of my problem of explaining my beliefs in religous terms. Perhaps I erred in taking such pains to point out that I not believe in the ‘standard notion’ of God. I think my beliefs could be considered religious, in the sense I have just explained. I do not call myself religious, simply because most people then assume that I believe in God, in the conventional sense.” (Emphasis in original.)
These observations by Welsh are in the last statement he filed in the administrative proceeding and are the best evidence of the nature of his conscientious objection. In appraising them we should give heed to this statement in the Seeger opinion:
“While the applicant’s words may differ, the test is simple of application. It is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one ■ clearly qualified for exemption ?
“Moreover, it must be remembered that in resolving these exemption problems one deals with the beliefs of different individuals who will articulate them in a multitude of ways. In such an intensely personal area, of course, the claim of the registrant that his belief is an essential part of a religious faith must be given great weight.” ( 380 U.S. at 184 , 85 S.Ct. at 863 ).
It seems to me that, read as a whole, with particular emphasis upon his last statements, Welsh’s disclaimer of a religious motivation was predicated upon a misunderstanding of the statutory meaning of the term, as construed in Seeger . When he fully realized the broad reading which Seeger gave to that term, Welsh made it clear that he did have a religious motivation. Accepting that premise, the fact that his belief was also predicated in part on political, sociological or philosophical views, is immaterial. Likewise, although Welsh may have predicated his belief to a substantial extent on a personal moral code, that was not *1092 the sole basis of his belief. As the Supreme Court said in Seeger :
“We have construed the statutory definition broadly and it follows that any exception to it must be interpreted narrowly. 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. It follows, therefore, that if the claimed religious beliefs of the respective registrants in these cases meet the test that we lay down then their objections cannot be based on a ‘merely personal’ moral code.” ( 380 U.S. at 186 , 85 S.Ct. at 864 )
See, also, Fleming v. United States, 10 Cir., 344 F.2d 912 , where the court said:
“As we read the Seeger case, it clearly lays down the rule that before a conscientious objector classification may be denied on the ground that the applicant’s beliefs are based upon ‘political, sociological, or philosophical views or a merely personal moral code’, those factors must be the sole basis of his claim for the classification.” ( 344 F.2d at 915-916 )
It is important to remember that the statute does not distinguish between externally and internally derived beliefs. Seeger, 380 U.S. at 186 , 85 S.Ct. 850 . Once it is determined that the basic belief does not derive exclusively from political, sociological or philosophical views, or a purely personal moral code, the source of the belief ceases to be a relevant subject of inquiry. The question then is only whether it is held with the requisite strength. Under Seeger, 380 U.S., at 176 and 184, 85 S.Ct. 850 , it is held with the requisite strength if it occupies the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption.
As I appraise this record, there is no basis in fact for holding that Welsh’s beliefs on which his conscientious objection is premised, do not occupy this place in his life. He is willing to go to jail rather than do violence to his beliefs, which is more than can be said for many who profess a belief in a Supreme Being.
Moreover, I am not sure that the correctness of the Appeal Board’s determination as to the adequacy of Welsh’s beliefs is to be judged by whether there is any basis in fact for such determination. The Supreme Court did not seem to apply such a measure in applying the principles announced in Seeger to the three cases decided under that title. It is probably just a question of whether the Appeal Board applied the right test. In my opinion it did not.
I thus do not reach the critical constitutional question of whether the “religious training and belief” provision of section 6(j) of the Act, as here applied, violates the “Establishment of Religion” Clause of the First Amendment. The result reached by the majority represents a negative answer to that constitutional question, but the majority has not said why.
I would reverse.