Clay v. United States Brief for the United States

    V  «■i>! O. S bo

CM . i t . ,  (V  . //t i  ̂ • i *■ /•%,/.
f  . ~ r 1  J » 1 s O w - w i i r T ^ K r i V ^ V l 1:-. I  ? v > «  A t :  t  M . d  * r t J  *.1  x » j * >  » 'c£“ u(t ^.nu«h-£*it vmhui 0}j Ufa &WlfcW

OCTOBER Term, 1970

Cactus Mahsellv* Ci.ay a /k /a  Muhammad At
•TITIOXEi

U nited S tates of A merica

O.v W RI T  OF CFI 'T IO RA M TO THE EXITED STATES
c o u n t  o r  a p p e a l s  r a n  t h e  f i f t h  c i r c u i t

EH IE? FOB THE UNITED STATES

T 'W i T f  *»w Vf-itrJkO Mr UiJil,
Solicitor General,

•WILL WILSON,
Anri start Attorney General,

Assistant to the solicitor General,
«bkatp.ich r«CGr uBehg
RICHARD L. B03EN1-IELD.

Attorneys,
Department of lustier, 

lUoshinyton, Ij.V. peFlO,

)



I X D E X

Opinion below____
Jurisdiction______
Question presented____
Statute involved
Statement________
Summary of argument 
Argument:

1 "* ohimfS Petitioner’s conscientious
objector claim was denied is unaffected bv the 
(lees,on m lKefeA v. Slates, since Ids

r Z l .™“ °W,edged ,0 ha™ religious
II. There was a,„pie basis in fa'cVfor' tire edm in i 

t a tree determmation that petitioner did not 
7  af. “ TOnsoientious objector because 

general!. “  ‘° Se,ective and not
Conclusion____  __

r  CITATIONSCases*
Bnh°p v. United Stales, 412 F. 2d 1064 
/J ,/h v. l  mted States> 247 F. 2d 615. 
Campbell v. United States, 221 F. 2d 454 
Dehemer v. United States, 340 F. 2d 712 
Du-hnson v. United States, 346 U.S. 389'” " ' 
%*!fp v- 1 mted ^>tes. 327 U.S. 114

f tC/ \  ? Hited Slates> Xo- 85, O.t T qVodecided March 8, 197]._ '
in

t

Pnec

Page



*

11.

Cases—Continued
Lockhart v. I nited States, 420 1 2d 1143------
Olguiy v. United St<ites, 392 F. 2d 329---------
Presbyterian Church v. Hull Church, 393 U.S.

&Q.__________ ____ _______ ________
Sotamy v. United States, 379 F. 2d S33--------
Sostre v. McGinnes, 334 F. 2d 906, certiorari

denied, 379 U.S. 892--------------------------
Sicurella v. United Slates, 34S U.S. 3S5-------
Su'aczyk v. United Slates, 156 F. 2d 17,

certiorari denied, 329 U.S. 726--------------
Thompson v. United States, 380 F. 2d 86------
United States v. Ballard, 322 U.S. 78----------
United States v. Brou n, 423 F. 2d 751---------
United States v. Broyles, 423 F. 2d 1299-------
United States v. Corliss, 280 F. 2d 808---------
United States v. Freeman, 388 F. 2d 246------
United States v. Geary, 368 F. 2d 144, certiorari

■ denied, 389 U.S. 959---------------------------
United States v. Kauten, 133 F. 2d 703--------
United States v. Leary, 422 F. 2d 155 ---------
United States v. Messinger, 413 F. 2d 927-----
United States v. Omen, 415 F. 2d 383----------
United States v. St. Clair, 293 F. Supp. 387_ .
United States v. Seeger, 380 U.S. 163----------
United States v. Simmons, 213 F. 2d 901. re­

versed on other grounds, 348 U.S. 397------
United States v. Sturgis, 342 F. 2d 328--------
Welsh v. United States, 398 U.S. 333.---------
Witmer v. United States, 348 U.S. 375---------

•» r



Ill

Statute and regulations:
The Military Selective Service Act oi 

81 Stat. 100 (50 U.S.C. App. (Supp. V) 451 
el seq.):

50 U.S.C. (Supp. TIT) 456(j)--------------
50 U.S.C. (Supp. TV) 456(j)---------------
50 U.S.C. (Supp. V) 456(j)----------------
50 U.S.C. App. 460(b)(3)----.---------- -

The Selective Training and Service Act of
1940, 54 Stat. 885-----------------------------

Selective Service Regulations.
• 32 C.F.R. 1622.17---------------------------

32 C.F.R. 1623.2__________________
32 C.F.R. 1625.1----------------------------
32 C.F.R. (1967 ed.) 1626.25--------------

Miscellaneous:
Maulana Muhammad Ali, Translation of the

Holy Qur'an (5th edition 1963)--------------
Elijah Muhammad, Message to the Blackman 

in America (1965)--------------- ---------------

P a g o



^ w  the $ u u r* m £  C ourt of the U n ited  p la te s

Octobf.h T erm , 1970

No. 783

Cassius M arseelus Clay a /k /a  M uham m ad  A l i,
PETITIONER

V.
U nited S tates of A merica

O.Y O B M B M S  IYRIT  OF CERTIORARI  TO THE UNITED 
STAT ES  COURT OF APPEALS FOR THE FIFTH CIRCUIT

b r ie f  for the  u n ited  states

OPINIONS BELOW

The first opinion of the court of appeals (191a- 
233a) is reported at 397 F. 2d 901. The opinion of the 
court of appeals (236a-250a) on remand from this 
Court (sub nom. Giordano v. United States, 394 
U.S. 310) is reported at 430 F. 2d 165. The opinion 
of the district court (R.P. Vol. I, 50-59)1 on remand 
is unreported.

1 “R.P.” references are to the three-volume, printed record of 
proceedings in the district court on remand, which is a part*of 

'the record before this Court.
( l )



o„T j  o t « "
, . * ’ 1J‘°’ a,Hl a for rehearing wasd(‘iiK‘d on August if) 1070 Mr r -•

+Iin+- r- 'Justice Black extended
f  n  ! 1° " I,-C a P"m ""fOT » «-rit of certiorari
o c o j e r .1970, ami, on October J 1970 the peti

c !  ; “  1971' jurisdiction o A h L
Lomt losts 011 2b I S.C. 1254(1).

QUESTION PRESENTED

T l ^  of certiorari,vaa'im itcab, fIle Court to

^  hetlier pet’tioner’s conviction should he Ta_

v U n M ^ ' f f  f mS C°"rt's docisi»n in
l; U!" U:dS M * .  398 r.S . 333 ( 1970) because
tor fv,'m r  Pet,tioner nt  » oonseientious objec- 
‘01 A  11>f“'n !>«“» based upon the
Depart,,,cut of Justice's erroneous eba’rarieri!

wars as ‘ ‘ I t  Jr ‘ 10m *° i>“rti«l«tion in
“ rebg^ s ” f  am' rad a l” n t b a  « “ »

s t a t u t e  i n v o l v e d

p e l ^ r i t -  (S,,pp- V ) « « « ) .■  provides in

S i L ' f ta iu ^ iM ti,is  t it ,c  * * * • *
- ___ !!. ' 10 rc<l,ure W  poison to be subject

r"ili0"er'S ‘',ahn ™  Pressed by t.ie . W

mb,lion to » Supreme ,7jf"al1 s l,df  !" «
HO «•«>>.Ties reference ~Supj* f c & f S J J S

JURISDICTION

r-

Jy* fl'-**' 1



3

to combatant training and sendee in the armed
forces of the United States who, by reason of
religious training and belief, is conscientiously
opposed to participation in war in any form * * * *

STATEMENT

 ̂ After a jury trial in the United States District 
Court for the Southern District of Texas, petitioner 
was convicted of knowingly and wilfully refusing to 
submit to induction into the armed forces, in violation 
of 50 U.S.C. App. 462(a). On June 21, 1967, he was 
sentenced to five years’ imprisonment and a $.10,000 
fine.3

Petitioner, at the age of eighteen, registered with 
his local Selective Service board in Louisville, Ken­
tucky on April 16, 1960; on March 9, 1962, he was 
tdasified J-A (App. 3a). Two years later, on March 
26, 1964, having failed to pass a physical and mental 
examination under the standards then in effect (SSF 
538, 539; App. 3a), he was placed in Class I-Y, a class­
ification assigned to those not currently qualified for 
military service who could be qualified in time of war 
or national emergency. 32 C.F.R. 1622.17. Petitioner

dropped from the statute; however, this change lias no rel­
evance to tiie instant case. See United States v. Seeaer. 380 
U.S. 163.

At the time of sentencing the district judge remarked (App. 
10fm): ‘‘Well, T am going to impose the maximum penalty 
because under the rules at the end of an appeal if it is reversed, 
why. of course it is nil. If it is affirmed it is then subject to 
motion to reduce, and I find that we get into problems when 
clemency is given at the time of sentencing and then follow­
ing an affirm nice there is another petition for clemency.”

I



iwnmo M t o Z ; ; ...... p '"min’̂  "o
» » ■ * «  l , r Z L 7 ' ^ z : n r ,fr  - -
nmm t r y i n g  standard, r„,. I  V o '  ’f " ’'
niarv 3, W(Ui hi • i , , , . 1 * st<ltus- On Feb-
>h«t i,o ,v,s X  k ‘!u m M ' d  

(DJ) form 62) (Ap„. 3a j '' aW,>tal’l<' for *»*<»

j* > -  * *  >-•<!, o„

w  I n C u t ^ *  W  w,M"im '■»><> a frf. 
diseipline„f *  T ' f T  fait'' »»<’<•>• the 
To hem- arm, ot. kj|, .Ei'.)ah Muhammad.
X eonseienti md ■ t  '* f 1lmt religion and
Servian that „ , ""-v comI’«t military
" a r  i„ ^livll T “ ,Wfi™ '» «».»
taken. This ] (j0 1)ni T , f mman is
Tsiel T1 ' \  °f hoh(‘Vo to be W'TtonsLS1CJ- I  ins lias been >nr mw, , ' ftTou's 
years. * upwards of 5

The hoard mailed to him w ' t .
Form for Conscientiouso • f  °™  ’° (Sl*eint
1066,flie s„,m. (1,  '  Ohje on February 18,

«“  ' - " . r a n  e  t t  17,"" ^  t h a t

fa ™  -  S S E f t s

'[as th(>" fluUiLaVVw(Trl7'itxin " (T 1* ^  a<lvised t,iat l»e 
t!;af he w«s divorced and a^oin.t-fl,/ Iia,1,1>,1?n of «>e World; 
of $1250.0.) per month and 1 , 2  f - V '  Ia,,mon-v in sum
°f  •■:,0’00()- tl.at he had not ?m>vio.. 1 l° la m e n ts
J-'Ts-oal examination: that 1 i ' , ' ‘' " *riVen a coml ^
*° Yas kcr .sole source of , ^  ‘n T ?  

hernia; and that he had been . d ,ie suffered from a
111 C,,ica^° for which trial was nen r  f°/ .<lisor(k‘rb' cond.iel" as Vending (App. ba-lla),

(
i



...
.

form, petitioner indicated that he believes in a Su­
preme Bein^. He described the nature of his belief 
as follows: “ Muslim—meaning peace—total submis-
S,°n f° wiM of Allah Do not take lives of anvone; 
nor war when not ordered by Allah (God)—Keep 
up prayer and pay poor rates” (App. 13a). The use 
of force he stated, is permissible «[o]nly in sports 
and self defense” (App. 14a). And, in explaining the 
>asic tenets of his religion, petitioner said (App. 
oa): “Islam teaches Peace—Allah (God) forbids 

wars except when Islam is attacked/’
Petitioner requested a personal appearar.ee before

, "ril1 l>0:ml '» eomieetion with tile change in bis 
elass.fieat.on from I-Y  to T-A (App. 17a). The re­
quest was granted and on March 17, Iflfifi, be appeared 
before all four members of the hoard. The official 
minutes of that meeting (App. 17a-18a) reflect that, 
alter discussion of petitioner's claims to physical
. , I harilslnl> (JII-A ) deferments, petitioner 

stated that ;.e was no longer Cassius Clay since that 
ivas a slave name; he had taken the name ot Mu- 
hanimad Ah. He advised the board (App. 18a) that 

[h]is religion teael.es * » * not to take part in any 
nay w.tb .nftdels or any non-religious group” and to 

nghf only in self defense, not war * * * /’ He -dsn 
stated (ibid.) that the Muslims have “ their own p„-
ICC (,,r<>0 a"d ™ '"''Slim may earn- am- lethal 
weapon. Mol.an.mid [sic] is (heir leader.” ’['lie board 
minutes further indicate that he expressed as one of 

le bases for bis objection to military sendee that 
he has no quarrel with the Viet Cong.” And he



aw*:- — J,— v. A*-.--

■f
J5

-.1■<

C

l-'lat 'T •<'""W " !ti,l>l,t « hypoerit 
l ; , ! 1'. r « ' °  :my,hhl"  *» ™ r or anything
♦ia.t ,a against the Moslim [si,-] religion.” After the
appearance, ti.e hoard voted unanimously to retain 
petitioner in Class T-A.

lvtitioner then appealed to the Kentucky State 
JP«al Board (App. 4a). In addition to e'-Pri-ir 

“ at '.r Had been improperly denied T-Y and IT I - t  
e ass.fleatnms, petitioner stated in his letter asserting 

S des,re to appeal that his “ religions beliefs decree

m J e° r  '"m to Promote
■ ,) .r,n my f  "d tlm ™ ' «  ™.v prior duty

o i .V’ t , “  tW 'S,lpi'e,"<' BrillK »'•«' all” (App 
21a). The appeal board reviewed petitioner's fi'e I

"0V°m d ’ May«• l 9«i. tentatively determined'that 
■e >vas not entitled to 1-0 (eonseientions object,!,)

■ . tus or to any lower classification (App. 4a-5a) In
-ordaneew nh the procedures in effect at that time

t'W t.S.C. App. (Snpp. I l l )  45G(j) • qo e v p  
(ltM>7 ed.) 162(i.2o) the matter was ^

J "StUef“ ' “  recon,menda 

On August 2d, 19G6, petitioner appeared before the

c : : ;  , o f  ^  * » >
e : ;  r  r hT ' d «,•».

off „  f ” a,,d «-> tax attorney. He
offered into ev.den.-e a book entitled “Message to the

’f  Man ” by Elijah Muhammad, a hook e, tit d
J t ! L ? Urau (aw li-h  Translation) (App. 40.a-

^  * *  "f



7

.-..-Cli. _

i

-

43a), and a newspaper entitled “ Muhammad Speaks’-’ 
(Ai>j). 3:3a). “Message to the Black Man" and the 
“Holy Q uran” were described as the hooks which 
were followed as a basis for the beliefs held by the 
Nation of Islam and as the basis for tin* objections 
that the petitioner expressed in his papers filed with 
the draft board (App. 40a). Petitioner also said that 
he relied upon the newspaper “ Muhammad Speaks” 
m formulating his views (App. 161a).0

At the bearing, petitioner admitted making the fol­
lowing statement which had been attributed to him 
in a newspaper article (App. 79a-80a):

Let me tell you what Muslims are taught; to 
defend ourselves when we are attacked. * * * 

Those A let Cong ai-e not attacking me. These 
Viet Cong are fighting a very nasty war over 
there. There’s a lot of people getting killed. 
Why should we Muslims get involved. Besides, 
I  m fighting for the Government every day. I ’m 
laymg my life on the line for the Government. 
A me out of ten soldiers would not want to lie 
in my place in the ring. I t ’s too dangerous.7

When inquiry was made as to whether lie would ac­
cept noncombatant service, he responded (App. 96a- 
97a) :

° lhe portion of “Muhammad Speaks" upon whirl, the De-
x r . - ! r iw  « » •*  -  »* ........

’ ' . g ' 1 s,llne f<>™ 111 “Mresnp. to flip Hln.-k Man,”
-  . ,l!4' A " " '«*  mnhtmls, as wall as tlic tnmsnhit of ,l.e 

Ili’arnij., aa-ro fonva d l.v ,1„. Department of ‘
appeal hoard (App. 114a).

MVti,inner explained that everything in the statement was 
iu urn nit Llijali Muhammad condemned him officially “for 

making such a wild, boastful statement * * *” (App. 80a).

f&r

'' 7̂ 7.-



*
8

*  *  * tlio Holy Quran and the teachings of 
flic Honorable Elijah Muhammad tolls us and 
it is that we two not to participate in wars on 
the side of nobody who—on the side of non­
believers, and this is a Christian country and 
tins is not a Muslim country and the Govern­
ment. and the history and the facts shows [sic] 
that every move toward the Honorable Elijah 
Muhammad is made to distort and is made to 
ridicule him and is made to condemn him and 
the Government lias admitted that the police 
of Los Angeles were wrong about attacking 
and killing our brothers and sisters and they 
were wrong in Newark. New Jersey, and they 
wcie wrong in Louisiana, and the outright 
every day oppressors and enemies are the peo­
ple as a whole, the whites of this nation. So, 
Ave are not, according to the Holy Qur’an to 
even as much as aid in passing a cup of water 
to the—even a wounded.8

Petitioner also said that while he was sure that Elijah 
Muhammad would never so direct him, if Elijah Mu­
hammad did advise him “ to fight in anv kind of war” 
(App. 101 a), he would.

Samuel N. Saxon, as Assistant Minister and Cap­
tain of Muhammad's Mosque No. 29 in Miami, Flor- 
ida, appeared on behalf of petitioner (App. 31a);

TmiAfn " O-th0r, 1,1 the 1,earin"' petitioner explained that the 
ITotv Quran taught that he should not take part in war

<u ale<l b.v Allah himself, or unless its  an Islamic World 
ar, or a Holy War * * • and * * * we are not to even as 

much as aid the infidels or the non-believers in Islam, even to 
as much as handing them n cWp Of water during battle" ( lp)>.

ItLl-

'■vrm", >

A.



9

petitioner endorsed Saxon as being knowledgeable on 
the Muslim religion (App. 100a-102a). Saxon stated 
that lie was familiar with the teachings of Elijah 
Muhammad and the Nation of Islam with respect to 
the performance of military service (App. 32a). He 
explained that the Muslims, “ being righteous people, 
and trying to do the divine will of Almighty God,” 
are taught and believe that they “ shouldn’t take part 
in wars or participate in them” (App. 32a-33a). Al­
though the Fruit of Islam, a group within the Nation 
of Islam composed of male members (App. 37a) “ is 
taught to prepare for the War of Armageddon” 
(App. 38a), Saxon declared that the Nation of Islam 

would not fight in this war; it would be fought be­
tween God and the devil. He added, however, that to 
prepare spiritually for this War the Fruit of Islam 
was given “ military training, drill, judo, because we 
do protect our property and officials of—Ministers— 

we protect our ministers; we protect the Honorable 
Elijah Muhammad ’ (App. 38a). There are no weap­
ons of warfare, lie said, but the group does believe in 
self-defense (App. 38a, I2a). And it is governed by a 
military system wherein the members are controlled 
b\ general orders similar to those issued by regular 
military organizations (ibid.).

When asked about a statement that “an Islamic 
state may ally itself with one or more states to de­
fend a victim” and that warfare was “admissible 
and a ■virtue when undertaken to repel aggression,” 
Saxon disavowed this as a principle of the Nation 
of Islam in the United States (App. 39a-t0a). He

/

rr? 9 * rwfpwv.r̂  t r ■rvT*T>-rw



10

repressed the view tliat “we don’t have no state to 
defend; that’s why it have to be rejected” (App. 42a). 
J>nt, he went on to state that the Muslims “believe 
that if we are attacked, or fight is forced on us then 
we will defend ourselves because we believe we have 
no life after death so we must protect and defend 
ourselves so we can keep on living” (ibid.). That, how­
ever, would not be war; for, as he explained it, “war 
is when you [sic] voluntarily fighting someone * * *” 
(ibid.).

The hearing officer concluded that petitioner was 
sincere in his conscientious objector claim (App. 
112a-ll8a). The Department of Justice Conscientious 
Objector Section reviewed the evidence and, on No­
vember 25, 1966, recommended to the Kentucky Ap­
peal Board that petitioner’s request for 1-0 status be 
denied (App. 127a). On January 10, 1967, petitioner 
was notified that he was to be retained in Class I-A  
(App. 5a).

On the same day that he appeared before the Jus­
tice Department hearing officer, August 23, 1966, peti­
tioner filed with the Selective Service System a letter 
in which he claimed, for the first time, that lie was 
entitled to a ministerial (IV-D) exemption because 
be was a minister of the Nation of Islam (App. 160a). 
On January 12, 1967, after reviewing petitioner’s file, 
the local board denied this claim and declined to re­
open his classification (App. 5a). Shortly thereafter, 
the Nationel Director of Selective Service requested 
the local board to reopen petitioner’s classification, 
and, on January 19, 1967, the board did so and again

I



11

; : T t  T - A  &». r .* i(!<„,or a„-
V V  a" t " sk,,<1 « «  Appeal Board f,„. „ c
f  D's,Hl f of IV*,., where ],0 then residednear tin* anneal t i»{«
Febrnarv V 1%7 ,u 7  7 “ S™ " <'<‘ ""d 011, •, : ’ ’ tiH 1 oxas Aj>peal Board after
T * " “ * entire Selective S e rv e  til(fc novo, classified I_.\ a ,, p  , n e

" 7 r  *" ‘•,a«1‘fy Petitioner OA (A 7 
On March 14, 19<i7, petitioner war ordered to , ^ r t  

O r nn netnn, at Couisville, Ken,nek,-, „„ Aprd t i
fer of a, ' We requeued and obtained a trails-’ 

° ,ns to Houston, Texas (Am, 8a 1
“ " V o  ' : r iing ,htC"™  ! * * »  t» April os’
«6, °n  , a, date, pet.tioner reported hut r e L 5

trial ;:T (App. 8a). His indictmentti ial and conviction followed.
Oil appeal, the Filth Circuit, initially held insofar 

a .  here relevant, that, under the nppiienbl’e “ Paris 
f#t* reviewing standard, “there was more than 

a g n a te  ev.denee to justify the rejection" ^
ners conscientious objector claim (App. 226a-oo7a) 

After remand hv this Court on another is s n e 'V j  
«oiii. lordanov. Fluted 31,4 p jg  3]0, (|

; : r  a8!’ '"  -our, Of a p p e a l s C  eo urt
petitioner’s claim in light of the

n * * J T C " r a t  amtil ‘ ,«>PT ' ";“'V,V ... . incut
unanimous (see 32 C.F.]?. 1(127.1, lcV:^" ' * * W,SI°n 1,ad boen

I



A. ̂

i
1
§

a*. - -—-Ift’r;. i

intervening decision in Welsh v. United Staten, 398 
U.S. 333, and concluded (App. 249a, n. 9):

[The Act] grants an exemption from service 
in the Armed Forces to a registrant "who, by 
reason of religions training1 and belief, is con­
scientiously opposed to participation in war in 
ana form.” As we pointed out in our original 
opinion in this, case, the Department of Justice 
recommendation * * * stated that Clay's be­
liefs insofar as they are based upon the teach­
ings of the Nation of Islam “rest, on grounds 
which are primarily political and racial. This 
constitutes objections to out;/ certain tapes of 
tears in certain circumstances, rather than a 
general scruple against participation in war in 
ung form ” [Emphasis in original.]

SUMMARY OF ARGUMENT
I

The sole issue presented to the Court in this case 
is whether the administrative denial of petitioner’s 
conscientious objector claim was without any basis 
in fact. There is no dispute that petitioner’s professed 
beliefs were founded on basic tenets of the Muslim 
religion, as he understood them, and derived in sub­
stantial part from his devotion to Allah as the Su­
preme Being. Thus, under this Court’s decision in 
United States v. Seeger, 380 U.S. 163, his claim un­
questionably was within the “ religious training and 
belief” clause of the exemption provision. I t clearly 
did not become more, or less, “ religious” by virtue of 
anything this Court later said in Welsh v. United 
■States, 398 U.S. 333.

12



13

i

I I

t] ,m w a s  ^  *«
t ; s 1 ,m" 0,1 the ground that he failed
I f T  • * ™ ,* i™Ko,“  *o “partiei-

V4i r ' r V v t'l' ‘" 'y*  U-S'0 ' A|>»-
(i ' n  in U"d-'llial^  » »  opposed to par-

,d f  " ‘,ra ™  M ,a l f  o t  « “  States,; 1 ! “T  hl this that
st :  7 f St O1r s't,0n fo «» "-ars. But nianv
statements by petitioner, and he the religions leaders

* “  “  p,awd fota] tended to show
stlted th I .VC.“'.'P,,S' m- TlmS’ “"««"*•
s id e  r 'i o '” 1S, ll0t 1,1 Participate in wars on tiie 
■ o no Hide who—on the side of nonbelievers * * *

r nt^ :u,,u]>k k  m td01,'t y . ^(App. flfia-»Ya); that the Muslims
K to u a r  unless declared by Allah himself or

unless its  an Islamic World War, or a Holy War"

t t n s e l w \ ; r  ^  “m  ,aUR,lt *» defendthemsehes when we are attacked'’ (Ann. 7fh . on..,.

*1* * t ; ; l T Z  Viet Cong a ,° ,lot attacking me.’ 
gf|;| ) '• b "iH I "-e Muslims get involved” (App.

When compounded with other statements in the rec- 
o ^  t t ie .  statements raised a nuestion for ad 
native determination, whether petitioner did or did 
- t  o,,,!,- to all wars. There was ample cw ln ro  
em ino f° show that petitioner would not bo adverse 

8 i mg with real weapons in a defensive war on

t
L-



"  :vas’ ib r r r tm - lo
w l  "> «»«>ndo that hi.
w.u. b ‘ "<,K,<,! sm ,Pl<? ajyainst participation in

;  ■ ' ,M]m' » to % |,t in tlie sidc

i r T r ' " ' h ........ is • »  « *, ‘ wrt as oxpressod i„ the ti-aet-

E K ..... " w < i ' » — » « - ~

, 0 l f°Urs(‘’ Ls ?i0t rite courts to sd «s snr v

; : x , t  : r ; ! s’ su“ ,g ti,e,> « ;
^  v ^ T r r i  of ^
380-381 T1 Sfafe»> 348 r .S . 375.

-*1 • to scope of review is limited to •> 3 i
munition whether there exists « basis in factVn the

f l ‘° m  thet t ° ‘ jU‘u various statements in the in-. 
‘ ‘ l0u,n  su^ vst an ambiguity as to the circnm

t: vTmv ** *
i » gj i t  . " a \  :  r a ,m o t — *» > *

of Coupvss • i r ° T ' ' d' H iS “ * * * «*  

be 1 ( M,deil(;e 01‘ wI,w,e two inferences could

scioatious objector status, and o„ ‘

^ ; : r t r ; i ; r f ,m - * * * " -  *

14



15

ARGUMENT

I. TH E BASIS ON W HICH PETITIONER’S CONSCIENTIOUS 
OBJECTOR CHAIM WAS DENIED IS UNAFFECTED BY THE  

DECISION IN WELSH V. UNITED STATES, SINCE HIS CLAIM 

WAS ACKNOWLEDGED TO HAVE RELIGIOUS ROOTS

A. Last Term, this Court considered, in Welsh v. 
United Stn.fcs, 398, U.S. 333, whether a registrant, 
claiming a conscientious objection to all forms of war 
solely on the basis of deep and abiding moral and 
ethical convictions, is entitled to a statutory exemp­
tion from “ combatant training and service” (50 
U.S.C. App. (Supj). V) 456(j)), notwithstanding that 
his objection does not derive from any religion or 
religious training in the traditional sense. Mr. Justice 
Black, speaking for a plurality of the Court and 
viewing the issue as fundamentally indistinguishable 
from the question presented to this Court five years 
earlier in United States v. Seeger, 380 U.S. 163, an­
swered in the affirmative.

Questions can, (if course, be raised about the extent 
to which the TFW.s7/ decision expanded the Seeger 
definition of “ religious training and belief,” as that 
phrase is used in the Military Selective Service Act 
of 1967 (50 U.S.C. App. (Supp. V) 456(j)). We do 
not believe, however, that any such question is pre­
sented in the instant case. Here, it is undisputed that 
petitioner’s professed beliefs, whatever their s(ope, 
are founded on basic tenets of the Black Muslim 
religion, as he understands them, and derive in sub­
stantial part from his acceptance of Allah as the 
Supreme Being (App. 13a). Thus, his claim to con-



JmtC

1G

Rf-Iontious objector status, though in our view defi- 
cicut in other respects (see infra, j»p. ]ias
roots no less “religious’* than those of the three 
claims considered by this Court in Seeger.'9 It is not 
one "hich depends on T1 <!sh to come within the stat­
utory phrase “religious training and belief.”

If, therefore1, as petitioner now contends, the De­
partment of Justice’s advisory recommendation to 
bis appeal board suggested that “ his claim [to con­
scientious objector status] should be denied because 
it "as not religious ’ (Hr. 1G-17), he would have a 
claim not only under Welsh but equally under this 
Court’s earlier ruling in Seeger, decided some months 
before petitioner filed his conscientious objector claim 

l°cal board.11 Indeed, petitioner made a
10 The Seeger case was consolidated with United States v. 

arobse,, and Peter v. Tutted States, since all three raised the 
question whether, under the then applicable statutory hummem 
(all I -S.c. App. 4:>fi(j)), the legislative reference to ••Supreme 
.e,ng contemplated only the orthodox God. This Court de­

cided it did not. both Jacobsen and Peter, like petitioner in 
he instant case, asserted that their opposition to war was 

based on a ‘•Supreme Being" in their own scheme of things 
though their ‘‘Supreme Being" was not the orthodox God \ s  
for Seeger, this Court declared “that the beliefs which 
prompted lus objection occupy the same place in this life as 
the belief in a traditional diety holds in the lives of his 
friends, the Quakers” 380 T’.S. at 1ST. And “Jacobsen's de­
votion to a mystical force of “Godness" was equated with 
b e g e t s  compulsion to ‘goodness'" 380 C.S. at 1ST. Mani- 
festly, no less can or should be made of petitioner's devotion 

n~V, : .,10rth,,s the government ever suggested otherwise.
J here is, therefore, no need to discuss the compkx ques­

tion of the retrospective application of IVehh. That issue 
would be. present in this case only if petitioner had asserted a 
II c/,7, tv ,*  claim and the Department of Justice had recom­
mended that it be denied as “non-religious."

nmr.*

/



f / T ' '  claim in the original proceedings Mow and 
the .»s„P was fully litigated at that time. And, when 
he case was hero earlier on petition f o r  certiorari

o-/ e, "/k/" V. Staten N0.
7  ’ ' 1' ,I M | ’ Petitioner presented to this Court
the same issue that he now urges was only recently 
■ .used I,, I I * / , .  In almost identical language, he at 
hot . m e  argued that “ R esp ite  this recognition of 
0 Muslim religion by the courts * « * |}10 Depart

r"'«> that beliefs of the Muslims were 
pinnardy political and racial, rather than religious”
( r t .  No. 2,1, O.T. 1968, p. 16). in  the circumstances 
f this case nothing that the Court later said in 

"  i  t T  “dl110 -usideration of such a claim.
war'! '* ”° lllS1’" t0 tl,af Petitioner's views on

ll!Kl ,'e' lslo,'s Wots. Rather, the case which in our 
View controls the outcome of this litigation is Gillette
07, " a  N0‘ *  » ‘is term, decided March 8,

' ’ ’ ,he f»ans of the Department's ad-
7 7  is °" the scope and nature of
hV ’ i" r  r 'Wts !wd not ,m "botherthose hel.efs were based upon “ religions” belief.

]he * T  «>c Departments advisory
ominomlatioii becomes apparent when the frag-

: : t r iM“  i,y i*™ *™ ’- (»>•■ w s i
.cad m the context of the recommendation as a whole.
7 "  I 7 nSSmg ,he l,ook- J W p e  to the Black 

/  *,Cn<''vsP ' > P “ Muhammad Speaks” 
p. ), both of which were submitted to the 

Justice Department bearing officer by counsel for pe­
titioner as the basis for petitioner's objections con-

17



IS

corning war (App. 40a), the Department stated that 
the two documents (App. 120a-121a) :

* * * express essentially the view of the Black 
Muslims that the white man is their enemy, 
and that the hlack man should disassociate 
himself from the United States Government 
and its institutions and secure an independent 
nation for the hlack man within the United 
States.

On the basis of this literature, another hook sub­
mitted by petitioner entitled the TTolg Qur’an (App. 
40a). and various statements by the Honorable Elijah 
Muhammad, the recognized leader of the Black Mus­
lims, the recommendation advised (App. 121a):

I t seems clear that the teachings of the Xa- 
tion of Islam preclude fighting for the United 
States not because of objections to participa­
tion in war in any form but rather because 
of political and racial objections to policies of 
the United States as interpreted by Elijah 
Muhammad.

The Department then analyzed as well the statements 
by petitioner to the Department hearing officer and 
concluded that (App. 122a-123a):

* * * the registrant's claimed objections to 
participation in war insofar as they are based 
on the teachings of the Xation of Islam rests 
[sic] on grounds which primarily are political 
and racial. These constitute onlg objections to 
certain tapes of war in certain circumstances, 
rather than a general scruple against partici­
pation in war in ang form. However, only a 
general scruple against participation in war in

TTS 4PipiV!r<



addedV ’ hm>'" ’ 133 F ' 2<l 70:1 f W C i x  

c - h  ^

Z Z ; £ p2  2-- *  * • «  « P , ^ r ^
ix.ii.-y ' lrh “ '
a < ^ ^ t a e k n , ^ m ^ o ^ ^

to the conflict in Vi t " ,('s'k h a " ts  “lUxwition soldv

si~ -̂ Ŝ tr
”* t f ;i „„d peZzr<>ote

» ^ u U » t  o f ' j ^ i i (.e,,L ' t lt ’’‘l" "  *  fl,<1
“ riie, (,uoted i .o . t i o 'o f  it ; ' ISt,'Mt *** “  «*  
tion. Petitioner’s; ™ • • a( ' lsul•' ^c-oininpnda----------ttitam u conscientious objection, like Xeo,,.v

w :  z .  8 ^ ,:: ;  * * •  «*  C v;
’ 5- >’ tlus Jl”'">, j>p. 5-10.

10

• '  'J  ■ 'T iw *"-* ;'-’

/



was found to be motivated by the teachings of Ids 
ivbtfion: personal participation by Muslims in a war 
of aggression is forbidden; participation in a defen­
sive war is encouraged (see infra, pp. ). Co„.
eeptualiy, then, petitioner's lieliefs derived from the 
same fundamental religious distinction between “ just” 
a,ld "H"-'n s r ' '™rs. The only difference lav in the 
manner in which lie, as a Muslim, and Xegre. as a 
Catholic, Would define a “defensive’' war; that neces­
sarily turns on considerations which are by nature 
'political.” It is in this light that the petitioner’s 

objection was characterized as essentiallv “political ” 
.lust as the Army bad found that Xcgre’s claim was 

based upon a personal moral code'* (see our brief in 
G ill ie  and Xc<jrc, Xos. 85 and .12.1, this Term. p. <>). 
Iu  neither ease was the “religious" nature of the 
beliefs being drawn into question; rather the focus 
was their selective aspect.

Tlie Departments lvliam-e on Suites v

Ka'" e"’m  F -2(1 70:! ( t A - 2>. i" I'eooinmemJ.'itinn'
as o petitioner substantiates this interpretation. That 
ease involved a claim to conscientious objector status 
by an artist whose opposition was to a particular war 
on the basis of philosophical and political considera- 
tmns. While the court there held, as petitioner indi- 
<ute.s (] et. ]>r. 17), that the claim failed to qualify 
for exemption under the “ religious training and be- 
bet clause of the statute, it then stated (133 p. 2d at 
708) that “ the provisions of the present statute [The

20
i .



-w  - f » * « * *  
eharacteristie* of a skoi.tir-.l " '  ^  " ‘to nm ,nnt Hie 
existence of a eonseienti ^ Reiteration and make „ 10

« .«* - H , r  : ; ; ^ : : n : v T 7 ' r a' ^
Ri-onp or creed *1,,. rehipoiis
Kenton s objection v ,\V h f  that
n ro rtd  *  * •  * *

*0 ,m W y fn r  e ,iw t; u , ; X n ^ * hr ' ? m m ~
ne a general scnml^ f r 17 termnn
a,|y form’ and not n im dT  1><!1*]<’1,,alion in war in

statutory exemption.” <1,,aliflra for the

“ v- ^
stat" t“>T elections t l  denial f C01l3f,(,,,io'«" «>■<! 
for status to those „h «»>Mi™ti0u« objec­
t i o n  oars. C ^  •» I -  
"line whether on tin- w .‘ 0,1 J.V to deter-
}><‘)ow eon-eetlr found «. i°H- ” * t,US ease th° c°i»ts

llavfl lllf' requisite breadth. ' ' '°1H1 3 <ll(l «»*

A W . ....... „

I I



o o

II. THERE IS ADEQUATE 15 A SIS IX  PACT FOR THE ADMINIS­
TRATIVE DETERMINATION' THAT PETITIONER DID NOT 
QUALIFY AS A CONSCIENTIOUS OBJECTOR BECAUSE HIS  

OR.l ECTION TO MAR AY AS SELECTIVE AND NOT GENERAL.

A. Unlike most other claims to draft exemption or 
deferment, the disposition of which turns on objective 
facts, “ the ultimate question in conscientious objector 
cases is the sincerity of the registrant in objecting, on 
religious grounds, to participation in war in any 
form /’ Witmcr v. United States, 348 U.S. 375, 381. 
J hat is a question which Congress lias chosen to com­
mit, in the first instance, to the discretion and exper­
tise of tbe Selective Service System. See Thom pson v. 
United States, 380 F. 2d 86 (C.A. 10); Lockhart v. 
United States, 420 F. 2d 1143 (C.A. 9).

In explicating the function of the judieiarv in re­
viewing an administrative classification, this Court 
has admonished that “ it is not for the courts to sit 
as super draft boards, substituting their judgments on 
the weight of the evidence for those of the designated 
agencies.” Witmcr x. United States, 348 F.S. 373, 
380-381; and see also Dickinson v. United States, 346 
U.S. 389, 396. The scope of review is limited to a de­
termination whether there exists a “basis in fact” for 
the assigned classification discoverable from the ad­
ministrative record. Estep v. United States, 327 U.S. 
114, 122; 50 U.S.C. App. (Rupp. V) 460(b)(3). That 
standard of review is now generally recognized as 
“the narrowest known to the law.” See, e.e/., Bla'oek 
v. United States, 247 F. 2d 615 (C.A. 4); United 
States v. Freeman, 388 F. 2d 246, 248 (C.A. 7);

I



23

United States v. Corliss, 2S0 F. 2d 808, 810 (C.A. 2); 
United States v. Sturgis, 312 F. 2d 328, 331 (C.A. 3); 
DeJiemcr v. United States, 340 F. 2d 712, 715 (C.A. 8) ; 
United States v. Lenvg, 422 F. 2d 155,157 (C.A. 9).

i t  is, of course, well established that the burden is 
on the registrant seeking exemption as a conscientious 
objector to demonstrate bis entitlement to the status. 
Swaczyk v. United States, 15(5 F. 2d 17 (C.A. 1), 

certiorari denied, 329 U.S. 72b; United States v. 
Brown, 423 F. 2d 751, 754 (C.A. 3) ; Otguin v. United 
States, 392 F. 2d 329 (C.A. 10); see also Dickinson v. 
United States, 346 U.S. 389, 395. This does not mean 
that lie must prove the “ validity of what he believes” 
or “ the truth of his concepts” (United States v. 
Seeger, 380 U.S. at 184), for that is a domain fore­
closed from government inquiry. See United States v. 
Ballard, 322 U.S. 78, 86. But the nature and content 
of his professed beliefs are necessarily subject to scru­
tiny. This Court lias long recognized “ * * * that the 
Congress, by relating the registrant’s conscientious ob­
jection to his religious training and belief, has made 
the belief of his sect relevant.” Sicurella v. United 
States, 348 U.S. 385, 390. That is no less true today 
than it was thirty years ago in eases where the claim 
is premised on the tenets of a religious sect. Sec 
Gillette v. United States, supra.

TCe art* entirely in accord with petitioner that the 
controlling question in any conscientious objector case 
is the religious beliefs of the individual registrant, 
and not necessarily the beliefs of the sect with which
he claims affiliation. A member of a religion not tradi- 

I

'jzry a a jrir'v -T -



24

tionally considered to be pacifist in nature, for ex­
ample, may well qualify as a conscientious objector 
because of bis own—perhaps even erroneous—inter­
pretation of Hie religious doctrine. See United Stales 
v. St. Clair, 293 F. Supp. 3:5 (E.D. N.Y.). Or con­
versely, as petitioner points out (Pet. P»r. 23), “[ajf- 
filiation with a particular religious sect, even thougli
it ma* be pacifist, CiOes not automiiactil 1 \ entitle one 
to conscientious objector status.’’ Of. United States v. 
Simmons, 213 F. 2d 901 (C.A. 7), reversed on otlier 
grounds, 348 U.S. 153.

Put the instant case simply does not fit that analy­
sis. Here, petitioner submitted to the Justice Depart­
ment hearing officer, on bis own volition, two books
and a newspaper (supra, pp. ) which were
represented as setting forth the religious teachings 
that served as a basis for the objections be “expressed 
in his papers filed with the Draft Hoard” (App. 40a). 
In addition, lie stated unequivocally that he placed 
reliance on the teachings of the Honorable Elijah 
Muhammad “solely and one thousand percent” (App. 
100a). And, he even went so far as to state that if 
Elijah Muhammad “ * * * looked at me and advised 
me, which T am sure he wouldn't, to fight in any kind 
of war, if he advised me to I  would” (App. 1.01a, 
102a). In these circumstances, we cannot agree (Pet. 
Pr. 28) that the various writings submitted by peti­
tioner and the teachings of Elijah Muhammad on 
which he placed such total reliance—in effect incor­
porating them by reference in his statement of beliefs 
(App. 80a)—lu.ve no relevance to the Department’s



assessment of the nature and scope of his objections 
concerning war.

]>. Turning to the Department’s evaluation of the 
e\idenoe before it, including petitioner's own state­
ments, we think it is clear that both the Department 
and the State Appeal Hoard could permissibly con­
clude that petitioner did not establish that lie was op­
posed to all war. AViiiie it is undeniably true that 
petitioner did suggest on several occasions that be was 
opposed to participation in any war (App. l()a, 13a, 
18a, 98a), the record as a whole strong!v indicates 
that the wars’ to which both petitioner and his reli­
gious leaders are opposed include only conflicts which 
are not being waged against, the Muslims rather than 
shooting wars in general.

J hu.s, Samuel A. Saxon, an assistant minister of the 
sect, who testified at the Justice Department hearing 
on the tenets of the Muslim faith, stated that the Mus­
lims belie\ e that war is when you [sic] voluntarilv 
(fighting someone, and is to be distinguished from 
“self-defense” which is " when we are attacked or the 
fight is forced on us” (App. 42a). Petitioner expressed 
the same view. Muslims are “not to participate in wars 
on the side of * * * nonbelievers” (App. 96a), he said. 
Following the teachings of the Holy Qur'an, as he in­
terpreted them, the Muslims "are not to even as much 
as aid the infidels or the nonbelievers in Islam, ( veil 
to as much as handing them a cup of water during 
battle (App. 68a). Instead, he stated, they are taught 
only to “defend themselves when [they] are attacked”

25

I



I

j-i
1
I
i. j 

:

i

2G

(App. TOa-SOa).” Accordingly, ho reasoned, “J have 
no quarrel with those Viet Cong” (App. ) ; f]10V 
“are not attacking me” (App. 80a). The country that 
is involved "is a Christian country * * * not a Mus­
lim country" (App. 9(>a-97a). Tn these circumstances 
lie asked: ‘‘Why should we Muslims get involved” 
(App. 80a).

This line of thought closely parallels the expres­
sions of idi.jah Muhammad, whose letter to the appeal 
board on behalf of petitioner stated (App. 177a):

The la\\ of Allah does not permit a Muslim to 
be an aggressor, fight only those who fight with 
Muslims, the law of Islam further discredits 
a Muslim as being a Muslim who will fight on 
the side of a non-Muslim, though he may be his 
near of kin, or wars of non-believers or whether 
such wars are between disbelievers of Islam or 
against Islam (the Muslims), of any nation 
other than Islam, or to bear arms in the armed 
forces of any nation other than Islam or to per­
form any non-combatant service or work of any 
kind under the direction of the authorities 
acting under any conscription of law of war

“ Petitioner thus stated: “So, by our teaching and by we 
believing m God, whose law is self-preservation, we are tamdit 
not to be the aggressor, but defend ourselves if attacked and 
» man cannot defend himself if he knows not how. and we 
are taught that not only America, but all countries, all civil­
ized governments have their armies and have their guns around 
their shores, not necessarily to attack or to be the aggressor 
>ut to defend America or our country or whatever it mav lo 

if we are attacked. So. we, the Muslims to keep in physical 
condition, we do learn how to defend ourselves if we arc 
attacked v * * (App. ]L04a-10f»a).

gff-
!:

i

• •



or fighting other, the beliefs of the Lost Found 
Motion of Islam.

What emerges from these statements is not a eleai 
conscientious objection to "participation in war jn 
a,,y fonn’V as 1,10 statute requires. Rather, the record 
amply supports the inference that, circumstances per­
mitting, petitioner would not object to fighting to­
morrow with real weapons in a defensive war on be- 
1,aIf uf t,,e ^ » sl»"s. See Gillette v. United Stair, 
snpva, slip op. 2, 10. Indeed, that appears as a funda­
mental tenet of his sect. In the newspaper, “ Muhani- 
mad Speaks,introduced by petitioner at the Depart­
ment hearing, the views of the Muslims on participa­
tion m war were stated as follows (App. 120a, ISoa) :

We believe that we who declare ourselves to lie 
righteous Muslims, should not participate in 
wars which take the lives of humans. We do 
not believe this nation should force us to take 
paid in such wars for we have nothing to gain 
from it antes, America agrees to nice us the 
necessary territory wherein we man have some- 
thing to fight for (emphasis added).

Petitioner’s brief suggests that the “only thing that 
is clear about this statement is its absolute opposition 
to participation in wars which take human lives” 
(Pet. Dr. 22), and that “[t]he rest of the passage is 
ambiguous” (ibid.). We submit, however, that upon 
reading the statement one could reasonably conclude 
that it is not ambiguous at all. Rather, the second 
sentence can be read as qualifying the first, explaining 
the circumstances under which the objection to war

27

np?sr

r •
’£

;
i ■

I

t
(i»

■ ■ •



“ S t-  ‘W  hi lily ..... . <'xtend-
r,h(‘ fa,-t ”«<• miffht consider remote tl,0 cir-

wir h v e m ° ^  does

» « " V. o«™ , 4,0 P. a , 3a, (C f  « f  ’ ' T '
f  to engage i„ a noh..^.;, ; ^ r  V at
•"S wav should be i.moved' U , d f  ° t_
petitioner-. present s h ^  "  “  M"*"'llhW *t M,c state ot mind wlietlim* r
“ r " 1" " - - ' - ..... o - S

conscientious objection “ to L,*?'-8 ^  <iU.?,hfy MS a
anv form -  witi n Paitu-ipauon m war in

* ’ a K'fiistrant who savs he could in iconscience fi<>ht ;» „ , , ‘ ' u <ou,(i 1,1 "ood
4- *’i"  1 a war declared bv the United Y-,
tions (see Gillette v. United S7„/«. ' U X l~
is a selective objector S, to , Sh" “P- 2) 
for example th ’ °"e ">'»
wav o, , a , /  f f ™n M"''' * *  in a defensive

nnglit change (cf. ft7/ett(, v. r ,„y„, * ‘*‘" d
slll< op. 10). \ 0r  is il tin. ,. ' ’

( ' ls “  »s -W r f fo , for there



2ft

the legist rani s opposition to real shooting wars was 
total and it. was only a hypothetical theocratic war— 
with “weapons * * 11 spiritual, not carnal”—in which 
he con Id envision himself participating (348 F.S. at 
389). And the wars in which petitioner would fight are 
not limited to “defense against immediate acts of ag­
gressive violence” toward himself his family or other 
persons in his community. Gillette v. United States, 
supra, sii] > op. p. 10.

We agree with petitioner that the Muslim view of 
the impending Battle of Armaggedon is not incon­
sistent with a total objection to war; that Battle 
would he a theocratic one between the forces of good 
and evil, and would not involve the physical partici­
pation of individual Muslims (App. 38a, lO-la-iOTa). 
See Sicurclla v. United States, 348 F.S. 385. The rec­
ord shows no suggestion that petitioner's willingness 
to piepare for the Battle of Armaggedon (App. 105a- 
f07a) would disqualify him from conscientious objec­
tor status. Rather, the Department's concern was 
with other statements on the record suggesting peti­
tioner’s present willingness to engage in ‘'real shoot­
ing wars” (348 F.S. at 391) in defense of the Mus­
lims (App. 15a, 18a, 68a, 79a-80a, 101a, 105a). That 
these defensive wars would involve the use of carnal 
weapons seems implicit in petitioner’s own statements. 
Thus, he leaves little doubt that if the Viet Cong 
were attacking his people, the Muslims would become 
involved in that war {supra, pp. ).

Accordingly, there is, in our view, ample basis for 
the administrative finding that petitioner did not

/



4

30

s"n,,,'p i>.
lmf <>«'>''"»» certain wars dr,,ending

Pa' t '™,a r '•imimstanoos. 'Hu. record supports 
■umHusu,"  that Ids scruples were largely d ir(.eted

St s Z  r nXlt7.....<“■ M - l f  of the Hated
; e. I etitiouer luu.self stated that “we are not to

. |a  ' 1,1 nn 'he side of nobody who—on
he S,<'r  “ ..... '"‘Ilevers, «nd tins is a Chrisiai, J

ii-y and this is no* m ,...i:.., ,  , .. (
Th-.f tin J ;  , ltr-v (App. 96a-97a).

•• this attitude, ......... religiously motivated: ’ ;;;a,< si,pf • *» «„ whid;
aTtl t '  H  i" ^a* “̂tlowing testimony by petitioner 
at the Department hearing (App. 77a): '

t, ,* I* tl,C r" 'i,'st llat<‘ 1 as far as the

+ w  . .. / ’ ls we hate t!ie wav
W c  lnf.1 <i ! r U t n ' f ‘d °r OUV huM(]red

t ■ n' ,17 aT<‘ SPn'P<I s0 ta'tlifuiiy for the eoun- 
. d , , r " ' S amI "av" s'-™* three hundred
hav,. fifty ? ;'"<1 P"ahli,'K *0
and e  t V i ,'1P,'PSt S,at"s the P'anet"till we are suhjeeted to treatment

pa,"""aia * « « » .  „re ;!:z
^ “V e Mud!0 <T de"‘lti," ,S- l,e state>. that have Muslims -to want to separate" (App. 78a),

r̂r*?



31

“to want to go for ourselves and do for ourselves 
and get some of tliis earth that we can call our own 
* * *” {ibid.). Military assistance to the United 
States is thus forbidden (Pot. Hr. 31). As petitioner 
declared, “* * * the outright, every day oppressors 
and enemies are the people as a whole, the whites of 
this nation. So we are not, according to the Holy 
Qur'an, to even as much as aid in passing a cup of 
water to thi—even a wounded” (App. 97a). See also 
Sost re v. McGinn eft, 334 F. 2d 906 (C.A. 2), certiorari 
denied, 379 U.S. S92; and set1 quotations from the 
Supreme Wisdom Containing lie Teachings of Elijah 
Muhammad, set forth at App. 223 n. 4.

M hen this reasoning is viewed in light of peti­
tioner's expressed willingness to fight in defense of 
the Nation of Islam—in “an Islamic World War” 
(App. 68a)—it can readily be inferred that his objec­
tion is “selective” in nature. Even if, as petitioner’s 
brief seems to argue, various statements in the record 
suggest an ambiguity as to the circumstances under 
which he would engage in war, such an ambiguity 
would not require the administrative findings to be 
set aside on judicial review. Under the principles 
established both by the pronouncements of this Court 
and by Congress (supra, pp. ) ; “ review
within the Selective Service System [is to be] final 
in all eases where there [is] conflicting evidence or 
where two inferences [can] be drawn from the same 
testimony.” Witmer v. United Staffs, 348 U.S. 375, 
383.

Nor is the government foreclosed from concluding 
that petitionei is a “ selective" objector because various 

l



32

precepts of ilio Muslim religion (Pet. TP*. 30-31) tend 
toward the opposite conclusion. Nothing this Court 
said in Presbyterian Church v. Hull Church, 393 U.S. 
440, forecloses tlie government from also considering 
that Muslims are taught “to defend themselves when 
[they] are attacked’’ (App. 79a-80a), to fight in a 
war if advised to do st> by Elijah Muhammad (App. 
101a), and to participate in a defensive war if given 
“ the necessary territory wherein we may have some­
thing to fight for” (App. 120a). The weight 
the Department ultimately placed on these

which
latter

teachings manifestly did not turn on its own interpre­
tation of the religious doctrine; rather, it resulted 
from the agency’s assessment of the nature and scope 
of petitioner’s personal beliefs as he understood and 
interpreted the teachings of his sect. This Court has 
long recognized that to be a legitimate function of the
Selective Service System when a registrant puts his
religious views in issues, as petitioner has. Sieurella v. 
T tilted States, 348 U.S. 385. And, tin* recent decision
in Gillette v. United States, supra, implicitly reflects 
a continuing awareness that careful scrutiny as to the
nature and content of a claimant’s religious beliefs 
is not constitutionally impermissible.13

Of course, a decision that the selective service system lias a 
basis to conclude that petitioner was not opposed to all war 
does not preclude other adherents of the Muslim faith from 
demonstrating that their views meet the requirements of the 
Act. Tt is merely a recognition that on the record placed before 
the Selective Service System by petitioner, it could not be 
said that Selective Service could not legitimately have con­
cluded that petitioner had failed to meet liis burden.

I



33

..... r n,rtll‘‘l-.“’u-'t* to the discussion in
' ' P u r l m o n t  " f J l | s t , e c ’s  a d v i s o r y  l e t t e r  a l i o u t  t j i e  

'  '' la d  it i n n e r  s i n c e r e l y  h e l d  t h e

l " ' s  " l!lt 1111 i »  s u p p o r t  o f  h i s  c o n s c i e n t i o u s
o n j e c t o r  e la t t u .  We do n o t  h e r e  s e e k  t o  s u p p o r t  t h e

1,1 P-"P'««'' V Clt,i,„ on the ground of insin- 
m ] i r ’ is rather that petitioner s ob­

ject,,.,, however sincere, did not have the requisite 
/enetnhtt to qualify him for exemption." We think 
. y a , r  readins- of the Department's ree„„,mendatio„

' r nr  ’’ had ™,»<’ emphasis. Moreover, eon- 
nai.t to petitioner s characterization of the sincerity 
<nse,,ss,on in that recommendation. the Depart,,,cut

asjie’i “ firm conclusion that petitioner was 
insincere hut rather simply presented, for the appeal 
hoard s eons,deration, a number of factors pertinent 
o the matter of sincerity." Thus, we sub,nit! th e s is  
to ung in this aspect of the Department's contra,t-
.ueatK", that casts doubt on the propriety of petition- 
ei s classification.

frrln.,1 cm l.n!rif , a; id; "  p"  <l"CS' io" 'his C ent

*  IL IT h* , " ; ' r  ,,or  fr  ;,,e

military service 1,,.,..,,.. • ' ■ ' as Ilo! asserted until
221 !' ■> '2 r  , , ''""'""I>1- <’>■""!■ Ml  v. £V/«f XM a ,
f • . 7 . •’4l '  " ,te,> Mate* v. Cor]!**. 280 F  •>,! sns .

..............................



34

The matters referred to by the Department wore 
elcarlv pertinent to the sincerity question. Tardiness 
in asserting a claim of conscientious objection lias 
commonlv been recognized as one factor to be con­
sidered. Salami/ v. T inted States, 1179 F. 2d 833 (( .A. 
10); Bishop v. United States, 412 F. 2d 10(54, 10(58 
(C.A. 9); United States v. Broides, 423 F. 2d 1299 
(C.A 4); United States v. jfessiiu/er, 413 F. 2d 927 
(C.A. 2), certiorari denied, F.S. ; Undid States 
v. Gearn, 368 F. 2d 144 (C.A. 2), certiorari denied, 
389 F.8. 9b9. And where, as here, the claim was first 
presented after receipt of a notice of acceptability for 
induction, there is, at the very least, “ a rational in­
ference that imminence of induction 41 led to [the] 
presentation” T inted States v. Bovnenian, 424 F. 2d 
1343, 1348”
petitioner from )»oii i classified as a conscientious objector
* * * *■' (15r. :{<)), unreasonably isolates and overemphasizes the 
importance of the statement on the record. Indeed, ii the state­
ment conveyed the1 meaning that petitioner suggests—that as 
a matter of law petitioner's claim was deficient—one would 
question why the Department felt it significant even to sug­
gest any other reasons for denial.

18 Although petitioner's completed conscientious objector form 
1 r,o was not received by the local board until after he had been 
classified T-A, nevertheless, as petitioner correctly points out, 
the letter which tir-f apprised the board that he was a con­
scientious objector “was written several days after petitioner 
had received the statement of his acceptability for induction 
and not, as the Justice Department and the court below as­
serted. after he had already been classified I-A" (Hr. 4t>). Of 
course, this technical mistake ol a few days has no bearing on 
the validity of the inference the government sought to develop. 
The inference of insincerity arises irrespective of whether it 
was a statement of acceptability or a I-A  classification that 
brought the imminence of induction to the registrant s mind*C~»



A i

 ̂ Similarly, it was pertinent for tho Selective Service 
System to consider the fact that petitioner filed other 
deferment claims while lie was seeking conscientious 
objector status: it all the facts warrant a conclusion 
that a registrant is “ deferment shopping” in a con­
certed effort to avoid service, that may well be a 
factor in evaluating his sincerity. Here, on receipt 
of his notice of acceptability for induction, petitioner 
suddenly filed claims for occupational (TT-A) andhard- 
«]l'j) (H f-A ) deferments at tlie same time h<> claimed 
conscientious objector status. Both deferment claims 
rested on facts winch clearly could have (App. 9a- 
11a), and by law should have,10 been presented to his 
local board much earlier; and both were based, at 
least m part, on the probability of substantial finan­
cial losses if petitioner was forced to abandon tem­
porarily his professional boxing- career (App. 9a- 
11a). In these circumstances, it seems to us not in­
appropriate for the Department to suggest to the 
appeal board tin t it consider the possibility that 
financial factors might also have entered into peti­
tioner's motivation for filing the conscientious objec­
tor claim. * 1

85

, P1 r ,s H,i" » "Parent “be , W

f  '* « > .  I Cl,,*,, H-A „„<1 nr-A
1' 7 ' r • “ » <»■* l- V, petitioner ntnler ,

timmio ‘itttv » l„ le  |„. |,is ,_ v  H „SsiK,onion inform
tie lore! b.,,r>l of tl,e f„ets »h,H, |R. w„ r „ n t  „

Uelttsnilieiilioii to 11 A or 111-A. 32 (\K.K. (|,).

iT#vrT ;T " .r



36

CONCLUSION

For the foregoing reasons, it is respectfully sub­
mitted that the judgment below should be affirmed.

E rw in  X. Griswold,
Solicitor General

W ill W ilson,
Assistant Attorney General

W m. B radford R eynolds, 
Assistant to the Solicitor General 

B eatrice R osen berg,
R ichard L. R osenfield,

Attorneys.
AnuL 1971.

U .s . GOVERN VENT PR INTING O FF IC E : 1)71