Clay v. United States Reply Brief for Petitioner

    In the

(Emtri ni tfj? Intteii Staffs
October T erm , 1970

No. 783

Cassius M arsellus Clay , J r ., 
also known as M u h am m ad  Ali,

Petitioner,
—v.—

U nited States oe A merica

REPLY BRIEF FOR PETITIONER

Jack Greenberg 
J ames M. Nabrit, III 
Jonathan Shapiro 
Elizabeth B. DuB ois 

10 Columbus Circle 
New York, New York 10019

Chauncey E skridge
123 West Madison Street 
Chicago, Illinois 60602

M. W. Plummer 
412 Main Street 
Houston, Texas 77002

Attorneys for Petitioner



A rgument-
PAGE

I—-The Effect of the Department of Justice’s Char­
acterization of Petitioner’s Beliefs as Primarily
Political and Racial ..............................................  i

II Petitioner Was Opposed to Participation in 
War in Any Form Within the Meaning of the 
Act ...........................................................................  g

H I—The Appeal Board May Have Relied Upon the 
Department’s Erroneous Advice That Peti­
tioner’s Claim Could Be Denied Because He
Was Insincere ........................................................ 14

Conclusion  ...................................................................................... 18

T able of Cases

Carson v. United States, 411 F.2d 631 (5th Cir. 1969),
cert, denied, 396 U.S. 865 (1969) .............................  2,4

Cohen v. Laird, 315 F. Supp. 1265 (D.S.C. 1970) ....... 17

Gillette v. United States,------ U .S .------ -, 39 L.W. 4305
(March 8, 1971) ................................ 2,3,7,8,11,12,13,14

Kretchet v. United States, 284 F.2d 561 (8th Cir. 
I960) ............................................................................... 13,16

Negre v. Larsen, No. 325, decided March 8, 1971...........8,13

Shepherd v. United States, 217 F.2d 942 (9th Cir. 1954) 16
Sicurella v. United States, 348 U.S. 385 (1955) .....3,8,10,

11,12,14



11

PAGE

United States v. Bova, 300 F. Supp. 936 (E.D. Wis.
1969) ....................................................   3

United States v. Englander, 271 F. Supp. 182 (S.D.
N.Y. 1967) ......................... ...... ...........................3, 5, 6,14,16

United States v. French, 429 F.2d 391 (9th Cir. 1970) .... 4
United States v. Jakobson, 325 F.2d 409 (2d Cir. 1963), 

aff’d sub nom. United States v. Seeger, 380 U.S. 163
(1965) ............    - -3 ,4 ,5 ,1 4 ,1 6

United States ex rel. Lehman v. Laird, 430 F.2d 96 (4th
Cir. 1970) .........................    17

United States v. Owen, 415 F.2d 383 (8th Cir. 1969) ....12,16 
United States ex rel. Tobias v. Laird, 413 F.2d 936 (4th 

Cir. 1969) ..........        17

Welsh v. United States, 398 U.S. 333 (1970) 3,4



Ik the

i§>upmt£ (tort nf % Imtpft
O ctober T erm , 1970 

No. 783

Cassius M arsellus Clay , J r ., 
also known as M uham m ad  Ali,

Petitioner,
—v.—

U hited S tates of A merica

REPLY BRIEF FOR PETITIONER

ARGUMENT

I.

The Effect of the Department of Justice’s Charac­
terization of Petitioner’s Beliefs as Primarily Political 
and Racial.

In its brief the Government acknowledges for the first 
time in any of the proceedings in this case that petitioner’s 
opposition to war had “ religious roots.” Implicit in this 
acknowledgment is the concession that petitioner’s convic­
tion must be reversed if the Department of Justice recom­
mended that the appeal board deny petitioner’s conscien­
tious objector claim because it was not based on religious 
training and belief within the meaning of the Act.

The Government argues, however, that the Department 
did not draw into question the religious nature of peti-



2

tioner’s beliefs in its advice letter. Rather, it reasons that 
the Department’s discussion of the “political and racial” 
basis of those beliefs was only intended to explain their 
selective aspect.

We think that the Government’s assertion in this Court 
that the religious nature of petitioner’s beliefs has never 
been questioned flies in the face of the record. Indeed, the 
very boldness with which it now concedes that petitioner’s 
opposition to war had religious roots serves to highlight 
the care it took to avoid any such concession in the past. 
Despite its claim that petitioner’s beliefs were acknowl­
edged to be religious, nowhere in the record did the De­
partment of Justice ever recognize either that the Nation 
of Islam was a religion or that petitioner’s beliefs were 
religious. One might well ask why, if there was never any 
dispute as to the religious nature of petitioner’s beliefs, 
the Department never acknowledged it until the case 
reached this Court? Although the advice letter does not 
explicitly state that petitioner’s beliefs were not religious 
within the meaning of the Act, we think that its emphasis 
on their political and racial aspects coupled with the care­
ful omission of any reference to their clearly religious 
source was calculated to convey that conclusion.1

1 As we pointed out in our main brief, the Government has in 
fact explicitly taken the position that “political” beliefs do not 
satisfy the “religious training and belief” clause of the Act, even 
though the beliefs are clearly part of the doctrines of a religion. 
It appears to read the Act’s requirement of a “religious” belief as 
requiring a belief based upon ethical or moral principles. Thus, 
in his memorandum in opposition to the grant of certiorari in 
Carson v. United States, No. 398, Misc. O.T. 1969, the Solicitor 
General argued that a !>!ack Muslim’s opposition to war based upon 
the teachings of the Nation of Islam “was not based on ethical 
principles but on essentially political views.” And in its brief in 
the Fifth Circuit in the same case the Government argued that the 
registrant’s “opposition to war is based on political, sociological, 
and economic considerations, and not because of religious beliefs.” 
(Brief for Appellee, p. 7). As recently as its brief in Gillette v.



3

But we do not rest our argument upon what the Depart­
ment of Justice intended to advise the appeal board or even 
upon whether the advice letter can support the interpreta­
tion which the Government nowT urges. The validity of the 
Department’s advice must be judged by what it was likely 
to have meant to the lay members of an appeal board in 
1966. See Sicurella v. United States, 348 U.S. 385 (1955); 
United States v. Jakob son, 325 F.2d 409 (2d Cir. 1963), aff’d 
sub nom. United States v. Seeger, 380 U.S. 163 (1965); 
United States v. Bova, 300 F. Supp. 936 (E.D. Wis. 1969); 
United States v. Englander, 271 F. Supp. 182 (S.D. N.Y. 
1967).

In our main brief, we argued that the appeal board un­
doubtedly interpreted the Department’s advice that peti­

United States, No. 85, this Term, the Government explained that in 
order to satisfy the Act the beliefs of a conscientious objector must 
be based “ on the cardinal moral tenet that it is wrong to kill for 
any purpose at any time” (Br. p. 25). Indeed, in its brief in opposi­
tion to certiorari in the present case, the Government left open the 
argument that petitioner’s “political and racial” beliefs might not 
come within the “religious training and belief” clause even though 
they were based upon religious doctrine. It argued that the Welsh 
decision does not:

“read out of the exemption provision (50 U.S.C. App. § 456 (j)) 
the requirement that a conscientious objection to war must be 
founded on ‘religious training and belief.’ 398 U.S. at 338-340. 
A registrant is still denied exempt status if his objection ‘rests 
solely upon considerations of policy, pragmatism, or expedi­
ency’ (398 U.S. at 342-343). The statutory exemption applies 
to persons who on moral and ethical grounds conclude it is 
wrong to kill a fellow human being in war; it does not extend 
to those who as a matter of conscience conclude on racial 
grounds that it is wrong to fight on behalf of white men who 
are viewed as oppressors” (Brief for the United States in 
Opposition, p. 15).

In other words, until its brief in this Court the Government has 
taken the position that even if petitioner was opposed to all wars, 
he could nevertheless be denied an exemption because his beliefs, 
even though rooted in religious doctrine, were not based on “moral 
or ethical grounds.”



4

tioner’s opposition to war was based upon beliefs which 
were “primarily political and racial” as placing- petitioner 
within the category of registrants who were not entitled 
to a conscientious objector exemption because their beliefs 
were “ essentially political, sociological or philosophical.” 
We also pointed out that it was not until Welsh v. United 
States, 398 U.S. 333 (1970) that it became clear that beliefs 
that were based upon political or other views that were not 
ordinarily considered religious could nevertheless be con­
sidered “ religious” within the meaning of the Act. While 
it is true, as the Government points out, that the Nation 
of Islam clearly falls within the Seeger definition of reli­
gion, it is not true that before Welsh laymen would have 
been likely to even entertain the notion that the unfamiliar 
beliefs of the Black Muslims that the Government described 
as “primarily political and racial” (and failed to recognize 
as “ religious” ) could be considered “ religious.” See United 
States v. French, 429 F.2d 391 (9th Cir. 1970). Indeed, 
even the far more sophisticated judges of the Fifth Circuit 
concluded, on the basis of arguments and evidence similar 
to that contained in the Department’s advice letter, that 
the beliefs of a Black Muslim conscientious objector 
“ reflect an opposition to war which smacks of being essen­
tially political, rather than religious. . . ” Carson v. United 
States, 411 F.2d 631, 633 (5th Cir. 1969), cert, denied, 396 
U.S. 865 (1969).

Giving the Government the benefit of any doubt, the 
most than can be said for the Department’s advice letter 
is that it was highly ambiguous with respect to the mean­
ing of its conclusion that petitioner’s beliefs were “ pri­
marily political and racial.” It was at least as likely to be 
read by laymen as a finding that petitioner’s beliefs were 
not religious as an explanation of why he was only opposed 
to certain wars. Thus, the rule requiring reversal of a



5

conviction in cases where the reviewing court cannot say 
that a draft board did not rely upon an improper reason 
in denying a conscientious objector exemption is applicable 
here. Since the appeal board might reasonably have inter­
preted the letter as rejecting petitioner’s claim because 
it was not “ religious,” the conviction must be reversed.

The uncertainty as to what the Department was recom­
mending in the present case is similar to the situation in 
United States v. Jakobson, supra, where a registrant’s con­
viction was reversed because it was unclear whether the 
Department recommended rejection of his claim because 
he was insincere (for which there was evidence) or because 
his beliefs were not religions (which was erroneous). When 
the same ambiguity appeared in a Department recom­
mendation in a subsequent case, the court, in words equally 
applicable here, commented:

“It is the decision of the lay Appeal Board, whose 
members presumably read and deliberated on the 
recommendation, which is the critical operative fact in 
this case, as it was in Jakobson. Whatever undisclosed 
changes of meaning were in the mind of the Depart­
ment attorney, the words he used, and the ambiguous 
messag*e they appeared to convey, were flawed in a 
substantially identical way. Indeed, the able argu­
ments of government counsel opposing* defendant’s 
motion for an acquittal served in a measurable degree 
to highlight the uncertainties and potential confusion 
the Department’s letter could v7ell have generated even 
for law-trained people familiar with the pre­
cedents. . . . ” (United States v. Englander, 271 F. Supp 
182, 185 (S.D. N.Y. 1967.))

We think that the Department’s advice letter in the 
present case was equally ambiguous with respect to a



6

crucial element of petitioner’s conscientious objector claim 
and, as a result, the appeal board may have rejected his 
claim for an improper reason. We conclude with the court 
in Englander, supra, therefore, that such a “key determina­
tion so fraught with doubt cannot be adequate ground fox- 
conviction upon a grave criminal charge” (271 F. Supp 
at 185).

II.

Petitioner Was Opposed to Participation in War in 
Any Form Within the Meaning of the Act.

The Government agrees that the controlling question in 
this case is whether, on the basis of his particular religious 
beliefs, petitioner “ can in consonance with his conscience 
presently envision himself engaging in a real shooting war 
under certain circumstances” (Gov’t. Br. p. 28). It con­
cludes, however, that the record supports the inference 
that “petitioner would not object to fighting tomorrow with 
real weapons in a defensive war on behalf of the Muslims” 
(id. at p. 27). The Government reaches this conclusion 
only by reading petitioner’s unequivocal testimony concern­
ing his belief in personal self-defense as indicating a 
willingness to engage in defensive wars on behalf of 
Muslims, and by attributing to him a supposed doctrine 
of the Nation of Islam that encouraged defensive wars 
even though such a doctrine is completely inconsistent with 
everything petitioner himself said.

The doctrines of a religion are certainly relevant in ex­
plaining the religious basis for a registrant’s conscientious 
objections to participation in war. They are, no doubt, also 
relevant in helping to resolve ambiguities in a registrant’s 
testimony concerning his religious beliefs or when he has 
explained his beliefs solely by referring to the teachings 
of his faith. Our position is, however, that where, as in



7

the present ease, the registrant’s testimony concerning his 
opposition to participation in war and his interpretation 
of the meaning of the teachings of his religion is clear 
and unambiguous, the arguably inconsistent doctrines of 
his religion cannot provide a basis in fact for the denial 
of a conscientious objector exemption. See Gillette v.
United S tates,------TJ.S. --------, 39 L.W. 4305, 4310 (March
8, 1971.)

But this is precisely what the Government does when it 
argues that petitioner “ incorporated by reference” the 
religious writings which he testified provided the basis for 
his religious beliefs and then uses the alleged ambiguities 
in these writings as a basis in fact for the denial of his 
claim. It is as if a Christian conscientious objector testi­
fied that his opposition to participation in all war was 
based on the teachings of the Bible and the Government 
supported the denial of the claim on the ground that the 
Bible, which the registrant had “ incorporated by refer­
ence,” does not preclude fighting in all wars. Indeed, since 
there are few religions whose teachings are unambiguous 
in any respect, the denial of a conscientious objector claim 
could always be supported on the ground that the adminis­
trative agency resolved the ambiguities in religious doc­
trine against the registrant.

We have argued in our main brief that petitioner’s own 
testimony and statements assert a clear and unambiguous 
opposition to participation in all wars except theocratic 
wars or wars in which he is commanded to fight by his 
God. We pointed out that there was no basis in fact for 
the conclusion of the Department of Justice, relied upon 
by the appeal board, that petitioner’s opposition to 
participation in war was selective, based in part upon an 
objection to fighting on behalf of the United States and in 
part upon an objection to fighting in the Vietnam War.



8

The Government does not now seriously challenge that 
argument. Instead, it seeks to support the denial of peti­
tioner’s claim for a reason which, as far as we can deter­
mine, it raises in this Court for the first time. Thus, it 
argues that the teachings of petitioner’s religion forbid only 
participation in wars of aggression, but encourage par­
ticipation in defensive wars (Gov’t Br. p. 20). Petitioner’s 
willingness to participate in war, the Government now tells 
us, is based upon whether he considers it a “ just” or 
“unjust” war (ibid.).

In view of this Court’s decision in Gillette v. United 
States, No. 85, and Negre v. Larsen, No. 325, decided March 
8, 1971, that a registrant who is willing to participate in 
wars of national defense and in “ just” wars is not entitled 
to a conscientious objector exemption, it is clear why the 
Government now seeks to characterize petitioner’s religious 
beliefs in such a way as to make this case applicable. But 
it is unnecessary for this Court to consider the position 
that is urged by the Government for the first time. See 
Sicurella v. United States, supra, 348 U.S. at 391-92. The 
issue is whether there was any evidence to sustain the 
denial of petitioner’s claim on the basis of the Department 
of Justice’s recommendation to the draft board. And as 
we have already argued, there was no such evidence. 
(Pet. Br. pp. 29-38)

Even if we consider the Government’s new argument as 
having been fairly presented to the appeal board, it finds 
absolutely no support in the record. In its zeal to fit peti­
tioner into the mold of the Gillette case, the Government 
has tortured the meaning of what petitioner said beyond 
recognition.

Indeed, the Government’s new interpretation of peti­
tioner’s beliefs is so strained that it is in conflict with its 
own previous position. For when this case was in this



9

Court on petition for certiorari for the first time, the 
Solicitor General, in referring to the information in the 
FBI resume that the male members of petitioner’s religion 
are given military instruction, commented that:

“Petitioner and another witness [Samuel X. Saxon] 
both testified at the hearing on his claim of exemption 
that this was only training in self-defense and that 
there was no thought of actually engaging in any type 
of war. This testimony was never questioned.”  (Sup­
plemental Memorandum for the United States, No. 271, 
O.T. 1968, p. 4, n. 3.)

Not only does the Government now question petitioner’s 
testimony that he had “no thought of actually engaging in 
any type of war,” but its entire case rests upon its claim 
that “petitioner would not object to fighting tomorrow with 
real weapons on behalf of the Muslims” (Gov’t Br. p. 27).

The only support it finds for this argument, moreover, 
is in statements by petitioner and others that reflect the 
Muslim belief in personal self-defense. Thus, the Govern­
ment relies on Samuel X. Saxon’s testimony to suggest that 
the Muslims are opposed to aggressive wars but will fight 
a defensive war (Gov’t Br. p. 25), despite Mr. Saxon’s 
explicit disavowal of any such principle as part of the 
doctrine of the Nation of Islam (A. 39a-40a). Mr. Saxon 
made perfectly clear that the Muslims’ belief in defending 
themselves was limited to defending “your life, your home, 
your family,” with no thought of engaging in war (A. 42a).

Similarly, in the newspaper report quoting petitioner 
as saying that Muslims are taught “ to defend ourselves 
when we are attacked” that the Government relies upon so 
heavily (Gov’t Br. pp. 7, 13, 25-26, 29, 32), he was obviously 
referring to, and his statement is entirely consistent with, 
fighting in personal self-defense. At the hearing petitioner



10

acknowledged making the statement (A. 80a) and went on 
to explain that his religion taught Muslims to defend them­
selves against attacks only through the use of judo, karate, 
boxing and wrestling (A. 104a-107a).2

A  review of the statements on the record referred to by 
the Government reveals absolutely nothing to show “peti­
tioner’s present willingness to engage in ‘real shooting 
wars’ . . .  in defense of the Muslims.” (Gov’t Br. p. 29) 
And the Government’s inference that petitioner would use 
“ carnal weapons” is flatly contradicted in the very state­
ments to which it refers, as well as by every other 
statement in the records on that subject. (A. 18a, 38a, 42a- 
43a, 48a, 49a, 51a, 70a-71a, 103a-107a.)

The similarity between the Government’s argument here 
and its argument in Sicurella v. United States, 348 U.S. 
385 (1955), bears mention. In Sicurella, the Government 
argued that the appeal board could have properly concluded 
that the willingness of the Jehovah’s Witnesses to use force 
in defense of their “Kingdom Interests” and fellow brethren 
“ could involve more than individual self-defense, and con­
templated such mass use of force as could be nothing less 
than warfare.” (Brief for the United States, No. 250, O.T. 
1954, p. 25.) Now, the Government seeks to expand the 
Muslim’s belief in defending themselves when they are 
attacked into a belief in fighting full-blown defensive wars.

But it is even harder to find support for the conclusion 
that Muslims are willing to fight in some wars than it was 
to make the same argument about the Jehovah’s Witnesses. 
For one thing, the Muslim belief in individual self-defense 
is much narrower than the belief of the Jehovah’s Wit­
nesses that permits use of force to defend “Kingdom In­

2 It was this testimony that the Solicitor General referred to as 
indicating “no thought of actually engaging in any type of war.” 
(See p. 9, supra.)



11

terests.” In addition, the Muslim opposition to partici­
pation in war is based on a pacifist strain that is completely 
absent from the theology of the Jehovah’s Witnesses. See 
Sicurella v. United States, supra, 348 U.S. at 390. As we 
have pointed out, Muslims oppose participation in war be­
cause war takes human lives and is antithetical to the 
ideal of peace embodied in Allah and in Islam (Pet. 
Br. pp. 30-31). What this Court said in Sicurella about the 
Jehovah’s Witnesses’ belief in defense of “Kingdom In­
terests” is equally applicable to the Muslim belief in self- 
defense :

“ [It] has neither the bark nor the bite of war as we 
unfortunately know it today. It is difficult for us to 
believe that the Congress had in mind this type of 
activity when it said the thrust of conscientious objec­
tion must go to ‘participation in wrar in any form.’ ” 
(348 U.S. at 390)

And certainly the Muslim doctrine represents no more than 
a “ [w]illingness to use force in self-defense, in defense of 
home and family, or in defense against immediate acts of 
aggressive violence toward other persons in the community” 
which this Court recently recognized is consistent with a 
conscientious objector claim. Gillette v. United States, 
supra, 39 L.W. at 4308.

Finally, even on the Government’s own terms, the war 
which it envisions petitioner and the Muslims participating 
in is so hypothetical, abstract and remote that it cannot 
be considered “war” within the meaning of the Act. In 
essence, the Government sees petitioner fighting, at the 
direction of Elijah Muhammad, in a real war in defense of 
a Muslim nation. (Gov’t Br. pp. 13, 20, 25, 27, 32). It finds 
support for this supposed war by reading Elijah Muham­
mad’s statement that “ [w]e do not believe this nation should



12

force us to take part in such wars, for we have nothing to 
gain from it unless America agrees to give us the necessary 
territory wherein we may have something to fight for” as a 
reservation in the opposition of Muslims to fighting in all 
wars. But as we pointed out in our main brief (Pet. Br. pp. 
32-33), this statement can be read only as indicating that 
if Muslims are given territory they might fight to defend it. 
There is no material difference between this statement and 
the statement of the registrant in United States v. Owen, 
415 F.2d 383, 390 (8th Cir. 1969), that if this country were 
invaded he might fight in its defense. The most that can be 
said is that the Muslims, like Owen, “ oppose participating 
in all wars, but cannot say with complete certainty that 
their present convictions and existing state of mind are 
unalterable.” Gillette v. United States, supra, 39 L.W. at 
4309. And as this Court has said the “ [u]nwillingness to 
deny the possibility of a change of mind, in some hypo­
thetical future circumstances,” is not inconsistent with a 
present unwillingness to participate in war in any form. 
Ibid.

Even a present willingness to participate in a war in 
defense of the Nation of Islam, however, would be virtually 
indistinguishable from the 'fflrwillingness of the Jehovah’s 
Witnesses to fight in theocratic wars. In either case, any 
fighting would be only at the command of God to defend 
the religion and its followers against attack. It is as absurd 
to suggest that such an abstract religious war is in the 
same category and is as likely to occur as a war in which 
Germany, Russia or Israel is involved (Gov’t Br. p. 28), as 
it was to suggest that the War of Armageddon in which 
the Jehovah’s Witnesses were willing to participate was a 
reasonably imminent war of earthly nations.3 Indeed, even

3 In Sicurella the Government argued that in their religious 
writings “ [t]here is a summons to Jehovah’s Witnesses to he pre­



13

the willingness of the Jehovah’s Witnesses to use “carnal 
weapons” at Jehovah’s command has been held to be an 
insufficient basis for denying a conscientious objector claim. 
Kretchet v. United States, 284 F.2d 561, 564 (5th Cir. 1960). 
And as in the case of the Jehovah’s Witnesses, history dis­
closes no command to Muslims by Elijah Muhammad to 
participate in war in defense of Muslims in this country or 
elsewhere, and there appears to be no likelihood that this 
will ever occur (A. 101a-102a).

A  willingness to participate in such a religious war, more­
over, in no way depends “upon particularistic factual beliefs 
and policy assessments which presumably were overridden 
by the government that decides to commit lives and re­
sources to a trial of arms.” Gillette v. United States, supra, 
39 L.W. at 4312. Unlike the registrants in Gillette and 
Negre who were only opposed to participating in the Viet­
nam War because of their judgments as to that particular 
war, the Government contends that petitioner is opposed to 
all wars except one in which he is called upon by Allah to 
defend his religion and his coreligionists against attack. 
No particularistic judgments of any sort are involved in 
the decision to participate in this war; it is not based upon 
political or even moral considerations. Rather, it is based 
simply upon a theocratic command to defend the faith.4

pared to participate in a quite reasonably imminent war of Arma­
geddon which, although occasionally referred to at certain points 
as a distant spiritual conflict of angels and Satan, is as persuasively 
referred to elsewhere as an outright war of earthly nations sanc­
tioned by Jehovah.” (Brief for the United States, supra, p. 30; 
see also pp. 29-32.)

4 Indeed, it is difficult to see how “political and racial” con­
siderations have anything to do with what the Government now 
claims to be the basis of petitioner’s “selective” opposition to war. 
See Gov’t Br. pp. 19-20. If Muslims will participate in a defensive 
war only at the direction of their God when they are attacked 
collectively, petitioner’s decision whether or not to fight does not 
entail any “political and racial” judgments.



14

We think, therefore, that a supposed war in defense of 
the Nation of Islam cannot rationally he distinguished from 
the theocratic war of the Jehovah’s Witnesses. The Govern­
ment’s distinction between Black Muslim and Jehovah’s 
Witness conscientious objectors on the basis of whether 
their religious doctrines contemplate real or abstract re­
ligious wars “ entangles government in difficult classifica­
tions” and creates a real “danger of unintended religious 
discrimination.” Gillette v. United States, supra, 39 L.W. 
at 4311. We submit that unless petitioner’s conviction is 
reversed, that danger will have been realized in this case.

III.

The Appeal Board May Have Relied Upon the De­
partment’s Erroneous Advice That Petitioner’s Claim 
Could Be Denied Because He Was Insincere.

In our main brief we argued that the Government er­
roneously recommended to the appeal board that it could 
deny petitioner’s conscientious objector claim on the 
grounds of insincerity. That the board may have correctly 
relied, as the Government now argues, upon a determination 
that his objection to war did not have the requisite general­
ity, does not cure the effect of the erroneous advice. For 
when the appeal board is presented by the Department with 
a permissible and an impermissible ground for denying a 
conscientious objector claim, a conviction must be reversed 
when there is no way of determining upon which ground the 
board ruled. Sicurella v. United States, 348 U.S. 385, 392 
(1955); United States v. Jakobson, 325 F.2d 409, 416 (2nd 
Cir. 1963), aff’cl sub nom. United States v. Seeger, 380 U.S. 
163 (1965); United States v. Englander, 271 F. Supp. 182, 
184 (S.D. N.Y. 1967).



15

The Government now appears to concede for the first time 
that petitioner was sincere in his conscientious objector 
claim. It does not argue that the appeal board could prop­
erly have denied his claim on the grounds of insincerity.6 
(Gov’t Br., p. 33) Bather, it argues that the only ground 
that the Department tendered to the board as the basis for 
denying his claim was the alleged selectivity of petitioner’s 
objections to war (ibid.). In the same way that it now takes 
the position that the Department did not advise the board 
to reject petitioner’s claim because it was not “ religious,” 
it also takes the position that the Department did not advise 
the board that it could reject petitioner’s claim on the 
grounds of insincerity. Thus, it argues that since only one 
reason was given to the board for the rejection of peti­
tioner’s claim, there is no occasion for this Court to con­
sider the possibility that the board acted upon an erroneous 
ground.

But wTe have difficulty reading the Department’s advice 
letter as asserting anything but “a firm conclusion that 
petitioner was insincere” (Gov’t. Br. p. 33). After discuss­
ing petitioner’s sincerity for three pages, the Department 
concluded categorically that:

“ [A] registrant has not shown overt manifestations suf­
ficient to establish his subjective belief where, as here, 
his conscientious-objector claim was not asserted until 
military service became imminent. Campbell v. United 
States, 221 F.2d 454. United States v. Corliss, 280 F.2d 
808, cert, denied, 364 U.S. 884.

6 It is interesting to note that in the district court the Govern­
ment supported the denial of petitioner’s conscientious objector 
claim almost entirely upon the basis of the argument that the 
appeal board had a “basis in fact” for a Sliding that petitioner 
was insincere (R. 448-459). The identical argument was presented 
on appeal in the Fifth Circuit. (Brief for Appellee, No. 24,991 pp. 
29-39).



16

The burden of clearly establishing his conscientious- 
objector claim is upon the registrant. Swaczyk v. 
United States, 156 F.2d 17, cert, denied, 329 U.S. 726. 
The Department concludes that this registrant failed to 
sustain that burden.” (A. 127a) (Emphasis added).

The Government would apparently have us read the De­
partment’s conclusion as to the failure of petitioner to sus­
tain his burden of proof as relating only to the discussion 
of the selectivity of his objections to war contained pages 
earlier in the letter and not to the discussion of his failure 
to establish his sincerity contained in the preceding para­
graph. The clear language of the letter, however, will 
simply not bear such a construction. See United States v. 
Jcikobson, supra, 325 F.2d at 411-412; United States v. 
Englander, supra, 271 F. Supp. at 184-85.

The Government also questions why the Department 
would have recommended the denial of petitioner’s claim 
for any other reason if, in fact, it was recommending that 
it be denied on the grounds of insincerity. (Gov’t Br. pp. 
33-34, n. 17.) The Government overlooks the fact, however, 
that it was commonplace for the Department to recommend 
the denial of conscientious objector claims on the basis of 
several independent grounds. See United States v. Jakob­
son, supra; United States v. Owen, 413 F.2d 383 (8th Cir. 
1969); Kretchet v. United States, 284 F.2d 561 (8th Cir. 
1960); Shepherd v. United States, 217 F.2d 942 (9th Cir. 
1954); United States v. Englander, supra. The more per­
tinent question is why the Department would question 
petitioner’s sincerity in its advice letter if it did not intend 
to tender the issue of his insincerity to the board for 
decision.

It cannot be denied, therefore, that the appeal board 
may have denied petitioner’s conscientious objector claim



17

because it concluded that he was insincere. But, as we 
argued in our main brief, there is no basis in fact what­
soever to support such a conclusion (Pet. Br. pp. 39-45). 
After having had an opportunity to evaluate petitioner’s 
credibility on the basis of his demeanor during his extensive 
testimony, the Department’s own hearing officer concluded 
that petitioner was completely sincere in his claim. Indeed, 
he specifically considered and rejected as reflecting ad­
versely on petitioner’s sincerity the only two factors which 
the Government even claims are pertinent to the issue: the 
lateness in the presentation of the claim and the possibility 
that financial considerations might have motivated its filing. 
He was fully satisfied with petitioner’s explanation of why 
he did not file his claim until February, 1966 (see Pet. Br. 
pp. 40-42), and he obviously believed that the financial sacri­
fices that petitioner had made because of his beliefs were 
persuasive evidence of his sincerity (A. 116a-117a, notes 
2 and 3). Surely it was error for the Department to advise 
the appeal board that, on the basis of these factors alone, it 
could reject the determination of the officer specifically 
designated by the Department pursuant to the Act (50 
U.S.C. App. §456 ( j )) to evaluate petitioner’s sincerity.6 
See United States ex rel. Tobias v. Laird, 413 F.2d 936, 940 
(4th Cir. 1969); United States ex rel Lehman v. Laird, 430 
F.2d 96, 99 (4th Cir. 1970) ; Cohen v. Laird, 315 F. Supp.

6 The hearing officer was a retired Kentucky Circuit Court judge 
with twenty-five years of experience on the trial bench (R.P. Vol, 
I l l  281). In addition to being the only person to have had an 
opportunity to carefully examine petitioner and other witnesses in 
person, he had before him the voluminous FBI file which included 
the full reports of all of the interviews (ibid. 252, 291). He also 
relied upon the opinions as to petitioner’s sincerity of two indi­
viduals with whom he was personally familiar (A. 117a). In con­
trast, the appeal board was composed of laymen, it had no op­
portunity to see and hear petitioner or any of his witnesses in 
person, and it had only the brief resume of the FBI investigation 
before it.



18

1265, 1277 (D.S.C. 1970). This error was compounded by 
the Department’s erroneous legal advice with respect to the 
weight which these factors might be given by the appeal 
board. (See Pet. Br., pp. 39, 43-45).

CONCLUSION

For the reasons set forth above and in our main brief, 
the judgment of the Court of Appeals should be reversed 
and the case remanded to the District Court with instruc­
tions to dismiss the indictment.

Respectfully submitted,

J ack  G-reenberg
J ames M. N abrit, III
J on athan  S hapiro
E lizabeth  B. D uB ois 

10 Columbus Circle 
New York, New York 10019

Ch aun cey  E skridge
123 West Madison Street 
Chicago, Illinois 60602

M. W. P lu m m er  
412 Main Street 
Houston, Texas 77002

Attorneys for Petitioner



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