John W. Spence, Father and Next Friend of John W. Spence, Jr. v. Edgar H. Bailey

WILLIAM E. MILLER, Circuit Judge

(dissenting).

Because of my high regard for the author of the majority opinion in this case, whose illustrious career includes many years service on the highest court in the land, and because of my respect for the opinions of my colleague, Judge McCree, I personally regret that I must note my dissent.

The record clearly indicates that the required R.O.T.C. course at Central High School was prescribed by the duly constituted authorities in lieu of a course in physical education. In addition to the military aspects of the course, it has many other features which the authorities were justified in considering as important training for a student at the high school level, including training in leadership, discipline, hygiene, and other elements. The court in no way committed a student to military service and placed no impediment in his way in the event he should in the future seek to obtain the status of a conscientious objector pursuant to federal statute. Under these circumstances, I find compelling the language of Mr. Justice Cardozo in his concurring opinion in Hamilton v. Regents, 293 U.S. 245 , 55 S.Ct. 197 , 79 L.Ed. 343 (1934):

There is no occasion at this time to mark the limits of governmental power in the exaction of military service when the nation is at peace. The petitioners have not been required to bear arms for any hostile purpose, offensive or defensive, either now or in the future. They have not even been required in any absolute or peremptory way to join in courses of instruction that will fit them to bear arms. If they elect to resort to an institution for higher education maintained with the state’s moneys, then and only then they are commanded to follow courses of instruction believed by the state to be vital to its welfare. This may be condemned by some as unwise or illiberal or unfair when there is violence to conscientious scruples, either religious or merely ethical. More must *801 be shown to set the ordinance at naught. In controversies of this order courts do not concern themselves with matters of legislative policy, unrelated to privileges or liberties secured by the organic law. The First Amendment, if it be read into the Fourteenth, makes invalid any state law “respecting an establishment of religion or prohibiting the free exercise thereof.” Instruction in military science is not instruction in the practice or tenets of a religion. Neither directly nor indirectly is government establishing a state religion when it insists upon such training. Instruction in military science, unaccompanied here by any pledge of military service, is not an interference by the state with the free exercise of religion when the liberties of the constitution are read in the light of a century and a half of history during days of peace and war. At 265 and 266, 55 S.Ct. at 205 (Emphasis added).

The attempt to distinguish Hamilton on the basis that the attendance at the college level in that case was on a voluntary basis, while here attendance was compulsory under Tennessee law, appears to me to be unpersuasive. As I view the record in this case, the R.O.T.C. program did not infringe upon the student’s constitutional right of free exercise of religion. As Mr. Justice Cardozo further said in his Hamilton concurrence:

Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war, whether for attack or for defense, or in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government. One who is a martyr to a principle — which may turn out in the end to be a delusion or an error — does not prove by his martyrdom that he has kept within the law. At 268, 55 S.Ct. at 206 . 1

I see no reason why a conscientious objector, if his liberties are to be so extended, could not with equal plausibility refuse to subject himself to any course which involved the study of military history — for example, a study of the Napoleonic or Punic wars and others of similar character.

I wish to make it clear that my disagreement with the majority in this case is not based upon the notion that there is a compelling state interest. In my opinion there is no objective evidence to support a finding that the required R. O.T.C. program at Central High School in any way impinged upon the student's constitutional right of free exercise of religion. The mere statement in Spence’s affidavit that the program did violate his religious faith is based entirely upon a subjective judgment.

As clearly indicated by the decision of the Supreme Court in Wisconsin v. Yoder, et al., 406 U.S. 205 , 92 S.Ct. 1526, 1533 , 32 L.Ed. 15 (1972), mere subjective evaluation is not enough to establish a religious belief or conviction for First Amendment purposes:

. A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a “religious” belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. *802 Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claim would not rest on a religious basis. Thoreau’s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clause. At 92 S.Ct. at 1533 .

The Court was able to find in Yoder a violation of the Religion Clause in Wisconsin’s compulsory school attendance law as applied to members of the Amish faith because, as the Court said, “The record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deeply religious conviction shared by an organized group, and intimately related to daily living.” At 92 S.Ct. at 1533 . In the case before us there is no comparable showing.

I would therefore reverse the judgment of the District Court.

. It is to be noted that Mr. Justice Brandeis and Mr. Justice Stone joined in the Cardozo concurrence in Hamilton .