The opinion
GODBOLD, Circuit Judge
(specially concurring):
I concur in the result. But I find it necessary to state my own reasons for agreeing with the conclusion that, under the circumstances of this case, the civilian work order to Crouch did not violate the First Amendment.
The conclusion that the disobeyed order was valid disposes of the case. Nothing more need be said. Nevertheless, in a dictum the broad language of which is easily subject to misunderstanding, the majority discuss the effect of appellant’s statement, made before the order was issued, that he would refuse any civilian work. This requires that I state my understanding of what the court holds.
1. The First Amendment Issue
Crouch attacks the validity of his civilian work order under both the Establishment Clause and the Free Exercise Clause of the First Amendment. 1 While I agree with the conclusion that the order was valid, it is necessary to distinguish between Crouch’s separate *431 claims under the two religion clauses, for the difference between an Establishment Clause claim and a Free Exercise Clause claim may have an important bearing on the validity of a civilian work order issued by Selective Service pursuant to 50 App. U.S.C.A. § 456(j) (1968). 2
The Establishment Clause, which primarily serves to restrict governmental involvement with religion, delimits the institutions in which Selective Service registrants may be ordered to work and the type of work they may be ordered to perform. The standard for judging an Establishment Clause claim was stated in Abbington School District v. Schempp, 374 U.S. 203, 222 , 83 S.Ct. 1560, 1571 , 10 L.Ed.2d 844, 858 (1963): “[T]o withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.”
In the present case the Board’s order to perform work in the Baptist Hospital passes muster under the Ab-bington Establishment Clause test. The institutional character and operations of the Hospital amply indicate that the work Crouch was ordered to perform would not have an impermissible religious effect. Cf. Bradfield v. Roberts, 175 U.S. 291 , 20 S.Ct. 121 , 44 L.Ed. 168 (1899). The record contains no evidence that there was a purpose of advancing or inhibiting religion in assigning Crouch to the Hospital.
The Free Exercise Clause forbids certain governmental impingements on an individual’s religious beliefs or religiously motivated practices. See Sherbert v. Verner, 374 U.S. 398, 402-403 , 83 S.Ct. 1790 , 10 L.Ed.2d 965, 969-970 (1963); Abbington School District v. Schempp, supra, 374 U.S. at 222-223 , 83 S.Ct. 1560 , 10 L.Ed.2d at 858 . 3 In analyzing the validity under the Free Exercise Clause of a Selective Service civilian work order, the work which the registrant is to perform and the institution to which he is ordered to report are not necessarily dispositive. Rather, they are factors to be weighed along with the nature of the registrant’s religious beliefs, the governmental interests at stake in having the registrant perform that work, and the alternative work assignments for that registrant which are practicably available to the government. See Sherbert v. Verner, supra, 374 U.S. at 403-408, 83 S.Ct. 1790 , 10 L.Ed.2d at 970-973 . 4
In the present case Crouch’s Free Exercise Clause claim fails at the threshold, because he does not contend that working at the Baptist Hospital would be contrary to his religious beliefs or would otherwise offend his religious sen *432 sibilities. He argues instead that an order requiring any individual to work at an institution wholly owned and controlled by members of a different religious denomination is “illegal per se.” Rights under the Free Exercise clause are personal and particularized, cf. United States v. Seeger, 380 U.S. 163 , 85 S.Ct. 850 , 13 L.Ed.2d 733 (1965), and unless Crouch’s own religious beliefs or practices are affected he has no basis for attacking the work order under the Free Exercise Clause.
Whether an order to work at a religiously affiliated institution impinges on the individual’s religious beliefs or practices will depend on the facts of the particular case. 5 If the individual’s religious sensibilities are significantly affected, the Free Exercise Clause places an obligation on the government to show that “no alternatives” are practicably open other than the assignment to the particular institution. Sherbert v. Verner, supra.
2. The Refusal to Perform Civilian Work
It is with difficulty that I seek to divine exactly what the majority mean in their discussion of the effect of appellant’s statement that he would not perform any civilian work.
I am confident that my brothers do not mean that a registrant, by anything he does or says before the board, can breathe life into an invalid board order, whether the invalidity is rooted in constitutional or statutory grounds.
I am confident they do not mean that a registrant may, by saying he will not accept civilian work, waive his right to attack an order on constitutional grounds, absent the standards of knowledgeable waiver, e. g. Brookhart v. Janis, 384 U.S. 1 , 86 S.Ct. 1245 , 16 L.Ed.2d 314 (1966) ; Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938). A Baptist ordered to work as a cantor in a Jewish synagogue, if he raises a First Amendment defense at trial, cannot be convicted on the ground that he told the board he wouldn’t work anywhere. The principle is the same for statutory grounds which go to the validity of the order. 50 App. U.S.C.A. § 462(a) (1968) makes punishable a failure to comply with a valid order of the board, and an invalid order cannot be validated by a registrant’s announcement of his intentions. 6
There is not yet a doctrine of anticipatory breach of the criminal law, dispensing with the necessity of issuing valid orders- — civilian work orders and induction orders as well. 7 Nor is there any principle which necessarily limits a registrant’s trial defenses, going to the validity of the order, to only matters pointed out to the board.
The Ninth Circuit cases quoted by the majority are concerned with pre-order administrative matters not going to the validity of the work orders. In Yaich v. United States, 283 F.2d 613 (1960) the appellant was convicted for refusing to obey a civilian work order to report to the Los Angeles County Department of Charities, an institution approved as suitable by Selective Service and previously judicially determined to be suitable. *433 283 F.2d at 619 . Appellant claimed as a defense that at the administrative level, when the board, as required by 32 C.F.R. 1660.20(b), submitted three proposed types of civilian work, two were private charities and therefore not sanctioned by the regulations. The third was the place to which the defendant ultimately was ordered. The court found all three institutions complied with the regulations, and, in the dictum quoted by my brothers, said that in any event the defendant having categorically refused civilian work, had not been prejudiced. 8
In Langhorne v. United States, 394 F.2d 129 (9 Cir. 1968) the appellant took the position at administrative hearing and at the trial that he would not perform any work in lieu of military service. On appeal he raised for the first time the objection that the work to which he was assigned was not “appropriate.” The court found there was no infringement of his religious freedom, and assumed that his objection of “inappropriateness” meant not appropriate to him personally. 394 F.2d at 130 and n.3. Thus his objection did not reach constitutional dimensions nor did it concern a failure of the institution to meet standards of the statute or of the regulations. Obviously the registrant could not “conjure up objections” on appeal (or at trial either, for that matter) that his place of assignment was just not the right place for him. As the court pointed out, at the administrative level he had the opportunity to object to places suggested by the board and to make suggestions of his own.
Thus neither Yaich nor Langhorne is of any broader scope than the cases referred to in footnote 8, supra. As I understand what they say, my colleagues do not attempt to extend Yaich and Langhorne beyond the very narrow scope of their particular facts.
In McKart v. United States, 395 U.S. 185 , 89 S.Ct. 1657 , 23 L.Ed.2d 194 (1969), reversing 395 F.2d 906 (6th Cir. 1968), the registrant wrote his board that “I refuse to serve this country armed, and I refuse to serve it unarmed by doing alternative service.” 395 F.2d at 907 . Later he stated, “I simply no longer want to have anything to do with the Selective Service System.” Id. He not only tried but perhaps even wanted to violate the Act. 395 F.2d at 910 (dissenting opinion). Nevertheless, the Supreme Court considered his challenge to the validity of his draft classification as a defense to the prosecution for refusing to obey an order to report, concluded that his classification was incorrect and therefore the order to report was invalid, and reversed and remanded for the entry of a judgment of acquittal.
. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *." U.S.Const. amend. I.
. The Supreme Court has stated that the two religion clauses of the First Amendment “forbid two quite different kinds of governmental encroachment upon religious freedom.” Engel v. Vitale, 370 U.S. 421, 430 , 82 S.Ct. 1261, 1267 , 8 L.Ed.2d 601, 607 (1962). See also Abbington School District v. Schempp, 374 U.S. 203, 222-223 , 83 S.Ct. 1560 , 10 L.Ed.2d 844, 858 (1963).
. As to the difficulty in defining “religious” belief, see United States v. Seeger, 380 U.S. 163 , 85 S.Ct. 850 , 13 L.Ed.2d 733 (1965).
. In Sherbert the Court declared invalid the application to a Seventh Day Adventist of a state unemployment compensation act’s requirement that a claimant be willing to work on Saturday. The Court stated that since the Adventist’s complying with the requirement would necessitate a substantial infringement on her religiously dictated actions, the burden was on the state to demonstrate that “no alternative forms of regulation” were available to achieve the state’s objectives in requiring Saturday work.
See also In re Jenison, 375 U.S. 14 , 84 S.Ct. 63 , 11 L.Ed.2d 39 (per curiam) vacating 265 Minn. 96 , 120 N.W.2d 515 (1963) (religiously motivated refusal to serve on jury may not be punished by contempt); Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870 , 87 L.Ed. 1292 (1943) (taxation of religious colporteurs struck down). Compare Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (1943) (free exercise no defense to prosecution under child labor laws); Reynolds v. United States, 98 U.S. 145 , 25 L.Ed. 244 (1879) (religiously dictated practice of polygamy may be proscribed).
. As to an individual’s potential religious reactions to being ordered to work at an institution controlled by a different faith, see Mr. Justice Black’s dissent in Board of Educ. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 251 , 88 S.Ct. 1923, 1930 , 20 L.Ed.2d 1060, 1070 (1968), pointing out that we are “a citizenship composed of people of myriad religious faiths, some of them bitterly hostile to and completely intolerant of the others.”
. It has long been settled that the substantive invalidity of the order to report may be raised as a defense in a prosecution under 50 App. U.S.C.A. § 462(a) for refusing to submit to induction. E. g., Estep v. United States, 327 U.S. 114 , 66 S.Ct. 423 , 90 L.Ed. 567 (1946); United States v. Hartman, 209 F.2d 366 (2d Cir. 1954).
. To imply otherwise is as indefensible practically as it is legally. The conscientious objector who has received his work order may report as directed, and the inductee may take the important step forward, despite any number of advance pronouncements of “I won’t go.”
. Of course, technical defects not bearing on the substantive validity of an order and not prejudicing the registrant may not be proper defenses to a prosecution for failing to report. See, e. g., Jessen v. United States, 242 F.2d 213 (10th Cir. 1957) (improper residence of board member); Kent v. United States, 207 F.2d 234 (9th Cir. 1953) (signature on order to report improperly placed); United States v. Fratrick, 140 F.2d 5 (7th Cir. 1944) (omission of phrase from order); United States v. Walden, 56 F.Supp. 777 (N.D.Ga.1944) (failure of board to keep proper entries in minutes).