holding that the Confrontation Clause did not apply to proceedings before a draft board because such proceedings “are not stages in a criminal prosecution”
How later courts described this case
- holding that the Confrontation Clause did not apply to proceedings before a draft board because such proceedings “are not stages in a criminal prosecution”
- Vacation Pioneer denied exemption
Written by the judges who cited it.
The opinion
BROWN, Chief Judge,
with whom COLEMAN, Circuit Judge, joins, Specially Concurring: I do not detract from my full concurrence in the Court’s opinion and decision, but I think these comments are in order concerning the dissent of Judge Godbold.
Vague as it is (See Note 1 of the dissent), the Statute extends ministerial exemption only to those who are “regular or duly ordained ministers of religion.” 50 U.S.C.A. App. § 456(g) and § 466(g).
Similarly, broad as it is, of necessity this means a minister of some organized sect or faith. The law, because of the First Amendment, cannot look into or weigh what that faith believes, preaches or communicates. But the one to whom Congress extends the exemption has to be a “regular or ordained” minister of that body.
It is not, therefore, administrative or judicial abdication to determine on the basis of that sect’s standards whether that person qualifies. 1 An Episcopalian *448 must qualify as an Episcopalian, a Baptist as a Baptist, a Jew as a Jew, a Muslim as a Muslim. If the sect limits those it regards as “regular or duly ordained ministers” to persons having specified qualifications, then that is the standard against which the law judges the exempt or non-exempt status of the registrant. 2
If, claiming to be of the Lutheran faith, the applicant does not meet its standards, he does not qualify as a Lutheran minister and the exemption is not available no matter how devout he is or how important or effective is his work in advancing the interests of that faith.
These principles are illustrated by considering the standards imposed by my own faith, which happens to be Presbyterian. By its Book of Church Order 3 *449 it prescribes with great precision the standards one must meet to qualify as a minister.
These standards call for approval by Presbytery of candidates for the gospel ministry, 4 the licensure of candidates, 5 the election of pastors, 6 and the ordination and installation of ministers. 7
One claiming to be a “regular or duly ordained” Presbyterian minister would have to show compliance with these requirements. Without question this proof would usually take the form of a properly authenticated certificate of the Moderator or Clerk of Presbytery and perhaps the Clerk of the Session 8 of the congregation of which he is pastor. And *450 undoubtedly a properly authenticated certificate of Presbytery that such person did not (for some specified reason) qualify as an ordained minister would itself be sufficient basis on which the Board could deny the exemption.
The only thing left in doubt is the standards prescribed by the faith. For Presbyterians the 1634 A.D. Westminster Assembly of Divines, with its slight updating, makes the twentieth century’s war-plagued task easy. For Jehovah’s Witnesses it may be more difficult depending on how precise the sect’s standards are. For all this record reveals Colonel Weeks was correct in his statements, not about what the law says, but what Jehovah’s Witnesses require. 9
Of course, as Judge Godbold’s dissent points out, 10 Courts have held that the exemption may not be denied simply on the lack of a Pioneer certificate. Presumably such holdings were on the factual basis that the record in each case showed that the sect would regard persons in a lower echelon as having the status of ministers of the sect. If the decisions were not so grounded, then each was a judicial determination of a status, which is both beyond the prescience too often erroneously ascribed to federal judges with life tenure and would involve judges in the intrinsic assessment of religious beliefs, dogma and practice, which — even with prescience or omni-prescience — is forbidden to judges by the First Amendment, as the Supreme Court so recently declared concerning the efforts of Georgia judges to ascertain sectarian standards of Presbyterians and then weigh compliance by the church’s ruling bodies with them. Presbyterian Church v. Hull Memorial Presbyterian Church, 1969, 393 U.S. 440 , 89 S.Ct. 601 , 21 L.Ed.2d 658 .
If the dissent means that judges are to determine who qualifies as a minister for that sect, then, in my view, it is incorrect in saying that the “draft board cannot abdicate to the authorities of this sect, or to the general counsel of the sect, its duty to judge the claim for * * * exemption on the particular objective facts of the case. 11 417 F.2d 451 . Unless judging the objective facts is in terms of the standards prescribed by Jehovah’s Witnesses for spiritual leaders coming within the congressional concept of “ministers” the Board, judges, and through them the sovereign, would be trespassing on the First Amendment by determining that in the judgment of the Board or reviewing court such a person ought to be looked on as a minister.
. It does not necessarily work both ways. On spiritual grounds the sect may regard all adherents as “ministers”. Actually Calvinists do so under the Westminster Confession of Faith’s concept of the Priesthood of Believers. But, as with *448 Jehovah’s Witnesses, the law requires that to qualify the person have duties, work, and responsibilities as a leader, not just as a practitioner. See, e. g., Fitts v. United States, 5 Cir., 1964, 334 F.2d 416, 421 .
. The codal definitions of duly ordained and regular ministers bear out this approach :
“(g) (1) The term ‘duly ordained minister of religion’ means a person who has been ordained, in accordance with the ceremonial, ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or oi'ganization.
(2) The term ‘regular minister of religion’ means one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect or organization of which lie is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization, as a regular minister.”
50 U.S.C.A. App. § 466(g) (1), (2).
. The Book of Church Order of the Presbyterian Church in the United States, revised and reenacted by the 1945 General Assembly. Its historical roots are described in the preface written by the late Reverend Walter L. Lingle, one of the denomination’s great scholars, preachers and teachers:
Our Book of Church Order has a long and notable line of ancestors. John Calvin wrote the first modern Presbyterian Book of Order for the church at Geneva in 1542.
John Knox sat at the feet of John Calvin for several years, and then returned to Scotland and wrote the first “Book of Discipline” for the Presbyterian Church of Scotland, in 1560. The whole history of Presbyterian church government in Scotland goes back to this first “Book of Discipline.”
The Westminster Assembly, which met in London in 1643, wrote not only our Confession of Faith and Catechisms, but also “The Form of Presbyterian Church Government.” The Presbyterian Churches of England, Scotland, and Ireland adopted this Westminster Form of Government.
When our Presbyterian forefathers came to America they brought with them the Westminster “Form of Presbyterian Church Government,” and it became the basis of Church law in the American Presbyterian Church.
The first General Assembly of the Presbyterian Church in America was organized in 1789. The General Synod in preparing for the organization of the General Assembly practically rewrote “The Form of Presbyterian Church Government” in 1788, in order to adjust it to the conditions in America. This new book was called “The Form of Government and Discipline of the Presbyterian Church in the United States of America.” It was revised a number of times prior to 1861, when the Southern Presbyterians withdrew and formed The Presbyterian Church in the United States.
When the General Assembly of the Presbyterian Church in the United States was organized on December 4, 1861, it adopted the Form of Government and Discipline which had been in use since 1788. In 1863 our General Assembly took steps to revise this Form of Government and Discipline with the result that a thoroughgoing revision was *449 adopted in 1879. A great many amendments were added during the next forty years.
In 1921 our General Assembly took steps to revise our Book of Church Order again. Another thoroughgoing revision was proposed by the Committee on Revision, adopted by the General Assembly, approved by a large majority of the Presbyteries, and enacted into law by the General Assembly of 1925.
While our present Book of Church Order is the result of numerous revisions, it still contains many phrases, sentences, and paragraphs which are found in “The Form of Government and Discipline of the Presbyterian Church in the United States of America,” which was first adopted in 1788.
This brief sketch shows that our Book of Church Order goes back through a long and noble line of ancestors to the days of John Calvin. We also believe that in its basic principles it goes back to the Holy Scriptures.
. The Book of Church Order of the Presbyterian Church in the United States, Form of Government, Chap. XXII §§ 106-112.
. This includes formal examination, propounding of prescribed questions, preaching trial sermons, etc.
Chap. XXIII, §§ 113-124. The formal educational requirements are exacting:
“115. A candidate for licensure shall be required to present a diploma with degree from a standard four-year college or university, or at least authentic testimonials of having successfully completed a regular' course of academic studies. A candidate for ordination shall also be required to present a diploma from a theological seminary under the control of our Church, or one approved by the Presbytery and requiring not less than three years’ work in residence for the conferring of a theological degree, or at least authentic testimonials of having successfully completed a regular course of theological studies.”
Chap. XXIII, § 115.
. Chap. XXIV, §§ 125-136. Except for Temporary Supply, such pastor must have been ordained.
“126. The relation between a Minister and a church may be that of a Pastor, Associate Pastor, Assistant Pastor, Stated Supply, or Temporary Supply. All of these shall be ordained Ministers, except that Presbytery may approve licentiates, candidates, or laymen as Temporary Supplies.”
Chap. XXIV, § 126.
. Chap. XXV, §§ 137-145.
This includes examination trials by Presbytery covering educational qualifications, preaching a trial sermon, the formal congregational installation service, the preaching of a sermon “adapted to the occasion” (§ 140) by an appointed representative of Presbytery, the ordination questions propounded to the minister being installed (§ 140) and to the congregation (§ 141), the ceremony of laying on of hands (§ 142), after which the Ruling Elders and Deacons “come forward to their Pastor, and give him their right hand, in token of cordial reception and affectionate regard” (§ 143).
. See for Clerks, Chap. XII, § 52 and especially § 54:
“54. A Clerk, or Clerks, shall be elected by the Session, the Presbytery, the Synod, and the General Assembly to serve for a definite period, as determined by the court. It is the duty of the Clerk, besides recording the transactions, to preserve the records carefully, and to grant extracts from them whenever properly required. Such extracts, under the hand of the Clerk, shall be evidence to any ecclesiastical court, and to every part of the Church.”
See, for Presbytery and Session, Chaps. XV §§ 70-79 and XIV §§ 61-69.
. I would emphasize again as in Note 1, supra, that the sect determines the minimum qualifications for status as a minister. If the registrant cannot meet those, he is automatically out. The law may, and does, however, step in to determine whether one satisfying those minimum standards engages in activities, work, leadership, etc., which would come within the congressional intention of “minister”. But, even as to that, the First Amendment crops up again to deny the Government — i.e. the Board' — -the power to rule out ministerial status on the ground of the Board’s ideas about beliefs, their acceptability, etc.
. See cases cited in Tart I and also Part 3.
. Perhaps even more questionable is note 3 (and related text) of the dissent which treats the “Watchtower Society’s standards” as evidentiary only as though the Board (or reviewing court) can determine whether the registrant qualifies on some standards other than those of the sect. When that day comes the Board will have become the Grand Inquisitor and Madison’s Remonstrance (See Appendix, Everson v. Board of Educ. of Ewing, 1947, 330 U.S. 1, 63 , 67 S.Ct. 504, 535 , 91 L.Ed. 711, 748 ) will be overshadowed and outshouted by militant opposition.