Amicus Curiae Brief — United States v. Sisson

Supreme Court brief1970

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IN THE

Supreme Court of the United §

Octoser TERM, 1969

JOHN F. Davis, CueRK EE

No. 305

: te

‘ “Unrrep States or America,

- Appellant,

—V.—

JOHN Herrron Sisson, JR., ,

: Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

BRIEF OF AMERICAN HUMANIST ASSOCIA-

TION AND AMERICAN CIVIL LIBERTIES

UNION, AMICI CURIAE

, Al AE

. _.. Herman Scuwartz

Faculty of Law and

Jurisprudence _ :

. State University of New York at

Buffalo 7

° 77 West Eagle Street

Buffalo, New York 14202

Marvin M. Karparxin one

1345 Avenue of the Americas

New York, New York 10019

JOHN DE J. PEMBERTON, JR. .

‘Metvin L. Wouir

Jor M; Gora

American Civil Liberties Union

» 156 Fifth Avenue

-- New York, New York 10010

Attorneys for Amici Curiae

‘TABLE OF CONTENTS

PAGE

Interest of Amici ilalioapaias rrveapececenteten io 1

Interest of Amini Humanist Association muck —S

Interest of American Civil Liberties Union me shea | 2

Questions Presented. - prinenanie a

Statutes Involved 0.0 ie: 3

Statement... - , | | ? - @-

Summary of Argument . 2 | | = a. a

ARGUMENT:

I. One Who Sincerely and Conscientiously Opposes a

Particular War as Immoral May Not Be Forced

- to Kill, at Least Where That War Has Not Been

the Subject of a Congressional Declaration of

- War, and Does Not Endanger the Homeland coal a

A. Introduction: .The Narrow’ Holding of me

Court Below ....... R 7

B. The First, Fifth, and Ninth Abii —

ate a Right to Conscientiously Refuse to Kill

Which Is Not Forfeited by the amare Nature

-. of the Objection .... ee

_1. Sources of the right of ee objec-

Hom ; mime 1.

PAGE

2. It is unconstitutionally discriminatory to

deny the exemption to selective objectors

when granting exemption to total objec-

tors

3. Balancing rights against needs ....:........5:..

4. Section 6(j) is consistent with sitectivgllee

scientious objection

(1) Preservation of religious liberty silanes ‘

(2)~Preventing disruption of the’ armed

forces

C. Woskinitatnn a Selective Conscientious . Objec-

tor’s Exemption From Combat Duty. in the

‘Vietnam War Does Not (1) Raise a Political

16 °

Question; (2) Impugn the. Integrity of the

Democratic Process or’ J ustify - Civil . Disobe-

dience; or (3) Interfere With Military Effi-

ciency

~* 1. No political question unfit for judicial reso-

lution is involved

2. The democratic procéss is not impugned by

allowing selective conscientious objection

nor is civil disobedience legalized wechncgnenes

3. Allowing selective conscientious objection

— will. not destroy morale or impair efficiency -

. tea Cannot Constitutionally Grant ‘Exemp-

tion to the Religious Conscience and ‘Deny It to

the Non-Religious :

. 33 ©

. | | PAGE

“1. It Is an Unconstitutional Establishment of -

* Relig to Discriminate Against Non-

Believers .«....... — 87

2.. The Inherent“Imprecision of no Statutory

t Standard Raises Difficulties of ——

tional Dimension ng / -

ConcLUSION pauniaticbedl , . 4a

APPENDIX:

Excerpts from pp. 12-15 of: the petition for cer- — |

tiorari in Noyd v. McNamara, O.T. 1967 i

TABLE. OF AUTHORITIES —-

Cases: | ae ra htt

Baggett v. Bullitt, 377 U.S. 360 (1964) -eeeenenenenne 40°

Baker v. Carr, 369 U.S. 186 (1962) ........: 26

«Barenblatt v. United — 360 U.S. 109. (1959) -. ..15, 16,

i 26, 27

Bouziden v. ‘Caitea States, 251 F. 24 728 (10th Cir. acts

cert. denied, 356. U.S. 927 (1958) .. : 18

; Brandenburg v. Ohio, 395- US. 4446 (1969) 26, 27 +

Braunfeld v. Brows, 366 U.S..599 (1961) pote 13 -

Cramp v. Board of Public aon, 368 ‘U.S. 2B.

(1961) ©: a jaan 7 40

| beara te United States, 341 U.S. 494 (1951) .....26, aT

7 Everson v. Board of Education, 330 U.S. 1 (1947) -_..., "37

- Fleming v. United States, F.2d 912 (10th Cir. 1965) 18

¢ : a

men 8

a Pace

Griswold v. Connecticut, 381 U.S. 479 (1965) ................. 11

Hamilton v. Regents, 293 U.S. 245 (1934) ...2...-....-...30, 31

Jones v. Lemoiid, 18 USCMA 513, 40 CMR 225 (1969) 8

Keyishian v. Board of Regents, 385 U.S. 589 (1967) ....39-40.

Kretchet v. United States, 284 F.2d 561 (9th “Cit

1960) 7 eprontoogsnn ‘ ‘ 12, 17

_ Leé v. Pearson, 18 USCMA’ 545, 40 CMR 257 (1969) ... 8

; Ludegke v. Watkins, 335 U.S. 160 (1948) .... : 27

Luftig v: McNamara, 373 F.2d 664 (D.C. Cir.), a

- denied, 387 U.S. 945 (1967) ; ; a 8

Marcus v. Seareh Warrants, 367 U.S. 717 (1961) ............ ' Bs

Mayfield v. United States, 220.F.2d 729 (5th’Cir. 1955) 18

Mora v. McNamara, 387 F.2d 862 (D.C. Cir.), cert.

- denied, 389 U.S. 934 (1967) ve ar

' Mueller v. Brown, 18 USCMA 534, 40 CMR 246 (1969) 8.

Noyd v. McNamara, 267 F. Supp. 701 (D. Colo. 1967),

aff'd 378 F.2d 538 (10th Cir. 1967), cert. denied, 389

U.S. 1022 (1967) 8, 12, 19

Noyd v. McNamara,(296 F.Supp. 136 (D. Colo. Mar. 29, 2

1967) obaneeerehp 3 18-19

" Orloff v. Willoughby, 345 U.S, 83 (1953) SMM La

Pauling v. McNamara, 331 F.2d 796 (D.C. Cir. 1963),

cert. denied, 84 S. ase ad (1964) - eae 3

Selective Draft Law Coles, 245 U. 's. 366 (1918) :

‘Blipherd y. Unita States, 217 F. 24 949 (9th ao.

1954) : 18.

"Sherbert v. Verner, 374 U.S. 398 (1963) 9;13,14,

. 16, 26, 27, 37

Sicurella v. United States, 348 U. S. 385 (1955) ..12, 17,28, 19

- Taffs y. United States, 208 F.2d 329 (8th Cir. 1953), Se idone

. cert. denied, 347 U:S. 928 (1954) : 20

Toreaso v..Watkinis, 367 U.S. 488 (1961) daw 9, 15, 37

United. States v. Bowen, —— _ F. Supp. ——, Cr. No. .

42499 (N.D. Calif. Dee. 24, 1969), 38 (USL. Week

2361 : 12, 18

_ United States v. Close, 215 F.2d 439 (7th Cir. 1954),

cert. denied, 348 U.S. 970 (1955)

nited States v. Hartman, 209 F.2d 366 (2d Cir. 1954) 20

Prited States v. —* 133 F. 2d 703 (2d Cir.

1943) 19, 20, 38

United States v. Kurki, 255 F. Supp. 161 (E. D: Wise.

. 1966), aff'd on other grounds, 384 F.2d 905 (7th Cir. -

1967), cert. dented, 390 U.S. 926 (1068) -. ae

United States. v. MacIntosh, 283 U.S. 605 (1931) - -13, 21, 35 |

United States v. Noyd, 18 USCMA 483, 40 .CMR-195

(1969) aff’g United States v. Noyd, ACM 20121, 39 _

CMR — (1968) cae C :

United States v. Owens, 415 F.2d 130 (6th. Cir. 1969). 8 | a

United States v. Rekarski, 207 F.2d 930 (2d Cjr. 1953) . IB

United States ex rel. Phillips v. Downer, 135 F.2d 521

(2d Cir. 1943) on

United States v. Schacter, 293 F. Supp. 1057 (D. Md. -

1968) .: + + 33

_ United States v: Seeger, 326 F.2d 846 (2d Cir. 1964), ~

aff'd 380 — 163 (1965) .. 10, 14, 19, 21, 22,

23, 33, 34, 37 » B9

*s ‘ vi

i PAGE |

‘Constitutional Provisions:

United States Constitution ~

First Amendment .................: _....6, 8, 10, 11, 14,”

giles «3 7 ae 15,16,25

Fourth Amendment : iene i gorse 11.

Fifth Amendment A | 6, 10, rn |

| Ninth Amendment on 6,10 .]

Rule: ) ! \

_ Rule 34.0f the Federal Rules of Criminal Procedure }: 4

Statutes :

Military Selective Service “Act of 1967:

§6(j) (9) U.S.C. App. (Supp. IV) 456(j)) ..°4, 9, 16, 34

§12(a) CRUSE. App. (Supp. IV) 462(a)) ......:...354

Other Authorities:

- Bainton, Christtan Attitudes Toward War and Peace

(1960) ...: rae i? =

Brodie and “Sutherland, Conscience, the Constituti |

and the Supreme Ggurt: The Riddle of U: nited States *

Vv. Seeger, 1966 Wis. L.Rev. 306 |

Camus, The Myth of Sisyphus .. 7 ei ee

‘ cummings, e. e., “i sing of olaf strong and brave”

(poem) ane : oe a, SA

Ericson, “Humanist Conscientious Objection,” Human-

ist el ee 1969) mae 38

Finn, A — of Loyalties (1968) wn 24, 29

‘Gendler, “War and the Jewish Tradition,” in Finn |

(ed.), A Conflict of Loyalties, 78 (1968) ........ 13

Griswold, The Fifth Amendment Today, 3 (1955) .... 11

| Harrington, “Politics, Morality and Selective Dissent,” +

in Finn (ed.), A Conflict of Loyalties, 219 (1968) .... . a:

S2-sHayes, The Challenge of Conscience (1947), 00.0.0...

a The Right to Exemption from Military Ser- _

‘vice of &Conscientious Objector to a Particular War,

3 Harv. ot Rights-Civil Liberties L.Rev. 1 (1967) 24

: > 2

Kavfm: The Selective Service System: Actualities* #

and A]ternatives” in Finn (ed. ), A Conflict of Loyal-

hes, 240 (1968) evans os 29 -

2 @ é

MacGill, Selective Conscientious Objection: Divine

Will and. Legislative Grace, 54 Va.. L.Rev. 1355

ee ner geet ate eer ae ee 14, 34, 35, 39

Murray, War and Conscience,” in Finn (ed.), A Con- |

fuct of Loyalties, 17 (1968) ........... "29, 32-33

National- Advisory Commission on eladiied Service, ue

In Pursuit of Equity: Who Serves When N ot All.

Serve?, 48 ( 1967) ...: 29

_ National Service Board of Religions Objectors, Con-

gress 100m at the Vonscientious Objector 10 (1943)

ie es ’ 23, 25

New. York Times, Book Review, N ovember 2, 1969,

- p.10..... 34

New York Times, Fourth Assembly of the World Coun-

cil of Churches, July 17, 1968, p. 1, col: 3 .................... 12

7 Gi Monograph No. 11, 19 | a

| piro, Karl, “The. Canoelendivas Objector” (poem)

Sibley, “Dissent: The Tradition and Its Implications” .

~ Note, 34 U. Chi. LRev. 79 (1966) saisnicial +84, 35

Note, Religious arid Conscientious ’ tien. 2 21 Stan.

Lev. 1734 (1969)

Policy Statement of the National Council of Churches

. of Christ in the United. States of America (Feb.

8, er): , é

Rasen, “Selective Consticntions Objecticis ‘and Polit:

ical Obligation,” i in-Finn. (éd.), A Confict of Loyal.

- ties, 195 (1968) ...... | mn

Segal, “Conscientious Objection and Moral Ageney, a

- in Finn (ed.), 4 Conflict of Loyalties, 263 (1968) <

Selective Service System, 1 Conscientious Objection

Sibley & Jacob, Conscription of Conscience: 1940-47

25 (1952) 12, 34, 35

Social Progress, Deliverancecon Rights and Respon-

sibilities of Public Dissent, Social Deliverances of

‘the 178th General Assembly of the ‘U: ed Pres-

byterian Church U. §. A. 26, July-August 1966 ...

St. Augustine, City of God, Book XIX, ch. 7 (Image

Books ed., 1958)

Stone, Harlan Fiske, The Conscientious Objector, 21

Colum. U.Q. 253 (1919)

309

22 .

Lp _

In THE _ ox ee

ain ot Se

« + OcrosEerR TERM, 1969...

. 7% sents es

Unrrep States oF AMERICA,- =, |

; ‘ ° . Appellant,

a ee

¢ .

~ ‘“

Joun HerFron Sisson, JR...

tee | Ye : “ : ; Avpertee.

i 6 . y - : :

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS : .

BRIEF OF AMERICAN HUMANIST ASSOCIA-

TION AND AMERICAN CIVIL LIBERTIES

UNION, AMICI CURIAE. Stas |

Interest of Amici.*

'_ Interest of American Humanist Association |

The American Humanist Association. is an organization

- Of. individuals who believe that for man to realize his

potential he must apply reason and the principles of science

to the solution of his personal and. social problems.

Humanists believe that mankind has only itself to rely upon

and only this life with which to be concerned. Therefore,

humanists would agree with Albert Camus that:

* Written consents by the attorneys: for both parties have been

filed with the Clerk. “us he 3

- afforded to those not formally religious as well as to those

—support of the appellee.

.° World War to defend the rights of conscientious. objectors

are entitled to the same exemption from ‘training and’

If there is a sin ‘daidinint life, it conmiate perhaps, not so

i much in despairing of life as in hoping for another. life

and-in eluding the implacable grandeur of this life

The Myth of —

This interest in improving our present life “hes led

humanists. td be concerned about world peace. -Many

humanists, though by no means all, have reached the con- |

clusion that any war and the participation. in any armed

- conflict is morally unjustifiable. Others have concluded that

only wars of aggression must be opposed. In addition, all

lumanists believe that conscientious objection should be -

who are. The American Humanist Association believes

that all.are equally entitled to exemption and therefore

requests permission to file.this brief as Amicus Curiae in

Baligeint of American Civil Liberties Union

For a half-century the American Civil Liberties Union

has defended the rights protected by the Bill of Rights: In

particular, it has repgesented those who have asserted the

rights of conscience and religious. liberty protected by tHe.

First Amendment against government infringement. are :

deed, the ACLU was founded ‘in the crucible of the First

tothat war. ar iad

.In ‘accord with. our ‘commitment to ‘the - protection of -

conscience, the ACLU has taken the position that those

whose conscience compels them to oppose a particular war

{

service in the aneied: foresee as is granted to the universal —

pacifist under the Military Selective Service Act of 1967.

‘We file this brief in order to present to the Court our argu-

ments of law which mE that position. |

* - + Questions Presented

re tens a young man be forced’ to kill against the dictates

of his conscience ‘i in a foreign military campaign which he

finds immoral, at least where that campaign is not pursuant

to a declaration of the war dr‘in defense of the homeland? -

2. May, Congress grant an ‘aii from military

-sefvice only to those whose objection to participation.in war

derives from sources which are “religious” in an orthodox .

or conventional sense, and not to those whose objection

¥ S“derives from less conventionally religious sources which

are equally binding and comscientions? ea.

‘Statutes’) Involved

Sestivn 12(a) of the Military Selective Service Act of

_ 1967 (50 U.S.C." App. (Supp. IV ) 462(a)) «PEgz ides, .in

pertinent part:

any? ** person ee *-who i in ‘ons manner shall know-

ingly fail or neglect or refuse. to perform any. ‘duty.

required of him under * * * this title * * * , Shall, upon -

conviction in any district court of the United States of

: competent jurisdiction, be punished by imprisonment

- for not more than five years or a fine of net more than

— or iva both * *.*,

r Bee ee ROU

~ Section 6(j) of the Military Selective Service Act of 1967

(50 BSC. App. (Supp. 456 (j)) provides, in pertinent

Nothing containied i in this titie * * * shall be construed

to. require any person to be subject tp, combatant train-

ing and service m the armed forces of the United States -

3 who, by reason of religious training and belief, is

‘8 conscientiously opposed to participation in war in any

form. As used in this subsection, the term “religious

| training and belief” does not include essentially

'.*.s political, sociological, or philosophical views, or a

merely personal moral code. dipstas

Statement

On March “18, 1968, Local Board No. 114 Middlesex

ek tae County,-Massachusetts, ordered J ohn H. Sisson, Jr., to-

° report for induction. On April 17, 1968, Sisson reported

for induction but refused to take the symbolic step forward. .

On March 21, 1969, a jury found him guilty of violating §462

' of the Military Selective Service Act of 1967. Pursuant to

_ Rule 34 of the Federal Rules of Criminal Procedure, Sisson

on March. 28, 1969, filed an amended motion in-arrest of

___ judgment, retary riage with ‘c ‘opjnion dated oan 1,

1969.

'. Sisson graduated in 1963 from the Phillips Exeter .

Academy and in 1967 from Harvard College. He enlisted in

_/.. the‘Peace Corps in July 1967, but after training he was, for.

reasons that have no moral connotations and no relevance ~*

to this case, “deselected” in September 1967. In January

1968 he went to work as a reporter for The Southern

Courier, published in Montgomery, Alabama. That: paper

assigned him to work in Mississippi, where s when he

received the induction order. Le aren oo

The first formal indication in the record that Sisson had

conscientious scruples is ‘a letter of February 29, 1968 in

which he notified his Board that “I find myself to be

conscientiously opposed to service in the Armed. Forces.

Would you please send me SSS Form No. 150 so that I -

might make my claim as a conscientious objector.” On

receivirtg the form, Sisson concluded that since his objection

was not religious within the administrative and statutory

- definitions incorporated in that form, he was not entitled

' sto have the benefit. of the exemption described in it. He,"

therefore; did not complete and return the form. ae

- Although the record showed no earlier formal indication |

of constientious objection, Sisson’s attitudey as a non-

religious conscientious objector has had a ne history.

Sisson himself. referred. to his moral development, his

educational training, his extensive reading of reports about

and comments on the Vietnam ‘situation, and the degree to _

which he had familiarized himself_with the U.N. Charter, —

the charter and judgments of thé Nuremberg Tribunal, and

__—other domestic and international matters bearing upon the

*American involvement in Vietnam. Be

The court below found that Sisson ‘was sincere and that

“[t]here is not the slightest basis for impugning Sisson’s

_ gourage”; further, that he was not motivated by purely .

“political” considerations, but that “his table of ultimate

"Values is moral and ethical . _ . reflect[ing] quite as ‘Teal,

pervasive, durable, and commendable a marshalling of prior-

ities as a formal religion. . . . What another derives from .

‘the discipline of a church, Sisson dérives from discipline of —

~~ dietional Statement, and will be cited as “App. ——.

ety ; “6 : ' : }

aE é oe ee

conscience. . . . He was as genuinely and profoundly gov- _

erned by his consci¢ as. would have been a martyr —

obedient to an orthodox religion.” The Gourt concluded .

that his views were “not only sincere, but, without neces-

_ sarily berne right, ‘are reasonable,” ?

ee ‘Summary of Argument | , ¢

i ‘tam is entitled ‘to exemption as a conscientious

objector under the First, Fifth and Ninth Amendments |

even though his objection is selective and its sources not.

formally religious. |

he Bs There is a right’ of. conscience “whose principles are .

‘either religious or akin: thereto,” App. 23, implicit in’

entire Bill of Rights, and. explicit in the First Am ent

to the Constitution. Invoking such right, Sisson‘is entitled .

to exentption from combat duty in a foreign undeclared

war where there is no suggestion of a national need for

his services. . J

_ b. The fact that Sisson’s ‘objection i is 5 limited to wars |

' that he conscientiously and sincerely considers immoral

- eannot disqualify him from such an exemption without vio-

‘lating the free exercise of religion and establishment

‘clauses.. To grant the exemption only to universal reli<9

gious pacifists discriminates inividiously against selective

religious pacifists, and to favor any religious objectors

over non-religious ‘pacifists, selective or universal, dis-

criminates in favor of such religious nettovers and against

non-believers.

_ @ Permitting exemption “ selective objectors is con-

sistent with the statute. :

i. Appendix to Juriedictional Statement .20-22. Chiles to the -

_@pinion below will be to the Appendix to the Government's Juris. ;

~~ ardly to ‘national interests of Significant magnitude, for

: d: Such discrimination has not been justified by jeop- \

no showing thereof-has been made or even attempted.

‘e. Allowing an exemption because of the lack of over-

riding need when all the relevant “facts are undisputed, =)

does not implicate courts in “political, questions” since a

‘ such issues have often been considered by courts, nor does” 7

it harm the integrity of the democratic process, morale or

efficiency. wee |

_. 2 It is an unconstitutional favoring of religion to :

grant exemption to religious conscientious objectors arid

not to those not formally religious in the statutory sense.

ARGUMENT. as

: | : ; a I. é ” k |

ONE WHO SINCERELY AND CONSCIENTIOUSLY

° OPPOSES A PARTICULAR WAR AS IMMO MAY

NOT BE. FORCED.TO KILL, AT LEAST. THAT.

WAR HAS NOT BEEN THE SUBJECT OF A CONGRESA

_ SIONAL DECLARATION OF WAR, AND DOES NOT

ENDANGER THE HOMELAND. |

A. Introduction: The Narrow Holding of -the “Court

The problems properly raised by this case are as difficult

_ and complex as any which have recently come before this

Court. They are: not; however, as far-reachingé&s the

Government’s Brief would make them.? :

—

* In addition to its substantive arguments against recognition of |

selective conscientious objection, the Government urges .that this

Court should not even reach this question because Sisson’s induc-

4-4

”

% out by the series of ti

Put sesibihey, the district suit held that under the

First Amendment and the due process clauses, one who is

sincerely opposed fo a particular foreign military campaign

-as immoral cannot, be forced izito combat duty where’ he -

may be required to kill or be killed, where that campaign

_ has not boop aeteee or ratified by a een

' tion “would not immediately oceasion his ing sent to istaials

and would not necessarily result in his evé being: sent there.”

Brief, p. 37. It i As the essence of the decision beléw that the magni-

tude ‘of. Sisson’s conscientious objection required a holding that

he “cannot constitutionally be subjected to military orders (not

reviewable in,a United States constitutional court) which may re-

quire him to kill in the Vietnam conflict.” App. 36 (Emphasis

added).. The court below obviously had good reason to be con-

cernedSgbout the availability’ of a constitutional court to’a man

. in the military service who conscientiously objects to participation

in an unjust war: The Government has consistently opposed Fed-

eral Court jurisdiction of such claims by servicemen, usually with

the contention that Federal Courts. should refrain from interfering

with military duty assignments and -travel orders. See Noyd v.

McNamara, 267 F.Supp: 701 (D. Colo. 1967), aff'd 378 F. od 538

(10th Cir. 1967), cert. denied, 389 U.S. 1022 (1967); Luftig v.

' McNamara, 373 F.2d 664 (D.C. Cir.), cert. denied, 387 U.S. 945

¢1967) ; Mora v. McNamara, 387 F'.2d°862 (D.C. Cir. , cert, demed,

389 U.S. 934 (1967) ; see also Orloff v. Willoughby, 345 U.S. 83 . a

(1953): For an ‘illustration ‘of judicial cognition.of the inability

to find a Federal forum to lear and decide anything but the juris.

dictional question, see United States v. Owens, 415 F.2d 1308, 1316*

(6th Cir. 1969), certiorari pending. That a selective conscientious

objector—or indeed, any conscientious objector—cannot expect to

find a hospitable fo within the military judiciary is sadly borne

xperienced by Air Foree Captain

ale Noyd. See United States v. Noyd, 18 USCMA 483; 40 CMR .

196 (1969), affirming United States v. Noyd, ACM 20121, 39 CMR’

(1968). See also Mueller v. Brown, 18 USCMA’ 534, 40

246 (1969); Jones y. Lemond, 18 USCMA 513, 40- CMR 225,

(1969) ; Leé'v.. Pearson, 18 USCMA 545, 40 CMR 257 (1969).

- sum, what Judge Wyzanski held is that a just war objector Ma's a

right to have his case idered by a constitutional court rather ~

than a military. tribunal inthe context of a: court martial, and that

unless Sisson received his gin Judge Wyzanski’s court there

_ stitutional court. bis em

‘ ‘\ -

” would be no assurance that he could receivé it in any other con- |

he, : ; . ig

rm 4

| declaration of: war, and where “% is not made necessary in

’ defense of an’ invasion or other immediate. dangergto the

nation, and. even though the’ source of the objection is not

formally religious. The court did not, either dirgetly or by

implication, pass on the rightness of the Vietnam war, the

availability of the so-called Nuremberg defense, the Govern-

ment’s powers of conscription, or any one of a host of other

‘issues. More specifically, it did not rule that—

(1) A selective conscientious’ -objector—or indeed, any

conscientious objector—could be exempt, in peace or war,

from any military service other than combat duty s

* (2/Civil disobedience of any kind was either legally or

morally permissible ( Gov’t Bri f 49, 48-49). here.’s)

(3) The United States had no need in Vietnam for

combat troops in general (Gov’t Brief 41-42. ;

_ combat troops in geheral (Gov't Brief 41-42948-49).

®The court below assumed “that a. conscientious objector, re-

ligious oF otherwise, may be conscripted for some kinds of service

in peace“or war,” App. 27 (emphasis added), and limited its hold-

’ ing to a compulsory combat assignment in violation of conscience.:.

ci respectfully urge, however, that the logic of Judge Wyzan- _

ski’s reasoning, as well as the constitutional imperatives discussed

in this Brief, cannot allow any: invidious distinction between com-

Pp combat service ‘in violation’ of conscience and compulsory

non-combatant military service in vielation of :conscience. Section

6(j) of the Military Selective Serviek Act of 1967, and. all of its

* . precursors in the statutory history of | onscientious objection, have

' always recognized both ‘categories of conscientious objection.- The

‘conscience of the man who can. wear the uniform but cannot bear .

:@ Weapon has never been thought to be more worthy of protection’

the conscience of the man who cannot participate in mInilitary

service in any capacity. Since both are recognized by statute, it

would not. be. constitutionally permissible to include selective ob-

-° Jectors of one categery, but to exclude selective objectors of the

other category. See Sherbert v. Verner, 374 U.S. 398 (1963) and

Torcaso v, Watkins, 367 U.S. 488 (1961). It must be conceded,

however, that it is not necessary for this Court to adopt this argu-

| Ment in its full logical extension in order to affirm the judgment

10.

Within this narrow compass, there are “nevertheless two

_ erucial ‘issues : |

(1) whether suloctive chjestion in these sinha is .

~* eonstitutionally protected—and, as will be argued below,

also statutorily authorized—and ; AOR ae deat

: - (2) whether a distinction. betwen statutorily deta 3 re-

ligious and sen,nelighns objectors it is unconstitutional.

«iB ‘The First, Fifth, ind, Wath ‘Ainininditanente Crete ‘a

‘Right to Conscientiously Refuse to Kill Which Is

. Not Forfeited by the Selective Nature of the Ob- |

Seetion ee me * a

1. Sources of the right of conscientious objection |

“Two things fill‘me with awe,” wrote Immanuel Kant, -

“the starry heavens above and thé moral law within.” It-is

this “moral law within” which impelled John Sisson to

refuse to be subjected to combat duty, to kill in a-war he

considered immoral. “[B]Joth morals and sound) policy re-

quire that the state should not violate the conscience of the

*individual,” wrote Harlan: Fiske Stone, in The Conscientious

) Objector, 21 Colum. U. Q. 253, 269 (1919), quoted in United

States. v. Seeger, 380 U.S. 163, 170 (1965), for as- Judge

Wyzanski stated below:

When the state through its laws Seiin to override rea-

sonable moral commitifients it makes a. dangerously

uncharacteristic choice. . + . When the law treats a

reasonable, conscientious oak as a crime it subverts its

‘own power. It invites civil disobedience. It impairs —

the very habits which nourish and preserve the law. °

App. 33. .

*The Ninth Amendment support is elaborated in. Appellee’s

-Brief, pp. 97-102 and will not be specifically discussed here.

rt :

‘

11 ne

This. right to obey the moral law is reflected in the First |

‘Amendment guarantee of religious liberty and is, indeed,

implicit in our entire constitutional framework and origins.

Although the “free exercise of religion” clause obviously

refers explicitly only to religion,’ it-was obedience to con- .

‘science ahd morality that made this nation a haven for

freedom-loving men’ everywhere. The history of our na- -

tional origins is largely a history of religious dissenters

and conscientious objectors like the Puritans, the Quakers,

. Roger Williams, the 1848 immigrants, and others. See

Sibley, “Dissent: Phe Tradition and Its Implications,” in

Finn (ed.), A Conflict of Loyalties, 103-139 (1968). Numer-

‘ous provisions of the Constitution are directly and indi-

-reetly designed to protect ‘the dissenting conscience in

various aspects of civic life. This is certainly true of the-

. freedom of speech and press clauses, but it is equally true

of the privilege against. self-ifcrimination in the Fifth |

Amendment, as used for example by John Lilburn and

others, see Griswold, The Fifth Amendment Today, 3-4, 8-9 .

(1955), the protection against unreasonable searches and

seizures of the -Fourth, see Marcus v. Search W arrants, 367°

U.S. 717, 724-29 (1961). In short, by the same reasoning

which supported the development of a right of privacy in —

Griswold v. Connecticut, 381 U.S. 479 (1965), it is not.

merely possible but appropriate to recognize a right> of

conscience against governmental compulsion to perform.

certain acts. ites

* Because of the almost universally religious source. of conscience -

in the 18th century, the moral conscience was virtually identical

with religious conscience, and thus, protection for. the latter. vir-

tually guaranteed: full protection for the former.. See generally

- Brodie and Sutherland, Conscience, the Constitution and the ‘Su-

preme Court: The Riddle of United States v. Seeger, 1966 Wis.

L.Rev. 306,309. . ae

hors.

| pp. 12-15 of the Petition for certiorari i in Noyd v. McNamoro.

_ The fact that the objection in question relates to a par-

ticular war does not make it any the less conscientious. As

Judge Wyzanski noted, “a selective conscientious objector

might reflect a more discriminating study of the problem, a

more sensitive conscience. and. a deeper spiritual under-

standing.” App..29. Indeed, by far the greater number and

. larger bodies of all religions recognize the right .of con-

_scientious abstention from some wars but not others.* The

_Catholic doctrine of the just war is well known, and is

‘deeply rooted in St. Augustine and St. Thomas Aquinas.

See United States v. Bowen, —— F. Supp. —— (N.D..

Calif. Dec. 24, 1969), 38 U.S.L: Week 2361, n. 1. Various

Protestant groups have asserted the right of selective

opposition to unjust wars, see, e.g., Fourtli Assembly. of

- the World Council of Churches, N. Y. iba, 17, 1968,

at p. 1, col. 3;.A Policy Statement of the National Council

of Churches of Christ in the United States of America -

(Feb. 23, 1967). Jehovah’s Witnesses believe in theocratic

wars and in self-defense of their brethren and their Church,

‘see, e.g., Sicurella v. Untide States, 348 U.S. 385 (1955);

'_. Kretchet v. United States, 284 F.2d 561 (9th Cir. 1960).

Even Quaker doctrine seems to apprové the use of force

to maintain world peace, as can be seen from William

Penn’s charter for world government. See Sibley & Jacob,

Conscription of Conscience: 1940-47 25 (1952). See also

V eIn Noyd v. McNamara, 267 F. Supp. 701 (D. Colo. 1967), aff’d

378 F.2d 538°(10th Cir.), cert. denied 389 U.S. 1022 (1967),

the District Court allowed petitioner, a regular Air. Force officer

who had. become a selective conscientious objector after eleven years

of _ honorable service, to present extensive expert testimony by |

ed theologians and philosophers,” 267 F.Supp. at 705, - -

on the history and religious significance of selective objection.

Since such testimony i is of relevance to the issues before this Court

in this case, amici are reprinting, as an appendix to this brief, the

digest of the. expert theological testimony which was included on

i Pen 13

-Gendler, “War and the Fowish Tradition,” in Finn (ed.),

A Conflict of Loyalties, 78-102 (1968). The fact is that

almost every pacifist believes in the use of force for self-

defense and police purposes at least. |

~ As Chief Justice Hughes: said in United States. v. Mac-

Intosh, 283 U.S. 605, 627 (1931) (dissent) :

“There is nothing new in such an attitude. Among

the most eminent statesmen here and abroad have been

‘those who condemned the action of their country in

entering into wars they thought to be unjustified.

. Agreements for the renunciation of war presuppose a _

preponderant pubtic sentiment against wars of aggres-

sion.” 283 U.S. at 635. , os

mee It is unconstitutionally discriminatory to deny .

the exemption to selective objectors | when .

granting exemption to total objectors .

It is clearly discriminatory under Sherbert v. Verner, -

_ 374 U,S. 398 (1963) to grant a benefit to adherents of one

religious belief while denying it to those of other beliefs, -

even where the impact is only indirect. “[I]f the purpose ~

or effect of a law . . . is to.discriminate invidiously between

religions, that law is constitutionally, invalid even though

_, the burden may be charaeterized as being only indi ect,”

374 U.S. at 404, quoting Braunfeld v. Brown, 366 U.S. 599 c

(1961). If benefits are denied only to those whose religious’.

- practices.‘and beliefs preclude them from being eligible

therefor, an enormous burden falls on the proponents of

such legislation to show “the gravest abuses, endangering

paramount interests.” 374 U.S. at 406-07.

Applying this to Sisson, it seems clear that if the state

exempts from combat service those who refuse to fight in-

a war because their religious belief induces. them to oppose

all wars, while denying it to those whose religious beliefs.

induce them to refuse to fight in that same war but because

they religiously oppose only some wars, the state’s action

is “conyitutionally invalid.” It forces the latter to forego

the exercise of his most profound. religious beliefs (cer-

- tainly as religious belief has been defined in Seeger), that

it is. perhaps. moral and ethical to fight in a just war, but

in no case in ar ‘unjust one.’. To.condition the exemption —

-on the profession of a religious belief requiring total

pacifism violatés both the free exercise and establishment

clauses of the First Amendment. ~ -

The burden of justifying such an sles is very

heavy, indeed. Sherbert v. Verner, 374 U.S. at 406-07, Mac-

, Gill, Selective Conscientious Objection: Divine Will and

| Legislative,Grace, 54. Va. L.Rev. 1355, 1377-83. (1968). As

is demonstrated below jn Part IC, this burden has not been

met. See also MacGj¥f, 54 Va. L.Rev. at 1378-83.

4 Here one sees one of the most paradoxical aspects involved in

denying exemption to the selective conscientious objector: the

denial is based on the selective conscientious objector’s: expectation

that he would indeed fight in a hypothetical moral war, but he

abstains from the very e actual war that the total pacifist op-

. poses. Indeed, it is uflikely that the selective constientious ob-

jector will ever really have to participate in the hypothetically -

just war he has’ admitted willingness to fight in. It is his honesty

with respect to a situation that he may well never face, that dis-

qualifies him from the exemption for total pacifists. Cf. tae |

“Conscientious Objection and Mor. gency,” in Finn (ed.), A

Conflict of Loyalties, 263-283 (1968) (“We cannot know for sure

that a time will not come wher there will be a war which should

be fought in order to prevent the destruction of all life,” id. at

283). Appended to the essay of Mr. Segal is his own application

for classification as a selective conscientious objector. Jd. at

283-287.

wl -

ef |

‘This case of course involves more than a distinction

“among religious objectors, for Sisson is not, “formally re-

ligious” in the: statutory sense. But if it is imperinisgible

to discriminate among religions by favoring a religious

belief requiring total pacifism over a religious belief entail-

“ing selective objection, and if, as will be.argued below and

as was concluded by Judge Wyzanski, it is Sipilarly illegiti--

mate to favor religious believers over those with non-

religious beliefs, then it is constitutionally irrelevant that

the Tin | jn this case is based on formally non-religious —

sources. Torcaso v. Watkins, 367 U.S. 488 (1961).

. °In sum, if a total religious pacifist i is granted an exemp-

tion, a selective nen pacifist must also be; and if e ..

tion, then a peil-zeligiclia pacifist jak. also. be. “‘Onee any

~ exemption is granted for religious reasons, one cannot dis-

- tinguish among different kinds of religious pacifisms (total —

or selective) ‘or between any religious pacifism and a non-

' religious kind. There can be no discrimination in favor of ~

either one religious ¢ conscience over another, or in favor of

the religious conscience in general over the non-religious

conscience.

3. Balancing rights against needs

As Judge Wyzanski noted, however, no such right of

conscience is absolute, and.a balancing process is neces-

sary -to determine the scope and limits of the right of

conscientious objection. Compare, Burenblatt v. United

States, 360 U.S. 10911959). It is here that the link

with the due. process clause also appears, for the issue

is whether there is a rational basis or need for the in-.

fringement of the right, with a heavy weight i in favor of the

right because of its First ‘Amendment sources. ‘Compare,

herbert v. Werner, 374 U.S. at 406-07 (“the gravest

abuses, endangering paramount interests”).

Focusing on the narrowness of Sisson’s claim, and. on

th absence of any countervailing claim of need, J udge

Wyzanski concluded that no case had been made requiring *

Sisson to kill, contrary to. the dictates of his conscience; in

a foreign military campaign fought “for limited objects with -

no likelihood of a battlefront within this country and with-

~ out a declaration of war...” App. 29. The court stressed

the absence of: “any sieisialsitaes that in present circum-

stances there is a national need for combat service from

Sisson as distinguished from other forms of service by.

him.” Ibid. The distritt court thus found that no case for

national need had been made to override the claim°of con-

Science, doing the same kind of “balancing by the courts

of the competing private and public interests at stake in |

the particular circumstances shown,” as this Court has done

in other First Amendment contexts. See Barenblatt, 360

U.S. at 126. The court’s judgment was based on no dis- .

puted issues of fact, and the Government has not chal-

lenged the merits of this finding but only whether any court

may even consider-such a claim. See Point IC1 of this brief —

below.” ‘

4. Section 6(j) is constatent with selective conscien-

tious objection (

Although the Government seems to deny arty statutory

‘support for a claim of selective conscientious objection both

the statute and decisional law suggest the opposite.

Nothing contained in this title >* ° shall be construed

‘to require any person to be subject to combatant train-

‘

* . States who, by reason of religious training and’ belief,

ig conscientiously opposed to participation. in ‘war

in any form. As used in this subsection, the term

“religious training and belief” does not include essen-

_tially political, sociological, or philosophical Views, or

poasow & merely personal moral code,*** it

e. ,

sarily modifies “war” and not “participation.” If it modi-

ym ae

from combat someone who refuses to serve in the military

in any capacity, thus leaving open the Possibility of com-

pulsory nén-military service. Indeed, if the-phrase “in any

form” is intended to exclude. Selective objection, it is a

quite inartful expression, for surely “all’ wars” or “any

war” would more clearly express that conception.

Equally important, a number of cases have allowed the

- Gaim of selective opposition to war.

° .

‘ Sicurells v. United States, 348 U8.~$85 (1956) this

and * * * his fellow brethren,” 348 U.S. at 388, though not

himself, and would fight im a war at God’s request, though

apparently only with spiritual ‘Weapons, was entitled to

conscientious objector states. Two - Justices dissented,

claiming that the defendant was being allowed to choose

lower federal courts ‘have granted J ehovah’s Witnesses

such exemptions in a long geries of cases, even where the

Witness was willing to slay men at Jehovah’s réquest. See,

Kretchet v. United States, 284 F.2q 561 A9th Cir. 1961) ;

‘ing: and service in the armed forces of the United

On its face, it is diffeult to see why “in any form” neces-

fied “participation,” it would quite signfiicantly exempt

Court held that a Jehovah’s Witness, who believed in the’

use of force to defend his “ministry, Kingdom Interests

the-wars he would fight in. In accord with this decision, the: .

iced

3 Shepherd v. United States, 217 Poa 942 (Oth, Cir. 1954); “-

Bouziden V. United States, 251 F.2d 728° (10th Cit.), cert.

denied, 356 U.S.'927 (1958) ; Mayfield v. United States, 220

F.2d 729 (5th Cir. 1955); United States v. Pekarski, 207

' F.2d 930 (2nd Cir. 1953).:'Although the Court in Sicurélla

stressed: that such orders had not yet come from Jehovah

and were unlikely to, all these defendants appeared will- .

ing to use force in defense of their Church or their brethren,

' put not aggressively, just as petitioner expressed willing-

ness to use. force in defense. of his escent d but not ag- ©

gressively. :

In addition, the decision in Fleming v: United States, 344

F.2d 942 (10th Cir. 1965), seems to have granted‘an ‘ian.

* tion to one who believed that some wars are permitted.

Though he thought “love and positive forces” would usually

be effective to eliminated war, he added that “force should ~

be used only as a final alternative and under fair circum-

stances.” 344 F.2d at 914. Expressly adverting to defense 7

of country, the defendant in Fleming stated that “self-—

defense ofa people would not involve war—but protection

against a “Smaller group which ,could not be reconciled by

intelligence” and Positive forces.” Ibid. 7

‘More explicitly ‘and directly relevant hereto, the soda :

decision in United States v. Bowen, -— F. Supp. ——, Cr.

No. 42299 (N.D. Calif, Dec. 24, 1969); 38 U.S. L. Week

2361, acquitted a selective conscientious objector, holding

that discrimination against selective objectors was a viola-

nee Bh the Equal Protection Clause. Judge Weigel held:

. it is clear that there is no compelling governmental

sfuterest for distinguishing the defendant, who is opposed .

to participation in’the Vietnam War on religious grounds,

. from others who are religiously opposed to all wars.” 38

U.S. L. Week at 2362. See also Noyd v. McNamara, 296 F.

Supp. 136, 137 (D. Colo. Mar. 29, 1967) (granting pre

‘ liminary injunction against assignment of Air Force officer

to any duties which would be in violation of his’ selective

conscientious objection) where Judge Doyle cited United

States v. Seeger, supra, and Sicurella v- United States, «

supra, and held: | o -

“Although it Wocan’t deal specifically with whether one

__ can be a conscientious objector in a limited way, it does

indicate that there are no particular limitations upon

holding these gonscientious views in terms of the nature

or character of the religion or the philosophy which

moves him to adopt ‘such views” 296 F. Supp. at 137.

On the other hand, some cases have held or seemed to

hold that ‘the phrase “participation in war in any form”

precludes an exemption for selective objectors. The decision ©

most often gited for this proposition is United States v.

Kauten, 133 F.2d 703 (2d Cir. 1943). In it Judge Augustus

_N. Hand said that an exemptible conscientious objection

“must ex vi termini be a general scruple agairist ‘participa-

__tion'in war in any form’ and not merely an objection to

™™ participation in this particular war[,]” 133 F.2d at 707.

But the significant fact about.Kauten is that the defendant

_ there was an objector to all wars; the defect in his. ap-

‘plication for exemption was held to be that his objection was °

not religious. The foregoing dictum reflected only a sug-

gestion—also not necessary: to the decision—that the non-

, . *The District Court subsequently dismissed the’ complaint for

lack of jurisdiction, 267 F. Supp. 701 (D. Colo. 1967.), reiterating

that “We do’ not reach the merits of. plaintiff’s case and hence we .

do not deny his sincerity or reject his particular basis for claim.

ing that he is a conscientious objector,” id. at 708; aff'd 378 F.

538 (10th Cir. 1967) ; cert. denied.389 U.S. 1022 (1967). ce

: .

: ce - .

| vr

5 e

. 2

7 Universal pacifist will be less likely to be igreligions.o one.

. That suggestion seems doubtful in the light of the analysis ‘

by theologians now available (see pp.. 29, 32-33, infra, and —

Appendix). While the Kauten holding—that a non-religious

total pacifist cannot. qualify—may have been good law in

1943 it can scarcely be accepted as such today. See Part

II, below. In all events, the comment on exempting

: objectors to “this particular war,” since ‘the question was

not before that court, ‘searcely merits the weight as au-

_thority which Kauten’s numerous citations have appeared

to give it. Cf. United States ex rel. Phillips v. Downer, 135 _

, F.2d §21, 524 (2d Cir. 1943). :

United States ¥. Kurki, 255 F. * tg 161 (E,D. Wise. «.

1966) aff’d on othér grounds, 384 F.2d 905 (7th Cir. 1967), |

.’ cert. denied, 390 U.S. 926 (1968) held that the words, “in

'_ amy form,” modify “war,” precluding exemption of selective

objectors. This lone. holding was decided on a hurriedly.

submitted motion, made after the defendant had changed

attorneys and the theory of his defense. See 255 F. Supp. Fas

at 163.

‘The satiety position however was taken by the Eighth,

Seventh, and Second Circuits. See Taffs v. United States,

208 F.2d 329, 331 (8th Cir. 1953), cert. denied, 347 U.S.

928 (1954); United States v. Hartman, 209 F.2d 366, 371

. (2d Cir. 1954); United States v. Close, 215 F.2d 439, 442

_ (7th Cir. 1954), cert. denied, 348 U.S. 970 (1955).

* Thus, in. Tafs, the Court declared that

“The words, ‘in any form’, obviously relate, not to ‘war’

but to ‘participation in’ war. War, generally speaking,

has only one form, a clash of opposing forces. But a

person’s participation therein may be in a variety of .

forms. He may be carrying a rifle, piloting a plane,

working in a clerical staff behind the lines, or working

in a defense plant on the home front. We thing: Con-

gress.intended by this section to exempt. those persons

from serving in the armed forces’ whose religious

beliefs were*epposed to any form of, participation i in 4

_ flesh and blood war between nations.” 208 F.2d at 331. ;

Regardless of whether this case involved Jehovah’s Wit-

nesses and theocratic wars, .the Court’s interpretation of .

the modifying clause is appropriate to all cases.

Seeger’s citation ‘to the Macintosh dissent lends some

. further support to this reading. The Seeger case first cited

that dissent as “enunciat[ing] the long recognition of con-

scientious objection,” arid quoted Chief Justice Hughes’

eloquent: defense of the right of conscience, a defensé made

on behalf of a selective objector. Moreover, other key quota-

tions and citations i in Seeger, see 380 U.S..at 170, are in the

_ Same paragraph .as that in which Chief Justice Hughes

declared that “Professor Macintosh, when pressed by the

inquiries put to him, stated what is axiomatic in religious

doctrine.” 283 U.S. at 634. These-statements by Pro-

fessor Macintosh were manifestly a profession of selective

opposition. See 283 U.S. at 617-19. ‘Surely the adoption. of

the rationale of the Macintosh dissent by both the Seeger

' ‘court and by Congress, see 380 U.S. at 170; impliedly

adopted its application to the very situation in which. that

rationale was first enunciated—selective opposition based

on: conscience. _ . 7

Indeed, this: recognition of selective objection is in

harmony with the legislative intent. The legislative purpese

in enacting the exemption. of conscientious objectors was —

twofold: the Scene 2 of religious ewig and the pre- —

‘ vention of disruption within the armed forces. An interpre-

“tation of the statute to encompass Sisson’s.-beliefs is con- .

sistent with both.-of these purposes; neither goal is

- advanced by distinguishing between the two forms of con- -

scientious objection.

(a) Preservation of religious -liberty

The primary reason for the exemption is acknowledged

- to be the protection of individual conscience. Congress was

giving expression to this country’s deep-rooted concern for

‘religious liberty.: In particular, this recognition oi the

claims of conscience and ‘protection of ‘the rights of con- -

scientious objectors traces itself back to the origins of our

history in colonial times. Selective Service ‘System, 1

Conscientious Objection (Special Monograph No. 11, 1950).

As this Court recognized in Seeger, the fundamental objee+

tive of Congress in exempting conscientious objectors from

_military service has been to avoid government compulsion

of actions contrary to religious beliefs, either by induction

‘into the service contrary to conscience or by pecans

for refusal to serve:

“Chief 5 ustice Hubhes, i in his opinion in United States

v. Macintosh, 283 U.S. 605 (1931), enunciated the

rationale behind the long recognition of conscientious

objection to participation in war accorded by Congress”

in our various conscription laws when he’ declared that -

‘in the forum of conscience, duty to a moral\ power.

higher than the State has always been maintained.’ At”

633 (dissenting opinion). In a similar vein Harlan

Fiske Stone, later Chief Justice, drew from the Na-

tion’s past when he declared that ‘both morals and‘

sound policy require that the state should not violate.

’ the conscience of the individual. .,.’” United States

v. Seeger, 380 U.S. 163, 169-170 (1965) .

This purpose was emphasized throughout the congressional

hearings before the House Military Affairs Committee. on

the Selective Training and Service Bill between. July 10

- and August 2, 1940:

“Mr. Sparkman: Tee: are not asking recognition for

just your group, but you are asking us to recognize

that there i is such a thing as an individual conscience?

“Mr. Horst: ~ Yes, sir:

“Mr. Sparkman: And the individual conscience is to be

respected so long as it is sincere?

' “Mr. Horst: That is the way we feel about it.

“Mr. Sparkman: And that is thé traditional thing in

our history, is it not, and our country’s handling of

. affairs in the past?

“Mr. Horst: I think so....” National Service Board

of Religious Objectors, Congress Looks at the Con-_

scientious Odjector 10 (1943) -

Shortly thereafter the Hieins -( dual Andrew J. May,

Kentucky) pointed cout: ©

I think the preservation of conscience is a very im-

‘portant thing, and freedom of conscience is a very

important thing. That is. one foundation upon which

our structure of government is built. . . (Id. at 10).

This protection sought for religious ne and con-:

_ Science applies-no tess forcefully to those whose scruples

. ‘dictate that they abstain from the present war, than it does

to those opposed to all wars. The discriminating religious

objector follows a tradition reeognized by Christians for

qore than 1;500 years, when he undertakes to assess

whether a conflict is a “just war.” St. Augustine, City of

God, Book XIX, ch. 7 (Image Books ed:, 1958); Deliver-

ance on Rights and Responsibilities of Public. Dissent,

Social Deliverances of the 178th General “Assembly of. the

United Presbyterian Church U. 8. A., Social Progress, July- ©

August, 1966, 26-30, especially 28; sée also,,R. Bainton, —

Christian Attitudes Toward War and Peace, (1960) passim,

(tracing the concept of the just war back to the Old Testa-

ment, and classical and early Christian thinking which in-

‘fluenced St. Augustine); Finn, A Conflict of: Loyalties,

(1968) ‘passim; see generally, Hochstadt, The Right to

Exemption from Military Service of a Conscientious Ob-

. jector to a Particular War, 3: Harv. Civil Rights-Civil

Liberties L. Rev. 1, 10-15 aie

(2) Preventing iardgiink of the armed forces

~The. second reason for the exemption has been that the

induction or retention of objectors in the sérvices would

cause intolerable disruption. During the House Military

Affairs Committee hearings, Congressman Faddis empha-

sized this as the other purpose underlying the exemption :

And, secondly, I.am-sure if I were to go out and com:

~ mand the troops—and I may—I don’t want any con-

scientious objectors in my regiment.at all. I would

rather they would.be some place else. They would be

more bother than théy would be worth, and a bad

‘ example to other men. You could not do anything with

them in the way of soldiers and somebody would have . °

~ to be: doing the ee in a war and I am sure

e DOL

"95

man who would command the troops would want them.

. National. Service Board of Religious Objectors, Con- S

gress Looks at the Consoigationn Objector 12 (1943).

Yet this is the case as much for discriminating. Peg

tors as for universal: pacifists.. There is no. reason to

assume ‘that discriminating objectors will be any more —

amenable to compulsion or any less influential upon the

morale of other men than universal pacifists.

* Thus, ‘neitlier of the two legislative: purposes in estab- ,

lishing the exemption justifies a distinction between the.

universal pacifist and the discriminating religious objector

to war ; indeed, recognizing the selective conscientious claim

is consistent with. those purposes.

° inconiiulittinn a Selegtive Conscientious Objector’s _

Exemption From Combat Duty in the Vietnam War

Does Not (1) Raise a Political Question; (2) Im- _

pugn the Integrity of the Democratic Process or |

_ Justify Civil Disobedience; or: <3), — With .

Military Efficiency

- iL. Ne pla qutin anf for jie rexluton

is involved

The Government seeks to transform this well-estab-

_ lished due. process and First Amendment balancing into

something quite different. . The Government would have -

this Court believe that the district court was passing on

whether “a particular law or particular foreign policy

is good or bad, or whether there is of is not any need for

specified numbers of men in a particular place at a certain |

time.” Brief 40. Citing a string of decisions indicating the

limits of judicial power in the area of foreign affairs, the

Brief characterizes the court below as seeking to pass on

whether the United States does or does not need to take —

. into the Armed - Forces men who do not agree with its

' foreign policy of the moment.” Brief 41.

This description grossly distorts the opinion below. -

Judge Wyzanski was deciding not whether we need 300,000 ~

or 400,000 combat troops in Vietnam, or whether the March,

1969 quota required drafting ‘dissenters, but a much

narrower question, which is quite appropriate for judicial

_ consideration: whether a right of conscience and-ultimately

. to life itself can be overridden when there is no showing or

even claim of any need therefor. In determining need, the:

district court did not have to examine complex data or make

political judgments but relied on two facts only: the.lack of

either a declaration of war or of a threat to the homeland,

both of which facts are totally undisputed and indeed

a matter of public record. This is precisely the kind of .

balancing this Court has consistently undertaken where

constitutional rights are concerned, see, e.g., the clear and

present danger test of Dennis v. United States, 341 U.S.

494 (1951) ; and Brandenburg v. Ohio, 395 U.S. 444 (1969),

and the aforementioned balancing tests ‘of Barenblatt and

of Sherbert v. Verner. Indeed, the Government itself has

heretofore supported such an approach in the speech area.

The district court had to do less of.a factual analysis of

needs and threats than has been done in the aforementioned.

situations, for Judge Wyzanski relies cca on the two

undisputed facts noted. |

. Invoking the tidietneale label “political question” does not

. degide this issue either. In Baker v. Carr, 369 U.S. 186, 217.

(1962), this Court declared that. it would find a “political

question” when there exists

- 2 :

a textually demonstrable constitutional. commitment

of the issue to-a coordinate political department; or

a lack of judicially. discoverable and manageable

standards for resolving it; or the _impossibility of

deciding without an initiat Policy determination of a

kind clearly for. non-judicial discretion ; or the impos-

sibility” Sf a court’s undertaking independent resolu-

tion without expressing lacls of respect due coordinate

branches of government; or an unusual need for: un-

questioning adherence -to a political decision already

made; or the potentiality of embarrassment. from

multifarious pronouncements by various departments

on one question. ” -

Under. these criteria, the balancing issue herein is quite -

justiciable: there is no textually demonstrable commitment

of this issue to” the’ other. branches; there are well-estab-’ .

lished judicial ‘approaches for resolving the question. in

Barenblatt, Dennis, Brandenburg, and Sherbert, supra;

there is no danger of multiple and conflicting. governmental

__ prosiouncements ; no extended weighing zi political or

*_economic factors is involved nor is there a peed for access

"_ to a mass of secretor technical data; there is no head-on

collision with purely administrative or executive decision,

“and there is no unusual need for adherence ‘to a political:

decision.

This conclusion is further supported by a consideration of —

the issues involved in the authorities cited by the Govern.

ment, which are treated i in the margin.”

® Pauling v. ‘Meleure, 331 F. 24 796, 799 (D.C. Cir. 1963), cert.

denied, 84 S. Ct: 1336 (1964), involved an attempt to have the

courts enjoin nucléar testing; Ludecke v. Watkins, 335 U.S. 160

(1948), involved review of an existing Executive determination of

when a war was ending.

. *,

: a be 2 . + od ek

Courts have both the competence and the duty to deter-

- mine whether. the. most fundamental rights of liberty and

‘life can be overridden where no showing of need-therefor is .

_ made or even attempted. The executive and legislative

branches have not been freed from the obligation to act

_ responsibly when they invade’the highest of human inter-.

ests—life and opnscienee: In short, the Congressional

power to raise armies is not exempt from the Constitution.

2. The. democratic process is not impugned by

‘ allowing selective conscientious objection nor

’ is civil disobedience legalized .

The Government argues, however, that allowing selective

objection impugns the, democratic process. because it

justifies an exemption from civic obligation on the grounds

of political’ dissent ; further, that such an exemption allows

exemption from ali other obligations and in effect permits

civil disobedience. . | a

Such fears are unwarranted. In the first place, this

decision deals explicitly only with combat duty. Surely, the

difference in magnitude between compulsory killing under

' penalty of death, and other forms of service, is sufficiently-

great that a special exemption for the former implies

nothing as to the latter or to civil disobedience in general.

We do not deal either with volunteered obstruction or com-

’ pulsory tax payments or even compulsory open housing.

Rather, we deal with a conscientious objection to having to

kill or be killed, a case so obviously special—as- is every-

thing involving death—that it serves as a weak precedent

indeed for other forms of dissent. -When the government

' “orders citizens to kill or die, itgcomes close to the limits

.@°

“ , = ie i

that even Hobbes put down arpund the authority of the

Leviathan.” Christian Bay, quoted in Kaufman, “The —

*- Selective Service System: Actualities and Alternatives” in -

Finn (ed.), 4 Conflict of Loyalties, 240, 252 (1968).

In support of its contention that recognition of selective

conscientious objection should be rejected because of the

“traditional application of the ‘political question’ doctrine,”

Brief, page 49, the Government cites the policy reasons

' given by a majority of the Marshall Commission in its 1967

report, National Advisory Commission on Selective Service, -

In Pursuit of Equity: Who Serves When Not All Serve?,

pp. 48-51. It is interesting to note, however, that the

Government does not cite a singlé other commentator or

writer who supports this position. The fact is, that the

jer _ overwhelming majority of distinguished writers, scholars

‘is.

and theologians who have considered the subject have

\strongly endorsed the wisdom of and advocated recognition a

‘of selective conscientious objection, ‘and have vigorously

criticized the reasoning and conclusions of the> Marshall :

Commission majority. This is true of most of the contrib-

- utors to the most recent book which has been published on

this subject, Finn (ed.), A Conflict of Loyalties (1968). See -

particularly the essays by the late Father J. ohn Courtney

‘Murray, one of the Marshall ‘Commission minority; see,»

also, Quade, “Selective Conscientious Objection and Politi-

eal Obligation,” Finn, supra, at 195, 205-211; Harrington,

- “Politics, Morality and Selective Dissent,” Finn, supra, at

219, 224-226 ; and Kaufman, “The Selective Service System:

Actualities and Alternatives,” Finn, supra, at 240, 244-254.

- Professor Kaufman concludes: “Many parts of the Com-

mission’s report are excellent; most of the reasoning is

sound. But in their discussion of selective conscientious

* objection, the Commission’s majority seemed to become

tools of higher political powers.” I d:, at 254.

To put it another way, the opinion of the court below

did not permit the selective conscientious objector com-

pletely to avoid supporting his community’s policy; it ak”

lowed him only an exemption from supporting it in a par-

_ ticular way—by killing. Thus the court stressed that it was

not ruling on the requirement of wartime or peacetime 7

scription, or even of conscription in the military, but only

with the obligation to kill on pain of being killed. The \

court’s ruling does involve some dispensation from total |

acquiescence in a political decision, and does recognize a

citizen’s right to interpose his moral judgment upon the

state’s political decisions, in a vefy narrow but crucial

area. But surely a great nation, confident of its power and

its cause, can tolerate something less than ‘total acquies-.

cence when there is no demonstrable harm to efficiency or

to any other substantial interest and especially when that

small dispensation is in the name of constiencé. Great

Britain managed it quite easily in its darkest hour, see ‘

infra;p. 34, and a nation conceived in liberty and conscience

_ can do just as-well in a conflict which in no way jeopardizes

its security. 7 patts

It is for this reason that the Government’s citation, at

‘page 45 of its brief, to Mr. Justice Cardozo’s concurrence

in Hamilton v. Regents, 293 U.S. 245, 268 (1934) is mislead-

ing. Of course, “extension of the conscientious objector’s

‘liberty might lead to wholly incongruous situations” (em-

phasis added). It all depénds, however, on the nature and |

magnitude of the extension. In Hamilton, a group of re-

ligious students unsuccessfully sought exemption on con-

lege ROTC program. Focusing on the very marginal

; | involvement with the ‘Inilitary that such courses entailed,

Mr. Justice Cardozo first stressed that

The petitioners have not been cetiialh to bear arms

for any hostile purpose, offensive or defensive, either

_ now or in the future. They have not e¥en been required.

in any absolute. or peremptory way to join jn: courses

of instruction that will fit them to bear arms. (293 U.S.

at 265-66. Bae tea :

It was only ‘gx this background and ibe totally unlike

- Sisson’s who is being subject to bearing arms, that Justice

fiJf his [the conscientious objector’s} liberties wére to be ;

thus extended...” 293 ‘U.S. at 268. (Emphasis added. Bi.

‘This case is unique in ‘angthér way: it involves combat

in an undeclared war where the democratic process has not

in fact followed its usual course before constitutionally. -

| committing men to kill. The importance of a declaration

was noted in the Selective Draft Law Cases, 245 U.S: 366,

389-90 (1918), when the Court rejected the ‘claim of in-

voluntary servitude where defense of the nation was re-

quiréd “in a war declared by the great representative body |

of the people.” _

plows the fact..that aaa S conscience involved the

“political” js no reason to deny it sanction. The mostere- 3

‘ ligiously sensitive conscience will make so-called “political”

judgments, when it passes on political affairs. ‘See, e.g.,

the works of Martin Buber, Reinhold Niebuhr, Paul Tillich, .

. ° the Gospels and the Talmud. Unless conscience is to ab-

| dant its ‘responsibilities where public matters are con-

- cerned—a position espoused by no religious or other ethic

_ — political” judgments are necessarily involved. Indeed, —

_ does not the total pacifist’s objection to participating in any

military service necessarily entail “political” decision-mak-

ing about the nature of war since total pacifism i is consistent

with personal self-defense? - This: does not mean that all

- political questions are moral or vice versa, but unless the

words “political” or “moral” are to lose all independent —

meaning, unless the words “power” and “conscience” have

_lost all independent significance, moral decisions are differ- -

ent from political decisions and it is only the former which

demand recognition: .

Obviously, amici are not urging that there i is a constitu-

tional right to be exempt from military service in a par-

ticular war for one whose objection to that war is based _

on the fact that it.is opposed by his political party; or

whose objection is based on his view that it will improve |

foreign trade with a neutral power; or whose objection i is

posited on a favoring of certain political or economic or ~

- eyitural conditions in the country with which we are at war

over our own. These are clearly political objections. On

the other hand, when Dr. Reinhold Niebuhr and his col-

leagues at Union Theological Seminary, who joined with .

him in founding “Christianity and Crisis” at the outbreak

of World War II, departed from the traditional pacifism of

American Protestantism, and concluded that World War II

just war, this was surely a combined political and

religious judgment. The same is true for the late Fr. John

Courtney Murray, a vigorous advocate of selective con--

scientious objection, who, until his death, supported the

' Vietnam War. See Murray, “War and Conscience” in Finn »

33.

(ed.), A Conflict of Loyalties, 19-30 (1968). (“I can just

about make the moral case. But so it always is. The moral-

ity of war can never be more than marginal... . Moral

' judgment on the issue must be reached. by a eles of

_many factors.” Id. at 23.) And it is conversely and equally

true for the men of conscience, including theologians and .

selective service registrants, who have come to a combined

religious and political judgment that they are selective ob-

jectors to the present war.

The proper question is whether, as Judge Wyzanski put.

it, the source of the decision “is moral and ethical . . . re-

flect[ing] quite as real, persuasive, durable and commend- -

able a marshalling of priorities as a formal religion.” sf App.

22. Indeed, except’ for Sisson’s own perhaps: uninformed

and ill advised ‘conclusion that his objection was “not re-

ligious,” ef. United States v. Schacter,.293 F. Supp. 1057 ;

_ (D. Md. 1968) (holding professed atheist entitled: to con-

scientious objector status) his and similar‘ moral views

would easily fit within the Seeger _ definition of religion:

“a belief [which] occup[ies] the same place in the life of —

_ the objector as an orthodox belief in God holds in the life

"of one clearly qualified for exemption.” 380 U.S. at 184.

Compare Seeger’s own statement of his views, described

and discussed in‘ the Court of Appeals’ opinion in Seeger, .

326 F.2d 846, 848 (2d Cir. 1964).

3. Allowing selective conscientious objection will \ .

not destroy morale or impair efficiency _

It i is argued, with more fervor than’ facts, that allowing

. selective conscientious objection is unfair, and destructive

of both morale and efficiency. Since the prevailing inter- .

_ pretation of the statute has thus far not permitted recog-

nition of selective conscientious objection—assuming that

all who have qualified for exemption under §6(3) are “total”

objectors—there is little evidence to go on. Because the

supreme values of conscience; life and liberty are con-

cerned, a very heavy burden. lies on those who seek to

» infringe such rights, and in the absence of evidence, they

should not prevail. ;

Furthermore, the available evidence contradicts such a

-claim.- Great Britain, during World War II, permitted .

selective conscientious objection on grounds of conscience

alone, without a religious test. See Hayes, The Challenge.

of Conscience (1947). A negligible number sought, and

even. fewer gained, exemption. See MacGill, 54 Va. L.Rev.

at 1381 n. 101; Note, 34 U. Chi. L.Rev. 79, 89, 103-04 (1966).

This is probably hecause the way of the conscientious ob-

jector, and particularly of the selective conscientious ob-

jector, is hard indeed,” see Sibley & Jacob, 315-19, 459-64.

does niot.cheerfully tolerate active dissent in times of inter-

‘ national crisis. “This is borne out. by. the experience of

the American Civil Liberties Union that notwithstanding

its.stated réadiness to accept selective conscientious ob-.

_ jector cases for almost three years, only a handful of men

have come forward.” Book Review, New York Times, Nov.

2, 1969, pp. 10, 12. The Seeger case itself resulted in rela-

tively few additional exemptions, though that may have

been because of the hostility thereto of local boards, a hos- _

We. e. cummings’ poem “j sing of olaf strong and brave” is

a particularly vivid rendering of the treatment: once—and per-

haps still—afforded conscientious objectors.

tility; however, which will not be appreciably less for

selective objectors. See MacGill, o4 Va. L.Rev. at 1380,

n. 78. And under the opinion below, alternate service re- -

mains so that.no unfair increase in comfort for the objector

is involved.

There is. aleo no indication that there ‘are unusually

severe administrative problems. See MacGill, 54 Va. L.

Rev. at 1380-81; Note, 34 U. Chi. L.Rev. at 104-05. And it is

equally difficult to believe there will be any impairment of

morale if a few conscientious objectors have to perform

duties which 7 civilians and even soldiers perform any-

way.

Praetical considerations actually an for the exemption |

not against. No conscientious objector, whether selective

or total, is likely to make a good soldier. Since alternate

service is required under the opinion below, it seems a

flagrant waste of highly: trained and scarce resources to

force someone who will perform such alternate service, not

infrequently a person of high intellectual and moral caliber,

to go to jail in order not to violate his conscience. Cf. United

States v. Macintosh, 283 U.S. at 629.° It seems especially

wasteful. since it is clear that in this area compulsion sim-

ply-does not work—it merely puts a substantial number

of people behind bars and fails either to deter. or to make

use of the ‘true conscientious -objector.. Sibley & Jacob,

475-78.

In contrast to the purely speculative nature of the harm

in allowing the claim of conscience, the great harm to both

the individual and to. the community if the conscience is -

ignored is plain. We live today in a world where man’s

destructive skills have far outdistanced his , Meager peace-

making wisdom, where frustration, cruelty, and arrogant

power often drown out the still small voice of conscience.

In such a world, we should not readily override a sincerely

conscientious objection to killing. As the poet Karl Shapiro

has reminded us in his poem “The Conscientious Objector,”

“. .. Your conscience

-. Is what we come back to in the armistice.”

CONGRESS CANNOT CONSTITUTIONALLY GRANT

EXEMPTION TO THE RELIGIOUS CONSCIENCE AND

_ DENY IT TO THE NON-RELIGIOUS.

The Government contends that the issue of nonreligious

objection is not in this case, although it relies on the non-

religious nature of Sisson’s claim to deny any arbitrary

_ diserimination. See Government Brief 45-46. Its argument

_ is that because ‘Sisson’ s objection is selective, he is in-

- eligible anyway. Yet, if the selectivity is not a disqualifica-

: tion, as Judge Wyzanski.concluded, then it would seem

‘necessary to consider the other possible ground of. dis- -

qualification—the nonreligious character of Sisson’s objec-

tion. On this issue, amici urge:

(1) The statutory definition unconstitutionally havens

religiously conscientious objectors over nonreligious objec-

’ tors, and therefore constitutes an unconstitutional establish- —

_ ment of religion. :

(2) The statutory standard “by reason of witide train-—

ing and belief” operating in a nation that has several »

hundred denominational concepts of the meaning of ‘re-

ligion, and uncounted non-denominational ones, has proven

to be so vague as to be unworkable, confusing and subject |

to arbitrary application and it inevitably produces unfair

‘discrimination among registrants" | ox |

- 1, It Is an’ Unconstitutional Establishment of Religion

to Discriminate Against Non-Believers

Constitutional neutrality with respect to believers and

_ non-believers requires that no special rights be given to the

believers, regardless of whether such benefits be constitu-

tionally required or legislatively granted. Torcaso v. Wat-

kins, 367 U.S. 488 (1961). Cf. Sherbert v. Verner, 374 US. .

. 398, 404 (1963) ; Everson v. Board of Education, 33) U.S. 1,

15-16 (1947). sae

Relying on this constitutional principle Judge oWyzanski -

_ briefly observed what would’seem self evident: _|

... [I]t is difficult to imagine any ground for a stat-

utory distinction except religious prejudice. In short,

_in the draft act Congress unconstitutionally discrim-

inated against atheists, agnostics, and men, like Sisson,

who, whether they be religious or not, are motivated in

their objection to the draft by profound moral beliefs

which constitute the.central convictions of their beings.

It is indeed difficult to see a basis for such a distinction.

As Edward L. Ericson, President of the American Ethical

Union, has said: on

u Parenthetically, we would note. that Sisson’s views may actu-

at fit the Seeger definition. of religion, -but since he apparently

did not urge this, amici do not either. |

a aie

“The notion that the conscignee of the ‘orthodox’

- believer in God is ‘grounded, Mpon a firmer and more

. 3 compelling imperative than the conscience of the

humanist or the freethinker is itself a ii gl

ment that a secularSconstitutional democracy such. as

* the United States. has no right to make. A state that -

' makes such distinctions is already doing theology and

therefore clearly ‘transgressing the nonestablishment

clause of the first amendment. Whether religionists |

have better or more impelling consciences than those - «

who make no claim to be religious is an issue that phi-

losophers and theologians—and plain people—should

be free to debate, but on which it is unconscionable for’

the state to legislate. For to do so is for government

to obstruct the open encounter of conflicting opinion

that Milton and Jefferson saw as the necessary con-

dition of liberty and moral progress.” ‘Ericson,

“Humanist Conscientious Objection” Humanist (May/

_ June ee

Nor is thins any particular administrative difficulty in-

volved, As Judge Wyzanski observed “[t]he suggestion that .

courts cannot tell a sincere from an insincere conscientious

objector underestimates what.the judicial process performs |

every day,” App. 31, and this applies to local, boards as

<* well. Courts and boards have consistently ' ruled ‘on the

_ sincerity of religious objectors and they can do the same

with the non-religious as well. After all, the religiosity of

the conviction does not control its sincerity. Indeed, in a

skeptical age, those who question established and other re- |

ligions .and beliefs are often among the niost sincere. Cf.,

United States v. Kauten, 133 F.2d 708, 708 (2d Cir. ines a

~—*

° (

“

2. The Inherent Imprecision of the Statutory Standard

Raises Difficulties: of Constitutional Dimension ae

If not always true, certainly in an age of skepticism and

of changing and. expanding concepts of the meaning of

religion,.a statutory standard that requires a showing of

“religious training and belief” necessarily invites varying

and inequitable interpretations. The 1948 Act’s attempt to

add precision, by a definition that required “belief in a-

relation to a Supreme Being involving duties superior to -

those arising from any human relation,” created constitu- _

~ tional difficulties of another dimension. United States ‘v.

| Seeger, 326 F.2d 846 (2d Cir. 1964), aff’d, 380 U.S. 163

(1965). While this Court’s construction of that definitional —

language in Seeger sought to obviate those constitutional

difficulties, the inherent imprecision remained.”

The Marshall Commission and others have found that a

great many boards totally ignored the Seeger interpreta-

tion while many others grossly and wrongly narrowed it.

- For a summary of such findings see MacGill, 54 Va. L. Rev.

at 1380-81 ; a very recent law review note found: that courts

had similarly misapplied it, though not nearly with so much

hostility. See Note, Religious and Conscientious Objection,

- 21 Stan. L. Rev. 1734 (1969). There is thus a significant

constitutional question whether Congress can enact a law

which grants such vast administrative discretion to lay,

nonexpert bodies like local boards, with so little meaning-

ful guidance that the results are inevitably: inequitable and

discriminatory. See, ‘Keyishian v. Board of Regents, 385

-™? Indeed, the lack of evenhandedness of the application of this

and other sections of the draft law has been a greater impediment

to national morale, than granting. an n exemption for selective ob-

jectors is ever likely to be. .

x ¢

a8 eS

eae a 40 '

U.S. 589 (1967); Baggett v! Bullitt, 377 U.S. 360 (1964) ;

” Cramp v. Board of Public Instruction, 368 U.S. 278 (1961).

The interests at stake are so weighty, the problemas of |

‘defining religion for these purposes are so great, and the

actual administration of the standard so poor, tliat both

constitutional imperatives and sound policy call for

its abandonment. Since, as noted above, there is a con-

stitutional right to a conscientious objection, this Court

should abandon the requirement of a religious source and

allow all conscientious objectors freedom from having to

’ kill against the dictates of their conscience.

Te CONCLUSION

For all these reasons, the decision below should be

Respectfully submitted,.

Herman SCHWARTZ

Faculty of Law and

Jurisprudence ’

State University of N ew York at -

Buffalo ,

77 West Eagle Street sg

_ Buffalo, New York 14202

.* Marvin M. Karparxin i

. -* * 1345 Avenue of the Americas ~

New York, New York 10019

JOHN DE J.:PEMBERTON, JR.

Metvin . Wutr

JorL M. Gora

American Civil Liberties Union

156 Fifth Avenue

at : New York, New York 10010

, Atterneys ad Amici Curiae

J: anuary, 16, 1970 ;

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APPENDIX

Excerpts from pp. 12-15 of the petition for certiorari in

Noyd v. McNamara, 0.T. 1967 No. 722 (certiorari denied,

389 U.S. 1022):

Three “distinguished theologians and philosophers,” 267

F. Supp. at 705, App. lla, were qualified as expert wit-

_ nesses and testified on behalf of petitioner. They were:

‘Dr. Paul Kurtz, Professor of Philosophy at the State

University of New York at Buffalo, Chairman of the

editorial board of The Humanist (the periodical pub-

lication of American Humanist Association), author’ of

Decision and the Condition of Man (University of

Washington Press, 1965), and several other books, and

editor of Humanist Ethics (a collection of essays by

leading -theologians and er being published

by Prentice: Hall this year).

Dr. Robert C. Kimball, Professor of Theology at the

Starr King School for the Ministry at Berkeley, Cali-

fornia, Unitarian and Congregational Minister, for-

merly lectarer at Harvard Divinity School, editor of

York 1959), and Literary Executor of the Estate of

Paul Tillich.

-Dr. Robert McAfee Brown, Professor of Religion at

Stanford University, formerly Professor of Religion

at Union Theological Seminary, author of The Spirit

of Protestanism (Oxford University Press 1961) and

(with Gustave Weigal, S.J.) An American Dialogue

(Doubleday), and other books, member of the editorial

boards of Christianity and Crisis and The Journal of

_ Ecumenical Studies, holder of honorary doctorates from

Notre Dame, Boston University, Loyola, University of

San Francisco, Amherst and Lewis and Clark Uni-

~ versity, and official observer for, the World Alliance

of Reformed and Presbyterian Churches to the Second

Vatican Council. fs |

Each expert witness testified, with respect to the facts of

this: case, from personal familiarity with the petitioner’s

applications and from personal interviews with Captain

Noyd which were arranged for. the purpose of the expert

being called a witness ‘in this case.

Dr. Kurtz testified that Religious ieiaieitaleh 1 is rooted in

the deepest traditions of the West, in the humanism preva-

lent\in the Christian religion, and in such other major

religions as Buddhism and Confucianism (BR. 494). Peti-

tioner’s ‘applications, he testified, and the background and

beliefs expressed in his total position, identify him as a

genuine participant in this religious tradition (R. 597).

Dr. Kimball described the meaning of religion, as it is

captured in Tillich’s dictum that that which is a man’s

ultimate concern is God for- him (R.’ 08). The evidence

that petitioner’ 8 conscientious objections are religious, he’

stated, are ‘to be found both in his’ sincerity ‘and in his”

courage, the two being central to the Tillichian concept

(vide, Tillich, The Courage to Be) (R. 512).°

Dr. Brown-testified that what is or is not religious might”

- properly be tested in terms of the root of the word “re-

ligion” (Latin: religare, to bind fast) from which it may

be defined-as “that to which one binds himself” (R. 526):

Religion is found, not just in what one says—in rituals and

creeds—but ‘in the degree of congruence between expressed

_ , Statements of belief and what one does with his ‘life. Dr.

Brown found a commitment authenticating his words in

petitioner’s life and deeds which led him to conclude that

his position is clearly based on religious training and belief

(R. 527, 546). | |

On the subject of the religious man’s participation in

war, Dr. Brown identified several separate strains or tra-

ditions of religious thought within Western religions: (R.

543 et seq.). He pointed out that these traditions sometimes

cut across denominational or sectarian lines; for instance,

the Jehovah’s Witnesses partake of both the “pacifist” and

" the “crusade” traditions which are, in a sense, the opposite

extremes of the total spectrum of views presented by these

peace-war traditions (R. 545),

Dr. Brown. emphasized the number of modern religious

leaders and denominational bodies which had expressed

_ themselves on the import of religious teachings for the

religious man’s participation in war. He pointed out, for

instance, that the most recent pronouncements of Pope

Paul VI approach-the verge of describing the very war to

which petitioner objects in conscience as an unjust war,

and he described the commitment of the Catholic Church

And of several American Protestant denominations to sup-

port the conscience of those who find that they cannot par- -

ticipate in war or in a particular war (R. 586 to 537, 539

to 542). | ~~ s ’ Bea

All three expert witnesses testified that the differences

between universal pacifism and discriminating pacifism,

religiously, is confined to.the content of their religious be:

liefs. Jt does not extend to their religious quality. Both

are equally siteiiaiis in every. sense of. the word; neither : a

is more “political” than the’ other. Neither can be said to

belong to a more ancient or venerable religious -tradition

than the other. Dr. Kimball pointed out that both the uni-

versal pacifist and the discriminating objector have gen-

eral principles which each must apply discriminately, in |

particular circumstances. (The universal pacifist, for in-

stance, must discriminate among various of his individual |

actions, such as paying, taxes, in terms of whether they

amount to participation in war. R. 517.) Dr. Brown stated

that, if the law were to exempt universal pacifists while

denying exemption to diseriminating ones,‘ it would dis- |

eriminate religiously—by content of belief—against’ some

religious views and in favor of others (R. 542 to 543).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.