Opinion
No. 20503.
April 1, 1971.
Robert S. Kilker, St. Louis, Mo., filed brief for appellant.
Daniel Bartlett, Jr., U.S. Atty., and Robert B. Schneider, Asst. U.S. Atty., St. Louis, Mo., filed brief for appellee.
Before MATTHES, Chief Judge, and VAN OOSTERHOUT and LAY, Circuit Judges.
This is an appeal by defendant Wilson from his conviction by a jury and resulting sentence on a charge of violating 50 U.S.C.A. App. § 462 by wilfully failing to submit to induction into the armed forces of the United States when ordered to do so.
Defendant is an adherent of the Muslim religion. Such religion forbids its members to participate in any wars and further teaches that selective service, even in a civilian capacity, must be avoided. The sincerity of defendant's beliefs and the teaching of his religion are not questioned.
Defendant followed all requirements of the Selective Service Act up to and including reporting for induction as ordered. He refused to step forward and take the oath. The consequences of his refusal were explained to him. He persisted in refusing to be inducted. Defendant at no time requested his draft board to give him a conscientious objector classification.
The sole issues raised upon this appeal are the legal issues which are stated by the defendant as follows:
"1) Whether the Selective Service Act of 1967, 50 U.S.C. App. §§ 451-473 is unconstitutional in prohibiting appellant from the free exercise of his religious beliefs by forcing him to serve in the armed forces either in a combatant or non-combatant capacity or in civilian service in lieu thereof.
"2) Whether Section 456(j) of the Selective Service act of 1967, 50 U.S.C. App. § 456(j) is unconstitutional in that it violates the Establishment Clause of the First Amendment by favoring some religions over others."
Each of such issues is fully considered and answered adversely to defendant's contentions in Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 27 L.Ed.2d 168. See also Selective Service Cases, 245 U.S. 366, 389-390, 38 S.Ct. 159, 62 L.Ed. 349.
The judgment of conviction is affirmed.