Brief for the United States — Clay v. United States

Supreme Court brief1971

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| INDEX’ °°.

Ve | i et Soe oes

Opinions befow —_ __---- siicuediigtieitintwenae sok

Jurisdiction. _____- ETS EN pe RCD Cee ten ER ,

Cen VN os Soo a eon cen ek ete ie

Statute involved. -_~.-= (7. <2 cans Maauoe 2:

Statement_ 222-17) (ae ae y Gees er oe te

Summary of ARIE 59 eeE 2 aay "12

Argument: } ne Bot een Sa? a oh

I. The basis. on which petitioner’ s conscien-.

tious objector. claim was ,denied“is un-

affected by the -deision ‘in Welsh ‘v.

United States; since his ‘claim was - _

acknowledged to have religious- roots__- 16 .:

SE i: ¢ There was ample basis in. faet for the — e

- administrative de nationthat, peti-

aera _: tioner did not began wala on

-ebjector because his* objection ‘to war ie

was. elective a genera 2.

‘Conclusion 2-2 ae Sepa Sat ae 7B

ee ete 2 Si

' Cases:: 3. a

Bishop ve U ited States, 412 B. 2d 1064..." Bt es

Blajock v: United States, 247 F.2d 615-____:< es

DeRemer v. United States: 340 F. 2d 712.2... 23

. Dickinson v. United States; 346 U.S. 389... 22, 23

| Estep’ v. United States, 327 U8; 114.) ° A iy "23

: Gillette v.. United. States, No. 85; O t., pve Coo,

~ decided Mareh-8, 1971... 17, ¥9; 21, , 27, 28, 20.

| Le EL MMOS cesta ;

+ a 4 hho . Be

; OSs % ’ . mn.

Crises—Continiied aie

Lockhart v. United States ae 1143."

Negre v. Larsen, No. 25, O.T. 1970, decidgd .

» March 8,4971_...------2-1-2.-- Wee ds 19, 23.

> Olgutn v. United States, 392 Fr. 2d 329 cearakon 23

Presb) terian Church v. Hull Chiareh, 393 US...

WAY cpr a eeeananebem iis sean it 32

Salamy v. United States, 379 F. 2d $38, ------ 34 -

"Sostre v. Mcuinnes, 338 F. 2d 96, certiorari ~.

denied, 379 U.S. ae ee rer.

Sicurella v. U nited States, 348 U.S, 886... .- re rere

: “98,20,32 7° *. -4-

‘Swaczyk v. Unjied States; 156. F. 2d 17, pee eee oo

certiorari denied, 329 U.S. 726 -__.-2---.- — Bh) Se

Thompson v. United States, 380 F: 2d 86____- ae - 3

-U nited States v. Ballard, 322 2S Se |: Sane + 23 Z

~ United States v. Bornemann, 424 ¥. 24.1343°_. 34

United States v. Brown, 423 F. 2d-751____---:* © 23

United States v. Broyles, 423 F.2d 1299------ 34 ——_.,

U nited States vf Comi 188, 280 F.2d 80% certi- =e

orari denied, 364 U.S. 884....-4---2-..2. - ‘28

Sie aoe

United States.v. Freeman, 388 F.

United States v. Geary, 399.F’. 2d 91 , ch tiorari eet

- ,. +. denied, 389.U.8, 959. __-- ae ee red co See

\. | United States v. Kauiten, 133 F. 24.708-7._- ae eR.

BE “ United States v. Leavy, 422 F.2d" ‘55... i done

_ United States v: Messinger, 413 F. 2d 927, cer- A BE

-tiorari denied, 399 U.S. 1 preted i pa oe. eee

‘United. States v, Owen, 415 F. 2d 383 _ ne poet » 38°: .

United States.v. St: lair, 293 F. Supp. 337__. - 24

United oats V;: iis 380 U: S.. 163 _ - haa OF.

ae 15, 16, 23 |

ae United States v. “\Bésiirions, 213 F. 2d Ore 4—

- _- versed on other grounds, 348 U.S. 397___ vs 24

— United States v. Sturgis, 342 F. 2d 328_:__-.-.- 28

Welsh v: United States, 398 5 EF. & 333_.. 12, 15, 16, a

Wi itmer Vv. United States, 348 US. 375...-. 1423, 61 °°:

1 : Se Sie

‘Statute send regulations:

Pg 4

50 U.S.C. App. (Supp. IIT) 4564). es ay

50 U.S.C. App. (Supp. IV) 456(j)---2--2 6,15 -~

50 U.S.C. App. (Supp. V) 456(j)-.-.- 2, 18, 15°.

50 U:S.C. App. (Supp. V) 460(b) (3) - > ae

50,U.S.C, App. 462(8)- 20-5. 5-25 - Rake 2. 3

“The Selective . Training and sates Act " Apo

1940, 54 Stat. B65. --2- ee amaee = ew

Selective Service Regulations: © AN oe

32 C.F.R. oS, eT ER a lags BHM Or Ble 3

32 C.F.R. 1623. - ERR eae RON, Cae 35

ct Se ery eee omnes ee

;2*° 32 C.E.R. (1967 ed) 1626.25. -.-2----- Sse ae

56k ie Se - eee fe Ee me ¢ via

32 CFR: MOP ec tho ker eee npeme he. ae

_ Miscellaneous: ae Bs : Fate ese Gor

_ The Military Selective ervise. Act of 1967,

— 81 Stat. 100 (50 U.S.C. _ App. 451 et seq.):

— '*§0'U.S.C: App. 456(j) Susi Gad dass crate ch

Maulana Muhammad AK, Treialition The -

: “Pagel. \ a

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Holy Qur’an (Sth edition, 1963). 6, 7, 8, 18, 25, 31

_ Elijah Muhammad, Message" to: the’ Blackman

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OcropEn ‘Term, 1970 = We.

PETITIONER .

Vv.

Me ~

NITED STATES: OF AMERICA: -

ee aes IEF FOR THE UNITED STATES

| a ey eet ane.

OPINIONS BELOW Bt

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- YU tar ices: Sa : No. 33 Zz

RSELLUS Cray a/k/a Munaximap Au, +o

rx is en dat 397 F. 2d 901. The. opinion of the ;

", cou Tes appe Is pardon on, remand from this,

* the record before tltis Court. “SSE” réferpates are to sietitaoner’ s.

Selecti¥e Service ‘file, also ae Sfahe record nefore this Court. .

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{

/ — ‘2 JURISDICTION

The dertent. of the couft of appeals was entered

“on July\ 6, 1970, and a petition for rehearing .was

denied on August 19, 1970; Mi. Justice Black extended ~ .

the time pe filing a petition for a writ of certiorari —

to October 3,°1970, and, on October 1, 1970, the peti- |

tion was filed. It was granted, limited toa single ques-' .

tion, on January 11, 1971. The jurisdiction of this

Court rests on 28 'U. S.C. 1254(1).

Ky avestiow PRESENTED |

The grant of certiorari was limited by ine Const: to

this question :°

Whether petitioner’ s conviction should be va-

cated in light of this Conrt’s decision in Welsh |

v. United States, 398. U.S, 333 1970), because

the denial to petitioner of a cortscientious objec-

; tor exemption may have’ been based updo the

_ Department of Justice’s erroneous characteri-

_ gation of his objections to participation in

. wars as "political. and racial’_zather than

~“‘religious’ 29

STATUTE INVOLVED

50 U.S.C. App.- (Supp. iff 456(j)," provides in

pertinent part:

Nothing contained in this title * * * shall be

construed to require any person to*be subject

*At the time petitioner's claim was processed by the-Selec-

tive Sérvice System, Section 6(j) defined the phrase “reli-

gious training and belief” to mean “an individual’s belief.in a

relation to a Supreme Being * * *” (50 USS. AP 456(j) ). This

reference to “Supreme. Being” has since been dropped ons

ms to combatant training and service jn 1 the armed

: forées of the United States who, by reason of

religious training and belief, is conscientiously

- @pposed to, participation in war in in any form.

ig MN

0 OT geareuewe ee 8 Wee gt

After a jury trial “in the gUnited ‘Sthtes District

‘Submit 0 inditction into the armed forces i in violation

sentenced to five years’ imprisonment and a #10,008

fine.” . eA ies, Oe

Petitioner, at the age of eighteen, registered with

his local Selective Service board in. Louisville, Ken-

tucky on Aprit 19} 1960; on March 9, 1962, he was

classified I-A (App. 3a). Twp years later, on March

Bf 26, 1964, having failed to pass a physical and mental

examination ‘under the standafds then in effect (SSF -

.538,.539; App. 3a), he was pla¢ed in Class I-Y, a elass-

ion Assigned to those not currently qualified for

military service who could be qualified in time of war

or national emergency. 32 O.F.R. 1622. 17. ae

statute idhowever, the change has no relev ance to the instant case.

See United States v. Seeger, 380 U.S. 163. ;

* At god time of sentencing the district judge remarked (App.

196a): “Well, I am going to impose the maximum penalty

be&n use fine the rules at the end of an appeal if it is reversed,

why, of, course it is nil. If it is affirmed it is then subject to

motion to reduce, and I find that we get into problems when

clemency is given at the time of sentencing and then follow-

. ing an affirmance there is anotlier petition for clemency.”

ei. ae

9 Couit for the Southern’ District of ‘Texas, petitioner *

,) P convicted of Anowingly and ‘wilfully. refusing to

y .

held this classification until Febrnary 1966, when he

beeame eligible for military service under newly pro-.

mulgated pnd revised, regulations, changing the mini-

mum qualifying standards for I-Y status..On Feb-

—ruary 3, 1966, his local hoard mailed him a statement

(DD form 62) that he. was now physically acceptable

fort service (App. 3a). | : °

Petitioner then wrote to his local board, on Feb-.

ruary 14, 1966,’ advising | for the first ms that’ ( App.

10a) :

***T am a devoit [sic] Muslint and a/tollower er

_ of the Islamic réligious “aith under the discipline.

of the Prophet ‘Eli-»h sic] Muhammad.

To'bear arms or kill is against my religion and.

(a I conscientiously objeet to any combat military

- service that involves the participation in any

war in which the lives of humai? beings is,

: taken.- This I. do not believe to be -rightous

- [sie]. . This has been my faith upward of 5 years.

yeprs.

The bgArd mailed totum SS Form 150 (Special

Form for Conscientious Objectors) . on February 18,

1966,*the same day it mailed to him the notice that .

he had been reclassified I-A; on February. 28, 1966,

the completed form was returned (App. 12a). In the

‘Fi tiris letter fo tht board, petitioner also advised that he

was then the Heavyweight Boxing Champion of the World:

. that he was divorced and aceguntable for alimony in the sum

(Of $1250.00 per month and liable for two lump-swin’ paynients

of $50,000; that he had‘ not previously been given a complete

‘physical examination; that his mother was a dependent and

he was cher sole source of support: that ’he suffered’ from

hernia: .and that he*had been arrested for disorderly conduct

in Chicago for which’ trial was ‘pending (App. oorsaae

gr Car eee

form, petitioner indicated that h¢ believed in a Su-

preme Being. He described the nature of his belief

as follows: ‘‘Muslim-meaning peace—total submis-.

— sion to will of Allah—Do not take ‘lives.of anyone; —

nor war when not ordered by Allah (God)—Keep |

up prayer and pay poor rates” (App. 13a). The use ~

of force, he stated, is permissible ¥g ‘Lo Jnly in sports

and self defense” (App. 14a). And, in explaining: the

basic tenets of his religion, petitioner said (App.

1fa): “Islam teaches, Peace—AHah (God) forbids

wars, except when Islam i is attacked. Hg

Petitioner tequested a personal appearance’ before

the local board in connection with the change in his

classification from I-Y to I+A (App. 17a).’The re-

quest, was granted and on March 17, 1966, he appeared .

before . four ‘members of the board. The official

/ minutes of that meeting. (App. 17a-18a) reflect that,

after discussion of petitioner’s claims to ‘physical |

(I-Y)s and hardship (III-A) deferments, petitioner

stated that-he was ‘no longer Cassius Clay since that

was a slave name; he had taken -the-name—of—Mn-

hammiid Ali. He advised the board (App. 18a). that —

““[h]is religion teaches * * * not to take asi in any

way with infidels or any non-religious group’ and to

‘‘fioht only in self.defense, not war * * *,’’ He also

stated (ibid.) that the Muslims have “their own ‘po-

lice forge and no mtslim may carry any. lethal

weapon. Mohammid _[sic] is their leader.’’ The board

minutes further 1 dicate that: he expressed as one of

the bases for his objection to military service that

“he has no quarrel with the Viet Cong.’’ And lie

421-145-—-71-—-2

»*

eee See

> , 6

“‘stated that’ he could not, without, hoing a. hy poerit

[ste], take part. insanything stich as war or: anything

that is against the Moslim [sic] religion.” After the

Appearance, the board voted unarimously: to retain -~

” .

‘petitioner in Class I-A.

Petitioner ‘thengappealed to the Kentucky ‘State

Appeal ‘Board’ (App. 4a). In addition to claiming”

_that he had been improperly denied I-Y and 11i-A ©

7. classific ations, petitioner stated in his letter’ asserting

‘ hi& desire to appeal that: his ‘‘religious beliefs decree.

that I not serve in any military purpose te, promote

* war. T reaffirm my stand ‘thereon as my prior duty to

Allah (God) the Supreme being, over all’? (App.

21a). The appeal board reviewed petitioner’s file, de

novo and, on May 6, 1966, tentatively deter mined that

‘he was’ not ‘entitled | I-O (conscientious objector) ..

tm status or ® any lower classification (App.’4a-—5a). In

accordance with the procedures’ in effect at that time

- (50 U.S.C. App. 456(j) ; 32 C.F.R. (1967 ed.) 1626.25)

the matter was referred to’the Department of Justice °

. for an advisory, recommendation.’

On August 23, 1966, petitioner appeared Ninhous the

Department of Justice hearing officer, accompanied

by counsel, his’ niother and father, an Assistant Min-

ister of the Muslim religion, and his tax attorney. He

. offered into evidence a book entitled Message to the

Black Man in America, by Elijah Muhammad, a book

entitled Holy Qur’an (English Translation) (App. 40a-_

~The procedure ‘for securing this advisory recommendation

..of the Department was eliminated by the Military Selective

Service Act of 1967, 50 U.S.C. App. (Sapp. IV) setae el

————

9 | .

41a), and a newspaper entitled “ Muhammad Speaks” -

" (App. 33a). M essage to the Black Man in America and

’ IFoly Qur'an , were described ‘as the books which —.

were dollewea as-a basis for the. beliefs held by the

Nation of Islam and as thé basis for the objections

that the petitioner expressed’in his papers filed. with +

the draft board (App. 40a). Petitioner also said that

he‘relied upon the newspaper “Muhammad Speaks”’

in formulating his views (App. 1612).° |

At the earing, petitioner admitted niaking the fol-

owing statement which had, been attributed to him iam

in a newspaper article ( App. 79a-802) :

Let me tell-you what Muslims. are taught; to

defend ourselves when we are attacked. * *: *

- Those Viet-Cong are not. attacking me. These .

—— Viet Cong. are fighting a very nasty war over

©?

. there. There’s a lot of people getting killed.

_ Why showd we Muslims ‘get involved. Besides,.

- I'm fighting for the Government every day. I’m

laying my life on the line for the Government... f

Nine out of ten soldiers would not want. to be

in my place in the ring. It’s. too danger ous,’ -

cept noncombatant service, he resporided (App. 96a-

97a):

*The portion of “Muhammad Speaks” upon which the De-

partinent of Justige relied in its recommendation appears in

substantially the same form in Message to the Black Man in Amer-

ica, page 164. All these materials, as well as the transcript of the

hearing, were forwarded: by the Department of Justice to the

‘appeal-board (A p. 114a).

7 Petitioner explained that everything in the statement was’

‘true and that Elijah Muhammad condemned him officially “for _

making such a wild, boastful statement * * *” ’ Cpe 80a).

| When inquiry was made. as’ to whether ‘he would ac-.

ap.

Seat

4 *.* the chy Our? an and the isha of

-the Honorable Elijah Muhammad tells us *:* * .

‘that we are not to participate in wars-on

the side*of nobody who—on the’ side of non- -

ay. believers, and this is a Christian country and

this is not a Muslim country and ‘the Govern-

ment and tlie history and the facts shows: [sic]

' that every move toward the Honorable Elijah

— is made. to distort and. is “made to.

ridicule him and is made, to condemn him and.

the Government has admitted that. the police

of Los- Angeles were wrong about. attacking

and killing.our brothers and sisters and they

were wrong in, Newark, New Jersey, and they

were wrong in Louisiana, and the outright, —

every-day oppressors and enemies, are the péo-

“ple as a whole, the whites of this nation. So,

we are not, according to the Holy Qur’an to

eyen as touch as did in passing a cup of water

to the—even a wounded.’

Petitioner also said that while he’ was sure e that Elijah

Muhammad would never so direct: him, if Elijah Mu-

harnmad did advise him ‘“‘to fight in any kind of war’’

- (App. 101a), he would. .

Samuel X. Saxon, an Assistant Minister and Cap-

‘tain of Muhammad’s Mosque ‘No. 29 in Miami, Flor-_

- Ida, appeared on behalf of petitioner .- (App. 3a);

* At another time in n the heating, petitioner explained that the

_ Holy Qur'an taught that he should not take part in war “un- .

less declared by Allah himself, or unless it’s an Islamic World

War, or a Holy War * * * and * * * we. are not to even as

much as aid the infidels or the non-believers in Islam, even “to

as much as handing them a cup of w ‘ater during battle” ( App. —

asia

Bie oe |

. _ petitioner endorsed Saxon as ‘being knowledgeable. on...

~ the’ Muslim réligion (App. 100a-L02a). Saxon stated. ’

. that’ he was familiar with: the teachings -of Elijah |

‘Muhammad and the Nation of Islam with respect to

the performance of military service (App. 32a). He

| explained that the Muslims, “being righteous peep

-and trying to do the divine will of Almighty Géd, ;

are taught and believe that they ‘‘shouldn’t take aris

in wars or participate in them”? (App. 32a-38a). Al-

though the Fruit of Islam, a group Within the Nation

Islam composed of male members (App- 37a), is

_: tamaght,“to prepare for the War of Armageddon” ‘

(App. 38a), Saxon dectar ed that the Nation of Islam —

would not fight m this war; it would be fought he-

_ tween God and the devil. ‘He added, howev er, that, to

prepare spiritually for this War, the Fruit of Iskm

was given ‘military training, drill, judo,. because we

do protect our prope ar and officials of—ministers—

we protect our: minis Ss we protect the. Honorable ~

Elijah Muhammad’”’ (App 38a). There. are no weap- -

ons-of warfare, he said, but the group does believe in *

' ‘self-defense (App. 38a, 42a). “And:it is goyerned. by a

military ‘system wherein the members. are controlled

“by general orders similar to those issued by ‘Gore |

military organizations (ibid.). ;

When asked about a. statement that S‘an- Telgis

state may ally itself with one or more states to. de-

fend a. victim” and that warfare was ‘admissible

- and a virtue when: undertaken: to repel aggression,”

Saxon’: disavowed this as a principle of the Nation

of Islam in the United States (App. ‘39a-A0a). He :

“-

: expressed, the view -that ‘‘we don’t have ho state to .

defend; that’s why it have to be rejected” (App. 42a).

But, ‘he went on to state that. the Muslims “believe

ie that if we are: ‘attacked, or fight is is reed on us, then | |

we will defend ourselves: peeatise v we believe we have _

noe life after death so we must: protett’ and. defend

/ourselves so we'can kée rliving’’. (vbid.). What, how-

- ever, would not, in theMuslims’ view, be “war”? ; for, as’

he explained it, “war is when you [sic] volar

1 ing someone dice a VAM te A os, eo ds \

(ibid: | PA ee -\

The heari ing | élinee: concluded that pétitioner was |

sincere in‘ his Conscientious objection (App. 112a-_

1183). The — Depagtment of Justice Conscientious —

Objector ‘Section reviewed the evidence and, on No- -

vember 25, 1966; recommended to the Kentucky Ap-:

peal Board that petitioner’ s request. for I-O status be

de nied (App. 127a). On January 10, 1967, petitioner

was notified that he was to be retained in Class LA.

On ‘te same day that he appeared before the’ J us-"

oe tice Department hearing officer, August 23, 1966, peti- 5 ee “3

‘tioner filed with the Selective Service System a letter

in which he claimed, for the’ first time, that he was |

_.. entitled to'a ministerial ( IV-D) exemption because. ~

he was a minister of the Nation of Islam (App. 160a).

t On January 12, 1967, after reviewing petitioner’s file,

the local board dénied this claim and-declined to re- -

. open his classification ( App. da). Shortly thereafter,

the Nationel Director of Selective Service requested

the local board to reopen petitioner’s classification,

and, on aceaagtd 19, 1967, the board did so and again

| lansibiod petitioner I-A (App. Sa). "etitiones ap- |

pealed and asked that the. Appeal Board for the

_ Southern District of Texas, where’ he then resided, ‘ie

a * hear the appeal. ‘This. request was granted and on

February 15, 1967, the Texas Appeal’ Board, ‘after.

considering petitioner’s entire Selective Service: file

de novo, classified him T=A. On-February 24, 1967, the :

‘National Director instituted an appeal to the National:

“Selective Service Board. (the. Presidential Appeal

" Board) ‘(App. Ta, 195a),° and on March’ 6, 1967, the

Presidential Appeal Board voted to classify eee

I-A (App. 74). \ |

On March 14, 1967 meiner was oraared to ‘hem

‘for induction at Louisville, Kentucky, on April 11, _

~ 44967 (App. 7a). He _requested. and obtained a trans-

fer of his induction to Houston, Texas (App. 8a),

“and- the weporting: date was postponed to April 28, -

1967. On that date, petitioner ‘reported but refused: -

to submit to induction (App. 8a), His indictment,

trial and conviction followed. ——

On appeal; the Fifth Cizcuit initially held, insofar

as is here relevant, that, under: the applicable ‘basis _

_—_—

in fact’? review standard, “there was more than het

Adequate evidence to justify the: rejection’? of peti-. ”

tioner’s conscientious objector claim (App. 226a-227a). ,

After ‘Temahd. by this Court ‘on another issue , (sub

nom. Giordano ‘v. United States, 394 U.S. 310), the

case again reached the court of appeals; the court

_ below reconsidered petitioner’s claim in light of the

® Petitioner could not take such an appeal under the pertinent

» ’. regulations, since the, state appeal board’s decision had’ been

“unanimous (s 300 | 2C. F.R. 1627.1, 1627.3). *

intervening decision in Welsh. Vv. United States, 398° - I] |

- U.S. 383, and concluded (App. 249a, n.-9): 2 <mpeney S:

*" Fthe Act] grants an exemption from service

"in the Armed Forces to a registrant “who, by. .

reason of religious training and belief, is con- |

seientiously, opposed to participation in-war in me

any: form.” As we pointed: out in our original ©

opinion in this case, the Department of Justice.

recommendation * * * stated that’ Clay’ s be-* . i

liefs insofar as they are based upon the teach= ©

ings of the Nation: of Islam “rest‘on grounds. °°

--which are primarily* politic ‘aland-racial.”’ This

constitutes objections to only certain types of”

wars in- certain circumstances, rather than a

general. scruple against participation in warin oom

any form.” [Emphasis in original.]. Rien (ny

ry ‘ ;

SUMMARY OF ARGUMENT

Pusan PAP cee em ere RS

. The sole issue. presented to the Court in. this case .

is whether the administrative..denial of petitionier’s — |

conscientious -objector claim was: without, any basis — SS

in fact. There i ts ho dispute that petitioner’ S| ‘professed pee i

- ‘heliefs were founded on basic tenets of the Mu8lim -

religion, as he understood them, and derived in sub-

stantial part. from his devatidti to Allah as the Su-

preme* Being. Thus, under this Court’s decision in

United States v. Sceger, 380.U.S8. 163, his,claim.un- °

—questionably was within the “feligious: training and —

belief” clause of the exemption. provision. It clearly ° 3

did not become more, or legs, ‘ ‘religious’ ‘hy virtue of | ‘ F

anything this Court later said in Welsh v. United et |

States, : 398 U. S. a

ra |

me ee ? 3

ote "-Within this framework? there was ample basis, to

4 deny pétitioner’s claim on the gyound that“he failed -

= obfoc ion to “Spartici-

-pation ‘in war in. any form.” * ‘50. U.S.0. App. (Supp.

“to demonstrate a conscientious.

V) 456(j). Petitioner undeniably was opposed to par-

7 > “ticipating ‘in. wars on behalf of the United States,

and. there are , some statements in thig record’ that

night suggest opposition te all wats. -But many

statements - by petitioner, ‘and -by the religious leaders

‘on whom he placed total -reliance, tended to show |

merely selective opposition. Thus, petitioner himself

stated that he is “‘not to participate in wars on the

side of nobody who—on the side of nonbeliev —

this is a Christian’ country and thig is not, a Mushm °

country * *:-*” (App. 96a-97a) ; that the Muslims

don’t goto war ‘finless declared by Allah himself, or

~ unless it’s an Isl mie World War, or a Holy W Var’

(App. 68a) ; that: the Muslims icsine taught to defend

themselves when. we are attacked’? (App. 79a~80a) ;

‘and that ‘“[ hose Viet Cong are not attacking me.

+m o¢ Why should we Muslims get involy ed” (App.

8065.

‘A

~ When Secale with other statemertts ; in the rev-"

ord, these statements raised a question, for adminis-

‘trative determination, whether petitioner did or did

“he » not object to all wars. There. was eunplo® evidence

tending to’ show. that petitioner would not object

to fighting with real weapons inva defensive war on

‘

421-145--71-—3 °

QO . 7

14-

behalf Muslims. ft was, therefore, not unreasonable

for the Selective Service System to conclude that his

was not a general seruple against participation in

war, but rathet a reftisal to. ficht in’wars on the side

of white persons. Such a beliéf is consonant with the

creed of his Muslim sect as expressed in the’ tr

that petitioner placed in the record as the so Kealit

his beliefs... \— - -

Of course, “it is not for the conrts to sit as super

draft boards, substituting their judgments on the

- weight of the evidence fpr those of the designated

ageycies. "7 W itmer v. United oStgtes, 348 U.S. 375,

380-381. The scope - of review. is limited .to a deter-

mination whether there exists a basis in fact -for the

assigned classification diseove rable fromthe adminis-/

trative record. Ey on if various statements inthe ifi-

stant record suggest an ambiguity as té the cireum-

stances under which, petitioner would be willing to

engage in’ war, that anbiguity cannot acerue to his

benefit. As this Court: has recognized, it is ‘“’* * * the

‘ policy of Corfgress * * * to make review within the

Selective Service System final in all cases where there

was conflicting evidence-or where two inferences eould

be drawn, from the Same testimuriy.”” Witmer v. U nited’

States, 348 U‘S. 375, 383. The burden ‘was on the

petitioner to. demonstrate that.he is entitled to eon-

scientious” ‘objector status, and on this record the ad-

ministrative agency could fairly determine that- ne

failed to meet that burden. me

tae pera Zn 8)

ARGUMENT .

[. “THE BASIS ON WHICH PETITIONER’S CONSCIENTIOU

_ OBJECTOR CLAIM WAS DENIED 1S UNAFFECTED BY TH

DECISION IN WELSH UV, UNITED STATESSSINCE HIS CLAD)

“WAS ACKNOW LEDGED ‘TO HAVE, i:k1.1G10US ROOTS

_ A. Last Tefm,. this Court ‘eednnsl in Welsh v.

United States, 398 U.S. 333, whether a registrant, |

claiming a conscientious objection to all forms of war

solély on ‘the. basis of deep and abiding moral and

ethical convictions, “is entitled to a statutory exemp-, >

tion’ from ‘“‘eombatant training and service. (50

U.S.C. App. (Supp. V) 456(j)), ont er

his objection does-not derive from anygreligion or

' religious training in the traditional sense. Mr. Justice

Black, speaking for a plurality of *the ‘Court and

viewing the issue ds fundamentally indistinguishable

from the question presented to this Court five years

earlier in United States v. Mager oe U. S. 163, ali-

swered in the affirmative.

Questions ean, of course, be 1 staal aie the extent

_ to which the. Welsh decision expayded the Seeger

definition of “réligious training and belief,” as that

phrase is used in the Military Selective Service Act

of 1967 (50 U.S C: App: (Supp. IV) 456(j)). We do

nat believe, ‘however, ‘that any such question is pre-

sented in the instant ease. Here, it is undisputed that;

petitioner's professed beliefs, whatever their scope,

are founded on basic tenets of the Muslim re-

ligion, as he’ understands them, and derive in -sub-

. stantial, part from -his acceptance of Allah as, the.

Supreme Being (App. 13a). Thus, his claim to con-

16: > S

‘cient in other respects (see infra, pp. 22-32), has

; roots no less “‘religious” than thos@ of the three’

élaims considered by this Court in Seeger.” It is not a

a which depends on Welsh to come-within the stat-

utory phrase “religious training dnd belief.” ’

_If, therefore, as petitioner now ‘contends, the De-

partment of ‘ Jystive’s advisory recommendation to

his appeal board suggested that ‘his claim. [to con-

scientious ‘objector status, though in our view defi-.

_ ‘seientious wbjector status) shduld be denied because.

= it was not ‘religious’ ”’ (Pet. Br. 16-17), he would have a

+t ¢laim not only ‘wider Welsh but equally under this

Court’s earlier riling.in Seeger, decided some months

_ before’ petitioner filed his conscientious objector claim

~ ¢ with his local board. * Indee d, petitioner made a”

: - ~ The Seege 7 case Was consolidated with United States v: J akob-

son and, Peter y. United Statés,.since all three raised the

question whether, under the then applicable statutory language ~~

| (0 U.S.C. App. (Supp. JIT) 156(j)), the legislative reference to

4 « “Supreme Being” contemplated only the orthodox God. This Court

. : ‘decided it did not. Both Jakobson and Peter, like petitioner in

- . the instant case, asserted that their opposition to war was -

based on a “Supreme Being” ii, their own scheme of things,

‘though their “Supreme Being” was not the orthodox-God. As

for’ Seeger, this Court declared “that the \beliefs which

‘prompted his objection occupy tlie. same place in his life as

- the belief-in a traditional diety holds in thé lives’ of his

- friends, the Qtakers.” 380 US. at 187. And Jakobson's de-

votton to a mystical’ force of ‘Godness’” was equated with

“Seeger’s compulsion to ‘goodress’s’ 380 U.S. at 186. Mani--.

festly, no less.can or should be made of petitioner’s devotion —

to Allah: nor has. the government ever suggested otherwise.

Thete is, therefore, no need to discuss the complex ques-

tion of the retrospective application of Welsh. That issue

would be’ présent in this case only if petitioner had asserted a

° Welsh-type claim :and the. Departanent of Justice had, recom-

J ; mended that it he denied as “non-religious.” ’

‘ . ¢

a \ O°

Seeger claim in the original prdceedings below and

the issue was fully litigated at that time. And, when

the case was here earlier on petition for cértiorari ,

(Clay a/k/a Muhammed Ali vy. United States, No.

271, O.T. 1968), petitioner presented to. this: Court

_ the same issue that he now urges was only recently

raised by Welsh. In almost identical Janguage, he at

that time argued that *‘[d]espite this recognition ‘of

the Muslim religion by the courts ** * the Depart-

‘ment, in effect, ruled that beliefs of, the Muslims were

primarily politic ‘at and racial, rather than: religious”

(Pet., No. 271, O.T. 1968, p. 16). In the circumstances

of this case, nothing that the Court later said in‘

_ Welsh would add to‘the consideration.of such‘a claim. .

There is, however, no dispute that petitioner’s views

on war had religious roots. Rather, the case which in our

view controls the outcome of this litigation i is Gillette

v. United States, No. 85, this Term, decided March 8,

1971. For, the entire focus of the Department’s ad-

‘visory recommendation was on the scope and natute of

petitioner’s beliefs concerning war and not.on whether

those beliefs were based upon ‘‘religious’’ belief. °

B. The true import.of the Department’s advisory

recommendation becomes apparent when the frag-

mented*portions quoted by petitioner (Pet. Br. 16-18)

are read in the context of the reconmendation as a

whole. Thus, in discussing the ‘book, Message to the’

Black Manin America, and thé newspaper, “Muhammad

Speaks” (supra, pp. 6-7), both: of which .ve submitted

to the Justice Department hearing officer by counsel for

petitioner as the basis for petitioncr’s objections con-*

: f~

’

cerning war (App. 40a) , the Department stated that

- the two documents (App. 120a-121a) : .

| * * * express éssentially the view of the Black

Muslims that the white man is their enemy,

and that the black man should disassociate

‘himself from the United States Government

and its institutions and secure an_ independent -

_ nation for the bl qeieume Ww ithin | the United

States. naa

On the basis of_this literature, another book sub-

mitted -by petit oner entitled Holy Qur’ au (App. -

40a), and various statements by the Honorable Elijah

Muhammad, the recognized Jeader of the Black Mus- -,

lims, the recommendation advised (App. 121a):

. ~ It. seems clear that the teachings of the Na-

, « tion of Islam preclude fighting for the United

States not because, of objections to participa-

“tion in war in any. form’ but rather because

of. political and racial objections to policies of

the United States as interpreted by- Elijah

Muhammad.

The Department then analy zed as well the statements

by- petitioner to the Department hearing officer “and

concluded es (App. 122a-125a) :

"4% '. registrant’ s claimed objections to

satis a in war insofar as they are based

upon the teachings of the Nation of Islam, rest

on grounds which primarily are” political

. and ‘racial. These constitute only objections to

certain types of war in certain. circumstances,

rather than a general scruple against partici-

‘pation in war in any form. However, only a

general seruple against participation in war in |

any form can support an-exemption as a con-

scientious objector under the Act. United

States vy. Kauten, 133 F. 2d°703. [Emphasis. ,

added. |

Re ‘selective” objection to participation in partie——~

lar war s, though not to “‘war in any form,”’ is neces-'

sarily grounded on political gy secular considerations

whether or not it has a religious foundation. As this

Court recently pointed out in Gillette v: United States,

supra, slip op. 22, such partial opposition “does de-

pend inter alia upon patticularistie factual beliefs and

"s policy_assessments * * *:” The “selectivé’’ objector

does not Jack—religious motivation or religious basis

for his views. In Negre-v. Larsen, No. 325, this Term,

decided with Gillette, the registrant’s opposition sotely

to the conflict in Vietnam stemmed from his-belief in

the Catholic doctrine that all wars of aggression are—“

‘unjust,’’ that’it is only the ‘‘just’’ war—or defensive

war—in which a Catholic may in good conscience

participate. * Yet, this Court ruled that his claim does ee

not come-“within thé purview of the exempting sec-

tion, even though [his] objection may have such roots

in [his] consctence and personality that it is ‘religious’

in character.”’. Gillette v. United States, supra, slip

_ op. 10.

~ ‘This was procter the point being made by the

Department of Justice in the instant case in’ the

earlier quoted portions of its advisory recommenda- *

_ tion. Petitioner’s conscientious-objection, like Negre’s,

2 See our brief in Gillette v. United States and Negre Vv.

Larsen, Nos. 85, and 325, this Term, pp. 5-10,

oes

/ 20

_ -

- was found. io i motivated by the hentia of -his

religion: personal pa icipation by Muslims in a war |

of aggressien is forbidden; participation in a defen-

sive war is encduraged (see infra, pp. 25-27). Con-

ceptually, then, petitioner’s beliefs derived from the

same fundamental religious distinction between “just”’ .

manner in which he, as a Muslim, an Negre, as a

Catholic, would define a ‘‘defensive”’ that neces-

sarily turns on’ considerations. which yare by nature

“‘nolitical.”’ It is in “this light that the petitioner’s

objection was characterized as essentially ‘ ‘politieal,”

just as:the Army -had found that Ne gie’s claim avas

“based upon a personal moral code’’ (see our brief/in

Gillette and Neg gre, Nos. 83 and 325, this Term, y. 9).

In neither case was the © ‘religious’’: nature pt the

" and “unjust” wars. “The only in Jay in the

beliefs being drawn into question; rathér the focus vA

“was on their selective aspect. ~ |

. The Department’s reliance - on oY nited States v.

ciales 133 F. 2d 703 (C.A. 2), in its-reco imendation..

as to petitioner suns antiates this interp

ea volved a claim, to conscientious gbjéctor status

by an artis e opposition was to a particular war

on the basis of philosophical and political considera-

tions. While the court there held, as petitioner indi-

cates (Pet. Br. 17), that the daint failed to qualify

for exemption under the “religious training and he-

_ lief”’ clause of the statute, it then stated (133 F. 2d at

beac that “the proyjsions of the present statute is

tation. That

PLES Sa AOS WET ir01, ee ak

21 ny |

Selective Training and Service Act of 1940, 54 Stat: :

_ . 885] are moré generous for they take into account the

* characteristics of a skeptical generation and make the

existence of a conscientious scruple against war in any

form, rather than allegiance to a, definite religious

_group or creed, the basis of exemption. * * #99 NI oting

that Kauten’s objection was only “applicable to this war

[World War IT],” the court ruled that a belief suffi-

cient to qualify for exemption ‘ ‘must ex vi termini —

be a general scruple against ‘participation in war in,

_ any form’ and not merely an objection to participa. |

tion in this particular war’’ (133 F. 2d at 707). The

context -in which Kauten was used in the Depart-

ment’s advisory recommendation (App. 123a) indi-

_ eatées that it was this aspect of the decision - that

prompted its citation in support of. the proposition

that only a total opposition to war qualifies for the

statutory exemption.” a

This Court’s,zeéent decision in Gillette y. United

States, supra, has disposed of the constitutional and: -

statutory objections to denial of conscientious objec-

tor status to those whose opposition is limited to par-

ticwar wars. Consequently, it remains only to deter-.

, an A e ° :

mine whether on the record in this case the courts

below correctly found a basis in fact for the admin-

istrative determination that petitioner’s views did not.

; have. the ‘Fequisite breadth.

. See es the similar’ reference to Kautvn “in the- Depart- *

ment’s recommendation at mn 124a, 7 e:

ee.

°* If. THERE ‘1s ADEQUA ATE BASIS IN FACT FOR THE ADMINIS-

‘ ‘TRATIVE DETERMIN ATION THAT PETITIONER DID NOT

‘QUALIFY ASA CONSCIENTIOUS OBJECTOR BECAUSE His”

aires tl — WAR WAS parses (a AND: NOT ae

A, Unlike most, other claims to draft: exempfion or: |

defer merit, the disposition of which turns on objective —

facts, ‘the ultiniate question in conscientious objector

‘cases is the sincerity_of the registrant in objecting, on

religious grounds, to participation in war in any .

‘ form.”’ Witmer v. United States, 348 U.S. 375, 381.

That is a-question which Congress has chosen to com-.

. mit, jn the first instance; to the discretion and exper-

tise of the Selective Service System. See Thompson. ,

United States, 380 F. 2d 86 (C.A, 10); Lockhart ‘v..

United States, 420 F. 2d 1143 (C.A; 9). Ke

‘In explicating the function of the judiciary in re-

viewing an administrative classification, this Court

has admonished that “‘it is not for the courts to sit.

as super draft boards, substituting’ their judgments on:

' the w “e of the evidence for those of the deSignated

agencies.”’ Witmer v. ‘United ‘States, 348 U.S. 375, ,

880-381 ; and see also Dickinson v. Uivited Statesy- 346

U.S.39, 396. The scope of réview is limited to,a de- °

termination ° whether there exists a“basis in fact” for ~

the. assigned classification djscoverable | from the ad-

‘ ministrative record. Estep.v. United States, 327 U.S.

gil4, 122; 50 U.S.C. App. (Supp. V) 460(b) (3). That -

sidan of review is now, generally recognized . as .

xg “the. narrowest known. to the law.’’ See, CG:5 Blalock »

. United States, 247 F. 2d 615. (CA. 4); United —

atta v. _ Freeman, 388: F. 2d 246, 248 (CA. 7);

\ .

23°

United. States V. Corliss, 280. FB, 2d 808, 810 (0. A. 2); :

United States v. Sturgis, 342 F. 2d 328, 331.(0.A.:3) ; ES

| DeRemer y. United States, 340 F. 2d 712, 715 (C.A. 8);

| United States v. Leavy, 422 F, 24 1155, 1157 (C.A. 9). °

It is, of course, well established that the burden is

on the registrant seeking exemption as a conscientious

objector to demonstrate his entitlementsto the status.

Swaczyk v. United States, 156 F. 2d 17.(C.A. 1),

‘certiorari. denied, 329 US. 726; United States Vs

. Brown, 423 F. 2d 751, 754. (C. A. 3) 3, Olguin v. United

.. States, 392 F. 2d 329 (C. A. 10) ; see also” Petes a

‘United. States, 346 U.S. 389, 395. This does not.

"that he must prove the ‘validity of what he belies”

Seeger 380 oe at 184), for that is a domain fore:

se from vernment inquiry. See United States v.:

or “the truth of his concepts” (United " States v.

ny 322 U.S. 78, 86. But the nature and content

gf his professed beliefs ar e necessarily subject to seru- °

“tiny. This Court has long recognized “<“" * **that the

Congress, by relating the registrant’s conscientious ob-

jection to his religious training and belief, ‘has made

‘the belief. of his sect rejevant.”’ Sicwrella vy, United

* States, 348 U.S. 385, 390. That is‘no less true today |

than it was thirty years ago in cases where the elaith °

_is premised on the tenets of ra religious s sect. See, e. Px 7

Negre v. Larsen, supra.

‘ We are entirely in accord with petitioner that the

controlling question in any conscientious objector case

is the ‘religious beliefs of the individual ‘registrant,

; and not necessarily the beliefs of the sect with which

.. he claims affiiation. A member of a religion not tradi-° __

(

tionally considered to be padéiost in nature, for ex-

wiple, may well qualify cas al conse Ven Gis objector

hoeauge of His own Horhaps even erroneous inter.

gta of the religious doetrine: See United States

JST, Clair, 298 1", Supp. B37 (WD. N.Y, ‘, Or CON.

' paces as petitioner points out’ (Pet. Bre 23), “ate

filiation with a partienl in religions seet, event though:

it may he parcitist, does not vutomatieally entitle one

“40 eonse tonttous objector status.” v( Cf, United States v.

Srmmons, OL We 2d 901 (CA, 7), reversed on. other

; eatisie 38 US, 897, | wale | ion,

But the instant ease simply doos wot fit tnt analy-

osix, Hore, petitioner submitted to the. Justice De part.

‘anent hearing officer, en his own volition, two bdéoks

amdoa newspaper Cera, pp. 6-7) whiely were

~pepresented as. setting forth the. Mligions teachings

that served asa basis forthe ébjections he ‘oxpressed

in his papers filed with the Dra At CApp. d0ayl’

ln onddition, he stated une Hivocally! that he placed

| | y the

- polianee on the teaehings of the Wonorable Mlijah

Muhammad “solely and one thousand pereent’? (App. ’

100a). Andy he even went’ so far as to state that if

Elijah Muhammad * * * * looked ‘at me and advised |

Me, Which Tam sure he’ wouldn't, to fight in any kind

of war, if he adyised me to’ T would” (App. 101a,

12a). In: these, eujcumstances, we cannot agtee (Pet. |

Br. 28) that the various writings submitted bi peti- 7

tioner and the teachings: of Elijah “Muhammad on.

which he placed stich total relianee—in effect incor--

— them by reference iti his statement of beliefs

cAytp. 80a)—have no relevance to- the Department’ s

c .

% ‘ ‘ an 2

assessment of the nature und scope of his objections

concerning war. 3

B. Turning to the Department’s evaluation, of the

evidence before it, incjuding petitioner's own states,

ments, we think it is cldar that both the De :partment

and the State Appeal Board could permissibly con-

elude. that rien did Bak cast that he was op- .

posed. to all war, While it it\is tindeniably true that,

petitioner did suggest on several occasions that he was

opposed to: “partici patign: in any war (App. 10a, 13a,

[8a, 98a), the récord as & white strongly indicates

that thie “war's’’ to whieh both petitioner and his reli-

: gious leaders are oppogwa inelude only conflicts which

are not being wagegagainst t the Muslims, rather

shooting ‘wars ue general.” ts

Thus, Samuel XJ Saxon, an Assistant Minister of the

sect, whooctestified at the Justice Deépartment hearing

on tv tenets of the Muslim faith, stated that the Mus-

-lims ‘believe that “war is: when you [sic] voluntarily

fighting someone,” and. is to be distinguished from

“self-defense” Kier h is whon:“we are’ attacked or fight

is foreed on us” (App. 42a). Petitioner expressed

the same view. Muslims are “not to participate in wars

on. the side of * *'* nonbelievers’’ (App. 96a), he said.

Following the. teachings of the Holy Qur’an, as he in--_.

terpreted them, the Muslims “fare not to even as much

as.atd the jnfidels or the nonbelievers.in Islam, even

to as much as. handing them a cup of water during

-hattle”? (App. 68a). Instead, he stated, they are taught

ore to “defend [them Jeclves when [they] are attacked” a

a Rony

(App. 79a-80a)." Accordingly, he reasoned, I have

“no quarrel with the Viet. Cong’? (App. 18a); they

“are not attacking me” (App. 80a). The country that

is involved ‘‘is-a Christian country * * * not a Mus-

liyy Poaintry” (App. 96a-97a). In these. circumstances ~,. -

he asked: “Why should we mane get iawperes®

(App. 80a). :

This line of thought closely parallels the expres-

sions of Elijah Muhammad, whose letter to the appeal

hoard on behalf of petitioner stated (App. 177a):

The law of Allah does net permit a Muslim to

be an aggressor, fight only those who fight with

Muslims, the law of Islam further discredits

a Muslim as being a Muslim who will fight on

he side of a non-Muslim, though he may be his

near of kin, or wars of unbelievers or whether

' such wars are between disbelievers of Islam or

against Islam (the Muslims), of any natign

other than Islam, or to bear arms in the armed __

forces of any nation other than Islam or to per-

form any non-combatant service or work of any

kind under the direction of the authorities

’ geting “under any conscription of law of war

Petitioner thus stated: “So, by our teaching and. by we

- believing in God, whose law is self-preservation, we are taught

‘not to be the aggressor, but defend ourselves if attacked and

a man.cannot defend himself if he knows not how, and we

are taught that pot. only America, but all countries, all civil-

ized governments have srmies and have guns around their shores,

not necessarily t¢ attack or to be

America or our country or wl er it may be if we are attacked.

So, we, the Muslims to keepin physical condition, we do learn’

haw to defend ourselves if we are attacked * * * (App. 104a-105a).

r, but to defend, | :

™ or fighting others; the beliefs of the Lost Found

Nation of Islam. ~ ~~ .

What emerges from'these statements is not a. clear

conscientious objection. to “participation. in war in °

any form,” as the statute requires. Rather, the record.

amply supports the inference that, circumstances per-

_mitting, petitioner would not object to fighting to-

- morrow with real weapons in a defensive war on be-

half of the Muslims. See Gillette v. United States,

supra, slip op. 2, 10. Indeed, that appears as a funda-

mental tenet of his sect. In the newspaper, “Muham- .

‘ mad Speaks,” introduced by petitioner at the Depart-

ment hearing; the views ofthe Muslims on participa-

tion in wir were stated as follows (App. 120a, 185a) :

_ We Believe that we who declare ourselves to be

righteous Musligs, should not ‘participate in

_wars which ‘take. the lives of humans. We do.

not believe this nation should force us to take

part in stich wars, for we have nothing to gain -

- from it unless America agrees to give- us the

necessary territory wherein we may have some-

thing to fight for, (Emphasis added.)

' Petitioner’s brief suggests that the “only thing that

is clear about this statement is its absolute opposition

to participation in wars which take human Jivés”

(Pet. Br. 32), and that “[t)he rest of the passage is

ambiguous} ibid.). We submit, however, that upon.

reading the statement one could reasonably. eonciude

that it is not ambiguous at all, Rather, the second

sentence can be read as qualifying the first, explaining

the cirtumstances under which the objection to war |

ST ee

= “a

_would be less than absolitte—an stijeslion not extend-

ing to “war in any form.” .

The fact. that one ‘might consider remote the cir-

cumstances ‘under which petitioner would fight. does

not lessen the significance of: this factor. Neither

Sicurella vy. United States, 348 U.S. 385, nor United

States v. Owen, 415 F. 2d 383 (C.A. 8), suggests that | |

a willingness to engage in a /potential defensive shoot-

ing war should be ignored. What is controlling is

petitioner’s present ‘state. of mind, whether he can in

" consonance with his conscience presently envision him-

self engaging in a real shooting war under certain

circumstances. If -so, his belief does not qualify as a’

conscientious objection ‘‘to- participation in war in

any form,” withiri the meaning of the language of the

_ exemption provision. The government is not required

to assess the probability or likelihood that the war iti

which petitioner would participate might not soon

occur, Plainly, a a registrant who says he could in’ good

conscience fight in a war declared by the United Na-

tions (see Gillette ¥. Unitéd States, supra, slip op. 2)

is a selective objector. So too, then, is one who claims, .

for éxample, that ‘he can only fight in a defensive

war’ on behalf of Germany, .or Russia, or Israel, or

the Muslims. This, of ‘course, differs from the situa-

-tion which Owen encompasses, where the registrant’s

present state of mind compelled him to oppose all

conceivable wars, but did not foreclose ‘the possibility

that at some future date his beliefs in this regard

might change (ef. Gillette v. United States, supra,

sliji op. 10). Nor is it the same as Sicurella, for there

29 ae |

the registrant’s opposition to real shooting wars .was

total and it was only a hypothetical theocratic war—

‘with “weapons * * * spiritual, not carnal’’—in which

he could envision himself participating (348 U.S. at

389). And the wars in which petitioner would fight are —

not limited to “defense against immediate acts of ag-

——— gressive: violence” toward himself his family or other

persons in his community. Gillette v. United States,

supra, slip op. p. 10.

We agree with petitioner that the Muslim view of” |

the impending Battle of Armaggedon is not incon-

sistent with a total objection to war; that Lattle

would be a theocratic one between the forces of good

_ and evil, and would not involve the physical partici-

pation of individual Muslims (App. 38a, 105a-107a.).*

See Sicurella v. United States, 348 U.S. 385. The .vec-

ord shows no suggestion. that petitioner’s willingness

to prepare for the Battle of Armaggedon (App. 105a-

107a) would disqualify him from conscientious objec- .

tor status. Rather, the Department’s concern was

with other statements on the record suggesting. peti-

tioner’s present willingness to engage in “‘real shoot-

ing wars” (348 U.S. at 391) in defense of the Mus-

_lims (App. lda, 18a, 68a, 79a-80a, 101a, 105a): That

these defensive wars would’ involve the use of éarnal -

weapons seems implicit in petitioner’s own statements.

Thus, he leaves little doubt that if the Viet Cong.

were attacking his people,.the Muslims would become

involved in that war (supra, pp. 25-26).

Accordingly; there is, in our view, ample basis for /

the acukmstzative finding that ‘petitioner did note’

“@

/ i ee

have a conscientious scruple against participation in

all wars, but only against certain wars. depending

upon particular circumstances. The record stipports

the conclusion that his scruples were largely dir ected

“against participation. in wars on behalf of the U nited |

States. Petitioner himself stated that ‘we are not to

participate in wars on the side of nobody who—on

the side of nonbelievers, and this.is a Christian eoun-

try and this is not a Muslim country” (App. 96a-97a). :

"That this attitude, though religiously motivated,

could he said specifically to “rest on grounds which —

primarily are political and racial’? (App. 122a), is

best reflected in theollowing testimony by petitioner

at the Departmentétearing (App. 77a) : .

* * * the onliest hate I know, ‘as far as the

teachings of the Honorable Elijah Muhammad

is “concerned, * * * is that, we hate’ the way

that we’ve been treated for four hundred years.

We hate. the way that our pr eghant women

are being kicked around the streets; we- hate

the way the innocent ‘negroes have been shot

_and lynched and killed outright, but the killers

are not—never been caught, we hate that we’re

the first fired and the last hired and we hate

the way we have served so faithfully for the coun- °

‘try in all wars and have spent three hundred _

and ten long years and enabling* America to

have fifty of the richest states on the planet

‘and yet still we are subjected to treatment

which cannibals .and Africans are treated

better. | :

These are the considerations, he stated, that have

led the Muslims to “want to separate’ (App. 78a),

“to want to go for ourselves and do for ourselves

_and get some of this earth that we can call our own

ee (ibid.). Military assistance to the United

States is thus forbidden (Pet. Br. 33). As petitioner

declared, “* * * the outright, every day oppressors

and enemies are the people as a whole, the whites of °

this nation. So, we are not, according to the Holy

__ Qur’an, to even as much as aid in-passing a cup of

water to the—even a wounded” (App. ‘97a). See also

denied, 379 U.S. 892; and see quotations from the

Supreme Wisdom containing the teachings of Elijah

Muhammad, set forth at App. 223n.4. 0

- When this reasoning is viewed in light of peti-

tioner’s expressed: willingness to fight in defense of

the Nation of Islam—in “an ‘Islamic World War”

(App. 68a)—it can readily be inferred that his objec-

tion is ‘‘selective’’ in nature. ‘Even if, as petitioner’s .

brief seems to argue, various statements in the record

suggest an ambiguity as to the circumstances undér

which he would engage in war, such an ambiguity

would not ‘require the administrative findings to be

set aside on judicial review. Under the prjnciples

established both by the pronouncements of this Court .

and by Congress (supra, pp. 22-23), “review with-

in the Selective Service System [is to be] final

in all cases where there [is] conflicting evidence or

where two inferences [can] be drawn from the same

testimony.” Witmer v. United States, 348 U.S. 375,

, 383. : ‘ E

‘Nor is the government foreclosed from concluding

that petitioner is a “selective”’ objector because various

Wet: OAS SOE RETO NS |

2A ID BANS A rr

' *

e :

32,

precepts of his Muslim religion (Pet. Br. 30-31) might

tend toward the opposite conclusion. Nothing this Court -

- . said in Pr esbyterian Churceh'v. Hull Church, 393 U.S.

> 440, forecloses the’ ‘government from also considermg «

that Muslims wrefaught “to defend themselves when

attacked” (App. 79a-80a), to fight in a

war if advised to do so by. Elijah Muhammad (App. :

101la), and to participate in a defensive war if given

‘*the necessary territory wherein we may have some-.

thing to fight for’’ (App: 120a). The weight which’

the Department ultimately, placed on these latter

teachings manffestly did not turn on its own interpre-

-tation of the religious doctrine; rather, it ‘resulted rostieee

from fhe agency’s assessment of the nature and.scope §= ~

of -petitioner’s personal beliefs as he. understood and

interpreted the teachings of his sect. This Court has

long recognized that to be a legitimate function of thé

Selective Service System when a registrant puts his

religious views in issue, as pétitioner has. Sicurella v.

United States; 348 U.S. 385. And; the recent decision

in Gillette v. United States, supra, implicitly reflects

a continuing awareness that eareful scrutiny as to the. |

nature and content of a claingant’s religious. beliefs

_~ is not constitutipnally impermissible.”

15 Of course, a decision that the Selective Service System has a

basis to conclude that ‘petitioner was not ppposed’ to all -war-

does not’ preclude other adherents of the Muslim faith from.

demonstrating that their views meet the requirements of. the .

Act. It is merely a recognition that on the record placed before

the Selective Service System by petitioner, it could not be

said that Selective Service could not legitimately have con-

cluded that petitioner had failed to. meet his burden. ,

> Sis, 2 , =

the Department of Justice’s advisory letter about the

separate issue whether petitioner sincerely held the’

beliefs that he asserted in support of his conscientious

objector claim. We do not here seek to support the

denial of petitioner’s claim on the ground of insin-

cerity; our argument, is rather. that petitioner’s .ob-

jection, however sincere, did not have the requisite

generality to qualify- him for exemption. * We think .

a fair reading of the Department’ s recommeridation

_ shows that it-had the same emphasis. Moreover, con-

trary to petitioner’ s characterization of the sincerity

discussion in that recommendation, the Department

did not assert a firm conclusion that petitioner was

| insincere but rather.simply presented, for the appeal

board’s consideration, a number of factors pertinent -

‘to the matter of sincerity.” Thus, we submit, there is

nothing in this aspegt of: the Department’s commu-_

nication that casts doubt on the sh a of petition- 7

‘_ er’s classification. _ ae :

We note that neither the question on which this Cink

granted certiorari nor any other question in the petition raised

_ any issue about the administrative consideration of petitioner’s

sincerity.

7 Petitioner's brief does point to the Department's statement

at one point that fA] registrant. has not shown overt mani-

festations sufficient to. establish his ‘subjective belief where, as

here, his conscientious-objector’ claim was -not- asserted unfil

military service. became imminent. Campbell v. United States.

221 F. 2d 454: United States v. Corliss, 280 F. 2d 808, cer-

__tiorari denied, 364 U.S. 884” (App. 127a). However, the sug-

gestion that this “must have sounded to the lay appeal board

like the citation of a » rule of law that absolutely prec! luded

SR a Ri PPT ee ey

”

34 |

The matters referred to by the» Department were

clearly pertinent to the sincerity question. Tardiness

in asserting a claim of éonscientious objection has ~

commonly Veen recognized as one factor to be con-.

sidered. Salamy v. United States, 379°F. 2d 838 (C.A. :

10); Bishop v. United: States, 412 F. 2d 1064, 1068

(C.A. 9); United States v, Broyles, 423 F. 2d 1299

(C.A. 4); United States v. Messinger, 413 F. 2d 927.

‘(C.A. 2), certiorari denied, 399.U.S. 927 ; United States

¥. Geary, 379 F. 2d 915 (C.A. 2), certiorari denied,

389 U.S. 959. And ‘where, as here, the claim was first

presented after receipt of a notice of i for

induction, there is, at the very least, .‘‘a rational in-

ference that imminence of induction * * * led to [the]

presentation” United Statés vy. Bornemann, 424 F. 2d -

1343, 1348 (C.A. 2)7°

petitioner ‘aon being classified as a conscientious’ oe

* * *” (Pet. Br. 39) unreasonably isolates and overemphasizes the °

importairce of the statement on the record. Indeed, if- the state-

“ment ‘conveyed the meaning that petitioner euggesta—that as.

a matter of<Jaw petitioner’s claim was deficient—one would

question: why the Department felt it significant even to sugy

gest any other reasons for denial.

*® Although petitioner's completed conscientious objector form .

150 was: not recetved by the local board until after he had been

classified I-A, nevertheless, as petitioner correctly points’ out,

the letter which first apprised the board that he was a con-

scientious objector “was written several days after petitioner

had received the statement of his acceptability for induction

and not, as the Justice Department and the court below. as-

serted, after he had already been classified I-A” (Pet. Br. 40). Of

course, this technica] mjstake of a few days has no bearing on

the validity of the inference the government sought to develop.

The. inference of* insincerity arises irrespective of whether it |

was a statement of acceptability or a I-A classification. that

brought the imminence of induction to the registrant's mind.

POF,

Similarly, it was: pertinent for the fieloctive Service

System to consider the fact that petitioner filed other

deferment claims while ,he’ wag seeking conscientious ’

objector status; if all the facts warrant a conclusion

: \that a registrant is-‘‘deferment shopping”’ in a con-"

certed effort to avoid service, that may well be a

factor in evaluating his sincerity. Here, on receipt

of his. notice of acceptability for induction, petitioner

suddenly filed claims for occupational (II-A) and hard-

ship (III-A) deferments at the same time lie claimed

conscientiotis ‘objector status. Both deferment claims —

rested on fa¢ts which clearly could have (App. 9a-

lla), dnd by law should have,” been presented to his

local board much. earlier;.and both were based, at

least in part, on the probability of substantial finan-—

cial losses if petitioner. was forced to abandon tem-

porarily his professional boxing career (App. 9a-

_ lla). In these circumstanees, it seems to us not in-

appropriate’ for the Department to suggest to the

appeal board that it consider the possibility that

financial factors might also have. entered into, peti-. .

tioner’s motivation’ for filing the: oneeanions. objec-.

tor claim. ‘ | : —

% Sintco. ‘the regulations require that a registrant, “be classi-.

fied in the. lowest class for which he is determined-to be

eligible * * *” (32 C.F.R. 1623.2), and Classes Il-Avand III-A are

both “lower” than Class: 1-Y, petitioner was under a con-

- tinuing duty while he held his I-Y classification to inform ,

his local board of the facts which he felt would warrant a

reclassification to II-A or ITI-A. 32 C.F.R. 1625.1(b).

. * :

r G. ‘s Cnn 1! Pt (De, Or fowith - sane 7 —t

i" :

36 .

CONCLUSION

. For. the foregoing reasons, it is respéctfully’ sub-

mitted that the judgment below should be affirmed.

_ Solicitor General.

Wi WILSON, :

Assistant Attorney. Gene ral,

* Wa. Braprorp Reynoips,

maaeeate * Assistant to the Solicitor General.

ake “+. Beatrice Rosexpera,

HecHARD, L. RosENFIELD,

' Attorneys.

_Aprin 1971.

WU. . GOVERNMENT PRINTING OFFICE: 1971

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