Hamilton v. Regents of the Univ. of Cal.
293 US 245 (Decided December 3, 1934)
This 9-0 decision upheld the California Supreme Court's denial of a writ of mandamus filed against the University by the parents of students who were expelled for not enrolling in a required class of military science and tactics in the ROTC program on the Berkeley campus. The petitioners framed their petition in terms of free expression of religion; the concurring opinion (Cardozo, Brandeis, Stone) discussed the issue as a free exercise issue. The majority opinion, however, (authored by Justice Pierce Butler) treated the issue as one of the authority of the Regents of the University to control academic offerings and graduation requirements. In any case, the concurring opinion is one of the earliest attempts to infuse principled reasoning into the Court's free exercise jurisprudence.
Hamilton belonged to the Methodist Church. At the end of the 1920s there was a lot of political and religious ferment in the country regarding efforts to outlaw war or, in the words of the Paris Peace Pact, to settle all international "disputes or conflicts" by "pacific" means. The 1932 General Conference of the Methodist Church passed a resolution calling upon the government to grant its young men conscientious objector status as it had done for the Society of Friends. It also petitioned that Methodist students with scruples against war would be exempt from military training programs on campus. Christian faith required pursuit of pacific means to solve international conflicts. This ran into conflict with the curriculum at land grant universities (formed pursuant to the Morrill Act of 1862), each of which required a course on military training. Beginning in 1931, however, Wisconsin (followed by Minnesota) made such a course optional.
The Issue--Free Expression or University Authority?
On these religious grounds, then, petitioners declined to enroll in a course of military science and tactics as required by the University. Though they asked for exemption from taking the course, their petitions were denied. They were expelled until they would be willing to take the course.
In framing its approach to the issue, the majority examined not simply the various resolutions of Methodist bodies but also the purpose of the Morrill Act, the Organic Act of 1868 which gave birth to the University of California and a 1931 resolution of the regents of the university making a course in military training and science mandatory.* The majority held it was within the
[*The Morrill Act required that courses in military training be offered at each land grant institution; the trustees or regents of each of those institutions could implement that policy either through mandatory or optional military training courses].
authority of the regents to adopt such a resolution. By so doing it did not cede authority over the educational program to the War Department. The University "remains untrammeled by federal enactment and is entirely free to determine for itself the branches of military training to be provided, the content of the instruction to be given, and the objectives to be attained." The training is "exclusively prescribed and given under the authority of the state." Thus, "so long as its action is within retained powers and not inconsistent with any exertion of the authority of the national government and transgresses no right safeguarded to the citizen by the Federal Constitution, the state is the sole judge of the means to be employed and the amount of training to be exacted...." In addition, the majority quoted an earlier decision and said with seeming pique that despite religious or political convictions young men needed to take their place "in the ranks of the army" and even "risk the changes of being shot down in its defense." Religious exemption from service was only granted, then, by Congressional grace. Such largesse had not been extended here.
The Cardozo Concurrence
Though agreeing with the result, the concurrers would have given greater attention to the religous dimension of the issue Interestingly enough, Cardozo "assumes" the Incorporation of the First Amendment religion clauses in the Fourteenth Amendment (which actually would not happen until the next decade), and then proceeds to distinguish this case from a true conscientious objector case, where a young man would be asking for exemption from service during time of war. Here, in contrast, someone was asking for exemption from a university course during peacetime. This distinction was crucial.
"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..." Again, "never in our history has the notion been accepted, or even, it is believed, advanced, that acts thus indirectly related to service in the camp or field are so tied to the practice of religion as to be exempt, in law or in morals, from regulation by the state."
One sees behind this analysis an echo of the Court's "clear and present danger" analysis articulated by Justice Holmes a decade previously in a free speech case. That is, the approach of the concurrers was that until the "danger" to religion becomes "imminent," by requiring a person in a time of war to go into battle or to be drafted against his will, the threat to free expression of religion is too attenuated to receive protection under the Fourteenth Amendment liberty clause. Indeed, if petitioner's writ was sustained, it might pave the way for people to decide not to pay taxes which might go to the military or the government in general. "The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of govement." Then, in conclusion, "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."
Copyright © 2004-2007 William R. Long