Pierce Butler

“ Appellants assert-unquestionably in good faith-that all war, preparation for war, and the training required by the University are repugnant to the tenets and discipline of their church, to their religion, and to their consciences. ”

“ The 'privilege' of attending the University as a student comes not from federal sources but is given by the state. It is not within the asserted protection. The only 'immunity' claimed by these students is freedom from obligation to comply with the rule prescribing military training. But that 'immunity' cannot be regarded as not within, or as distinguishable from, the 'liberty' of which they claim to have been deprived by the enforcement of the regents' order. If the regents' order is not repugnant to the due process clause, then it does not violate the privileges and immunities clause. ”

“ For one opposed to force, the affront to conscience must be greater in furnishing men and money therewith to wage a pending contest than in studying military science without the duty or the pledge of service. ”

“ Never in our history has the notion been accepted, or even, it is believed, advanced, that acts thus indirectly related to service in the camp or field are so tied to the practice of religion as to be exempt, in law or in morals, from regulation by the state. On the contrary, the very lawmakers who were willing to give release from warlike acts had no thought that they were doing anything inconsistent with the moral claims of an objector, still less with his constitutional immunities, in coupling the exemption with these collateral conditions. ”

“ So long as its action is within retained powers and not inconsistent with any exertion of the authority of the national government and transgresses no right safeguarded to the citizen by the Federal Constitution, the state is the sole judge of the means to be employed and the amount of training to be exacted for the effective accomplishment of these ends. ”

“ We petition the government of the United States to grant to members of the Methodist Episcopal Church who may be conscientious objectors to war the same exemption from military service as has long been granted to members of the Society of Friends and other similar religious organizations. Similarly we petition all educational institutions which require military training to excuse from such training any student belonging to the Methodist Episcopal Church who has conscientious scruples against it. ”

“ It declared that the college of agriculture should be first established, section 4; that the college of mechanic arts should be next established, section 5, 'and in order to fulfil the requirements of the said Act of Congress, all able-bodied male students of the University, whether pursuing full or partial courses in any college, or as students at large, shall receive instruction and discipline in military tactics in such manner and to such extent as the Regents shall prescribe, the requisite arms for which shall be furnished by the State,' section 6. ”

“ This law of the state, called the organic act, provides that 'any resident of California, of the age of fourteen years or upwards, of approved moral character, shall have the right to enter himself in the University as a student at large, and receive tuition in any branch or branches of instruction at the time when the same are given in their regular course, on such terms as the Board of Regents may prescribe.' Section 3. ”

“ In October, 1933, each of these minors registered, became a student in the University, and fully conformed to all its requirements other than that compelling him to take the course in military science and tactics in the Reserve Officers Training Corps which they assert to be an integral part of the military establishment of the United States and not connected in any way with the militia or military establishment of the state. The primary object of there establishing units of the training corps is to qualify students for appointment in the Officers Reserve Corps. ”

“ No other conclusion is compatible with the well-nigh limitless extent of the war powers as above illustrated, which include, by necessary implication, the power, in the last extremity, to compel the armed service of any citizen in the land, without regard to his objections or his views in respect of the justice or morality of the particular war or of war in general. ”

“ The court, denying the application, handed down an opinion in which it held that article 9, § 9, reposes in the regents full powers of organization and government of the University subject to legislative control in respect of its endowments and funds; that by section 6 of the organic act and article 9, § 9, military tactics is expressly required to be included among the subjects which shall be taught at the University, and that it is the duty of the regents to prescribe the nature and extent of the courses to be given and to determine what students shall be required to pursue them ”

“ They have not even been required in any absolute or peremptory way to join in courses of instruction that will fit them to bear arms. If they elect to resort to an institution for higher education maintained with the state's moneys, then and only then they are commanded to follow courses of instruction believed by the state to be vital to its welfare. ”

“ Then, because of their religious and conscientious objections, they declined to take the prescribed course, and solely upon that ground the regents by formal notification suspended them from the University, but with leave to apply for readmission at any time conditioned upon their ability and willingness to comply with all applicable regulations of the University governing the matriculation and attendance of students. The University affords opportunity for education such as may not be had at any other institution in California except at a greater cost which these minors are not able to pay. ”

“ But that contention cannot be sustained, for we are unable to say that every question that appellants have brought here for decision is so clearly not debatable and utterly lacking in merit as to require dismissal for want of substance. [2]
The allegations of the petition do not mean that California has divested itself of any part of its power solely to determine what military training shall be offered or required at the University. ”

“ Plainly there is no ground for the contention that the regents' order, requiring ablebodied male students under the age of twenty-four as a condition of their enrollment to take the prescribed instruction in military science and tactics, transgresses any constitutional right asserted by these appellants. ”

“ Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889, involved a petition for naturalization by one opposed to bearing arms in defense of country. Holding the applicant not entitled to citizenship we said (page 650 of 279 U.S., 49 S.Ct. 448, 450) : 'That it is the duty of citizens by force of arms to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution. ”

“ The Secretary of the Conference is asked to send copies of this paragraph to the governing boards of these institutions.'
Appellants as members of that church accept and feel themselves morally, religiously, and conscientiously bound by its tenets and discipline as expressed in the quoted conference resolutions; each is a follower of the teachings of Jesus Christ ”