Opposition Brief — Taylor v. United States

In the Supreme Court of the Gnited States

Octosper Term, 1971

No. 71-516

JaPE Hotiey TAYLor, PETITIONER

v.

Untrrep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COUPT OF APPEALS FOR

THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

After a jury trial in the United States District

Court for the Northern District of Florida, petitioner

was convicted of willfully refusing to submit to induc-

tion into the Armed Forces, in violation of 50 U.S.C.

App. 462(a). He was sentenced to four years’ imprison-

ment. The court of appeals affirmed (Pet. App. A-1),

and, on August 10, 1971, denied a petition for rehearing

en banc (Pet. App. A-11), with four judges dissenting

(Pet. App. A-12-A-18). The petition for a writ of

certiorari was not filed until October 9, 1971, and is

(1)

2

therefore out of time under Rule 22(2) of the Rules of

this Court.

The facts are not in dispute. Petitioner registered

with his local board at the age of eighteen, and, on

December 4, 1967, ke received a student (II-S) defer- ~-

ment as a freshman at California Institute of Tech-

nology. He heid this classification until November 14,

1968, when, because he had left college and accepted

full-time employment, he was reclassified I-A.

On December 16, 1968, petitioner went to his local

board and requested a conscientious objector appli-

eation (SSS Form 150). After looking through the

application, he asked the board secretary how literally

the board would interpret the statutory language of

Section 6(j\ a, pearing on the face of the application

(Pet. App. A-iJ). The secretary replied that such a

question must be answered by the board (Tr. 69).”

She also advised petitioner that he had 30 days within

which to return the form executed in full (Tr. 26).

Petitioner then stated that he did not feel he could sign

the form, to which the secretary replied that there were

some young men who couldn’t sign it, and some who

went to jail (Tr. 69-70). Petitioner took the form

home; he never returned it to the board.

On February 17, 1969, the “oard sent him a notice

reminding him that his Form 150 had not been re-

turned; he was advised to return it immediately or

sign a statement withdrawing his conscientious ob-

jector claim (Tr. 45). Petitioner failed to follow

+**Tr.’’ references are to the transcript of proceedings below, a

copy of which is being lodged with the Clerk of this Court.

ty pe

3

either course (Tr. 45). He was ordered, on April 24,

1969, to report for induction on May 16, 1969.

On the scheduled reporting date, the board received

a letter from petitioner stating that he would refuse

- induction (Pet. App. A-3 n. 2). In the ietter, he in-

formed the board for the first time of his ‘‘belief that

war is wrong.’’ He explained his failure to return the

Form 150 in the following terms: ‘‘This form stated

that one’s moral beliefs and personal philosophy were

not sufficient grounds for requesting Conscientious

Objector status; only religious opposition was accept-

able. For this reason, I was unable to complete and

sign this form, which I believe discriminates against

me.”’

Petitioner failed to report for induction as ordered

and the present indictment and conviction followed.

The court of appeais affirmed (Pet. App. A-1-A-9).

1. Petitioner seeks to overturn his conviction on the

ground that he was entitled to conscientious objector

status and thus was invalidly ordered for induction.

Since he failed to request a I-O classification from

his local board prior to the scheduled reporting date,’

however, the argument of improper classification is not

available to him. McGee v. United States, 402 US.

479; and see United States v. McDuffie, 443 F. 2d 1163

(C.A. 5), certiorari denied, No. 71-5012, October 12,

1971.

Petitioner contends here, as he did below, that he

* As the court below pointed out (Pet. App. A-7-A-8), the infor-

mation submitted thereafter by petitioner in support of his con-

scientious objector claim need not be considered by the local board.

See Ehlert v. United States, 402 U.S. 99.

isin recrssinnemnmnimneniii

4

should be excepted from the McGee rule because he was

misled by Selective Service to believe that a request

for conscientious objector status based on other than a

“conventional religion’’ (Pet. 8) would be rejected by

the local board. He points specifically to SSS Form

150, which quotes the statutory exemption provision

(50 U.S.C. App. 456(j)) in its entirety and contains

several questions addressed to the subject of the

registrant’s ‘‘religious training and belief’’ (Pet. App.

A-19-A-22).

At the time that petitioner failed to report for in-

duction, this Court had not decided Welsh v. United

States, 398 U.S. 333. Consequently, the only question

properly raised by the petition is whether the ques-

tioned form was misleading under United States v.

Seeger, 380 U.S. 163. We think not.

In Seeger, this Court dealt with the earlier exemp-

tion provision (50 U.S.C. App. (Supp. IIT) 456 (j))

that limited conscientious objector status to those

believing in ‘‘a Supreme Being.’’ In construing the

statute, the Court stated (380 U.S. at 165) : ‘‘Congress,

in using the expression ‘Supreme Being’ rather than

the designation ‘God,’ was merely clarifying the mean-

ing of religious training and belief so as to embrace all

religions and to exclude essentially political, sociolog-

ical, or philosophical views.’’ Looking to the legislative

history and Congress’ reliance on Berman v. United

States, 156 F. 2d 377 (C.A. 9), and United States v.

Kauten, 133 F. 2d 703 (C.A. 2), the Court concluded

(380 U.S. at 178): —

Thus, we think that rather than citing Berman

aise stesrasasseassnamnesemunsssammmimiiins

5

for what it said ‘‘religious belief’? was, Congress

cited it for what it said ‘‘religious belief’’ was not.

For both Kauten and Berman hold in common the

conclusion that exemption must be denied to those

whose beliefs are political, social or philosophical

in nature, rather than religious. Both, in fact,

denied exemption on that very ground. It

more likely, therefore, that it was this point which

led Congress to cite Berman. . . .

Following Seeger, Section 6(j) was amended in 1967

to delete the reference to ‘‘Supreme Being,’’ while re-

taining the exclusion for conscientious objector claims

based on ‘“‘essentially political, sociological, or philo-

sophical views, or a merely personal moral code’”’ (50

U.S.C. App. (Supp. IV) 456(j)).° It is this amend-

ment that appears in the conscientious objector form.

Selective Service cannot, we submit, be faulted for

continuing after Seeger to inquire in SSS Form 150

into a registrant’s “‘religious training and belief.’’ As

stated by the Court in that case (380 U.S. at 165-166),

**the test of belief * * * is whether a given belief that

is sincere and meaningful occupies a place in the life

of its possessor parallel to that filled by the orthodox

belief in God of one who clearly qualifies for the exemp-

tion.’’ ‘‘[T]he congressional policy,’’ it added, is to

provide ‘‘exemption from military service for those

whose opposition is based on grounds that can fairly be

* In Seeger, the Court said (380 U.S. at 186): ‘‘The use by Con-

gress of the words ‘merely personal’ seems to us to restrict the

exception te a moral code which is not only personal but which is

the sole basis for the registrant’s belief and is in no way related to

a Supreme Eeing.’’

6

said to be ‘religious’’’ (380 U.S. at 179-180), whose

beliefs ‘‘are, in his own scheme of things, religious’’

(id. at 185).

The form in question nowhere suggests that a claim of

conscientious objection must be based on a ‘‘conven-

tional religion’? (Pet. 8). Indeed, it provides the

registrant considerable latitude in describing ‘‘the na-

ture of your belief’ (Series II, quest. 1, Pet. App.

A-20), and in explaining ‘‘how, when and from whom or

from what source you received the religious training

and acquired the religious belief which is the basis of

your claim’’ (Series II, quest. 2, Pet. App. A-20).

Nor is the questioned form misleading because it in-

cludes the statutory definition of ‘‘religious training

and belief’? as not including ‘‘essentially political,

sociological or philosophical views, or a merely personal

moral code’’ (Pet. App. A-19). As indicated above,

this Court did not rule otherwise in Seeger, and, until

the recent decision in Welsh, such views were generally

considered to be outside the scope of the statutory

exemption. See 'Velsh v. United States, supra, 398

U.S. at 345 (Harlan, J., concurring).

If, therefore, petitioner was indeed ‘‘misled,’’ as he

claims, we agree with the court below that the fault lay

not with the conscientious objector form, but was due

instead to the fact that petitioner ‘‘unilaterally decided

on uncounselled, subjective information that he could

not qualify’? (Pet. App. A-4). See United States v.

Powers, 413 F.. 2d 834, 837 (C.A. 1); United States v.

Yoha, 445 F. 2d 816 (C.A. 9).* That is not the type of

* As pointed out by the court below (Pet. App. A-5), petitioner

‘*made no real effort to ascertain the actual requirements for the

7

unusua! circumstance preventing the registrant from

exercising his rights that warrants a relaxation of the

exhaustion doctrine enuuciated in McGee. Compare

Umted States v. Davis, 413 F. 2d 148 (C.A. 4) ; Edwards

v. United States, 395 F. 2d 453, 454 (C.A. 9), certiorari

denied, 393 U.S. 845; Kidd v. United States, 3865 F. 2d

422, 423 (C.A. 10); United States v. Kurki, 384 F. 2d

905, 907 (C.A. 7), certiorari denied, 390 U.S. 926.

Unlike the cases on which petitioner places principal

reliance (Pet. 10), we do not deal here with erroneous

advice given by a member of the board or by the clerk ©

‘that caused him not to pursue his claim for exemption

within the administrative process. See United States v.

Lansing, 424 F. 2d 225 (C.A. 9).°

2. Over a year after petitioner committed the offense

which serves as a basis for his conviction, this Court

decided Welsh. In that case, a plurality of the Court

for the first time const~ued the phrase ‘‘religious train-

ing ard belief’’ to include deeply held mora! and ethica!

beliefs (398 U.S. at 340), and beliefs ‘“‘founded to a

substantial extent upon considerations of public

policy’’ (398 U.S. at 342).°

While that ruling has no direct bearing on the issue

classification despite the ready availability of information and

advice at the local board.’’

5 Here, the clerk, when asked by petitioner how the board con-

strued the statutory language, quite properly replied that she was

unqualified to answer the question, that it would have to be an-

swered by the board (Tr. 69).

* Even after Welsh, the questions ia the form involved here track

the statutory language that was subject to interpretation by this

Court. If the congressional language is constitutional, questions

drawn from it can hardly be inappropriate.

8

in this case, we point out that Selective Service has

undertaken to revise its Special Form for Conscien-

tious Objectors (SSS Form 150) to be more fully re-

sponsive to the principles enunciated by a plurality of

the Court in Welsh. A copy of the revised form is

reproduced in the Appendix infra, pp. 9-18. Conse-

quently, there seems little likelihood that the issue

raised in this petition in the Seeger context will arise

in future cases under Welsh.

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Erwin N. Griswo.p,

Solicitor General. .

NovEMBER 1971.

APPENDIX

Special Form for Date Questionnaire

Conscientious Received at

Objectors Local Board

Local Board Stamp Date of Mailing

Complete and Return Before

1. Name of Registrant

2. Selective Service Number

3. Mailing Address

INSTRUCTIONS

A registrant who claims to be a conscientious ob-

jector shall offer information in substantiation of his

claim on this special form which, when filed, shall be-

come a part of his Classification Questionnaire (SSS

Form 100). It is suggested that you read the pamphlet

**CO”’, available at any office of the Selective Service

System, before you complete this form.

Section 6(j) of the Military Selective Service Aci

provides: ‘‘Nothing contained in this title shall

be construed to require any person to be subject

to combatant training and service in the armed

forces of the United States who, by reason of reli-

gious training and belief, is conscientiously op-

posed to participation in war in any form. As used

in this subsection, the term ‘religious training and

belief’ does not include essentially political, socio-

logical, or philosophical views, or a merely personal

moral code. Any person claiming exemption from

9

10

combatant training training and service because of

such conscientious objections whose claim is sus-

tained by the local board shall, if he is inducted into

the armed forces under this title, be assigned to non-

combatant service as defined by the President, or

shall, if he is found to be conscientiously opposed

to participation in such noncombatant service, in

lieu of such induction, be ordered by his local board,

subject to such regulations as the President may

prescribe, to perform for a period equal to the

period prescribed in section 4(b) such civilian

work contributing to the maintenance of the na-

tional health, safety, or interest as the Director

may deem appropriate and any such person who

knowingly fails or neglects to obey any such order

from his local board shall be deemed, for the pur-

poses of section 12 of this title, to have knowingly

failed or neglected to perform a duty required of

him under this title. The Director shall be respon-

- sible for finding civilian work for persons exempted

from training and service under this subsection

and for the placement of such persons in ap-

propriate civilian work contributing to the main-

tenance of the national health, safety, or interest.’’

Selective Service Form 150 (Revised)

Section I—Claim for Exemption

Instructions—Sign your name to either statement A or

_ Bof this section. If you cannot sign either one, indicate

A. I am conscientiously opposed to participation

in war in any form. I hold moral, ethical, or

<

i

pat

religious beliefs which prevent my participating

in war in any form. My conscience would not

permit any acts which are inconsistent with

these beliefs. I therefore claim exemption from

combatant training and service in the armed

forces, but I am willing to serve in a noncom-

batant capacity if called. (Registrants granted

this status are classified 1-A-O.)

Signature

B. I am conscientiously opposed to war in any

form and to any participation in training and

service in any organization engaged in war or

preparation for war. I hold moral, ethical, or

religious beliefs which prevent my partici-

pating in war in any form. My conscience

would not permit any acts which are incon-

sistent with these beliefs. I therefore claim

exemption from both combatant and noncom-

batant training and service in the armed

forces, but I realize I am subject to perform

two years alternate service if called. (Regis-

trants granted this status are classified (1-0O.)

' Signature

Section II—Training and Belief

Instructions—To qualify for conscientious objector

classification, you must present convincing infor-

mation to your local board concerning your beliefs.

The questions below are intended to give you a frame-

12

work in which to state the facts and describe the beliefs

which are the basis for your conscientious objector

claim. Although you are not required to answer each of

the questions, it is suggested that you give all of them

Serious consideration and that you answer concisely,

honestly, and, where possible, with factual sub-

stantiation. These questions are not to be regarded as

inclusive [sic], and you may include other information

which you believe will be of assistance to your local

board. If necessary, centinue your answer to any ques-

tion on another sheet of paper but please make your

answers as concise as possible so that the board may be

able to understand more precisely your beliefs.

1. You are entitled tn one personal appearance before

your local draft board. Do you desire to exercise

your right for your personal appearance before

the board acts upon your claim for conscientious

objection, or do you prefer to let this form and the

file stand upon its merits and exercise your right

to a personal appearance after the classification in

the event the board’s action is not favorable to your

claim ?

2. Briefly describe your beliefs which are the basis

for your request for conscientious objector status.

3. Have you acquired these beliefs through traditional

religious training or experience? (If your answer is

yes, please answer questions 3a through 3f.) Yes ——

No ——

a. How and when did you acquire these beliefs ?

b. Are you member, or have yor been a memberx, of

a church, synagogue, or religious sect or orga-

nization ?

13

For how long have you been a member? (Please

offer the board some evidence of membership or

active participation. )

Describe the training or experience by which

you have acquired your ideas.

Do you disagree with the teachings of your

church, synagogue, or religious sect as they

relate to conscientious objection? Please ex-

plain.

If your claim is based on the beliefs of a certain

church or religion, indicate those teachings or

beliefs of the church or religion which have in-

fluenced your opposition to participation in war.

. Have you acquired these beliefs outside a traditional

religious experience or training? (If your answer

to this questior is yes, please answer questions 4a

through 4f): Yes —— No——

a.

How did you gain these beliefs, and how long

have you held your beliefs?

Do you continue the training activity which re-

sulted in your beliefs?

Have you ever been a member of a church, syna-

gogue, or religious sect or organization ?

If so, have you rejected the beliefs upon which

that membership rested? Why?

Demonstrate to the board that your beliefs are

more than a personal moral code. Are they held

by others?

If your beliefs originated as a result of some

sudden occurrence, event or educational experi-

ence, describe the nature of the event or occur-

rence and how it has influenced your beliefs.

14

2. The opinion of the Supreme Court in the Seeger

case of 1965 has set forth the requirement that all

sincere beliefs of conscientious objection that are

valid under the law must be ‘‘based upon a power

or being, or upon a faith, to which all else is sub-

ordinate or upon which all else is ultimately de-

pendent’’. In the Welsh ease of 1970 the Court

expanded the ruling to include deeply heid moral

and ethical beliefs. Tell how and for how long your

beliefs, thus, are and have been the controlling force

in your life by:

a. Describing those acts and expressions, public or

private, which you feel demonstrate the depth,

sincerity and consistency of your views on con-

scientious objection.

b. Describing any positive actions on your part that

would demonstrate the strength of your views.

ce. Stating what commitments, if any, you have

made toward your future life which would

demonstrate the strength of your convictions.

d. Explaining how your conscientious objector

beliefs, however founded, control and guide your

life style with a degree of rigor similar to that

of traditionally religious persons who would

qualify for conscientious objection.

6. Please demonstrate how you can be certain that you

are opposed to war in any form by your answers to

the following questions:

a. Do you believe that a nation or society has a right

to defend itself against attack ?

b. If so, is it acceptable to you for that nation to

15

compel its members, other than conscientious ob-

jectors, to bear arms in the common defense ?

c. If not, what obligations do you believe an in-

dividual owes to a society seeking to preserve

itself ?

d. If the nation were attacked, and you declined

to participate ia its defense, how can you be cer-

tain that you would decline to assist the military

forces as a medical aide or other noncombatant ?

e. A person’s willingness to defend himself, mem-

bers of his family, or his immediate associates

may be consistent with a valid claiin for cou-

scientious objection. Are there any other in-

stances in which you believe that forceful acts

on your part are justified ?

f. Have you ever been convicted of a crime in-

volving physical force or violence? If so, please

explain the circumstances to the board.

g. Have you ever been employed in a job or by an

organization which contributed to the nation’s

military activities? If so, explain this to the

board.

h. Explain how you can be reasonably certain that

personal fear of death, injury, or military dis-

cipline is not the most influential factor in your

claim for conscientious objection.

. Aman who has a valid claim for conscientious ob-

jection may have serious reservations about his

nation’s political or sociological policies. If you

have such reservations, how can you be certain that

they have not been the primary reason guiding you

to make the ciaim of conscientious objection ?

16

Section ITI—References

You may provide your local board with any addi-

tional evidence from any source that would support

your claim of conscientious objection. You may, if you

choose, provide in th space below the names of refer-

ences who could provide the local board with infor-

mation regarding your training and belief. To make

your case stronger you should secure documents sup-

porting your claim from these individuals. The docu-

ments should be sent to the local board and will be

included in your selective service file.

OCCUPATION OR RELATIONSHIP

NAME FULL ADDRESS POSITION TO YOU

REGISTRANT’S CERTIFICATE

Instructions—Every registrant claiming to be a con-

scientious objector shall make this certificate.

NoticE—Imprisonment for not more than 5 years or

a fine of not more than $10,000, or both fine and im-

prisonment, is provided by law as a penalty for know-

ingly making or being a party to the making of any

false statement or certificate regarding or bearing upon

a classification. (Military Selective Service Act).

im , certify that I am the registrant named

and described in the foregoing statements in this form;

that I have read (or have had read to me) the state-

ments made by and about me, and that each and every

such statement is true and complete to the best of my

knowledge, information, and belief. The statements

made by me in the foregoing in my own

handwriting. (are, are not)

Registrant sign here

(Signature or mark of registrant)

(Signature of witness to mark of registrant) (Date)

(Date)

If another person has assisted the registrant in com-

pleting this form, such person shall sign the following

statement:

18

I have assisted the registrant herein named in complet-

ing this form.

(Signature of person who has assisted)

(Occupation of person who has assisted)

(Address of person who has assisted) «

(Date)

*

US. Government Printing Office: 1971—449-505/291