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United States v. Fallon

March 5, 1969

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DANIEL THOMAS FALLON, DEFENDANT-APPELLANT



Duffy, Senior Circuit Judge, and Swygert and Kerner, Circuit Judges.

Author: Duffy

DUFFY, Senior Circuit Judge.

This suit challenges the constitutionality of the Military Selective Service Act of 1967, 50 U.S.C. App. ยง 451 et seq. Defendant was convicted because of his refusal to be inducted under the Act into the armed services of this country.

It may be advisable to first consider some fundamentals. The United States Constitution, Article I, Section 8, specifically grants to Congress the power to raise and support armies and navies. In enacting the Military Service Act of 1967, Congress declared "The Congress declares that an adequate armed strength must be achieved and maintained to insure the security of this Nation." The several provisions of the Act to which the defendant herein takes exception were certainly enacted with that purpose in view.

The duty of a citizen of this nation was well expressed a number of years ago by the United States Supreme Court. In Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S. Ct. 358, 362, 49 L. Ed. 643, that Court said: "The liberty secured by the 14th Amendment, this court has said, consists, in part, in the right of a person 'to live and work where he will,' Allgeyer v. Louisiana, 165 U.S. 578 [17 S. Ct. 427, 41 L. Ed. 832]; and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense."

Also appropriate is the statement of Chief Justice White speaking for the Court in Selective Draft Law Cases, 245 U.S. 366, 378, 38 S. Ct. 159, 161, 62 L. Ed. 349: "It may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need and the right to compel it."

Defendant first argues that the classification and deferment provisions under the Military Selective Service Act violates equal protection of the law and thereby violates the due process clause of the Fifth Amendment of the United States Constitution.

In support of his first contention, defendant points to the fact that the Selective Service Act requires the registration of males only. Defendant says: "This fact alone brands it as a piece of invidiously discriminatory legislation." Defendant argues: "Women are just as capable as men at performing a wide range of useful jobs in the military, from punching typewriters to pulling triggers." Defendant also argues: "It seems only fair that if women as well as men can sit on draft boards, then women as well as men should be subject to the draft."

With reference to the classification of ministers and divinity students (IV-D), defendant asks "Aren't they as capable of pulling triggers as other men?" Defendant also objects to the classification of fathers (III-A) and students (II-S). Defendant also protests the "magic age of 26." Defendant insists that all such classifications are in violation of the due process clause of the Fifth Amendment.

Congress did grant various exemptions from military service such as conscientious objectors and ministers of religion, but such exceptions were matters of legislative grace. United States v. Mohammed, 7 Cir., 1961, 288 F.2d 236, 242; Parrott v. United States, 9 Cir., 1966, 370 F.2d 388, 391.

Defendant repeats over and over again that he is not arguing the various classifications and deferments as unreasonable in themselves, but that such classifications are not reasonably related to the purpose of the Act. We disagree. We hold such classifications and deferments are reasonably related to the purposes of the Selective Service Act. Congress was entitled to consider factors which would both maximize the efficiency and minimize the expense of raising an army and minimize the disruption of what were considered important civilian functions. We hold further that such classifications and deferments in the Military Service Act are not in violation of the due process clause of the Fifth Amendment to the Federal Constitution.

There are, of course, some inequities in the administration of the Selective Service Act. Possibly some better system can be devised. But any such change is for the consideration and determination of Congress.

The second contention of defendant is that military conscription, absent a declared war, constitutes involuntary servitude in violation of the Thirteenth Amendment of the United States Constitution. Defendant seems to concede that we decided this question to the contrary in United States v. Holmes, 7 Cir., 1967, 387 F.2d 781.

In United States v. Holmes, supra, page 784, we held that compulsory civilian labor is merely the alternative to compulsory military service, and that compulsory civilian labor does not violate the prohibition of the involuntary servitude clause in the Thirteenth Amendment. Defendant ...


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