| Welsh v. United States
(No. 76)
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| Syllabus
| Opinion
[ Black ] | Concurrence
[ Harlan ] | Dissent
[ White ] |
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Welsh v. United States
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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 [p368] 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 [p369] 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 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, [p370] 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 "‘indicative 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 [p371] 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 [p372] 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. [p373] 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.
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 nonestablishment 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 [p374] 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.
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).
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.
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"]343 U.S. 306, 313 (1952), and 343 U.S. 306, 313 (1952), and Engel v. Vitale, 370 U.S. 421, 424 (1962), to the "Almighty."
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 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.
5. New International Dictionary, Unabridged (2d ed.1934).
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 "policy, pragmatism, or expediency," ante at 342-343, blends morals and religion, two concepts that Congress chose to keep separate.
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 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.
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 12138, 254-313 (2d ed. revised by Purinton 1958); Stokes & Pfeffer, supra, n. 3, at 560.
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 . . . The 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.
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 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.
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.
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.
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" 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."
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.
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 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).
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.
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 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.
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.
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.