110904-Julia Gillard - Defence Chaplains & The Constitution

5
Julia Gillard, PM Email c/o "R.McClelland.MP@aph.gov.au" <R.McClelland.MP@aph.gov.au>

. .
4-9-2011
Ref: 110904 Julia Gillard Defence Chaplains & the constitution Julia,
10
4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
QUOTE THE AGE 3-9-2011
DEFENCE
CHAPLAINS
5
NEEDED
.
10
If you have a. sense of adventure, enjoy keeping fit and like the idea of developing lasting friendships, then take up this opportunity today. Right now we need Chaplains to provide spiritual ministry and pastoral support, both full-time and part-time. It's a role that will see you providing vital support to all military members of the Australian Defence Force.
FOR INFORMATION CALL 1319 01 OR VISIT DEFENCEJOBS.GOV.AU
15
20
END QUOTE THE AGE 3-9-2011

.
25
as a CONSTITUTIONALIST I recall that the High Court of Australia once claimed that s96 can be used for the Commonwealth to provide funds under any condition that normally might be unconstitutional but the truth is far from it as after all consider the add and then what the Framers of the Constitution stated:
Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. REID.-I suppose that money could not be paid to any church under this Constitution?
30
Mr. BARTON.-No; you have only two powers of spending money, and a church could not receive the funds of the Commonwealth under either of them. [start page 1773] END QUOTE
.
35
In my view, as a CONSTITUTIONALIST, the funding of any chaplains or other religious characters is unconstitutional and cannot be permitted. I will set out below some matters,
including referring to U.S.A. authorities which have a constitution and amendment to it that prohibit religious discrimination and from the various Authorities one can become aware that as I also successfully submitted on 19 July 2006, when I comprehensively defeated the Commonwealth that religious exemptions also must include non-religious exemptions as indicated below in the Welsh case. S116 of the constitution was in fact based upon the provisions of the U.S.A. constitution and its amendment of prohibition of religion to be legislated Australia the States still had such power.
QUOTE Commonwealth Electoral Act 1918
10
15
(14) Without limiting the circumstances that may constitute a valid and sufficient reason for not voting, the fact that an elector believes it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for the failure of the elector to vote. (15) An elector is guilty of an offence if the elector fails to vote at an election. Penalty: $50.
END QUOTE Commonwealth Electoral Act 1918
.
20
QUOTE Defence Act 1903 Act No. 20 of (3)
1903 as amended
25
For the purposes of Part IV, a person is taken to have a conscientious belief in relation to a matter if the person's belief in respect of that matter: (a)
30
(b)
involves a fundamental conviction of what is morally right and morally wrong, whether or not based on religious considerations; and is so compelling in character for that person that he or she is duty bound to espouse it; and (c)
35
is likely to be of a long standing nature. END QUOTE Defence Act 1903 Act No. 20 of 1903 as amended
40
Clearly as shown in the quoted WELSH v. UNITED STATES, 398 U.S. 333 (1970) this is unconstitutional unless it include atheist and others regardless of having any religious objections or not. Hence the legislation should reflect that any person with non-religious objections nevertheless are also entitled to object to serve in the armed forces.
QUOTE 1. Military Service - Cases by Topic Group : Religious Liberty ... www.churchstatelaw.com/casesbytopic.asp?topic... - Cached 25+ items Cases by Topic Group Military Service, Sorted by Year, Click ... 1. Hamilton v. Regents of Univ. of California, 293 U.S. 245 1934 Due process ... 2. Eagles v. United States ex rel. Horowitz, 329 U.S. 317 1946 Draft board was ... 3. Eagles v. United States ex rel. Samuels, 329 U.S. 304 1946 Neither use of ... Guidelines on Discrimination Because of Religion www.paganlibrary.com/fundies/guidelines_on_discrimination.php - Cached 24 Aug 2011 This standard was developed in UNITED STATES VS. SEEGER, 380 U.S. 163 (1965) and WELSH VS. UNITED STATES, 398 U.S. 333 (1970). ... 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
45
50
55
END QUOTE http://www.paganlibrary.com/fundies/guidelines_on_discrimination.php QUOTE
(PART 1605) Section Table of Contents 1605.1 "Religious" nature of a practice or belief... 1605.2 Reasonable accommodation without undue hardship as required by Section 701(J) (paragraph 950) of Title VII of the Civil Rights Act of 1964 ...
10
1605.3 Selection Practices... Appendix A to Sections 1605.2 and 1605.3 --- Background Information Sec. 1605.1 "Religious" nature of a Practice or Belief. --- In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. This standard was developed in UNITED STATES VS. SEEGER, 380 U.S. 163 (1965) and WELSH VS. UNITED STATES, 398 U.S. 333 (1970). The Commission has consistently applied this standard in its decisions. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase "religious practice" as used in these Guidelines includes both religious observances and practices, as stated in Section 701(j) (paragraph 9500, 42 U.S.C. 2000e(j). END QUOTE
.
15
20
25
30
35
40
45
50
http://www.paganlibrary.com/fundies/guidelines_on_discrimination.php QUOTE 2011-08-23 - Texas Legislators and Christian Groups Fight to Insert God Into Vets' Funerals -- Against Families' Wishes - AlterNet 2011-08-20 - Wiccan Holidays Recognized by Vanderbilt University - The Christian Post 2011-08-19 - 19-year-old Vampire Boy Arrested For Attempting to Drink Woman's Blood - AllMediaNY 2011-08-17 - Wiccans Are Displeased With True Blood - Jezebel 2011-08-17 - Shop owner forced to close her business because of her Wiccan beliefs moves to Wirral - Wirral News 2011-08-10 - Goodbye Religion? How Godlessness Is Increasing With Each New Generation - AlterNet 2011-08-08 - Religions Role in Custody Battles - The Wild Hunt 2011-08-07 - Corporates with fangs - the pioneer 2011-08-03 - Deviations: A Skeptical Investigation of Edgar Cayces Association for Research and Enlightenment Skeptic 2011-07-26 - Islam Has Anti-Witchcraft Loonies Too - Dispatches from the Creation Wars 2011-07-25 - 'True Blood' recap: Mystics, mayhem and making out on the front lawn - LA Times END QUOTE QUOTE United States v. Seeger - Wikipedia, the free encyclopedia en.wikipedia.org/wiki/United_States_v._Seeger - CachedSimilar 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
United States v. Seeger, 380 U.S. 163 (1965), was a case in which the United States Supreme Court ruled that the exemption from the military draft for ... END QUOTE
QUOTE UNITED STATES v. SEEGER, 380 U.S. 163 (1965 caselaw.findlaw.com/cgi-bin/getcase.pl?court=us&vol=380...163 - CachedSimilar SEEGER, 380 U.S. 163 (1965). 380 U.S. 163. UNITED STATES v. SEEGER. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND ... END QUOTE
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=380&invol=163 QUOTE
10
U.S. Supreme Court

15
UNITED STATES v. SEEGER, 380 U.S. 163 (1965)
380 U.S. 163 UNITED STATES v. SEEGER. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 50. Argued November 16-17, 1964. Decided March 8, 1965.* [Footnote *] Together with No. 51, United States v. Jakobson, on certiorari to the same court, and No. 29, Peter v. United States, on certiorari to the United States Court of Appeals for the Ninth Circuit.
20
25
30
These three cases involve the exemption claims under 6 (j) of the Universal Military Training and Service Act of conscientious objectors who did not belong to an orthodox religious sect. Section 6 (j) excepts from combatant service in the armed forces those who are conscientiously opposed to participation in war by reason of their "religious training and belief," i. e., belief in an individual's relation to a Supreme Being involving duties beyond a human relationship but not essentially political, sociological, or philosophical views or a merely personal moral code. In all the cases convictions were obtained in the District Courts for refusal to submit to induction in the armed forces; in Nos. 50 and 51 the Court of Appeals reversed and in No. 29 the conviction was affirmed.
END QUOTE
And 35
QUOTE First Amendment -- Free Exercise of Religion candst.tripod.com/crs1sta5.htm - Cached Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788-89 (1973) (tuition reimbursement grants to parents of parochial school children violate ..... Seeger, 380 U.S. 163 (1965); see id. at 188 (Justice Douglas concurring); Welsh v. United States, 398 U.S. 333 (1970); and see id. at 344 (Justice Harlan concurring). 216Gillette ... [PDF] BEYOND THE SCIENTOLOGY CASE epress.lib.uts.edu.au/dspace/bitstream/handle/2100/404/01front.pdf?...1Similar File Format: PDF/Adobe Acrobat by TABDOF WHAT - 2006 - Related articles THE UNITED STATES LEGAL POSITION. 164 .... Abington School District v Schempp 374 US 203 (1963) 167 ... Barnette v West Virginia State Board of Education 47 FSupp 251 (SDWVa 1942), affd ... Church of the Holy Trinity v United States 143 US 457 (1892) 174 ..... Welsh v United States 398 US 333 (1970) ... [PDF] 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
40
45
50
1.
Committee Secretary 5-6-2011 Joint Committee of Public Accounts ... www.aph.gov.au/house/committee/jcpaa/natagree/.../sub12_attachment1.pd... File Format: PDF/Adobe Acrobat to try to pursue justice against the might of a taxpayer funded department. ...... State need not allocate any funds to education, once it has done so, it may not require ... private versus public schools and this always is a point of contention the truth is that the ... UNITED STATES, 398 U.S. 333 (1970), 398 U.S. 333, WELSH v. ... END QUOTE
. http://candst.tripod.com/crs1sta5.htm
10
QUOTE First Amendment Free Exercise of Religion
15
{Page 1005 Continued} "The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions there by civil authority." 178 It bars "governmental regulation of religious beliefs as such,"179 prohibiting misuse of secular governmental programs "to impede the observance of one or all religions or . . . to discriminate invidiously between religions . . . even though the burden may be characterized as being only indirect.'180 Freedom of conscience is the basis of the free exercise clause, and government may not penalize or discriminate against an individual or a group of individuals because of their religious views nor may it compel persons to affirm any particular beliefs.181Interpretation is complicated, however, by the fact that exercise of religion usually entails ritual or other practices that constitute "conduct" rather than pure "belief." When it comes to protecting conduct as free exercise, the Court has been inconsistent.182 It has long been held that the Free Exercise {Page 1006} Clause does not necessarily prevent government from requiring the doing of some act or forbidding the doing of some act merely because religious beliefs underlie the conduct in question.183 What has changed over the years is the Court's willingness to hold that some religiously motivated conduct is protected from generally applicable prohibitions.
178 179 180 181 182
20
25
30
Abington School District v. Schempp, 374 U.S. 203, 222-23 (1963). Sherbert v. Verner, 374 U.S. 398, 402 (1963) (emphasis in original). Braunfeld v. Brown, 366 U.S. 599, 607 (1961). Sherbert v. Verner, 374 U.S. 398, 402 (1963); Torcaso v. Watkins, 367 U.S. 488 (1961).
35
40
Academics as well as the Justices grapple with the extent to which religious practices as well as beliefs are protected by the Free Exercise Clause. For contrasting academic views of the origins and purposes of the Free Exercise Clause, compare McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1410 (1990) (concluding that constitutionally compelled exemptions from generally applicable laws are consistent with the Clause's origins in religious pluralism) with Marshall, The Case Against the Constitutionally Compelled Free Exercise Exemption, 40 Case W. Res. L. Rev. 357 (1989-90) (arguing that such exemptions establish an invalid preference for religious beliefs over nonreligious beliefs).
183
45
E.g., Reynolds v. United States, 98 U.S. 145 (1879); Jacobson v. Massachusetts, 197 U.S. 11 (1905); Prince v. Massachusetts, 321 U.S. 158 (1944); Braunfeld v. Brown, 366 U.S. 599 (1961); United States v. Lee, 455 U.S. 252 (1982); Employment Division v. Smith, 494 U.S. 872 (1990). The relationship between the Free Exercise and Establishment Clauses varies with the expansiveness of interpretation of the two clauses. In a general sense both clauses proscribe governmental involvement with and interference in religious matters, but there is possible tension between a requirement of governmental neutrality derived from the Establishment Clause and a Free-Exercise-derived requirement that government accommodate some religious practices.184 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
50
10
So far, the Court has harmonized interpretation by denying that free-exercise-mandated accommodations create establishment violations, and also by upholding some legislative accommodations not mandated by free exercise requirements. "This Court has long recognized that government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause." 185 In holding that a state could not deny unemployment benefits to Sabbatarians who refused Saturday work, for example, the Court denied that it was "fostering an establishment' of the Seventh-Day Adventist religion, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall." 186 Legislation granting religious exemptions not held to {Page 1007} have been required by the Free Exercise Clause has also been upheld against Establishment Clause challenge,187 although it is also possible for legislation to go too far in promoting free exercise. 188
184
15
"The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other." Walz v. Tax Comm'n, 397 U.S. 668-69 (1970).
185
Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 144-45 (1987). A similar accommodative approach was suggested in Walz: "there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without [governmental] sponsorship and without interference." 397 U.S. at 669.
20
186
25
30
Sherbert v. Verner, 374 U.S. 398, 409 (1963). Accord, Thomas v. Review Bd., 450 U.S. 707, 719-20 (1981). Dissenting in Thomas, Justice Rehnquist argued that Sherbert and Thomas created unacceptable tensions between the Establishment and Free Exercise Clauses, and that requiring the States to accommodate persons like Sherbert and Thomas because of their religious beliefs ran the risk of "establishing" religion under the Court's existing tests. He argued further, however, that less expansive interpretations of both clauses would eliminate this artificial tension. Thus, Justice Rehnquist would have interpreted the Free Exercise Clause as not requiring government to grant exemptions from general requirements that may burden religious exercise but that do not prohibit religious practices outright, and would have interpreted the Establishment Clause as not preventing government from voluntarily granting religious exemptions. 450 U.S. at 720-27. By 1990 these views had apparently gained ascendancy, Justice Scalia's opinion for the Court in the "peyote" case suggesting that accommodation should be left to the political process, i.e., that states could constitutionally provide exceptions in their drug laws for sacramental peyote use, even though such exceptions are not constitutionally required. Employment Div. v. Smith, 494 U.S. 872, 890 (1990). END QUOTE
.
35
http://en.wikipedia.org/wiki/Religious_education QUOTE In secular usage, religious education is the teaching of a particular religion (although in England the term religious instruction would refer to the teaching of a particular religion, with religious education referring to teaching about religions in general) and its varied aspects its beliefs, doctrines, rituals, customs, rites, and personal roles. In Western and secular culture, religious education implies a type of education which largely separate from academia, and which (generally) regards religious belief as a fundamental tenet and operating modality, as well as a prerequisite condition of attendance. The secular concept is substantially different from societies that adhere to religious law, wherein "religious education" connotes the dominant academic study, and in typically religious terms, teaches doctrines which define social customs as "laws" and the violations thereof as "crimes", or else misdemeanors requiring punitive correction. END QUOTE
40
45
50
http://en.wikipedia.org/wiki/Religious_education QUOTE Since people within a given country often hold varying religious and non-religious beliefs, governmentsponsored religious education can be a source of conflict. Countries vary widely in whether religious education is allowed in government-run schools (often called "public schools"). Those that allow it also vary in the type of education provided. 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
55
People oppose religious education in public schools on various grounds. One is that it constitutes a state sponsorship or establishment of whatever religious beliefs are taught. Others argue that if a particular religion is taught in school, children who do not belong to that religion will either feel pressure to conform or be excluded from their peers. Proponents argue that religious beliefs have historically socialized people's behavior and morality. They feel that teaching religion in school is important to encourage children to be responsible, spiritually sound adults. [edit] Religious education by religion The Church Educational System of The Church of Jesus Christ of Latter-day Saints (Mormon) provides religious education in approximately 135 countries.[1]
10
15
In traditional Muslim education, children are taught to read and sometimes speak Arabic and memorize the major suras of the Qur'an. Many countries have state-run schools this purpose (known as Madrasah Islamiyyah in Arabic; meaning "Islamic school"). Traditionally, a settlement may pay a mullah to teach children. There is a historic tradition of Sufi mullahs who wander and teach, and an ancient tradition of religious universities. However, the study of Islam does not suffice. Students must pass the state mandated curriculum to pass. Religious scholars often serve as judges, especially for criminal and family law (more rarely for commercial law). Non-Islamic religions are tolerated as personal beliefs, but not as public teaching. Most Islamic countries have laws against teaching other religions, and especially against attempts to convert Islamic believers. END QUOTE
.
20
1.
QUOTE [PDF] A History of State Aid to Non-Government Schools in Australia www.dest.gov.au/NR/.../SN24434_DEST_History_of_state_aid_FA.pdfSimilar File Format: PDF/Adobe Acrobat by IR Wilkinson - 2007 - Cited by 12 - Related articles the history of Federal Government funding to non-government schools in ..... Under the dual system, responsibility for education in New South Wales was now shared ... State aid to religion, which had been embodied in the first Victorian ... END QUOTE
.
25
30
QUOTE IS THERE A SEPARATION OF CHURCH AND STATE IN ... www.hsnsw.asn.au/MaxWallace.html - CachedSimilar Opponents took the question of government funding for church schools to the High ... New South Wales could establish the Catholic Church as the religion of the state. ... In 1956 in his evidence to the Education Committee of the House of ... The Journey of the Catholic Church in Australia - Catholic Enquiry ... www.catholicenquiry.com/.../the-journey-of-the-catholic-church-in-... - Cached The Colony of New South Wales was founded when the Penal Laws of ... to the Emancipation Bill of 1829 giving freedom of religion in all British dominions. ... of Government Funding, c.1880 the Church determined to continue educating the ... END QUOTE
.
35
40
45
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17 June 1999) QUOTE 111. The first of those points requires no development. It is self-evidently true. The remaining points, however, may need a little elucidation in two respects. First, in R v Kirby; Ex parte Boilermakers' Society of Australia ("Boilermakers")[131] the majority of the Court described the role of the federal judicature in a federal system. They said[132]: "In a federal form of government a part is necessarily assigned to the judicature which places it in a position unknown in a unitary system or under a flexible constitution where Parliament is 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
50
supreme. A federal constitution must be rigid. The government it establishes must be one of defined powers; within those powers it must be paramount, but it must be incompetent to go beyond them.
END QUOTE Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution. END QUOTE
http://www.gpoaccess.gov/constitution/pdf2002/033.pdf
10
QUOTE
15
Moreover, the Court has construed race broadly to comprehend classifications based on ancestry as well as those based on race. 8 END QUOTE
.
20
25
30
35
As the Framers of the Constitution very much considered also the provisions of the U.S.A. constitution and so its amendments and in fact considered the First Amendment as a basis to form s116 of the constitution then one also has to consider that the right to vote and the freedom of registration and voti8ng as much as applicable in the U.S.A is to be applicable in the Commonwealth of Australia as in fact I successf7lly submitted on 19 July 2006 in the County Court of Victoria in regard of charges FAILING TO VOTE when I comprehensively defeated the Commonwealth in those cases then before the court. The right to vote as is like the right to drive a motor vehicle (If one has been recognised to be competent in certain classes of a motor vehicle one may desire to drive) that no government can force or make compulsory that any person MUST drive a motor vehicle because of this competence rather the right is elective that the person may or may not desire to drive the relevant class of motor vehicle. Likewise the right to vote is elective if the elector desires to exercise the right of franchise or not. If the elector elects to exercise this right then the elector is bound to vote in a certain manner that may be required to validate a vote. As much as an exercise to drive requires a person to obey traffic signage. As the Framers of the Constitution made clear that the Commonwealth and/or the States could use the hare system of voting or other system if it desired to do so as long as it was uniform within its jurisdiction.
. http://www.gpoaccess.gov/constitution/pdf2002/033.pdf QUOTE
40
FIFTEENTH AMENDMENT
RIGHT OF CITIZENS TO VOTE CONTENTS
Page
45
50
Abolition of Suffrage Qualifications on Basis of Race ............................................................ 2051 Adoption and Judicial Enforcement .................................................................................. 2051 Adoption ....................................................................................................................... 2051 The Judicial View of the Amendment ....................................................................... 2052 Grandfather Clauses ................................................................................................... 2053 The White Primary ..................................................................................................... 2054 Literacy Tests .............................................................................................................. 2054 Racial Gerrymandering ............................................................................................... 2055 END QUOTE .
55
60
HANSARD 2-3-1898 Constitution Convention Debates QUOTE Dr. QUICK (Victoria).If under a Constitution in which no such words as these appear such legislation has been carried, what further danger will arise from inserting the words in our Constitution? I do not see, speaking in ordinary language, how the insertion of such words could possibly lead to the interpretation that this is necessarily a Christian country and not otherwise, because the words "relying upon the blessing of Almighty God" could be subscribed to not only by Roman Catholics and Protestants, but also by Jews, 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
Gentiles, and even by Mahomedans. The words are most universal, and are not necessarily applicable only to Christians. END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.-No; because you do not give any power with regard to punishing crime to the Commonwealth, but you do give power to the Commonwealth to make special laws as to alien races; and the moment you do that the power of making such laws does not remain in the hands of the states; and if you place in the hands of the Commonwealth the power to prevent such practices as I have described you should not defeat that regulative power of the Commonwealth. I do not think that that applies at all, however, to any power of regulating the lives and proceedings of citizens, because we do not give any such power to the Commonwealth, whilst we do give the Commonwealth power with regard to alien races; and having given that power, we should take care not to take away an incident of it which it may be necessary for the Commonwealth to use by way of regulation. I have had great hesitation about this matter, but I think I shall be prevented from voting for the first part; and as to establishing any religion, that is so absolutely out of the question, so entirely not to be expectedMr. SYMON.-It is part of the unwritten law of the Constitution that a religion shall not be established.
10
15
20
END QUOTE
.
25
Hansard 17-4-1897 Constitution Convention Debates QUOTE Mr. SYMON: There can be no doubt as to the position taken up by Mr. Carruthers, and that many of the rules of the common law and rules of international comity in other countries cannot be justly applied here. END QUOTE
.
30
While the Commonwealth cannot legislate as to religion nevertheless one find the Family Court of Australia disregards this constitutional prohibition and refers to it in many cases and even quote the U.N. Charter as if the signing of a treaty somehow can override the constitution which no constitutional Parliament can do!
B and B: Family Law Reform Act 1995 FAMILY LAW ACT 1975 IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE Appeal No. NA 35 of 1996 File No. TV 1833 of 1996 IN THE MATTER OF: B AND B: FAMILY LAW REFORM ACT 1995 JUDGMENT OF THE COURT Coram: Nicholson CJ, Fogarty and Lindenmayer JJ Dates of Hearing: 18 February, 21 and 22 May, 1997 QUOTE 3.30 The influence of terms used in UNCROC is apparent, and the more directly relevant articles appear to be as follows:"Article 2.1: - States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Article 3.1: - In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration END QUOTE
.
35
40
45
50
55
In regard of the ruling Sue v Hill one has to consider the following to realise how utterly wrong the High Court of Australia was in that judgment because Heather Hill was born in the old country and one cannot change once allegiance to the same Queen under a different title. See also the Calvin's Case 7 Coke Report 1a, 77 ER 377.
10
Hansard 2-4-1891 Constitution Convention Debates QUOTE Mr. J. FORREST: We propose to form a commonwealth of Australia, and are we to prohibit people of our own race, born in other portions of the British dominions, from becoming senators until they have been resident in the commonwealth for a certain period? No such prohibition is placed upon Australians residing in the old country. Any Australian, resident in England, can at once, if the electors desire, become a member of the House of Commons, and I see no reason why a distinguished Englishman coming to these colonies should not at once be eligible for the position of senator if the legislature of one of the colonies desired his appointment. END QUOTE
.
15
20
HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. DEAKIN.What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite. END QUOTE
.
25
30
HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. SYMON (South Australia).- We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves. END QUOTE
.
While much is argued that the Commonwealth of Australia was a founding member of the U.N. (United Nations) the constitutional truth is far from this because as the Framers of the Constitution stated;
.
35
40
Hansard 3-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject of the Queen is co-extensive with the ordinary definition of a subject or citizen in America. The moment be is under any disability imposed by the Parliament be loses his rights. Dr. QUICK.-That refers to special races. END QUOTE
.
45
Therefore Aboriginals subjected to laws since the 1967 referendum to amend the constitution s51(xxvi) are constitutionally not permitted to have franchise and so neither to vote and cannot be Members of Parliament either because of this!
HANSARD 8-2-1898 Constitution Convention Debates QUOTE Mr. ISAACS (Victoria).It is not something separate from the other portion, and of this Dr. Burgess says, at page 217 of the first volume of his work:The phrase "equal protection of the laws" has been defined by the court to mean exemption from legal discrimination on account of race or colour. This provision would probably, therefore, not be held to cover discriminations in legal standing made for other reasons; as, for example, on account of age or sex, or mental, or even property qualifications. The court distinctly affirms that the history of the provision shows it to have been made to meet only the unnatural discriminations springing from race and colour. If a discrimination should arise from any previous condition of servitude, I think the court would regard this as falling under the inhibition. The language of the provision implies this certainly, if it does not exactly express it. END QUOTE
.
50
55
60
And they did then insert tin the DRAFT constitution subsection 521(xxvi) so the Commonwealth could legitimately discriminate on basis of race.
.
HANSARD 28-1-1898 Constitution Convention Debates QUOTE That the words "The affairs of," first line sub-section (1),be omitted. [start page 253] Mr. BARTON.-I have no objection to taking it that way.
10
15
20
Mr. DEAKIN.-I think it must now be perfectly clear that what we desire is, not to deprive, the Federal Parliament of its paramount power in every respect in regard to any dealings with the races referred to, but to leave to the several states, until the Federal Parliament legislates upon the alien question, the operation of all legislation already passed, and the the right to legislate in the future until the Federal Parliament thinks fit to supersede it by specific legislation. For instance, the Federal Parliament might well pass a general law applying to these races without making any reference to their employment as miners or hawkers, and any state legislation in regard to those occupations which might be in existence would continue, or now legislation regarding them might be introduced. When the Federal Parliament chooses to make regulations in regard to the employment of aliens as hawkers and miners, the state legislation will cease to have effect. The honorable and learned member (Mr. Symon) said-Hand to the Federal Parliament all powers connected with aliens, and allow them to give back certain powers to the state." We say-Instead of taking these powers from the states and giving them back again, let us leave them with the states until the Federal Parliament chooses to assume them." Sir JOHN DOWNER (South Australia).-I do not think it makes any substantial difference whether you put this provision in clause 52, or leave it where it is. The Federal Parliament has first to say what races it is: necessary to make regulations about. Mr. ISAACS.-That is giving a rather limited meaning to the words "deemed necessary." Sir JOHN DOWNER.-There must be some body which deems it necessary, and the only body to which the words can refer is the Commonwealth Parliament. What very substantial difference does it make whether we leave the provision as it stands or put it into clause 52? True, if the provision is left where it stands, the Federal Parliament will have exclusive power in connexion with this matter; but that body will only have exclusive power when it chooses to exercise it. It is only when the Federal Parliament has passed legislation dealing with the people about whom regulations are to be made that this exclusive power will have arisen. The only matter for the committee to consider is as to the expediency of leaving the provision here or of putting; it into clause 52. Wherever it is, it will, upon the passing of the Constitution, operate as an intimation to the Federal Parliament that this is a matter of national import, upon which they are expected to legislate. Once within the Commonwealth citizens should be able to go freely from one state to another; there should be no lines of differentiation between states. If races are admitted into one state, and are not free to go into another, the inconveniences of administration, especially on the borders, will be very great. It has been thought well that there should be a uniform law throughout Australia in respect to the citizens of Australia, and it was considered that this provision should be put into a separate clause giving exclusive powers, in order to emphasize the fact that the Federal Parliament should legislate upon this matter. In my opinion, whether you put the provision into clause 52, or leave it where it is, its substantial legislative effect will be the same. As to the meaning of the words, "the affairs of the people of any race with respect to whom it is deemed necessary," in my opinion it is the Federal Parliament who must deem it necessary. Mr. ISAACS.-What is the meaning of the statement that the state cannot legislate for the whole general community? Mr. BARTON.-That is by way of description. A law made by the state does not apply to the general community.
25
30
35
40
45
50
[start page 254] Sir JOHN DOWNER.-My argument is that deemed necessary means deemed necessary by the Parliament of the Commonwealth. Assuming that I am right, I ask to whom does this clause extend? The persons named 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
by an Act of the Commonwealth Parliament. When the Commonwealth Parliament deals with this subject, its legislation will over-ride any local legislation, no matter whether you put the provision in clause 52 or leave it in clause 53. What the representatives from Victoria want is exactly what is provided here, but the provision is put where it is for the purposes of extra emphasis, and to indicate to the Federal Parliament that they are expected to make over-riding and general legislation in regard to this vital question. I think honorable members are, almost without exception, strongly of opinion that there should be federal legislation upon this matter, and I therefore believe that it will meet the wishes of honorable members if we leave the provision exactly where it is, as a means of hurrying up the Federal Parliament and causing it to legislate in this matter as soon as possible. END QUOTE
.
10
15
Hansard 28-1-1898 Constitution Convention Debates QUOTE Dr. QUICK (Victoria).There can be no doubt as to the desirability of conferring unlimited powers on the Federal Parliament to prevent the introduction of foreign coloured races. END QUOTE
.
20
25
HANSARD 9-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE The Hon. J. H. CARRUTHERS: I will take the three great purposes under clause 52 of this bill for which the commonwealth is to be established-for taxation, for defence, and, what is to my mind one of the greatest of all purposes, the regulation of the inflow of population so as to secure a white Australia. END QUOTE
.
30
35
40
45
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. OCONNOR (New South Wales).But let us take first his position in regard to the Commonwealth. Under the power which you have given to the Federal Parliament to make laws regulating immigration and aliens, you embrace every possible set of circumstances under which any person may enter the bounds of the Commonwealth. As you have power to prevent any person from entering any part of the Commonwealth, you have also the power to prevent any person from becoming a member of the Commonwealth community. There is no territorial entity coincident with the Commonwealth. Every part of the Commonwealth territory is part of the state, and it is only by virtue of his citizenship of a state that any person within the bounds of the Commonwealth will have any political rights under the Constitution. Of course, when I speak of a state, I include also any territory occupying the position of quasi-state, which, of course, stands in exactly the same position. Mr. WISE-Is that clear? [start page 1754] Mr. OCONNOR.-If the territory does not stand in the same position as a state, it is admitted to political rights at the will of the Commonwealth, and upon such terms as the Commonwealth may impose. Every person who has rights as a member of the Commonwealth must be a citizen either of some state or some territory. It is only by virtue of his citizenship of a state or of a territory that he has any political rights in the Commonwealth. END QUOTE
.
Hansard 31-3-1891 Constitution Convention Debates QUOTE Sir SAMUEL GRIFFITH:
50
55
In addition to the powers to be exercised in that way, not interfering with the existing rights of states until the federal legislature thinks it necessary to do so, it is proposed to give some exclusive powers to the legislature of the commonwealth. One of them is to deal with the affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand. END QUOTE
60
. What we need to understand is that the Commonwealth (parliament0 can authorise the GovernorGeneral to proclaim certain matters, not in the capacity of prerogative powers but by legislation but such exercise never can conflict with his constitutional obligations to comply with
constitutional and other legal provisions. As such, where the Parliament purports to authorise the Governor-General certain powers but this authorisation is in conflict with the provisions of the constitution then the constitution shall prevail.
.
QUOTE Racial Discrimination Act 1975 Act No. 52 of 1975 The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, prescribing the manner in which a member may resign from office and prescribing fees and allowances payable to members of conciliation committees. ScheduleInternational Convention on the elimination of all forms of racial discrimination Section 3(1) The States Parties to this Convention, Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion, Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin, Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination, Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end, Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person, Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere, Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State, Convinced that the existence of racial barriers is repugnant to the ideals of any human society, Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation, Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination, Bearing in mind the Convention concerning Discrimination in respect of Employment and Occupation adopted by the International Labour Organisation in 1958, and the Convention against Discrimination in Education adopted by the United Nations Educational, Scientific and Cultural Organization in 1960, Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end, Have agreed as follows: END QUOTE Racial Discrimination Act 1975 Act No. 52 of 1975
.
10
15
20
25
30
35
40
45
50
55
60
It should be understood that while the parliament is not obliugated whatsoever to discriminate against any race and so not required to legislate in that regard the legal principle embedded in the constitution is however that if it does it can only legislate against the particular race and not against the general community! This means any racial discrimination legislation that is against the general community such as not to discriminate against a particular race is unconstitutional and so without legal force. Hence, any state that purportedly has legislated as to
prohibiting racial discrimination finds it is ULTRA VIRES as it has no longer any legislative powers from the time the Commonwealth originally commenced to legislate as to a race.
.
HANSARD 28-1-1898 Constitution Convention Debates QUOTE Mr. ISAACS.-What is the meaning of the statement that the state cannot legislate for the whole general community? Mr. BARTON.-That is by way of description. A law made by the state does not apply to the general community.
10
[start page 254] Sir JOHN DOWNER.-My argument is that deemed necessary means deemed necessary by the Parliament of the Commonwealth. Assuming that I am right, I ask to whom does this clause extend? The persons named by an Act of the Commonwealth Parliament. When the Commonwealth Parliament deals with this subject, its legislation will over-ride any local legislation, no matter whether you put the provision in clause 52 or leave it in clause 53 END QUOTE
.
15
20
25
30
The States are individually and not having legislative powers as to the general community being all residents within the Commonwealth of Australia but neither can go against the rights of citizens embedded in the constitution. As such the moment the Commonwealth exercised its legislative powers as to any race then the race power of legislation by any state was extinguished, hence cannot be used to act contrary to the constitution powers to legislate to deprive the right to racial discriminate. While in todays contemporary society racial discrimination may not be desirable it is however ongoing exercised but generally in reverse than what was intended by the Framers of the Constitution, as it is used to the benefit of races against the general community! This is also why deep seated racial tensions are created and are an underlying problem why riots may eventuate because Australians born and bred in Australia just, and rightfully so, do not accept reverse racial discrimination where this is contrary to the legal principles embedded in the constitution.
.
35
40
45
Anyone who opposes racial discrimination can only be fairdi8nkum if he/she also opposes reverse-discrimination but you will find that those who are on the race-equality bandwagon then are promoting all kinds of racial benefits they pursue for a particular race adverse to the rest of the general community. . Even this purported sorry by the then prime minister Kevin Rudd was a utter nonsense as he had no constitutional position to apologise on behalf of the parliament as he is not the Parliament as the speaker of the house of Representatives and the President of the Senate only have such a power and only if it relates to their function and not as to legislation that may have been enacted long ago. As I pointed out at the time what was the SORRY about when he at the same time, albeit UNCONSTITUTIONALLY, robbed Aboriginals of their rights such as with the unconstitutional Northern Territory Intervention Act? As I also pointed out half case children were not just those of Aboriginals but involved other races also and as such who was he to single lout an apology to Aboriginals anyhow and disregard the other races that were involved? It seemed to me therefore to be more like a political conquest to pretend to care but not doing so genuinely as a voter attraction.
.
50
Hansard 1-3-1898 Constitution Convention Debates QUOTE Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate provisions for the amendment of the Constitution? Why should we not say that the Constitution may be amended in any way that the Ministries of the several colonies may unanimously agree? Why have this provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to occupy a few minutes in discussing it. END QUOTE
.
10
15
20
25
30
35
40
45
50
Hansard 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people through their Parliament the power of the purse-laying at their mercy from day to day the existence of any Ministry which dares by corruption, or drifts through ignorance into, the commission of any act which is unfavorable to the people having this security, it must in its very essence be a free Constitution. Whatever any one may say to the contrary that is secured in the very way in which the freedom of the British Constitution is secured. It is secured by vesting in the people, through their representatives, the power of the purse, and I venture [start page 2477] to say there is no other way of securing absolute freedom to a people than that, unless you make a different kind of Executive than that which we contemplate, and then overload your Constitution with legislative provisions to protect the citizen from interference. Under this Constitution he is saved from every kind of interference. Under this Constitution he has his voice not only in the, daily government of the country, but in the daily determination of the question of whom is the Government to consist. There is the guarantee of freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every one has sought to strengthen. How we or our work can be accused of not providing for the popular liberty is something which I hope the critics will now venture to explain, and I think I have made their work difficult for them. Having provided in that way for a free Constitution, we have provided for an Executive which is charged with the duty of maintaining the provisions of that Constitution; and, therefore, it can only act as the agents of the people. We have provided for a Judiciary, which will determine questions arising under this Constitution, and with all other questions which should be dealt with by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states that choose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free: next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly, that the Constitution shall not, nor shall any of its provisions, be twisted or perverted, inasmuch as a court appointed by their own Executive, but acting independently, is to decide what is a perversion of its provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it; but it is appointed for the purpose of saying that those who are the instruments of the Constitution-the Government and the Parliament of the day-shall not become the masters of those whom, as to the Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, the court you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of constitutional action, the Commonwealth from dominating the states, or the states from usurping the sphere of the Commonwealth. Having provided for all these things, I think this Convention has done well. END QUOTE
.
Hansard 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.-
55
60
What I mean is this: That if you, after making a Constitution of this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom which it gives your people will not be maintained; END QUOTE . QUOTE
St. Maximilian faced with conscription, refused, saying,

"I will not be a soldier of this world, for I am a soldier of Christ." He was beheaded.6
END QUOTE
5Forest, Catholics and Conscientious Objection.
http://www.vaccineinfo.net/exemptions/relexemptlet.shtml
QUOTE
10
Hints for Religious Exemptions to Immunization Please read the text below before you download, print, or use the sample religious exemption letter and support materials provided in the following link: Sample Religious Exemption Letter and Supporting Documentation Refer to the statutes. The laws require that immunization must conflict with the tenets and practices of a recognized or organized religion of which you are an adherent or member. However, the law does not require you to name a religion at all. In fact, disclosing your religion could cause your religious exemption to be challenged.
END QUOTE
15
20
And http://www.vaccineinfo.net/exemptions/relexemptlet.shtml
QUOTE
25
Some schools and daycares attempt to require you to give far more information than required by law. You are not required by law to fill out any form letters from a school or daycare. The law allows you to submit your own letter and the letter only needs to meet the bare requirements of the law. Keep it simple; do not feel you need to describe your religious beliefs here as that also is not required by law.
END QUOTE
And http://www.vaccineinfo.net/exemptions/relexemptlet.shtml 30
QUOTE
Many times, when a school or day care questions your exemption, they are merely unfamiliar with the law or trying to coerce you to go against your beliefs by deliberately misrepresenting the law. They are betting on the fact that you don't know your rights. 35
END QUOTE
40
45
What appears to be clear is that a religious objection is not qualified to a specific religion and neither can be as this would in fact offend Section 116 of the Constitution. Neither can it be associated with any particular religion as this would also interfere with Section 116 of the Constitution. Likewise, any person objecting under the religious objection Subsection 245(14) of the Commonwealth Electoral Act 1918 neither can be required to be a religious person as this would also offend Section 116 of the Constitution, as the equivalent in WELSH v. UNITED STATES, 398 U.S. 333 (1970), 398 U.S. 333 made clear that it (the religious objection applies as much to non religious persons as religious persons. Therefore, anyone objection for his/her personal reasons to vote clearly is entitled to do so regardless of having any specific religion mentioned.
.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=398&invol=333
QUOTE WELSH v. UNITED STATES, 398 U.S. 333 (1970) 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
U.S. Supreme Court WELSH v. UNITED STATES, 398 U.S. 333 (1970) 398 U.S. 333 WELSH v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 76. Argued January 20, 1970 Decided June 15, 1970 Petitioner was convicted of refusing to submit to induction into the Armed Forces despite his claim for conscientious objector status under 6 (j) of the Universal Military Training and Service Act. That provision exempts from military service persons who by reason of "religious training and belief" are conscientiously opposed to war in any form, that term being defined in the Act as "belief in a relation to a supreme Being involving duties superior to those arising from any human relation" but not including "essentially political, sociological, or philosophical views or a merely personal code." In his exemption application petitioner stated that he could not affirm or deny belief in a "Supreme Being" and struck the words "my religious training and" from the form. He affirmed that he held deep conscientious scruples against participating in wars where people were killed. The Court of Appeals, while noting that petitioner's "beliefs are held with the strength of more traditional religious convictions," concluded that those beliefs were not sufficiently "religious" to meet the terms of 6 (j), and affirmed the conviction. Petitioner contends that the Act violates the First Amendment prohibition of establishment of religion and that his conviction should be set aside on the basis of United States v. Seeger, 380 U.S. 163 , which held that the test of religious belief under 6 (j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. Held: The judgment is reversed. Pp. 335-367. 404 F.2d 1078, reversed. MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL, concluded that: This case is controlled by United States v. Seeger, supra, to which it is factually similar. Under Seeger, 6 (j) is not limited to those whose opposition to war is prompted by orthodox or parochial religious beliefs. A registrant's conscientious objection to all war is "religious" within the meaning of 6 (j) if this [398 U.S. 333, 334] opposition stems from the registrant's moral, ethical, or religious beliefs about what is right and wrong and these beliefs are held with the strength of traditional religious convictions. In view of the broad scope of the word "religious," a registrant's characterization of his beliefs as "nonreligious" is not a reliable guide to those administering the exemption. Pp. 335-344. MR. JUSTICE HARLAN concluded that: 1. The language of 6 (j) cannot be construed (as it was in United States v. Seeger, supra, and as it is in the prevailing opinion) to exempt from military service all individuals who in good faith oppose all war, it being clear from both the legislative history and textual analysis of that provision that Congress used the words "by reason of religious training and belief" to limit religion to its theistic sense and to confine it to formal, organized worship or shared beliefs by a recognizable and cohesive group. Pp. 348-354. 2. The question of the constitutionality of 6 (j) cannot be avoided by a construction of that provision that is contrary to its intended meaning. Pp. 354-356. 3. Section 6 (j) contravenes the Establishment Clause of the First Amendment by exempting those whose conscientious objection claims are founded on a theistic belief
10
15
20
25
30
35
40
45
50
while not exempting those whose claims are based on a secular belief. To comport with that clause an exemption must be "neutral" and include those whose belief emanates from a purely moral, ethical, or philosophical source. Pp. 356-361. 4. In view of the broad discretion conferred by the Act's severability clause and the longstanding policy of exempting religious conscientious objectors, the Court, rather than nullifying the exemption entirely, should extend its coverage to those like petitioner who have been unconstitutionally excluded from its coverage. Pp. 361-367.
END QUOTE WELSH v. UNITED STATES, 398 U.S. 333 (1970)
Again 10
QUOTE WELSH v. UNITED STATES, 398 U.S. 333 (1970)
4. In view of the broad discretion conferred by the Act's severability clause and the longstanding policy of exempting religious conscientious objectors, the Court, rather than nullifying the exemption entirely, should extend its coverage to those like petitioner who have been unconstitutionally excluded from its coverage. Pp. 361-367. 15
END QUOTE WELSH v. UNITED STATES, 398 U.S. 333 (1970)
.
http://members.macconnect.com/users/k/knelson/co/co.html
QUOTE
.
20
"By Reason of Religious Training and Belief..." A History of Conscientious Objection and Religion during the Vietnam War By Karl D. Nelson The Development of Conscientious Objection Through World War I
25
30
Since the Protestant Reformation, most conscientious objectors have come from the pacifist strain of Christianity, which was embodied in the "historic peace churches." These churches, emulating the early Christian church's pacifism, brought conscientious objection to America in the colonial period. American military and political authorities have frequently granted exemptions to these objectors, although before the Civil War such policy was made at the local level. Through World War I, only members of the historic peace churches qualified for conscientious objector status. Early Pacifism From its inception, the notion of conscientious objection has been tied to religion. The early Christian church, following Jesus' teachings against killing, appears to have been mostly pacifist. 1
35
The church was even censured for its position. A Roman chastised the Christians in 173 AD:"If all men were to do as you, there would be nothing to prevent the emperor from being left in utter solitude and desertion and the forces of the empire would fall into the hands of the most lawless barbarians."2 The pacifist stance was not entirely unanimous in the church, for tombstones of Christian soldiers dating to the late second century have been uncovered.3
40
As time went by, the number of Christians in military service increased, especially after the Roman emperor Constantine embraced Christianity in 313 AD. The church, however, still maintained its pacifist character, urging its members not to join the army and telling military converts not to kill.4
45
Church leaders excluded those who had killed in battle from the sacrament of Holy Communion for three years.5 conscription, faced a difficult choice. Some, undoubtedly, entered the military. Others, like St. Maximilian, refused, saying, "I will not be a soldier of this world, for I am a soldier of Christ."He was beheaded.6 The division in the early Christian church on military matters slowly solidified into three basic positions. One wing remained true to the early church's pacifist convictions. Another group embraced the "just war" tradition. The third tradition, best viewed in the medieval church-sanctioned Crusades, embraced war. 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
50
As a result of the Protestant Reformation, the pacifist wing of Christendom evolved into what became known as the "historic peace churches."The most dominant of these churches were the Anabaptists, the Brethren, and the Quakers. These sects rejected the institutional Roman church in favor of the model seen in the early Christian church.
The Anabaptists, a collection of Protestant groups spawned by the Reformation, maintained the pacifist tradition of first century Christians. Mennonite, Amish, and Hutterite sects rejected those beliefs and practices of Catholicism and Protestantism that they believed were not biblically grounded. Specifically, they rejected infant baptism in favor of adult baptism. These Anabaptists withdrew from affairs of the state, preferring to live in closed communities apart from the secular world. They were considered quite unorthodox, and Anabaptist groups have often been persecuted by Catholics and Protestants alike.7 Another group that is included with the historic peace churches is the Church of the Brethren. The Brethren share many of the same principles with the Anabaptists. This sect originated much later, in the earlyeighteenth century.8
10
15
The Society of Friends, commonly called the Quakers, was founded by George Fox in mid-seventeenth century England. The Quakers emerged from left-wing Puritanism. They minimized liturgy and emphasized the role of Christ and the grace of God. 9 withdraw from society, the Quakers were politically active.10 Where the Mennonites tended to Mennonites, Brethren and Quakers, although originating in Europe, represented the majority of pacifists in the United States well into the twentieth century. The historic peace churches were traditionally small, unorthodox groups, articulating a consistent position against war. The pacifist position was never in the majority. Mainstream religious groups rejected the pacifism of the early church and the peace church fringe. Mainstream churches instead took two different positions, one accepting war and the other accepting only "just war." The "just war" idea can be traced back to the first century B.C. Roman pagan Cicero. Cicero laid out several rules that one could apply in a situation to decide if a given conflict was just or unjust. His arguments were taken up by Christian philosophers, namely Tertullian, Origen, Aquinas, Augustine, and later Vitoria, Bellarmine and Suarez. As the theory took shape in the sixteenth century, it had four elements:the war must be declared by those in authority; the cause must be just; the warring states should seek to further good or destroy evil; and, the war must "be fought by proper means."Other clauses were often added, such as the protection of innocents, and that war is to be used a last resort.11 The more militant group of mainstream Christians accepted, and even encouraged, the use of force for religious reasons. John Ferguson cites an ancient German poem that exalts Simon Peter for using his sword to defend Jesus on the night he was betrayed.12 This tradition is exemplified in the Crusades. The Crusades, which dominated European and Mid-East political and religious life from the eleventh to the thirteenth centuries, was a series of wars with the purpose of re-capturing Palestine (a "holy land" for Christians, Jews, and Moslems) from the Moslems. Not only were these wars blessed by the Catholic Church hierarchy, but a number of military monastic orders sprang up with the expressed purpose of fighting for Christ. There is another element in the religious debate on war and peace that runs throughout all three positions: nationalism. At times, nationalistic issues do more to dictate an individual's response to a war than religious belief. Ferguson writes, "[t]he historic association of the Christian faith with nations of commercial enterprise, imperialistic expansion and technological advancement has meant that Christian peoples, although their faith is one of the most pacifistic in its origins, have a record of military activity second to none."13 The flag has historically occupied an important position in the church, and churchmen have frequently endorsed and approved of warfare. Conscientious Objection In Early America
20
25
30
35
40
45
50
Many early immigrants to America sought religious freedom. Among these were some members of the historic peace churches.14 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
A few Quakers immigrated from England in 1656, with more to follow.15
Anabaptist immigration came in a number of waves. Dutch and German Mennonites arrived as early as 1683. Settling in Pennsylvania, Mennonite immigration continued until 1760. Included in this group were the Amish, a more conservative group within the Mennonite tradition. Later, large numbers of Russian Mennonites immigrated to America in the 1870s. These Mennonites, many of whom had originally moved to Russia to avoid military service in Germany, now fled an increasingly unfriendly Czar. 16 All of these groups, hoping to avoid the persecution of their beliefs in Europe, were drawn to America by promises of religious freedom.
10
15
20
25
30
35
1See the "Sermon on the Mount," Matthew, chapters 5-7. Examples of Jesus' teachings that promote the pacifist idea are:"But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you"(Matthew 5:44) and "Blessed are the peacemakers: for they shall be called the children of God."(Matthew 5:9). 2James H. Forest, Catholics and Conscientious Objection(New York: Catholic Peace Fellowship, pamphlet, 1981). 3Ibid. 4John Ferguson, War and Peace in the World's Religions(New York: Oxford University Press, 1978), 103-4. 5Forest, Catholics and Conscientious Objection. 6Ibid. 7For more information on Anabaptists, see Kenneth Scott Latourette, A History of Christianity(New York:Harper and Brothers, 1953), chapter XXXIV. 8Ibid., 786. 9Sydney E. Ahlstrom, A Religious History of the American People(New Haven:Yale University Press, 1972), 177. 10Ferguson, War and Peace,113. 11Ibid., 103-104, 110-111. 12Ibid.,106. 13Ibid.,122. 14Moskos and Chambers, New Conscientious Objection,25. 15Lillian Schlissel, comp., Conscience in America: a Documentary History of Conscientious Objection in America, 1757- 1967(New York : Dutton, 1968), 17. 16Ahlstrom, Religious History, 232-234, 753. END QUOTE
.
The following is from the Victorian Hansard in regard of parliamentarian debates relating to religious objections, etc. . 40
http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraft=0&house=ASSE MBLY&speech=4604&activity=Second+Reading&title=JURIES+BILL&date1=15&date2=March&date3=2000&q uery=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%09and+data+contains+'OBJECTION'+%29%0a QUOTE Title JURIES BILL House ASSEMBLY Activity Second Reading Members NARDELLA Date 15 March 2000 Page 364 Mr NARDELLA (Melton) -The other exemption is religious dispensation. Again it is important. Some of my constituents who were brethren based in Melton came to see me about the bill. They wanted to maintain the dispensation for people like themselves who have a firm religious belief about not serving on juries. Again I believe that is appropriate and I am happy to see that provision remain. END QUOTE
.
45
50
55
60
http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraft=0&house=ASSE MBLY&speech=23768&activity=Second+Reading&title=EDUCATION+%28AMENDMENT%29+BILL&date1= 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
10
21&date2=October&date3=1998&query=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%09and+data+c ontains+'OBJECTION'+%29%0a QUOTE Title EDUCATION (AMENDMENT) BILL House ASSEMBLY Activity Second Reading Members MILDENHALL Date 21 October 1998 Page 608 Mr MILDENHALL (Footscray) -The Age editorial of 24 February probably got the balance right. The latter part of it says: A pluralist society such as ours demands more than freedom of religion and freedom from stateimposed religion. It requires respect for diversity, opportunity to exercise choice and tolerance of different faiths.
15
It would be wrong, for example, for schoolchildren to be compelled to take part in religious observances against their parents' wishes. The law makes it clear that such participation must be voluntary. On the other hand, Australia's Christian heritage cannot be erased or unduly confined. And such festivals as Christmas and Easter have in reality become events of popular culture as much as religious celebrations. The notion that state schoolchildren whose parents and teachers so wish should not be allowed to take part in an inoffensive Easter or Christmas pageant in a church hall because a few parents object is an affront to commonsense and reasonable tolerance. If the law is indeed so restrictive as to make such a free choice and popular event illegal, then the law is an ass. The government's instincts are right: the regulations -- or, if necessary, the law -- should be amended to give individual schools and communities more flexibility in such cases. That editorial probably has the balance and the arguments right. END QUOTE
.
20
25
30
35
http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraft=0&house=ASSE MBLY&speech=5105&activity=Second+Reading&title=HISTORIC+BUILDINGS+%28FURTHER+AMENDME NT%29+BILL&date1=28&date2=May&date3=1991&query=true%0a%09and+%28+data+contains+'RELIGIOUS' %0a%09and+data+contains+'OBJECTION'+%29%0a QUOTE Title HISTORIC BUILDINGS (FURTHER AMENDMENT) BILL House ASSEMBLY Activity Second Reading Members SPEAKER Date 28 May 1991 Page 2583 It is inappropriate for governments to interfere in religious observance. It is not for a former Methodist minister, with great respect to the Minister, to be telling His Grace the Catholic Archbishop of Melbourne whether he can have his high altar in the middle of the transept, in the northern end of the transept or anywhere else in the transept. Page 2587
40
45
Let religious belief and religious forms and observance be appropriate to the particular denomination. It is not for us to be telling the great Synagogue of Melbourne that it cannot do this or it cannot do that. It is not for us to tell a Muslim community how it will set up its mosque.
50
As a Parliament we must learn to respect other people's religious beliefs and the form of religious service they follow. If that means making changes to buildings which are their buildings and which they have looked after for generations and brought down the generations for us as part of our heritage, that respect is all important. That is fundamental in our community and will be fundamental in the coalition's approach to historic buildings legislation. END QUOTE
.
55
10
http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraft=0&house=COU NCIL&speech=13022&activity=Second+Reading&title=RACIAL+AND+RELIGIOUS+TOLERANCE+BILL&dat e1=14&date2=June&date3=2001&query=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%09and+data+c ontains+'OBJECTION'+%29%0a QUOTE Title RACIAL AND RELIGIOUS TOLERANCE BILL House Second Reading Activity COUNCIL Members NGUYEN Date 14 June 2001 Page 1484 It is in this context of the diverse Victorian community that I believe the Victorian people will support the promotion of legislation that seeks to enhance a tolerant society.
15
20
The bill is about promoting a tolerant society. I see this bill as being about creating rights and not taking away rights. There has been a lot said during the debate about the freedom of speech. Australia does not currently have a bill of rights, although I believe we should have one. We do not currently have unqualified rights to freedom of speech -- for example, we do not have the right to defame people, to harass or to intervene. There are already laws in place, as the Honourable Carlo Furletti indicated in his contribution, that deal with such Page 1490 instances. However, I agree with him that such laws do not cover many situations of verbal abuse.
25
Although we are not signatories to a bill of rights, we are signatories to a number of international treaties, including the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights. These documents not only endorse freedom of speech but also acknowledge that this right is tempered by the rights of others. Article 29 of the Universal Declaration of Human Rights states: (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Australia is a founding member of the General Assembly of the United Nations, and is a signatory to the Universal Declaration of Human Rights. Article 29 conveniently sets out the need for a balance between rights in our society, and I see this bill as not tempering any of our existing rights.
30
35
40
We do not have an unlimited right to free speech in this country. Given that we live in a community we should have regard to the rights of others, which is what the bill seeks to do. It is important to refer specifically to paragraph 3 of the preamble of the bill, which says, in part: However, some Victorians are vilified on the ground of their race or their religious belief or activity. Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, indigenous and religious backgrounds. It diminishes the dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community. END QUOTE
45
50
And
http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraft=0&house=COU NCIL&speech=13022&activity=Second+Reading&title=RACIAL+AND+RELIGIOUS+TOLERANCE+BILL&dat 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
e1=14&date2=June&date3=2001&query=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%09and+data+c ontains+'OBJECTION'+%29%0a QUOTE
The state is in danger of taking onto itself the power of deciding religious issues through state servants. I remind honourable members of section 116 of the federal constitution. I will read it because people with professional backgrounds have advised me that this bill may be subject to challenge -- it could be challenged as being invalid on the basis of section 116 of the Australian constitution. That section states: The commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the commonwealth. The notes that go with this publication on the constitution state: The section prohibits the commonwealth from doing four separate things: it may not: make a law for establishing a religion;
10
15
make a law for imposing a religious observance; make a law for prohibiting the free exercise of any religion ... Therefore I have real reservations about the validity and conformity of the bill as it relates to the constitution, which takes precedence over state legislation. It may indeed be subject to a finding of invalidity at a subsequent hearing.
20
END QUOTE
.
25
30
http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraft=0&speech=2644 &activity=Questions+without+Notice&title=Organ+donor+program&date1=3&date2=June&date3=1999&query=tr ue%0a%09and+%28+data+contains+'RELIGIOUS'%0a%09and+data+contains+'OBJECTION'+%29%0a QUOTE Title Organ donor program House COUNCIL Activity Questions without Notice Members VARTY; KNOWLES Date 3 June 1999 Page 1126 It is a fundamental issue for many in the community because organ donations can allow others to enjoy an increased life expectancy and provide an opportunity for those who do not have a cultural or religious objection to contribute to the community. END QUOTE
.
35
40
45
http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraft=0&house=COU NCIL&speech=18716&activity=Second+Reading&title=TERTIARY+EDUCATION+%28AMENDMENT%29+BI LL&date1=1&date2=June&date3=1994&query=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%09and+ data+contains+'OBJECTION'+%29%0a QUOTE Title TERTIARY EDUCATION (AMENDMENT) BILL House COUNCIL Activity Second Reading Members HOGG Date 1 June 1994 Page 1151 Hon. C. J. HOGG -- It is a problem when ministers are quoted as saying something they have not said when they have not read the document, and I shall refer to that later. I also double-checked the opting-out clause or the conscientious objection clause. In his student days the honourable member for Dandenong in another place was the general secretary of the student union at Monash University. I asked him what happened to the conscientious objection clause, and he informed me that every year 20 to 30 applications for exemption were approved and almost all of those applications were brought on religious grounds. 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
50
55
END QUOTE
.
10
http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraft=0&house=COU NCIL&speech=5190&activity=Second+Reading&title=JURIES+BILL&date1=5&date2=April&date3=2000&query =true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%09and+data+contains+'grounds'+%29%0a QUOTE Title JURIES BILL House COUNCIL Activity Second Reading Members FURLETTI Date 5 April 2000 Page 564 However, if a person's religious beliefs are incompatible with the concept of jury service, that person can apply for excusal on those grounds as good reason. There is the catch-all provision in the bill which refers to any other matters of special urgency or importance which can be cited as a ground for excusal. END QUOTE
15
20
25
30
35
. A problem that we now encounter is that with the High court of Australia having ruled that discrimination as to trades cannot be enforced and so a lawyer qualified in one State can practice in another State, something I quite frankly consider nonsense because a lawyer admitted to the Bar of the supreme Court of a particular State gives an oath to enforce that states legislative provisions and not that of another State in conflict. Still, when religious issues are included that may be legitimate for a State ordinary to enforce as it is not bound by s116 as this only binds the Commonwealth (unlike with the States in the U.S.A.) nevertheless the moment such religious practices are subject to state legislation but subjected to Commonwealth trade and commerce provisions then the States no longer can exercise for that, so far it conflicts with trade and commerce provisions. In my view the Framers of the constitution never sought to interfere with the internal sovereign rights of the States, other than what was provided for in the constitution but it has gone haywire because of the rulings by the judges of the High Court of Australia which really has nothing to do with trade and commerce because a solicitor based in say Queenslands is within that legal jurisdiction and cannot expect to be accepted as a solicitor in another State jurisdiction where provisions may be totally different. Indeed, I experienced solicitors of a state to not have a clue what was legally applicable in the State of Victoria and making errors upon errors and were really like amateurs in the litigation.
.
40
HANSARD 11-03-1891 Constitution Convention Debates QUOTE Mr. CLARK: What we want is a separate federal judiciary, allowing the state judiciaries to remain under their own governments. END QUOTE
.
45
Clearly it had nothing to do with trade and commerce and the framers of the constitution would so to say turn into their graves from utter horror as to how their carefully crafted constitution is so vandalised by the very court that is to protect it.
QUOTE WELSH v. UNITED STATES, 398 U.S. 333 (1970)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=398&invol=333
U.S. Supreme Court

50
WELSH v. UNITED STATES, 398 U.S. 333 (1970)

398 U.S. 333
WELSH v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 76. Argued January 20, 1970 Decided June 15, 1970
Petitioner was convicted of refusing to submit to induction into the Armed Forces despite his claim for conscientious objector status under 6 (j) of the Universal Military Training and Service Act. That provision exempts from military service persons who by reason of "religious training and belief" are conscientiously opposed to war in any form, that term being defined in the Act as "belief in a relation to a supreme Being involving duties superior to those arising from any human relation" but not including "essentially political, sociological, or philosophical views or a merely personal code." In his exemption application petitioner stated that he could not affirm or deny belief in a "Supreme Being" and struck the words "my religious training and" from the form. He affirmed that he held deep conscientious scruples against participating in wars where people were killed. The Court of Appeals, while noting that petitioner's "beliefs are held with the strength of more traditional religious convictions," concluded that those beliefs were not sufficiently "religious" to meet the terms of 6 (j), and affirmed the conviction. Petitioner contends that the Act violates the First Amendment prohibition of establishment of religion and that his conviction should be set aside on the basis of United States v. Seeger, 380 U.S. 163 , which held that the test of religious belief under 6 (j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. Held: The judgment is reversed. Pp. 335-367. 404 F.2d 1078, reversed. MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL, concluded that: This case is controlled by United States v. Seeger, supra, to which it is factually similar. Under Seeger, 6 (j) is not limited to those whose opposition to war is prompted by orthodox or parochial religious beliefs. A registrant's conscientious objection to all war is "religious" within the meaning of 6 (j) if this [398 U.S. 333, 334] opposition stems from the registrant's moral, ethical, or religious beliefs about what is right and wrong and these beliefs are held with the strength of traditional religious convictions. In view of the broad scope of the word "religious," a registrant's characterization of his beliefs as "nonreligious" is not a reliable guide to those administering the exemption. Pp. 335-344. MR. JUSTICE HARLAN concluded that: 1. The language of 6 (j) cannot be construed (as it was in United States v. Seeger, supra, and as it is in the prevailing opinion) to exempt from military service all individuals who in good faith oppose all war, it being clear from both the legislative history and textual analysis of that provision that Congress used the words "by reason of religious training and belief" to limit religion to its theistic sense and to confine it to formal, organized worship or shared beliefs by a recognizable and cohesive group. Pp. 348-354. 2. The question of the constitutionality of 6 (j) cannot be avoided by a construction of that provision that is contrary to its intended meaning. Pp. 354-356. 3. Section 6 (j) contravenes the Establishment Clause of the First Amendment by exempting those whose conscientious objection claims are founded on a theistic belief while not exempting those whose claims are based on a secular belief. To comport with that clause an exemption must be "neutral" and include those whose belief emanates from a purely moral, ethical, or philosophical source. Pp. 356-361. 4. In view of the broad discretion conferred by the Act's severability clause and the longstanding policy of exempting religious conscientious objectors, the Court, rather than nullifying the exemption entirely, should extend its coverage to those like petitioner who have been unconstitutionally excluded from its coverage. Pp. 361-367. J. B. Tietz argued the cause and filed briefs for petitioner. Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Francis X. Beytagh, Jr., and Beatrice Rosenberg. [398 U.S. 333, 335] MR. JUSTICE BLACK announced the judgment of the Court and delivered an opinion in which MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join. The petitioner, Elliott Ashton Welsh II, was convicted by a United States District Judge of refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. 462 (a), and was on June 1, 1966, sentenced to imprisonment for three years. One of petitioner's defenses to the prosecution was that 6 (j) of the Universal Military Training and Service Act exempted him from combat and noncombat service because he was "by reason of religious training and belief . . . conscientiously opposed to participation in war in any form." 1 After finding that there was no religious basis for petitioner's conscientious objector claim, the Court of Appeals, Judge Hamley dissenting, affirmed the conviction. 404 F.2d 1078 (1968). We granted certiorari chiefly to review the contention that Welsh's conviction should be set aside on the basis of this Court's decision in United States v. Seeger, 380 U.S. 163 (1965). 396 U.S. 816 (1969). For the reasons to be stated, and without passing upon the constitutional arguments that have 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
10
15
20
25
30
35
40
45
50
55
60
10
15
20
25
30
35
40
45
50
55
60
been raised, we vote to reverse this conviction because of its fundamental inconsistency with United States v. Seeger, supra. The controlling facts in this case are strikingly similar to those in Seeger. Both Seeger and Welsh were brought up in religious homes and attended church in their childhood, but in neither case was this church one which taught its members not to engage in war at any time for [398 U.S. 333, 336] any reason. Neither Seeger nor Welsh continued his childhood religious ties into his young manhood, and neither belonged to any religious group or adhered to the teachings of any organized religion during the period of his involvement with the Selective Service System. At the time of registration for the draft, neither had yet come to accept pacifist principles. Their views on war developed only in subsequent years, but when their ideas did fully mature both made application to their local draft boards for conscientious objector exemptions from military service under 6 (j) of the Universal Military Training and Service Act. That section then provided, in part: 2 "Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code." In filling out their exemption applications both Seeger and Welsh were unable to sign the statement that, as printed in the Selective Service form, stated "I am, by reason of my religious training and belief, conscientiously [398 U.S. 333, 337] opposed to participation in war in any form." Seeger could sign only after striking the words "training and" and putting quotation marks around the word "religious." Welsh could sign only after striking the words "my religious training and." On those same applications, neither could definitely affirm or deny that he believed in a "Supreme Being," both stating that they preferred to leave the question open. 3 But both Seeger and Welsh affirmed on those applications that they held deep conscientious scruples against taking part in wars where people were killed. Both strongly believed that killing in war was wrong, unethical, and immoral, and their consciences forbade them to take part in such an evil practice. Their objection to participating in war in any form could not be said to come from a "still, small voice of conscience"; rather, for them that voice was so loud and insistent that both men preferred to go to jail rather than serve in the Armed Forces. There was never any question about the sincerity and depth of Seeger's convictions as a conscientious objector, and the same is true of Welsh. In this regard the Court of Appeals noted, "[t]he government concedes that [Welsh's] beliefs are held with the strength of more traditional religious convictions." 404 F.2d, at 1081. But in both cases the Selective Service System concluded that the beliefs of these men were in some sense insufficiently "religious" to qualify them for conscientious objector exemptions under the terms of 6 (j). Seeger's conscientious objector claim was denied "solely because it was not based upon a `belief in a relation to a Supreme Being' as required by 6 (j) of the Act," United States v. Seeger, 380 U.S. 163, 167 (1965), while Welsh was [398 U.S. 333, 338] denied the exemption because his Appeal Board and the Department of Justice hearing officer "could find no religious basis for the registrant's beliefs, opinions and convictions." App. 52. Both Seeger and Welsh subsequently refused to submit to induction into the military and both were convicted of that offense. In Seeger the Court was confronted, first, with the problem that 6 (j) defined "religious training and belief" in terms of a "belief in a relation to a Supreme Being . . .," a definition that arguably gave a preference to those who believed in a conventional God as opposed to those who did not. Noting the "vast panoply of beliefs" prevalent in our country, the Court construed the congressional intent as being in "keeping with its long-established policy of not picking and choosing among religious beliefs," id., at 175, and accordingly interpreted "the meaning of religious training and belief so as to embrace all religions . . . ." Id., at 165. (Emphasis added.) But, having decided that all religious conscientious objectors were entitled to the exemption, we faced the more serious problem of determining which beliefs were "religious" within the meaning of the statute. This question was particularly difficult in the case of Seeger himself. Seeger stated that his was a "belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed." 380 U.S., at 166 . In a letter to his draft board, he wrote: "My decision arises from what I believe to be considerations of validity from the standpoint of the welfare of humanity and the preservation of the democratic values which we in the United States are struggling to maintain. I have concluded that war, from the practical standpoint, is futile and self-defeating and that from the more important moral standpoint it is unethical." 326 F.2d 846, 848 (1964). [398 U.S. 333, 339] On the basis of these and similar assertions, the Government argued that Seeger's conscientious objection to war was not "religious" but stemmed from "essentially political, sociological, or philosophical views or a merely personal moral code." In resolving the question whether Seeger and the other registrants in that case qualified for the exemption, the Court stated that "[the] task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious." 380 U.S., at 185 . (Emphasis added.) The reference to the registrant's "own scheme of things" was intended to indicate that the central consideration in determining whether the registrant's beliefs are religious is whether these beliefs play the role of a religion and function as a religion in the 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
10
15
20
25
30
35
40
45
50
55
60
registrant's life. The Court's principal statement of its test for determining whether a conscientious objector's beliefs are religious within the meaning of 6 (j) was as follows: "The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition." 380 U.S., at 176 . The Court made it clear that these sincere and meaningful beliefs that prompt the registrant's objection to all wars need not be confined in either source or content to traditional or parochial concepts of religion. It held that 6 (j) "does not distinguish between externally and internally derived beliefs," id., at 186, and also held that "intensely personal" convictions which some might find "incomprehensible" or "incorrect" come within the meaning of "religious belief" in the Act. Id., at 184-185. What is necessary under Seeger for a registrant's conscientious [398 U.S. 333, 340] objection to all war to be "religious" within the meaning of 6 (j) is that this opposition to war stem from the registrant's moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions. Most of the great religions of today and of the past have embodied the idea of a Supreme Being or a Supreme Reality - a God - who communicates to man in some way a consciousness of what is right and should be done, of what is wrong and therefore should be shunned. If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual "a place parallel to that filled by . . . God" in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a "religious" conscientious objector exemption under 6 (j) as is someone who derives his conscientious opposition to war from traditional religious convictions. Applying this standard to Seeger himself, the Court noted the "compulsion to `goodness'" that shaped his total opposition to war, the undisputed sincerity with which he held his views, and the fact that Seeger had "decried the tremendous `spiritual' price man must pay for his willingness to destroy human life." 380 U.S., at 186 -187. The Court concluded: "We think it clear that the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers." 380 U.S., at 187 . Accordingly, the Court found that Seeger should be granted conscientious objector status. In the case before us the Government seeks to distinguish our holding in Seeger on basically two grounds, [398 U.S. 333, 341] both of which were relied upon by the Court of Appeals in affirming Welsh's conviction. First, it is stressed that Welsh was far more insistent and explicit than Seeger in denying that his views were religious. For example, in filling out their conscientious objector applications, Seeger put quotation marks around the word "religious," but Welsh struck the word "religious" entirely and later characterized his beliefs as having been formed "by reading in the fields of history and sociology." App. 22. The Court of Appeals found that Welsh had "denied that his objection to war was premised on religious belief" and concluded that "[t]he Appeal Board was entitled to take him at his word." 404 F.2d, at 1082. We think this attempt to distinguish Seeger fails for the reason that it places undue emphasis on the registrant's interpretation of his own beliefs. The Court's statement in Seeger that a registrant's characterization of his own belief as "religious" should carry great weight, 380 U.S., at 184 , does not imply that his declaration that his views are nonreligious should be treated similarly. When a registrant states that his objections to war are "religious," that information is highly relevant to the question of the function his beliefs have in his life. But very few registrants are fully aware of the broad scope of the word "religious" as used in 6 (j), and accordingly a registrant's statement that his beliefs are nonreligious is a highly unreliable guide for those charged with administering the exemption. Welsh himself presents a case in point. Although he originally characterized his beliefs as nonreligious, he later upon reflection wrote a long and thoughtful letter to his Appeal Board in which he declared that his beliefs were "certainly religious in the ethical sense of the word." He explained: "I believe I mentioned taking of life as not being, for me, a religious wrong. Again, I assumed Mr. [Brady (the Department of Justice hearing [398 U.S. 333, 342] officer)] was using the word `religious' in the conventional sense, and, in order to be perfectly honest did not characterize my belief as `religious.'" App. 44. The Government also seeks to distinguish Seeger on the ground that Welsh's views, unlike Seeger's were "essentially political, sociological, or philosophical views or a merely personal moral code." As previously noted, the Government made the same argument about Seeger, and not without reason, for Seeger's views had a substantial political dimension. Supra, at 338-339. In this case, Welsh's conscientious objection to war was undeniably based in part on his perception of world politics. In a letter to his local board, he wrote: "I can only act according to what I am and what I see. And I see that the military complex wastes both human and material resources, that it fosters disregard for (what I consider a paramount concern) human needs and ends; I see that the means we employ to `defend' our `way of life' profoundly change that way of life. I see that in our failure to recognize the political, social, and economic realities of the world, we, as a nation, fail our responsibility as a nation." App. 30. We certainly do not think that 6 (j)'s exclusion of those persons with "essentially political, sociological, or philosophical views or a merely personal moral code" should be read to exclude those who hold strong beliefs about 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
10
15
20
25
our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy. The two groups of registrants that obviously do fall within these exclusions from the exemption are those whose beliefs are not deeply held and those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon [398 U.S. 333, 343] considerations of policy, pragmatism, or expediency. In applying 6 (j)'s exclusion of those whose views are "essentially political, sociological, or philosophical" or of those who have a "merely personal moral code," it should be remembered that these exclusions are definitional and do not therefore restrict the category of persons who are conscientious objectors by "religious training and belief." Once the Selective service System has taken the first step and determined under the standards set out here and in Seeger that the registrant is a "religious" conscientious objector, it follows that his views cannot be "essentially political, sociological, or philosophical." Nor can they be a "merely personal moral code." See United States v. Seeger, 380 U.S., at 186 . Welsh stated that he "believe[d] the taking of life - anyone's life - to be morally wrong." App. 44. In his original conscientious objector application he wrote the following: "I believe that human life is valuable in and of itself; in its living; therefore I will not injure or kill another human being. This belief (and the corresponding `duty' to abstain from violence toward another person) is not `superior to those arising from any human relation.' On the contrary: it is essential to every human relation. I cannot, therefore, conscientiously comply with the Government's insistence that I assume duties which I feel are immoral and totally repugnant." App. 10. Welsh elaborated his beliefs in later communications with Selective Service officials. On the basis of these beliefs and the conclusion of the Court of Appeals that he held them "with the strength of more traditional religious convictions," 404 F.2d, at 1081, we think Welsh was clearly entitled to a conscientious objector exemption. Section [398 U.S. 333, 344] 6 (j) requires no more. That section exempts from military service all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war. The judgment is Reversed. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. Footnotes [ Footnote 1 ] 62 Stat. 612. See also 50 U.S.C. App. 456 (j). The pertinent provision as it read during the period relevant to this case is set out infra, at 336. [ Footnote 2 ] 62 Stat. 612. An amendment to the Act in 1967, subsequent to the Court's decision in the Seeger case, deleted the reference to a "Supreme Being" but continued to provide that "religious training and belief" does not include "essentially political, sociological, or philosophical views, or a merely personal moral code." 81 Stat. 104, 50 U.S.C. App. 456 (j) (1964 ed., Supp. IV). [ Footnote 3 ] In his original application in April 1964, Welsh stated that he did not believe in a Supreme Being, but in a letter to his local board in June 1965, he requested that his original answer be stricken and the question left open. App. 29. MR. JUSTICE HARLAN, concurring in the result. Candor requires me to say that I joined the Court's opinion in United States v. Seeger, 380 U.S. 163 (1965), only with the gravest misgivings as to whether it was a legitimate exercise in statutory construction, and today's decision convinces me that in doing so I made a mistake which I should now acknowledge. 1 In Seeger the Court construed 6 (j) of the Universal Military Training and Service Act so as to sustain a conscientious objector claim not founded on a theistic belief. The Court, in treating with the provision of the statute that limited conscientious objector claims to those stemming from belief in "a Supreme Being," there said: "Congress, in using the expression `Supreme Being' rather than the designation `God,' was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views," and held that the test of belief "ìn a relation to a Supreme Being' is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox [398 U.S. 333, 345] belief in God of one who clearly qualifies for the exemption." 380 U.S., at 165 -166. Today the prevailing opinion makes explicit its total elimination of the statutorily required religious content for a conscientious objector exemption. The prevailing opinion now says: "If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time" (emphasis added), he qualifies for a 6 (j) exemption. In my opinion, the liberties taken with the statute both in Seeger and today's decision cannot be justified in the name of the familiar doctrine of construing federal statutes in a manner that will avoid possible constitutional infirmities in them. There are limits to the permissible application of that doctrine, and, as I will undertake to show in this opinion, those limits were crossed in Seeger, and even more apparently have been exceeded in the present case. I therefore find myself unable to escape facing the constitutional issue that this case squarely presents: whether 6 (j) in limiting this draft exemption to those opposed to war in general because of theistic beliefs runs afoul of the religious clauses of the First Amendment. For reasons later appearing I believe it does, and on that basis I concur in the judgment 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
30
35
40
45
50
55
60
reversing this conviction, and adopt the test announced by MR. JUSTICE BLACK, not as a matter of statutory construction, but as the touchstone for salvaging a congressional policy of long standing that would otherwise have to be nullified. I Section 6 (j) provided during the period relevant to this case: "Nothing contained in this title shall be construed to require any person to be subject to combatant [398 U.S. 333, 346] training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code." Universal Military Training and Service Act of 1948, 6 (j), 62 Stat. 612, 50 U.S.C. App. 456 (j). The issue is then whether Welsh's opposition to war is founded on "religious training and belief" and hence "belief in a relation to a Supreme Being" as Congress used those words. It is of course true that certain words are more plastic in meaning than others. "Supreme Being" is a concept of theology and philosophy, not a technical term, and consequently may be, in some circumstances, capable of bearing a contemporary construction as notions of theology and philosophy evolve. Cf. United States v. Storrs, 272 U.S. 652 (1926). This language appears, however, in a congressional enactment; it is not a phrase of the Constitution, like "religion" or "speech," which this Court is freer to construe in light of evolving needs and circumstances. Cf. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), and my concurring opinion in Estes v. Texas, 381 U.S. 532, 595 -596 (1965), and my opinion concurring in the judgment in Garner v. Louisiana, 368 U.S. 157, 185 (1961). Nor is it so broad a statutory directive, like that of the Sherman Act, that we may assume that we are free to adopt and shape policies limited only by the most general statement of purpose. Cf. e. g., Standard Oil Co. v. United States, 221 U.S. 1 (1911). It is Congress' will that must here be divined. In that endeavor [398 U.S. 333, 347] it is one thing to give words a meaning not necessarily envisioned by Congress so as to adapt them to circumstances also uncontemplated by the legislature in order to achieve the legislative policy, Holy Trinity Church v. United States, 143 U.S. 457 (1892); it is a wholly different matter to define words so as to change policy. The limits of this Court's mandate to stretch concededly elastic congressional language are fixed in all cases by the context of its usage and legislative history, if available, that are the best guides to congressional purpose and the lengths to which Congress enacted a policy. Rosado v. Wyman, 397 U.S. 397 (1970). 2 The prevailing opinion today snubs both guidelines for it is apparent from a textual analysis of 6 (j) and the legislative history that the words of this section, as used and understood by Congress, fall short of enacting the broad policy of exempting from military service all individuals who in good faith oppose all war. [398 U.S. 333, 348] A The natural reading of 6 (j), which quite evidently draws a distinction between theistic and nontheistic religions, is the only one that is consistent with the legislative history. Section 5 (g) of the 1940 Draft Act exempted individuals whose opposition to war could be traced to "religious training and belief," 54 Stat. 889, without any allusion to a Supreme Being. In United States v. Kauten, 133 F.2d 703 (C. A. 2d Cir. 1943), the Second Circuit, speaking through Judge Augustus Hand, broadly construed "religious training and belief" to include a "belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets." 133 F.2d, at 708. The view was further elaborated in subsequent decisions of the Second Circuit, see United States ex rel. Phillips v. Downer, 135 F.2d 521 (C. A. 2d Cir. 1943); United States ex rel. Reel v. Badt, 141 F.2d 845 (C. A. 2d Cir. 1944). This expansive interpretation of 5 (g) was rejected by a divided Ninth Circuit in Berman v. United States, 156 F.2d 377, 380-381 (1946): "It is our opinion that the expression `by reason of religious training and belief' . . . was written into the statute for the specific purpose of distinguishing between a conscientious social belief, or a sincere devotion to a high moralistic philosophy, and one based upon an individual's belief in his responsibility to an authority higher and beyond any worldly one. ..... "[I]n United States v. Macintosh, 283 U.S. 605 . . . Mr. [Chief] Justice Hughes in his dissent . . . said: `The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.'" [398 U.S. 333, 349] The unmistakable and inescapable thrust of the Berman opinion, that religion is to be conceived in theistic terms, is rendered no less straightforward by the court's elaboration on the difference between beliefs held as a matter of moral or philosophical conviction and those inspired by religious upbringing and adherence to faith. "There are those who have a philosophy of life, and who live up to it. There is evidence that this is so in regard to appellant. However, no matter how pure and admirable his standard may be, and no matter how devotedly he adheres to it, his philosophy and morals and social policy without the concept of deity cannot be said to be religion in the sense of that term as it is used in the statute. It is said in State v. Amana 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
10
15
20
25
30
35
40
45
50
55
10
15
Society, 132 Iowa 304, 109 N. W. 894, 898 . . .: `Surely a scheme of life designed to obviate such results (man's inhumanity to man), and by removing temptations, and all the inducements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service, ought not to be denounced as not pertaining to religion when its devotee regards it as an essential tenet of their [sic] religious faith.'" (Emphasis of Court of Appeals.) Ibid. In the wake of this intercircuit dialogue, crystallized by the dissent in Berman which espoused the Second Circuit interpretation in Kauten, supra, Congress enacted 6 (j) in 1948. That Congress intended to anoint the Ninth Circuit's interpretation of 5 (g) would seem beyond question in view of the similarity of the statutory language to that used by Chief Justice Hughes in his dissenting opinion in Macintosh and quoted in Berman and the Senate report. The first half of the new language was almost word for word that of Chief Justice Hughes in [398 U.S. 333, 350] Macintosh, and quoted by the Berman majority; 3 and the Senate Committee report adverted to Berman, thus foreclosing any possible speculation as to whether Congress was aware of the possible alternatives. The report stated: "This section reenacts substantially the same provisions as were found in subsection 5 (g) of the 1940 act. Exemption extends to anyone who, because of religious training and belief in his relationship to a Supreme Being, is conscientiously opposed to combatant military service or to both combatant and noncombatant military service. (See United States v. Berman [sic], 156 F. (2d) 377, certiorari denied, 329 U.S. 795 .)" S. Rep. No. 1268, 80th Cong., 2d Sess., 14. 4 [398 U.S. 333, 351] B Against this legislative history it is a remarkable feat of judicial surgery to remove, as did Seeger, the theistic requirement of 6 (j). The prevailing opinion today, however, in the name of interpreting the will of Congress, has performed a lobotomy and completely transformed the statute by reading out of it any distinction between religiously acquired beliefs and those deriving from "essentially political, sociological, or philosophical views or a merely personal moral code." In the realm of statutory construction it is appropriate to search for meaning in the congressional vocabulary in a lexicon most probably consulted by Congress. Resort to Webster's 5 reveals that the meanings of "religion" are: "1. The service and adoration of God or a god as expressed in forms of worship, in obedience to divine commands . . .; 2. The state of life of a religious . . .; 3. One of the systems of faith and worship; a form of theism; a religious faith . . .; 4. The profession or practice of religious beliefs; religious observances collectively; pl. rites; 5. Devotion or fidelity; . . . conscientiousness; [398 U.S. 333, 352] 6. An apprehension, awareness, or conviction of the existence of a supreme being, or more widely, of supernatural powers or influences controlling one's own, humanity's, or nature's destiny; also, such an apprehension, etc., accompanied by or arousing reverence, love, gratitude, the will to obey and serve, and the like . . . ." (Emphasis added.) Of the five pertinent definitions four include the notion of either a Supreme Being or a cohesive, organized group pursuing a common spiritual purpose together. While, as the Court's opinion in Seeger points out, these definitions do not exhaust the almost infinite and sophisticated possibilities for defining "religion," there is strong evidence that Congress restricted, in this instance, the word to its conventional sense. That it is difficult to plot the semantic penumbra of the word "religion" does not render this term so plastic in meaning that the Court is entitled, as matter of statutory construction, to conclude that any asserted and strongly held belief satisfies its requirements. It must be recognized that the permissible shadow of connotation is limited by the context in which words are used. In 6 (j) Congress has included not only a reference to a Supreme Being but has also explicitly contrasted "religious" beliefs with those that are "essentially political, sociological, or philosophical" and a "personal moral code." This exception certainly is, at the very least, the statutory boundary, the "asymptote," of the word "religion." 6 [398 U.S. 333, 353] For me this dichotomy reveals that Congress was not embracing that definition of religion that alone speaks in terms of "devotion or fidelity" to individual principles acquired on an individualized basis but was adopting, at least, those meanings that associate religion with formal, organized worship or shared beliefs by a recognizable and cohesive group. Indeed, this requirement was explicit in the predecessor to the 1940 statute. The Draft Act of 1917 conditioned conscientious objector status on membership in or affiliation with a "well-recognized religious sect or organization [then] organized and existing and whose existing creed or principles for[ade] its members to participate in war in any form . . . ." 4, 40 Stat 78. That 5 (g) of the 1940 Act eliminated the affiliation and membership requirement does not, in my view, mean as the Court, in effect, concluded in Seeger that Congress was embracing a secular definition of religion. 7 [398 U.S. 333, 354] Unless we are to assume an Alice-in-Wonderland world where words have no meaning, I think it fair to say that Congress' choice of language cannot fail to convey to the discerning reader the very policy choice that the prevailing opinion today completely obliterates: that between conventional religions that usually have an organized and formal structure and dogma and a cohesive group identity, even when nontheistic, and cults that represent schools of thought and in the usual case are without formal structure or are, at most, loose and informal associations of individuals who share common ethical, moral, or intellectual views.
20
25
30
35
40
45
50
55
10
15
20
25
30
II When the plain thrust of a legislative enactment can only be circumvented by distortion to avert an inevitable constitutional collision, it is only by exalting form over substance that one can justify this veering off the path that has been plainly marked by the statute. Such a course betrays extreme skepticism as to constitutionality, and, in this instance, reflects a groping to preserve the conscientious objector exemption at all cost. I cannot subscribe to a wholly emasculated construction of a statute to avoid facing a latent constitutional question, in purported fidelity to the salutary doctrine of avoiding unnecessary resolution of constitutional issues, a principle to which I fully adhere. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring). It is, of course, desirable to salvage by construction legislative enactments whenever there is good reason to believe that Congress did not intend to legislate consequences that are unconstitutional, but it is not permissible, in my judgment, to take a lateral step that robs legislation of all meaning in order to avert the collision between its plainly intended purpose and the commands of the Constitution. [398 U.S. 333, 355] Cf. Yates v. United States, 354 U.S. 298 (1957). As the Court stated in Aptheker v. Secretary of State, 378 U.S. 500, 515 (1964): "It must be remembered that `[a]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .' or judicially rewriting it. Scales v. United States [ 367 U.S. 203, 211 ]. To put the matter another way, this Court will not consider the abstract question of whether Congress might have enacted a valid statute but instead must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects." The issue comes sharply into focus in Mr. Justice Cardozo's statement for the Court in Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933): "À statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.' . . . But avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered." If an important congressional policy is to be perpetuated by recasting unconstitutional legislation, as the prevailing opinion has done here, the analytically sound approach is to accept responsibility for this decision. Its justification cannot be by resort to legislative intent, as that term is usually employed, but by a different kind of legislative intent, namely the presumed grant of power to the courts to decide whether it more nearly accords with [398 U.S. 333, 356] Congress' wishes to eliminate its policy altogether or extend it in order to render what Congress plainly did intend, constitutional. Compare, e. g., Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926); United States v. Reese, 92 U.S. 214 (1876), with Skinner v. Oklahoma, 316 U.S. 535 (1942); Nat. Life Ins. Co. v. United States, 277 U.S. 508 (1928). I therefore turn to the constitutional question. III The constitutional question that must be faced in this case is whether a statute that defers to the individual's conscience only when his views emanate from adherence to theistic religious beliefs is within the power of Congress. Congress, of course, could, entirely consistently with the requirements of the Constitution, eliminate all exemptions for conscientious objectors. Such a course would be wholly "neutral" and, in my view, would not offend the Free Exercise Clause, for reasons set forth in my dissenting opinion in Sherbert v. Verner, 374 U.S. 398, 418 (1963). See Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905) (dictum); cf. McGowan v. Maryland, 366 U.S. 420 (1961); Davis v. Beason, 133 U.S. 333 (1890); Hamilton v. Board of Regents, 293 U.S. 245, 264 -265 (1934); Reynolds v. United States, 98 U.S. 145 (1879); Kurland, of Church and State and the Supreme Court, 29 U. Chi. L. Rev. 1 (1961). However, having chosen to exempt, it cannot draw the line between theistic or nontheistic religious beliefs on the one hand and secular beliefs on the other. Any such distinctions are not, in my view, compatible with the Establishment Clause of the First Amendment. See my separate opinion in Walz v. Tax Comm'n, 397 U.S. 664, 694 (1970); Epperson v. Arkansas, 393 U.S. 97 (1968); School District of Abington Township v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring); [398 U.S. 333, 357] Engel v. Vitale, 370 U.S. 421 (1962); Torcaso v. Watkins, 367 U.S. 488, 495 (1961); Fowler v. Rhode Island, 345 U.S. 67 (1953). The implementation of the neutrality principle of these cases requires, in my view, as I stated in Walz v. Tax Comm'n, supra, "an equal protection mode of analysis. The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders. In any particular case the critical question is whether the scope of legislation encircles a class so broad that it can be fairly concluded that [all groups that] could be thought to fall within the natural perimeter [are included]." 397 U.S., at 696 . The "radius" of this legislation is the conscientiousness with which an individual opposes war in general, yet the statute, as I think it must be construed, excludes from its "scope" individuals motivated by teachings of nontheistic religions, 8 and individuals guided by an inner ethical voice that bespeaks secular and not "religious" reflection. It not only accords a preference to the "religious" but also disadvantages adherents of religions that do not worship a Supreme Being. The constitutional infirmity cannot be cured, moreover, even by an impermissible construction that eliminates the theistic requirement and simply draws the line between religious and nonreligious. This in my view offends the Establishment Clause and is that kind of classification [398 U.S. 333, 358] that this Court has 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
35
40
45
50
55
60
10
15
20
25
condemned. See my separate opinion in Walz v. Tax Comm'n, supra; School District of Abington Township v. Schempp (Goldberg, J., concurring), supra; Engel v. Vitale, supra; Torcaso v. Watkins, supra. If the exemption is to be given application, it must encompass the class of individuals it purports to exclude, those whose beliefs emanate from a purely moral, ethical, or philosophical source. 9 The common denominator must be the intensity of moral conviction with which a belief is held. 10 Common experience teaches that among [398 U.S. 333, 359] "religious" individuals some are weak and others strong adherents to tenets and this is no less true of individuals whose lives are guided by personal ethical considerations. The Government enlists the Selective Draft Law Cases, 245 U.S. 366 (1918), as precedent for upholding the constitutionality of the religious conscientious objector provision. That case involved the power of Congress to raise armies by conscription and only incidentally the conscientious objector exemption. The language emphasized by the Government to the effect that the exemption for religious objectors and ministers constituted neither an establishment nor interference with free exercise of religion can only be considered an after-thought since the case did not involve any individuals who claimed to be nonreligious conscientious objectors. 11 This conclusory assertion, unreasoned and unaccompanied by citation, surely cannot foreclose consideration of the question in a case that squarely presents the issue. Other authorities assembled by the Government, far from advancing its case, demonstrate the unconstitutionality of the distinction drawn in 6 (j) between religious and nonreligious beliefs. Everson v. Board of Education, 330 U.S. 1 (1947), the Sunday Closing Law Cases, 366 U.S. 420, 582 , 599, and 617 (1961), and Board [398 U.S. 333, 360] of Education v. Allen, 392 U.S. 236 (1968), all sustained legislation on the premise that it was neutral in its application and thus did not constitute an establishment, notwithstanding the fact that it may have assisted religious groups by giving them the same benefits accorded to nonreligious groups. 12 To the extent that Zorach v. Clauson, 343 U.S. 306 (1952), and Sherbert v. Verner, supra, stand for the proposition that the Government may (Zorach), or must (Sherbert), shape its secular programs to accommodate the beliefs and tenets of religious [398 U.S. 333, 361] groups, I think these cases unsound. 13 See generally Kurland, supra. To conform with the requirements of the First Amendment's religious clauses as reflected in the mainstream of American history, legislation must, at the very least, be neutral. See my separate opinion in Walz v. Tax Comm'n, supra. IV Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion. Cf. Skinner v. Oklahoma, 316 U.S. 535 (1942); Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239 (1931). 14 [398 U.S. 333, 362] The appropriate disposition of this case, which is a prosecution for refusing to submit to induction and not an action for a declaratory judgment on the constitutionality of 6 (j), is determined by the fact that at the time of Welsh's induction notice and prosecution the Selective Service was, as required by statute, exempting individuals whose beliefs were identical in all respects to those held by petitioner except that they derived from a religious source. Since this created a religious benefit not accorded to petitioner, it is clear to me that this conviction must be reversed under the Establishment Clause of the First Amendment unless Welsh is to go remediless. Cf. Iowa-Des Moines National Bank v. Bennett, supra; Smith v. Cahoon, 283 U.S. 553 (1931). 15 [398 U.S. 333, 363] This result, while tantamount to extending the statute, is not only the one mandated by the Constitution in this case but also the approach I would take had this question been presented in an action for a declaratory judgment [398 U.S. 333, 364] or "an action in equity where the enforcement of a statute awaits the final determination of the court as to validity and scope." Smith v. Cahoon, 283 U.S., at 565 . 16 While the necessary remedial operation, extension, is more analogous to a graft than amputation, I think the boundaries of permissible choice may properly be considered fixed by the legislative pronouncement on severability. Indicative of the breadth of the judicial mandate in this regard is the broad severability clause, 65 Stat. 88, which provides that "[i]f any provision of this Act or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act and of the application of such provision to other persons and circumstances shall not be affected thereby." While the absence of such a provision would not foreclose the exercise of discretion in determining whether a legislative policy should be repaired or abandoned, cf. United States v. Jackson, 390 U.S. 570, 585 n. 27 (1968), its existence "discloses an intention to make the Act divisible and creates a presumption that, eliminating invalid parts, the legislature would have been satisfied with what remained . . . ." Champlin Rfg. Co. v. Commission, 286 U.S. 210, 235 (1932). See also Skinner [398 U.S. 333, 365] v. Oklahoma, supra; Nat. Life Ins. Co. v. United States, 277 U.S. 508 (1928). 17 In exercising the broad discretion conferred by a severability clause it is, of course, necessary to measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation. Cf. Nat. Life Ins. Co. v. United States, supra (Brandeis, J., dissenting); Dorchy v. Kansas, 264 U.S. 286 (1924). The policy of exempting religious conscientious objectors is one of longstanding tradition in this country and accords recognition to what is, in a diverse and "open" society, the important value of reconciling individuality [398 U.S. 333, 366] of belief with practical exigencies whenever possible. See Girouard v. United States, 328 U.S. 61 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
30
35
40
45
50
55
60
10
15
20
25
30
35
40
45
50
55
60
(1946). It dates back to colonial times and has been perpetuated in state and federal conscription statutes. See Mr. Justice Cardozo's separate opinion in Hamilton v. Board of Regents, 293 u. S., at 267; Macintosh v. United States, 42 F.2d 845, 847 (1930). That it has been phrased in religious terms reflects, I assume, the fact that ethics and morals, while the concern of secular philosophy, have traditionally been matters taught by organized religion and that for most individuals spiritual and ethical nourishment is derived from that source. It further reflects, I would suppose, the assumption that beliefs emanating from a religious source are probably held with great intensity. When a policy has roots so deeply embedded in history, there is a compelling reason for a court to hazard the necessary statutory repairs if they can be made within the administrative framework of the statute and without impairing other legislative goals, even though they entail, not simply eliminating an offending section, but rather building upon it. 18 Thus I am prepared to accept the prevailing opinion's conscientious objector test, not as a reflection of congressional statutory intent but as patchwork [398 U.S. 333, 367] of judicial making that cures the defect of under-inclusion in 6 (j) and can be administered by local boards in the usual course of business. 19 Like the prevailing opinion, I also conclude that petitioner's beliefs are held with the required intensity and consequently vote to reverse the judgment of conviction. [ Footnote 1 ] For a discussion of those principles that determine the appropriate scope for the doctrine of stare decisis, see Moragne v. States Marine Lines, also decided today, post, p. 375; Boys Markets v. Retail Clerks Union, ante. p. 235; Helvering v. Hallock, 309 U.S. 106 (1940). [ Footnote 2 ] The difference is between the substitution of judicial judgment for a principle that is set forth by the Constitution and legislature and the application of the legislative principle to a new "form" that is no different in substance from the circumstances that existed when the principle was set forth. Cf. Katz v. United States, 389 U.S. 347 (1967). As the Court said in Weems v. United States, "Legislation, both statutory and constitutional, is enacted, . . . from an experience of evils, . . . its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. . . . [A] principle to be vital must be capable of wider application than the mischief which gave it birth." 217 U.S. 349, 373 (1910) (emphasis added). While it is by no means always simple to discern the difference between the residual principle in legislation that should be given effect in circumstances not covered by the express statutory terms and the limitation on that principle inherent in the same words, the Court in Seeger and the prevailing opinion today read out language that, in my view, plainly limits the principle rather than illustrates the policy and circumstances that were in mind when 6 (j) was enacted. [ Footnote 3 ] The substitution in 6 (j) of "Supreme Being" instead of "God" as used in Macintosh does not, in my view, carry the burden, placed on it in the Seeger opinion, of demonstrating that Congress "deliberately broadened" Chief Justice Hughes' definition. "God" and "Supreme Being" are generally taken as synonymous terms meaning Deity. It is common practice to use various synonyms for the Deity. The Declaration of Independence refers to "Nature's God," "Creator," "Supreme Judge of the world," and "divine Providence." References to the Deity in preambles to the state constitutions include, for example, and use interchangeably "God," "Almighty God," "Supreme Being." A. Stokes & L. Pfeffer, Church and State in the United States 561 (1964). In Davis v. Beason, 133 U.S. 333, 342 (1890), the Court spoke of man's relations to his "Creator" and to his "Maker"; in Zorach v. Clauson, 343 U.S. 306, 313 (1952), and Engel v. Vitale, 370 U.S. 421, 424 (1962), to the "Almighty." [ Footnote 4 ] The Seeger opinion relies on the absence of any allusion to the judicial conflict to parry the thrust of the legislative history and assigns significance to the Committee citation of Berman as manifestation of its intention to reenact 5 (g) of the 1940 Act, and also as authority for the exclusion of those whose beliefs are grounded in secular ethics. The citation to Berman would not be conclusive of congressional purpose if Congress had simply reenacted the 1940 [398 U.S. 333, 351] Act adding only the express exclusion in the last clause. But the reasoning in Seeger totally ignores the fact that Congress without other apparent reason added the "Supreme Being" language of the Berman majority in the face of the Berman dissent which espoused Judge Hand's view in Kauten. The argument in Seeger is not, moreover, strengthened by the fact that Congress in drafting the 1948 Selective Service laws placed great weight on the views of the Selective Service System which, the Court suggested, did not view Berman and Kauten as being in conflict. 380 U.S., at 179 . The Selective Service System Monograph No. 11, Conscientious Objection (1950) was not before Congress when 6 (j) was enacted and the fact that the Service relied on both Kauten and Berman for the proposition that conscientious objection must emanate from a religious and not a secular source, does not mean that it considered the Supreme Being discussion in Berman as surplusage. [ Footnote 5 ] New International Dictionary, Unabridged (2d ed. 1934). [ Footnote 6 ] The prevailing opinion's purported recognition of this distinction slides over the "personal moral code" exception, in 6 (j). Thus that opinion in concluding that 6 (j) does not exclude "those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy" but excludes individuals, whose beliefs are not deeply held, and those whose objection to war does not rest upon "moral, ethical, or religious principle," but instead rests solely upon considerations of [398 U.S. 333, 353] "policy, pragmatism, or expediency," ante, at 342-343, blends morals and religion, two concepts that Congress chose to keep separate. [ Footnote 7 ] The apparent purpose of the 1940 change in language was to eliminate membership as a decisive criterion in recognition of the fact that mere formal affiliation is no measure of the intensity of beliefs, and that many nominal adherents do not share or pursue the ethics of their church. That the focus was made the conscientiousness 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
10
15
20
25
30
35
40
45
50
55
60
of the individual's own belief does not mean that Congress was indifferent to its source. Were this the case there would have been no occasion to allude to "religious training" in the 1940 enactment, and to contrast it with secular ethics in the 1948 statute. Yet the prevailing opinion today holds that "beliefs that are purely ethical," no matter how acquired, qualify the holder for 6 (j) status if they are held with the requisite intensity. However, even the prevailing opinion's ambulatory concept of "religion" does not suffice to embrace Welsh, since petitioner insisted that his beliefs had been formed "by reading in the fields of history and sociology" and "denied that his objection to war was premised on religious belief." 404 F.2d, at 1082. That opinion not only establishes a definition of religion that amounts to "Newspeak" but it refuses to listen to petitioner who is speaking the same language. [ Footnote 8 ] This Court has taken notice of the fact that recognized "religions" exist that "do not teach what would generally be considered a belief in the existence of God," Torcaso v. Watkins, 367 U.S. 488, 495 n. 11, e. g., "Buddhism, Taoism, Ethical Culture, Secular Humanism and others." Ibid. See also Washington Ethical Society v. District of Columbia, 101 U.S. App. D.C. 371, 249 F.2d 127 (1957); 2 Encyclopaedia of the Social Sciences 293; J. Archer, Faiths Men Live By 120-138, 254-313 (2d ed. revised by Purinton 1958); Stokes & Pfeffer, supra, n. 3, at 560. [ Footnote 9 ] In Sherbert v. Verner, 374 U.S. 398 (1963), the Court held unconstitutional over my dissent a state statute that conditioned eligibility for unemployment benefits on being "able to work and . . . available for work" and further provided that a claimant was ineligible "[i]f . . . he has failed, without good cause . . . to accept available suitable work when offered him by the employment office or the employer . . . ." This, the Court held, was a violation of the Free Exercise Clause as applied to Seventh Day Adventists whose religious background forced them as a matter of conscience to decline Saturday employment. My own conclusion, to which I still adhere, is that the Free Exercise Clause does not require a State to conform a neutral secular program to the dictates of religious conscience of any group. I suggested, however, that a State could constitutionally create exceptions to its program to accommodate religious scruples. That suggestion must, however, be qualified by the observation that any such exception in order to satisfy the Establishment Clause of the First Amendment, would have to be sufficiently broad to be religiously neutral. See my separate opinion in Walz v. Tax Comm'n, supra. This would require creating an exception for anyone who, as a matter of conscience, could not comply with the statute. Whether, under a statute like that involved in Sherbert, it would be possible to demonstrate a basis in conscience for not working Saturday is quite another matter. [ Footnote 10 ] Without deciding what constitutes a definition of "religion" for First Amendment purposes it suffices to note that it means, in my view, at least the two conceivable readings of 6 (j) set forth in Part II, but something less than mere adherence to ethical or [398 U.S. 333, 359] moral beliefs in general or a certain belief such as conscientious objection. Thus the prevailing opinion's expansive reading of "religion" in 6 (j) does not, in my view, create an Establishment Clause problem in that it exempts all sincere objectors but does not exempt others, e. g., those who object to war on pragmatic grounds and contend that pragmatism is their creed. [ Footnote 11 ] Thus, Mr. Chief Justice White said: "And we pass without anything but statement the proposition that an establishment of a religion or an interference with the free exercise thereof repugnant to the First Amendment resulted from the exemption clauses of the act . . . because we think its unsoundness is too apparent to require us to do more." 245 U.S., at 389 -390. [ Footnote 12 ] My Brother WHITE in dissent misinterprets, in my view, the thrust of Mr. Justice Frankfurter's language in the Sunday Closing Law Cases. See post, at 369. Section 6 (j) speaks directly to belief divorced entirely from conduct. It evinces a judgment that individuals who hold the beliefs set forth by the statute should not be required to bear arms, and the statutory belief that qualifies is only a religious belief. Under these circumstances I fail to see how this legislation has "any substantial legislative purpose" apart from honoring the conscience of individuals who oppose war on only religious grounds. I cannot, moreover, accept the view, implicit in the dissent, that Congress has any ultimate responsibility for construing the Constitution. It, like all other branches of government, is constricted by the Constitution and must conform its action to it. It is this Court, however, and not the Congress that is ultimately charged with the difficult responsibility of construing the First Amendment. The Court has held that universal conscription creates no free exercise problem, see cases cited, supra, at 356, and Congress can constitutionally draft individuals notwithstanding their religious beliefs. Congress, whether in response to political considerations or simply out of sensitivity for men of religious conscience, can of course decline to exercise its power to conscript to the fullest extent, but it cannot do so without equal regard for men of nonreligious conscience. It goes without saying that the First Amendment is perforce a guarantee that the conscience of religion may not be preferred simply because organized religious groups in general are more visible than the individual who practices morals and ethics on his own. Any view of the Free Exercise Clause that does not insist on this neutrality would engulf the Establishment Clause and render it vestigial. [ Footnote 13 ] That the "released-time" program in Zorach did not utilize classroom facilities for religious instruction, unlike McCollum v. Board of Education, 333 U.S. 203 (1948), is a distinction for me without Establishment Clause substance. At the very least the Constitution requires that the State not excuse students early for the purpose of receiving religious instruction when it does not offer to nonreligious students the opportunity to use school hours for spiritual or ethical instruction of a nonreligious nature. Moreover, whether a released-time program cast in terms of improving "conscience" to the exclusion of artistic or cultural pursuits, would be "neutral" 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
10
15
20
25
30
35
40
45
50
55
60
and consistent with the requirement of "voluntarism," is by no means an easy question. Such a limited program is quite unlike the broad approach of the tax exemption statute, sustained in Walz v. Tax Comm'n, supra, which included literary societies, playgrounds, and associations "for the moral or mental improvement of men." [ Footnote 14 ] See Skinner v. Oklahoma, where MR. JUSTICE DOUGLAS, in an opinion holding infirm under the Equal Protection Clause a state statute that required sterilization of habitual thieves who perpetrated larcenies but not those who engaged in embezzlement, noted the alternative courses of extending the statute to cover the excluded class or not applying it to the wrongfully included group. The Court declined to speculate which alternative the State would prefer to adopt and simply reversed the judgment. [ Footnote 15 ] In Iowa-Des Moines National Bank v. Bennett, Mr. Justice Brandeis speaking for the Court in a decision holding that the State had denied petitioners equal protection of the laws by taxing them more heavily than their competitors, observed that: "The right invoked is that to equal treatment; and such treatment will be attained if either their competitors' taxes are increased or their own reduced." 284 U.S., at 247 . Based on the impracticality of requiring the aggrieved taxpayer at that stage to "assume the burden of seeking an increase of the taxes which . . . others should have paid," the Court held that petitioner was entitled to recover the overpayment. The Establishment Clause case that comes most readily to mind as involving "underinclusion" is Epperson v. Arkansas, 393 U.S. 97 (1968). There the State prohibited the teaching of evolutionist theory but "did not seek to excise from the curricula of its schools and universities all discussion of the origin of man." 393 U.S., at 109 . The Court held the Arkansas statute, which was framed as a prohibition, unconstitutional. Since the statute authorized no positive action, there was no occasion to consider the remedial problem. Cf. Fowler v. Rhode Island, 345 U.S. 67 (1953). Most of the other cases arising under the Establishment Clause have involved instances where the challenged legislation conferred a benefit on religious as well as secular institutions. See, e. g., Walz v. Tax Comm'n, supra; Everson v. Board of Education, supra; Board of Education v. Allen, supra. These cases, had they been decided differently, would still [398 U.S. 333, 363] not have presented the remedial problem that arises in the instant case, for they were cases of alleged "overinclusion." The school prayer cases, School District of Abington Township v. Schempp, supra; and Engel v. Vitale, supra; and the released-time cases, Zorach v. Clauson, supra; McCollum v. Board of Education, supra, also failed to raise the remedial issue. In the school prayer situation the requested relief was an injunction against the saying of prayers. Moreover it is doubtful that there is any analogous secular ritual that could be performed so as to satisfy the neutrality requirement of the First Amendment and even then the practice of saying prayers in schools would still offend the principle of voluntarism that must be satisfied in First Amendment cases. See my separate opinion in Walz v. Tax Comm'n, supra. The same considerations prevented the issue from arising in the one released-time program case that held the practice unconstitutional. In McCollum, where the Court held unconstitutional a program that permitted "religious teachers, employed by private religious groups . . . to come weekly into the school buildings during the regular hours set apart for secular teaching, and then and there for a period of thirty minutes substitute their religious teaching for the secular education provided under the compulsory education law," 333 U.S., at 205 , the relief requested was an order to mandamus the authorities to discontinue the program. No question arose as to whether the program might have been saved by extending a similar privilege to other students who wished extracurricular instruction in, for example, atheistic or secular ethics and morals. Cf. my separate opinion in Walz v. Tax Comm'n, supra. Moreover as in the prayer cases, since the defect in the Illinois program was not the mere absence of neutrality but also the encroachment on "voluntarism," see ibid., it is doubtful whether there existed any remedial alternative to voiding the entire program. A further complication would have arisen in these cases by virtue of the more limited discretion this Court enjoys to extend a policy for the States even as a constitutional remedy. Cf. Skinner v. Oklahoma, supra; Morey v. Doud, 354 U.S. 457 (1957); Dorchy v. Kansas, 264 U.S. 286 (1924). [ Footnote 16 ] As long as the Selective Service continues to grant exemptions to religious conscientious objectors, individuals like petitioner are not required to submit to induction. This is tantamount to extending the present statute to cover those in petitioner's position. Alternatively the defect of underinclusion that renders this statute unconstitutional could be cured in a civil action by eliminating the exemption accorded to objectors whose beliefs are founded in religion. The choice between these two courses is not one for local draft boards nor is it one that should await civil litigation where the question could more appropriately be considered. Consequently I deem it proper to confront the issue here, even though, as a technical matter, no judgment could issue in this case ordering the Selective Service to refrain entirely from granting exemptions. [ Footnote 17 ] In Skinner the Court impliedly recognized the mandate of flexibility to repair a defective statute even by extension - conferred by a broad severability clause. As already noted, the Court there declined to exercise discretion, however, since absent a clear indication of legislative preference it was for the state courts to determine the proper course. While Mr. Justice Brandeis in a dissenting opinion in Nat. Life Ins. Co., supra, at 522, 534-535, expressed the view that a severability clause in terms like that before us now is not intended to authorize amendment by expanding the scope of legislation, his remarks must be taken in the context of a dissent to a course he deemed contrary to that Congress would have chosen. Thus, after quoting Hill v. Wallace, 259 U.S. 44, 71 (1922), to the effect that a severability clause "furnishes assurance to courts that they may properly sustain separate sections or provisions of a partly invalid act without hesitation or doubt as to whether they would have been adopted, even if the legislature had been advised of the invalidity of part [b]ut . . . does not give . . . power to amend the act," Justice 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
10
15
20
25
30
35
40
45
50
55
60
Brandeis observed, that: "Even if such a Clause could ever permit a court to enlarge the scope of a deduction allowed by a taxing statute, . . . the asserted unconstitutionality can be cured as readily by [excision] as by [enlargement]" and that the former would most likely have been the congressional preference in that particular case. Cf. Iowa-Des Moines National Bank v. Bennett, supra. [ Footnote 18 ] I reach these conclusions notwithstanding the admonition in United States v. Reese that it "is no part of [this Court's] duty" "[t]o limit [a] statute in [such a way as] to make a new law, [rather than] enforce an old one." 92 U.S. 214, 221 (1876). See also Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926); Marchetti v. United States, 390 U.S. 39, 60 (1968). Neither of these cases involved statutes evincing a congressional intent to confer a benefit on a particular group, thus requiring the frustration of third-party beneficiary legislation when the acts were held invalid. Moreover, the saving construction in Marchetti would have thwarted, not complemented, the primary purpose of the statute by introducing practical difficulties into that enforcement of state gambling laws that the statute was designed to further. [ Footnote 19 ] During World War I when the exemption was granted to members or affiliates of "well-recognized religious sect[s]" the Selective Service System found it impracticable to compile a list of "recognized" sects and left the matter to the discretion of the local boards. Second Report of the Provost Marshal General to the Secretary of War on the Operations of the Selective Service System to December 20, 1918, p. 56. As a result, some boards treated religious and nonreligious objectors in the same manner. Report of the Provost Marshal General to the Secretary of War on the First Draft Under the Selective-Service Act, 1917, p. 59. Finally, by presidential regulation dated March 20, 1918, it was ordered that conscientious objector status be open to all conscientious objectors without regard to any religious qualification. The experience during World War II, when draft boards were operating under the broad definition of religion in United States v. Kauten, 133 F.2d 703 (C. A. 2d Cir. 1943), also demonstrates the administrative viability of today's test. Not only would the test announced today seem manageable but it would appear easier than the arcane inquiry required to determine whether beliefs are religious or secular in nature. MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, dissenting. Whether or not United States v. Seeger, 380 U.S. 163 (1965), accurately reflected the intent of Congress in providing draft exemptions for religious conscientious objectors to war, I cannot join today's construction of 6 (j) extending draft exemption to those who disclaim religious objections to war and whose views about war represent a purely personal code arising not from religious training and belief as the statute requires but from readings in philosophy, history, and sociology. Our obligation [398 U.S. 333, 368] in statutory construction cases is to enforce the will of Congress, not our own; and as MR. JUSTICE HARLAN has demonstrated, construing 6 (j) to include Welsh exempts from the draft a class of persons to whom Congress has expressly denied an exemption. For me that conclusion should end this case. Even if Welsh is quite right in asserting that exempting religious believers is an establishment of religion forbidden by the First Amendment, he nevertheless remains one of those persons whom Congress took pains not to relieve from military duty. Whether or not 6 (j) is constitutional, Welsh had no First Amendment excuse for refusing to report for induction. If it is contrary to the express will of Congress to exempt Welsh, as I think it is, then there is no warrant for saving the religious exemption and the statute by redrafting it in this Court to include Welsh and all others like him. If the Constitution expressly provided that aliens should not be exempt from the draft, but Congress purported to exempt them and no others, Welsh, a citizen, could hardly qualify for exemption by demonstrating that exempting aliens is unconstitutional. By the same token, if the Constitution prohibits Congress from exempting religious believers, but Congress exempts them anyway, why should the invalidity of the exemption create a draft immunity for Welsh? Surely not just because he would otherwise go without a remedy along with all those others not qualifying for exemption under the statute. And not as a reward for seeking a declaration of the invalidity of 6 (j); for as long as Welsh is among those from whom Congress expressly withheld the exemption, he has no standing to raise the establishment issue even if 6 (j) would present no First Amendment problems if it had included Welsh and others like him. "[O]ne to whom application of a statute is constitutional will not be heard to attack the [398 U.S. 333, 369] statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." United States v. Raines, 362 U.S. 17, 21 (1960). Nothing in the First Amendment prohibits drafting Welsh and other nonreligious objectors to war. Saving 6 (j) by extending it to include Welsh cannot be done in the name of a presumed congressional will but only by the Court's taking upon itself the power to make draft-exemption policy. If I am wrong in thinking that Welsh cannot benefit from invalidation of 6 (j) on Establishment Clause grounds, I would nevertheless affirm his conviction; for I cannot hold that Congress violated the Clause in exempting from the draft all those who oppose war by reason of religious training and belief. In exempting religious conscientious objectors, Congress was making one of two judgments, perhaps both. First, 6 (j) may represent a purely practical judgment that religious objectors, however admirable, would be of no more use in combat than many others unqualified for military service. Exemption was not extended to them to further religious belief or practice but to limit military service to those who were prepared to undertake the fighting that the armed services have to do. On this basis, the exemption has neither the primary purpose nor the effect of furthering religion. As Mr. Justice Frankfurter, joined by MR. JUSTICE HARLAN, said in a separate opinion in the Sunday Closing Law Cases, 366 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
10
15
20
25
30
35
40
45
50
55
60
U.S. 420, 468 (1961), an establishment contention "can prevail only if the absence of any substantial legislative purpose other than a religious one is made to appear. See Selective Draft Law Cases, 245 U.S. 366 ." Second, Congress may have granted the exemption because otherwise religious objectors would be forced into conduct that their religions forbid and because [398 U.S. 333, 370] in the view of Congress to deny the exemption would violate the Free Exercise Clause or at least raise grave problems in this respect. True, this Court has more than once stated its unwillingness to construe the First Amendment, standing alone, as requiring draft exemptions for religious believers. Hamilton v. Board of Regents, 293 U.S. 245, 263 -264 (1934); United States v. Macintosh, 283 U.S. 605, 623 -624 (1931). But this Court is not alone in being obliged to construe the Constitution in the course of its work; nor does it even approach having a monopoly on the wisdom and insight appropriate to the task. Legislative exemptions for those with religious convictions against war date from colonial days. As Chief Justice Hughes explained in his dissent in United States v. Macintosh, supra, at 633, the importance of giving immunity to those having conscientious scruples against bearing arms has consistently been emphasized in debates in Congress and such draft exemptions are "ìndicative of the actual operation of the principles of the Constitution.'" However this Court might construe the First Amendment, Congress has regularly steered clear of free exercise problems by granting exemptions to those who conscientiously oppose war on religious grounds. If there were no statutory exemption for religious objectors to war and failure to provide it was held by this Court to impair the free exercise of religion contrary to the First Amendment, an exemption reflecting this constitutional command would be no more an establishment of religion than the exemption required for Sabbatarians in Sherbert v. Verner, 374 U.S. 398 (1963), or the exemption from the flat tax on book sellers held required for evangelists, Follett v. McCormick, 321 U.S. 573 (1944). Surely a statutory exemption for religionists required by the Free Exercise Clause is not an invalid establishment because it fails to include nonreligious believers as well; nor would it be any less an establishment [398 U.S. 333, 371] if camouflaged by granting additional exemptions for nonreligious, but "moral" objectors to war. On the assumption, however, that the Free Exercise Clause of the First Amendment does not by its own force require exempting devout objectors from military service, it does not follow that 6 (j) is a law respecting an establishment of religion within the meaning of the First Amendment. It is very likely that 6 (j) is a recognition by Congress of free exercise values and its view of desirable or required policy in implementing the Free Exercise Clause. That judgment is entitled to respect. Congress has the power "To raise and support Armies" and "To make all Laws which shall be necessary and proper for carrying into Execution" that power. Art. I, 8. The power to raise armies must be exercised consistently with the First Amendment which, among other things, forbids laws prohibiting the free exercise of religion. It is surely essential therefore - surely "necessary and proper" - in enacting laws for the raising of armies to take account of the First Amendment and to avoid possible violations of the Free Exercise Clause. If this was the course Congress took, then just as in Katzenbach v. Morgan, 384 U.S. 641 (1966), where we accepted the judgment of Congress as to what legislation was appropriate to enforce the Equal Protection Clause of the Fourteenth Amendment, here we should respect congressional judgment accommodating the Free Exercise Clause and the power to raise armies. This involves no surrender of the Court's function as ultimate arbiter in disputes over interpretation of the Constitution. But it was enough in Katzenbach "to perceive a basis upon which the Congress might resolve the conflict as it did," 384 U.S., at 653 , and plainly in the case before us there is an arguable basis for 6 (j) in the Free Exercise Clause since, without the exemption, the law would compel some members of the public to engage in combat [398 U.S. 333, 372] operations contrary to their religious convictions. Indeed, one federal court has recently held that to draft a man for combat service contrary to his conscientious beliefs would violate the First Amendment. United States v. Sisson, 297 F. Supp. 902 (1969). There being substantial roots in the Free Exercise Clause for 6 (j) I would not frustrate congressional will by construing the Establishment Clause to condition the exemption for religionists upon extending the exemption also to those who object to war on nonreligious grounds. We have said that neither support nor hostility, but neutrality, is the goal of the religion clauses of the First Amendment. "Neutrality," however, is not self-defining. If it is "favoritism" and not "neutrality" to exempt religious believers from the draft, is it "neutrality" and not "inhibition" of religion to compel religious believers to fight when they have special reasons for not doing so, reasons to which the Constitution gives particular recognition? It cannot be ignored that the First Amendment itself contains a religious classification. The Amendment protects belief and speech, but as a general proposition, the free speech provisions stop short of immunizing conduct from official regulation. The Free Exercise Clause, however, has a deeper cut: it protects conduct as well as religious belief and speech. "[I]t safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts, - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." Cantwell v. Connecticut, 310 U.S. 296, 303 -304 (1940). Although socially harmful acts may as a rule be banned despite the Free Exercise Clause even where religiously motivated, there is an area of conduct that cannot be forbidden to religious practitioners but that may be forbidden to others. See United States v. Ballard, 322 U.S. 78 (1944); Follett v. [398 U.S. 333, 373] McCormick, 321 U.S. 573 (1944). We should thus not labor to find a violation of the Establishment Clause when free exercise values prompt Congress to relieve religious believers from the burdens of the law at least in those instances where the law is not merely prohibitory but commands the performance of military duties that are forbidden by a man's religion. 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
10
15
In Braunfeld v. Brown, 366 U.S. 599 (1961), and Gallagher v. Crown Kosher Market, 366 U.S. 617 (1961), a majority of the Court rejected claims that Sunday closing laws placed unacceptable burdens on Sabbatarians' religious observances. It was not suggested, however, that the Sunday closing laws in 21 States exempting Sabbatarians and others violated the Establishment Clause because no provision was made for others who claimed nonreligious reasons for not working on some particular day of the week. Nor was it intimated in Zorach v. Clauson, 343 U.S. 306 (1952), that the no-establishment holding might be infirm because only those pursuing religious studies for designated periods were released from the public school routine; neither was it hinted that a public school's refusal to institute a released-time program would violate the Free Exercise Clause. The Court in Sherbert v. Verner, supra, construed the Free Exercise Clause to require special treatment for Sabbatarians under the State's unemployment compensation law. But the State could deal specially with Sabbatarians whether the Free Exercise Clause required it or not, for as MR. JUSTICE HARLAN then said - and I agreed with him - the Establishment Clause would not forbid an exemption for Sabbatarians who otherwise could not qualify for unemployment benefits. The Establishment Clause as construed by this Court unquestionably has independent significance; its function is not wholly auxiliary to the Free Exercise Clause. It bans some involvements of the State with religion that [398 U.S. 333, 374] otherwise might be consistent with the Free Exercise Clause. But when in the rationally based judgment of Congress free exercise of religion calls for shielding religious objectors from compulsory combat duty, I am reluctant to frustrate the legislative will by striking down the statutory exemption because it does not also reach those to whom the Free Exercise Clause offers no protection whatsoever. I would affirm the judgment below. [398 U.S. 333, 375] END QUOTE WELSH v. UNITED STATES, 398 U.S. 333 (1970)
.
20
QUOTE DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856)
U.S. Supreme Court

25
DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856)

60 U.S. 393 (How.) DRED SCOTT, PLAINTIFF IN ERROR, v. JOHN F. A. SANDFORD. December Term, 1856
END QUOTE DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856) QUOTE DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856) A reference to a few of the provisions of the Constitution will illustrate this proposition. For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances. Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of the owner, in time of peace; nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person convicted; nor take private property for public use without just compensation. The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
30
35
40
45
50
55
10
15
20
25
Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are [60 U.S. 393, 451] concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers. And if Congress itself cannot do this-if it is beyond the powers conferred on the Federal Government-it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution. It seems, however, to be supposed, that there is a difference between property in a slave and other property, and that different rules may be applied to it in expounding the Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which Governments may exercise over it, have been dwelt upon in the argument. But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government, and interfering with their relation to each other. The powers of the Government, and the rights of the citizen under it, are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have reserved. And if the Constitution recognises the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government. END QUOTE DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856)
.
30
35
40
45
50
55
60
QUOTE DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856) Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d, after collating the opinions of Grotius, Heineccius, Vattel, and Rutherford, enunciates the following positions as sanctioned by these and other learned publicists, viz: that 'nations are equal in respect to each other, and entitled to claim equal consideration for their rights, whatever may be their relative dimensions or strength, or however greatly they may differ in government, religion, or manners. This perfect equality and entire independence of all distinct States is a fundamental principle of public law. It is a necessary consequence of this equality, that each nation has a right to govern itself as it may think proper, and no one nation is entitled to dictate a form of government or religion, or a course of internal [60 U.S. 393, 485] policy, to another.' This writer gives some instances of the violation of this great national immunity, and amongst them the constant interference by the ancient Romans, under the pretext of settling disputes between their neighbors, but with the real purpose of reducing those neighbors to bondage; the interference of Russia, Prussia, and Austria, for the dismemberment of Poland; the more recent invasion of Naples by Austria in 1821, and of Spain by the French Government in 1823, under the excuse of suppressing a dangerous spirit of internal revolution and reform. With reference to this right of self-government in independent sovereign States, an opinion has been expressed, which, whilst it concedes this right as inseparable from and as a necessary attribute of sovereignty and independence, asserts nevertheless some implied and paramount authority of a supposed international law, to which this right of self- government must be regarded and exerted as subordinate; and from which independent and sovereign States can be exempted only by a protest, or by some public and formal rejection of that authority. With all respect for those by whom this opinion has been professed, I am constrained to regard it as utterly untenable, as palpably inconsistent, and as presenting in argument a complete felo de se. Sovereignty, independence, and a perfect right of self-government, can signify nothing less than a superiority to and an exemption from all claims by any extraneous power, however expressly they may be asserted, and render all attempts to enforce such claims merely attempts at usurpation. Again, could such claims from extraneous sources be regarded as legitimate, the effort to resist or evade them, by protest or denial, would be as irregular and unmeaning as it would be futile. It could in no wise affect the question of superior right. For the position here combatted, no respectable authority has been, and none it is thought can be adduced. It is certainly irreconcilable with the doctrines already cited from the writers upon public law. END QUOTE DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856)
.
The above quoted cannot be applied as such to the Commonwealth of Australia as the Framers of the Constitution specifically stated (again);
.
Hansard 17-4-1897 Constitution Convention Debates QUOTE Mr. SYMON: There can be no doubt as to the position taken up by Mr. Carruthers, and that many of the rules of the common law and rules of international comity in other countries cannot be justly applied here. END QUOTE
.
10
15
Therefore the so called NWO (New Wold Order) cannot override the constitution because it is not within the constitution to provide for this kind of system. However where it comes to the Titanic Board of Inquiry that set down international rules to come to the aid of those at the peril of the sea due to being ship wrecked then this can be enforceable because it is outside the sovereign jurisdiction of any particular State and for this also the Tampa 2001 issue was under this and not the same as the ordinary so called economic refugees who are so to say window shopping and dictating they have to be admitted into a certain country they elect to what is more desirable to them rather than to acknowledge the inherent right of any State (See privy council Ah Toy ruling)
.
20
Hansard 3-3-1898 Constitution Convention Debates QUOTE Mr. WISE.-I do not think so. I beg to moveThat the words "each state" be omitted, with the view of inserting the words "the Commonwealth."
25
I apprehend the Commonwealth must have complete power to grant or refuse citizenship to any citizen within its borders. I think my answer to Sir John Forrest was given a little too hastily when I said that every citizen of the British Empire must be a citizen of the Commonwealth. The Commonwealth will have power to determine who is a citizen. I do not think Dr. Quick's amendment is necessary. If we do not put in a definition of citizenship every state will have inherent power to decide who is a citizen. That was the decision of the Privy Council in Ah Toy's case. Sir JOHN FORREST.-He was an alien. Mr. WISE.-The Privy Council decided that the Executive of any colony had an inherent right to determine who should have the rights of citizenship within its borders. Mr. KINGSTON.-That it had the right of keeping him out. [start page 1786]
30
35
END QUOTE
.
40
Perhaps the High Court of Australia may just learn what the constitution really stands for? . Also they may just consider:
.
HANSARD 12-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. BARTON: And then there is this proviso:
45
.
Provided that no fact tried by a jury shall be otherwise re-examined in the High Court than according to the rules of the common law. END QUOTE
50
And, the High Court of Australia also should consider in regard of elections:
.
Hansard 2-4-1891 Constitution Convention Debates QUOTE Sir SAMUEL GRIFFITH: 4-9-2011 Julia Gillard Defence Chaplains & the constitution PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com Free downloads regarding constitutional issues at http://www.scribd.com/InspectorRiakti
The practice in England has been that when the House of Commons is dissolved, the Gazette which contains the proclamation, or one issued concurrently, also contains a proclamation summoning a parliament to meet on a given day, and all the writs are appointed to be returned on that day.
END QUOTE
.
Hansard 2-4-1891 Constitution Convention Debates QUOTE Sir SAMUEL GRIFFITH: According to the English practice there is always a parliament either summoned or prorogued. Coincident with the dissolution of the old parliament is the proclamation calling the new parliament.
10
END QUOTE
.
15
20
Hansard 2-4-1891 Constitution Convention Debates QUOTE Sir JOHN BRAY: I am very glad to hear that the committee considered the point, although I think they arrived at a very unwise decision. The hon. gentleman who last spoke is mistaken in what I take to be the drift of all parliaments. No parliament lives out the full term of its existence. It is always dissolved before it actually expires, and so it would be in this [start page 645] case. The practice almost invariably is for the house to be dissolved, and a new house elected, before the expiration of the three years, the object being that there shall always be a parliament in existence. The intention is not that the members shall be elected for three years, but that they shall absolutely serve for three years, and the three years ought for the sake of convenience to date from the first meeting of parliament. END QUOTE
.
25
30
This as with the 2001 federal elections the FOI (Freedom of Information Act) documents revealed that the Proclamation was not published until 9 October 2001 but the writs were already issued on 8 October 2001 because the Special Gazette officer had the morning off and so by 12 noon no Special Gazette was printed and neither published because it was due to this the following day and this means that the writs were issued prior to the proclamation for the prorogue of the Parliament and the dissolution of the House of Representatives being effective and this means the writs were constitutionally invalid. Hence the 2001 federal election in that regard was a non-issue!
.
35
40
So much more is wrong but lets try to address matters appropriately and stop this misuse of Consolidated Revenue Funds to pay for Chaplains and other religious creatures to serve in the armed forces for religious purposes. And, likewise the funding of education must be limited to non-religious activities! I could have quoted entire reason of judgments that set this all out BUT AS I QUOTED WEBSITE REFERENCES THEN THIS CAN BE FOLLOWED UP BY EACH PERSON DESIRING TO DO SO.
.
Leadership is not what a person imagine to exist but is proven by once conduct!
.
45
Ample of Australian born persons are ending up living on the street, in cars, etc, because they simply couldnt keep up with the ever increasing charges that were forced upon them and here we have a Federal Government squandering monies left, right and centre as it simply lacks any competence to understand that for example all those persons employed within the Armed forces for religious purposes are not entitled to be so. Stop wasting monies!
Awaiting your response,
G. H. Schorel-Hlavka (Gerrit)

110904-Julia Gillard - Defence Chaplains & The Constitution

Caricato da

Informazioni sul documento

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

110904-Julia Gillard - Defence Chaplains & The Constitution

Caricato da

Copyright:

Formati disponibili

5

Julia Gillard, PM Email c/o "R.McClelland.MP@aph.gov.au" <R.McClelland.MP@aph.gov.au>

QUOTE THE AGE 3-9-2011

END QUOTE THE AGE 3-9-2011

QUOTE Defence Act 1903 Act No. 20 of (3)

END QUOTE http://www.paganlibrary.com/fundies/guidelines_on_discrimination.php QUOTE

U.S. Supreme Court

QUOTE First Amendment Free Exercise of Religion

Hansard 31-3-1891 Constitution Convention Debates QUOTE Sir SAMUEL GRIFFITH:

Hansard 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.-

St. Maximilian faced with conscription, refused, saying,

A few Quakers immigrated from England in 1656, with more to follow.15

e1=14&date2=June&date3=2001&query=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%09and+data+c ontains+'OBJECTION'+%29%0a QUOTE

U.S. Supreme Court

WELSH v. UNITED STATES, 398 U.S. 333 (1970)

QUOTE DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856)

U.S. Supreme Court

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856)

Awaiting your response,

Potrebbero piacerti anche