# Brief for the United States — Clay v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1494%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1971 - **Citation:** 403 U.S. 698 ## Text i ates Pu. | rf a) ‘ . iy : ; e* | 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. 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 . 0 Holy Qur’an (Sth edition, 1963). 6, 7, 8, 18, 25, 31 _ Elijah Muhammad, Message" to: the’ Blackman an America \ fee eae Paced ead sy 6,7, a . = 4 . J os 3 ar" wo a ~* : at oe eo’ * ve . ; ; . ‘ ; ” ‘ ae . ‘ : . gi)" . ‘ z \; . ‘ . 3 ‘i - ‘ . oy a é ot : . ree gelte g 't ‘ ¢ ; P — ’ . ee . oo ®ei . y o——- : ed eae’ | ; ° g : * ne 4 ; ; : - r 4 . . . ; = a ; ; : 3 ; . . e . . c ; a B “~* : - rai 6 ee da’ : : p ; | . . Dn ° Sy in : » 5 7 : ; | de at ° e @.4 J - : bad * 4 ’ “3 ‘ : . | | at A ' ; “ . Fy to . . - ; ee ae s ae a 3 ot we , ° s > J f } i ~ é : ; , 7 . . - “ . . ok : E : Sq ; , . y eis a 3 . es | : “we . . . ua a ¢ x 2d + x p r . . 2 > ; ts : . , 2 . ” s oe nf ma ° \ . \ Gr . ‘ r . ~ e - : E — . > Ee ‘ - . . A ) . ° ° ’ . . \ : 3 : Soe E », p ’ = ‘ E 4 : | | | cea os ; 7 | | sf - é s F ie: f ie . . * of, , *° P, ae | . . . ; . = i; . 3 J ; . e ‘ ‘ See . - oO 4 e al “ A . p . eo, s ’ , ; | } | - * ; ‘ a A : Pre : i 3 - mm. rae! aa * a he et sin te Gaur of the. nite Sites 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 3 : . . x? ae : ‘ : : . Ss - F o —— . A e . sh - 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. . : a) * 2 { 4 / — ‘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 \ 5 3 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 © of 50 U.S.C. App. 462(a). On June 20, 1967, he was 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- i 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 . 4 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 r) 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 »* a 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 . 4 ———— 9 | . 99 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 _ oa making such a wild, boastful statement * * *” ’ Cpe 80a). | When inquiry was made. as’ to whether ‘he would ac-. ap. Seat wo 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 : | * “- 10 : 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 11 | 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 “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~ . ’ 18 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 | 19 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. ~ | o/ / . 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- Cs 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 f' 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. f al - °* 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° i> 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 “ 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 , = _ ©. Petitioner further objects to the discussion in 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 . 3 . ; : ; SY . 5 } . ‘ ‘ . . a ae . E : e. ee : : 2 ~ : é ; ji | : ° ii . sd ” *. fe ‘ : : e ‘ . . y ‘ 2 . 5 j A ? ° } ; * » “c ; | : pat --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1494%3A5. Public record. Not legal advice.