Clay v. United States Brief for Petitioner

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Elizabeth Bartholet Oral History

    In  THE

8>upvimw OInurt of %  llmUh States
October Term, 1970 

No. 783

Cassius Marsellus Clay, J r., 
also known as Muhammad A li,

— v.—
Petitioner,

U nited States of A merica

BRIEF FOR PETITIONER

Jack Greenberg 
James M. Nabrit, III 
J onathan Shapiro 
E lizabeth 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



I N D E X

Opinions B elow ..... .......... ............. ...... ................ ...............  1

Jurisdiction ... ................. ..... ........... ................... -............... 2

Constitutional Provision and Statute Involved .............  2

Questions Presented for Review ....................................... 3

Statement of the C ase........................................................  4

Summary of A rgument........... ............................................. 10

PAGE

A rgument

I. There Was No Basis In Fact For the Denial to
Petitioner of a Conscientious Objector Exemption 14

A. The Finding By The Department of Justice
That. Petitioner’s Beliefs Were Primarily Po­
litical and Racial Was Erroneous and Consti­
tuted a Violation of the First Amendment.......  14

B. The Department of Justice’s Conclusion That 
Petitioner Was Not Opposed To Participation 
in War in Any Form is in Conflict With This 
Court’s Decision in Sicurella v. United States, 
is Based Upon a Constitutionally Impermis­
sible Interpretation of Religious Doctrine, and 
Improperly Relies Upon Petitioner’s Objection
to the Vietnam War ........... ........... .......................  22

1. Petitioner’s Objections to Participation in
War ...................................................................  23

2. The Teachings of the Nation of Islam ....... 28

3. The Vietnam War ......................... ............ . 36



IX

C. The Department of Justice Erred in Conclud­
ing that Petitioner Had Failed to Sustain the 
Burden of Establishing the Sincerity of His 
Claim by Virtue of the Lateness of its Assser- 
tion and the Fact that He Asserted Other Con­
sistent Claims For Exemptions at the Same 
Time ............................ ...........................................  39

II. Petitioner’s Conviction Must Be Reversed If The 
Department of Justice’s Advice Was Erroneous 
With Respect to Any One of the Grounds Upon 
Which It Recommended That Petitioner Be De­
nied a Conscientious Objector Exemption............. 46

Conclusion ...............................       50

Cases :

Abington v. School District of Schempp, 374 U.S. 203
(1963) ...............................................................................  19

Muhammad Ali v. State Athletic Commission, 316 
F. Supp. 1246 (S.D. N.Y. 1970) ....................................  20

Banks v. Havener, 224 F. Supp. 27 (E.D. Va. 1964) .....  16
Bates v. Commander, First Coast Guard District, 413

F.2d 475 (1st Cir. 1969) ..............................................  38
Brady v. Maryland, 373 U.S. 83 (1963) ......... ...............  7

Capobianco v. Laird, 424 F.2d 1304 (2d Cir. 1970) .......  44
Carson v. United States, No. 398, O. T. 1969 ...............  18
Carson v. United States, 411 F.2d 631 (5th Cir. 1969),

cert, denied, 396 U.S. 865 (1969) ................................. . 18
Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967) ................. 15

Epperson v. Arkansas, 393 U.S. 97 (1968) ....................  19

Founding Church of Scientology v. United States, 409 
F.2d 1146 (D.C. Cir. 1969)

PAGE

35



I ll

Fowler v. Rhode Island, 345 IT.S. 67 (1953)...................19, 20
Fulwood v. Clemmer, 206 F. Supp. 370 (D. D.C. 

1962) ......................................................................... ..... 16,20

Gillette v. United States, No. 85 O.T. 1970 ................... 37
Gonzales v. United Stales, 364 U.S. 59 (1960) ...............  7
Gordano v. United States, 394 U.S. 310 (1969) ............... 9

Kessler v. United States, 406 F.2d 151 (5th Cir. 1969) .. 38 
Knuckles v. Prasse, 302, F. Supp. 1036 (E.D. Pa. 1969) 16
Kretchet v. United States, 284 F.2d 561 (9th Cir. 1960) 47

Long y . Parker, 390 F.2d 816 (3rd Cir. 1968)................. 16

Marsh v. Alabama, 362 U.S. 501 (1946)  ........................ 20

Negre v. Larsen, No. 325, O.T. 1970 ............................. . 37
Niznik v. United States, 173 F.2d 328 (6th Cir. 1949) .... 20

Presbyterian Church v. Mary Elizabeth Blue Hull 
Church, 393 U.S. 440 (1969)....... ........... ............... 12,30,35

SaMarion v. McGinnis, 253 F. Supp. 738 ( W.D. N.Y.
1966) ...............................................      16

Scott v. Commanding Officer, 431 F.2d 1132 (3rd Cir.
1970) .......................................     48

Sewell v. Pegelow, 391 F.2d 196 (4th Cir. 1961)........... 16
Shepherd v. United States, 217 F.2d 942 (9th Cir.

1954) .......        33
Sherbert v. Verner, 374 U.S. 398 (1963)..........................  19
Sieurella v. United States, 348 U.S. 385 (1955) .......3,12, 27,

28, 33, 46
Sostre v. McGinnis, 334 F.2d 906 (2nd Cir. 1964) .......  15

Taffs v. United States, 208 F.2d 329 (8th Cir. 1953), 
cert, denied, 347 U.S. 928 (1954) .............................. 33,44

United States v. Abbot, 425 F.2d 910 (8th Cir. 1970) .... 48 
United States v. Ballard, 322 U.S. 78 (1944) ........... 21, 29, 35

PAGE



IV

United States ex rel. Barr v. Resor, 309 F. Supp. 917
(D. D.C. 1969) .................................. ............................... 16

United States v. Bornemann, 424 F.2d 1343 (2d Cir.
1970) .............................................. ...........................39,40,43

United States v. Bova, 300 F. Supp. 936 (E.D. Wis.
1969) .................................................................................  49

United States v. Broyles, 423 F.2d 1299 (4th Cir.
1970) ..........................................................   ....40,42,44,48

United States v. Corliss, 280 F.2d 808 (2d Cir. 1960),
cert, denied, 364 U.S. 884 (1960) ..................................  45

United States v. Cummins, 425 F.2d 646 (8th Cir.
1970) ..............................................   37,38,44

United States v. Freeman, 388 F.2d 246 (7th Cir. 1967) 16
United States v. Englander, 271 F. Supp. 182 (S.D.

N.Y. 1967) ....................................................................... 40, 48
United States v. Gearey, 368 F.2d 144 (2d Cir. 1966),

cert, denied, 389 U.S. 959 (1967) ................................... 40
United States v. Haughton, 413 F.2d 736 (9th Cir.

1969) ..........................................................................32,38,48
United States v. Hesse, 417 F.2d 141 (8th Cir. 1969) .... 45 
United States v. Jakobson, 325 F.2d 409 (2d Cir. 1963) 

aff’d sub nom. United States v. Seeger, 380 U.S. 163
(1965) ...............................................................................  48

United States v. Kauten, 133 F.2d 703 (2d Cir. 1943).... 17 
United States v. Kuch, 288 F. Supp. 439 (D. D.C. 1969) 35
United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970) 48
United States v. Macintosh, 283 U.S. 605 (1931).............. 14
United States v. Owen, 415 F.2d 383 (8th Cir. 1969) ....23, 32,

33,44, 45
United States v. Peebles, 220 F.2d 114 (7th Cir. 1955) 44
United States v. Pence, 410 F.2d 557 (8th Cir. 1969) .... 38 
United States v. Prince, 310 F. Supp. 1161, 1165 (D.

Me. 1970) .......        38
United States v. Purvis, 403 F.2d 555 (2d Cir. 1968)....7, 33

PAGE



V

United States ex rel Barr v. Resor, 309 F. Supp. 917

PAGE

(D. D.C. 1969) .................................................................. 15
United States v. Rutherford,------F .2d -------- (8th Cir.

No. 20,137, Feb. 3, 1971) .............................................. 43
United States v. Seeger, 380 U.S. 163 (1965) .....15,17,19,

23.29
United States v. Simmons, 213 F.2d 901 (7th Cir.

1954), rev’d on other grounds, 348 U.S. 453 (1955) .... 23 
United States v. St. Clair, 293 F. Supp. 337, 344 (E.D.

N.Y. 1968) ................................................................. 23, 38, 48
United States v. Washington, 392 F.2d 37 (6th Cir. 

1968) ............................. ................................................. . 48

Walker v. Blackwell, 411 F.2d 23 (5th Cir. 1969) ........... 15
Wallace v. Brewer, 315 F. Supp. 431 (M.D. Ala.

1970)  ................................. ...................................... 16,20,21
Washington Ethical Society v. District of Columbia,

101 U.S. App. D.C. 371, 249 F.2d 127 (1957) ............... 19
Welsh v. United States, 398 U.S. 333 (1970)...... 10,15,16,

23.29
West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943).......................................................... 20
Witmer v. United States, 348 U.S. 375 (1955) ............... 45

Ypparila v. United States, 219 F.2d 465 (10th Cir. 1954) 48 

Other A uthorities :

Maulana Muhammad Ali, Translation of the Holy 
Qur’an 2 :190, 2 :191, 2 :216, 2 :217 and commentary at 
pp. 80-81, notes 238, 239, pp. 90-91, note 277 (5th ed. 
1963) ......................................... ........... ............................ 31

E. U. Essien-Udom, Black Nationalism, 308-323 
(Paperback edition 1969) ................................... ........ 20, 36



VI

B. E. Garnett, “ Invaders from the Black Nation: The 
Black Muslims in 1970” , Special Report, Race Rela­
tions Information Center, Nashville, Tenn. (1970) ..15, 36

Hearings on Appropriations for the Judiciary and Re­
lated Agencies, Department of Justice, Before the 
Subeomm. on Departments of State, Justice and 
Commerce, 89th Cong., 1st Sess. at 320 (1965); 2d 
Sess. at 256 (1966); 90th Cong. 1st Sess. at 622 
(1967); 2d Sess. at 543 (1968); 91st Cong. 1st Sess. 
at 542 (1969) ............................ ................... ...................  21

C. E. Lincoln, The Black Muslims in America, 205,
219 (1961) ................................................................. 15,17, 36

E. Litt, Ethnic Politics in America, 89-91 (1970) .......  36

Elijah Muhammad, Message to the Blackman in 
America, 163,180 (1965) (Exhibit D to Special Plear­
ing, A. 41a )..................................................................... 17, 30

PAGE

Statutes:

32 C.P.R. §1623.2 .................................................................  43

32 C.P.R. §1625.1 .................................................................  43

Omnibus Crime Control and Safe Streets Act of 1968 
(18 U.S.C. §§2510 et seq.) ..............................................  21

United States Code

28 U.S.C. §1254(1) .........................................................  2

Universal Military Training and Service Act, Section 
6 (j), 50 U.S.C. App. §456(j) .............2, 4,10,18, 22, 27, 29



I n  the

§>uprm? ©oitrt of tlto lluitrii
October Term, 1970

No. 783

Cassius Marsellus Clay, J e., 
also known as Muhammad Ai/i,

—v.—
Petitioner,

U nited States op A merica

BRIEF FOR PETITIONER

Opinions Below

The opinion of the Court of Appeals for the Fifth 
Circuit is reported at 430 F.2d 165 and is set out in the 
Appendix (A. 236a). The opinion of the United States 
District Court for the Southern District of Texas is un­
reported (R.P. Vol. I, 50-59).*

The opinion of the Court of Appeals at an earlier stage 
of this case is reported at 397 F.2d 901 (A. 191a). Peti­
tioner was originally convicted upon trial by jury in the 
United States District Court for the Southern District of 
Texas, and no opinion exists with respect to that conviction. 
The District Court denied petitioner’s motion for acquittal

* “R.P.” refers to the record of the proceedings in the District 
Court pursuant to the order of this Court in No. 271, O.T. 1968 
remanding the case for a determination of whether illegal electronic 
surveillance of petitioner tainted his conviction. It consists of 
three volumes of the printed Appendix from the Court of Appeals.



2

after an oral finding of a basis in fact for petitioner’s 
selective service classification (A. 186a).

Jurisdiction

The judgment of the Court of Appeals was entered on 
July 6, 1970 and a timely petition for rehearing and re­
hearing en banc was denied on August 19, 1970. Petitioner’s 
time within which to file a petition for writ of certiorari 
was extended until October 3, 1970 and the petition was 
filed on October 1,1970. Certiorari was granted on January 
11, 1971. The jurisdiction of this Court is invoked under 
28 U.S.C. §1254(1).

Constitutional Provision and Statute Involved

The First Amendment to the United States Constitution 
provides in part:

“ Congress shall make no law respecting an establish­
ment of religion, or prohibiting the free exercise 
thereof; . . . ”

Section 6 (j) of the Universal Military Training and 
Service Act, 50 U.S.C. App. §456(j), provides:

“Nothing contained in this title . . . shall be construed 
to require any person to be subject to combatant train­
ing and service 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. Eeligious training and belief in this con­
nection means an individual’s belief in a relation to a 
Supreme Being involving duties superior to those aris­
ing from any human relation, but does not include 
essentially political, sociological, or philosophical views



3

or a merely personal moral code. Any person claiming 
exemption from combatant training and service be­
cause of such conscientious objections . . . shall, if lie 
is inducted into the armed forces . . .  be assigned to 
noncombatant service as defined by the President, or 
shall, if he is found to be conscientiously opposed to 
participation in such noncombatant service, in lieu of 
induction, be ordered . . .  to perform . . . civilian work 
contributing to the maintenance of the national health, 
safety, or interest . . .”

Questions Presented for Review

1. Whether petitioner’s conviction for refusal to submit 
to induction into the Armed Forces should be reversed 
because there was no basis in fact for the denial of his 
claim for a conscientious objector exemption! This ques­
tion subsumes the issues:

(a) Whether the finding by the Department of Justice 
that petitioner’s beliefs were primarily “political 
and racial” rather than “ religious” was erroneous 
and violated petitioner’s religious freedom?

(b) Whether the Department of Justice’s conclusion 
that petitioner was not opposed to “participation 
in war in any form” is in conflict with this Court’s 
decision in Sicurella v. United States, 348 U.S. 385 
(1955), is based upon a constitutionally imper­
missible interpretation of religious doctrine, and 
improperly relies upon petitioner’s objection to 
the Vietnam war?

(c) Whether the Department of Justice erred in con­
cluding that petitioner had failed to sustain the 
burden of establishing the sincerity of his claim 
by virtue of the lateness of its assertion and the



4

fact that he asserted other consistent claims for 
exemption at the same time?

2. Whether petitioner’s conviction must be reversed be­
cause the Department of Justice’s advice was erroneous 
with respect to at least one of the grounds upon which it 
recommended that petitioner should he denied a conscien­
tious objector exemption?

Statement of the Case

After a jury trial in the United States District Court 
for the Southern District of Texas, petitioner was con­
victed on June 20, 1967 of failing to submit to induction 
into the armed forces in violation of 50 U.S.C. App. §462. 
He was sentenced to five years imprisonment and a fine of 
$10,000. He had been indicted on May 8, 1967 for his re­
fusal on April 28, 1967 to take the traditional “ one step 
forward” which symbolizes induction into the armed forces.

Petitioner originally registered with Local Board No. 47 
in Louisville, Kentucky on April 18, 1960 and on March 9, 
1962 the board classified him 1-A (A. 3a). As a result of 
physical examinations which found him unacceptable for 
induction on January 24, 1966 and again on March 13, 
1964 (P. 538, 539),* petitioner was classified 1-Y on March 
26, 1964 (A. 3a). But, because of an apparent lowering 
of the Army’s standard for induction (P. 530), petitioner’s 
file was reexamined and without a further physical ex­
amination he was found fully acceptable for induction on 
January 26, 1966 (F. 529). The local board mailed peti­

* “F.” refers to the page number of petitioner’s Selective Ser­
vice File, Government Exhibit No. 1 at the original trial (R. 139). 
“R.” refers to the printed record of petitioner’s trial originally 
filed in this Court in No. 271, O.T. 1968.



5

tioner notice of his acceptability on February 3, 1966 
(A. 3 a ); he did not receive it, however, until February 12, 
1966 (A. 11a).

In a letter dated February 14, 1966, petitioner sent to 
his local board what he referred to as a “ request for pre­
classification hearing” (A. 9a). He set forth certain in­
formation which he considered relevant to an expected re­
classification, including his recent divorce and property 
settlement, the fact that he was the sole support of his 
mother, and the pendency of a criminal charge against him 
in Chicago. In addition, he stated:

“That I am a devoit [sic] Muslim and a follower of the 
Islamic religious faith under the discipline of the 
prophet Elijah Muhammad. To bear arms or kill is 
against my religion and I conscientiously object to any 
combat military service that involves the participation 
in any war in which the lives of human beings is [sic] 
taken. This I do not believe to be rightous [sic]. This 
has been my faith upwards of 5 years” (A. 10a).

Three days later on February 17, 1966, however, the 
local board reclassified petitioner 1-A (A. 4a). Only on 
February 18,1966 did the board respond to the information 
contained in petitioner’s letter of February 14th by send­
ing him a Special Form for Conscientious Objector (SSS 
Form No. 150 (A. 4a)). In the form, which he returned 
to the board on February 28, 1966, petitioner claimed an 
exemption on the basis of his conscientious opposition to 
both combatant and noncombatant training and service in 
the armed forces (A. 12a). He avowed his belief in a 
Supreme Being and briefly described his religious beliefs 
and duties a s :

“ Muslim—meaning peace—total submission to Will of 
Allah. Do not take lives of anyone; nor war when not



6

ordered by Allah (God)—Keep up prayer and pay 
poor rates (A. 13a).

* # *
“Islam teaches peace. Allah (God) forbids wars, except 
when Islam is attacked. Holy Quran” (A. 15a).

He dated his conversion to Islam as January, 1964, by 
confession of faith in Miami, Florida (A. 15a), and in 
answer to the question concerning what behavior in his 
life demonstrated the depth of his religious convictions, 
he explained that:

“I divorced my wife whom I loved because she wouldn’t 
conform to my Muslim faith. Gave up my Christian 
name, and changed my name to Muhammad Ali, my 
religious name. Declined movie roles not consistent 
with my faith” (A. 14a).

He also stated that he believed in the use of force “ only 
in sports and self-defense” (A. 14a).

The record of petitioner’s appearance before the local 
board on March 17,1966 reports that he stated that Muslims 
fight only in self defense, not war; that they have their 
own police force, and that no Muslim may carry any lethal 
weapon. The statement in this report that petitioner “ ob­
jects to being in service because he has no quarrel with the 
Yiet Cong,” is immediately followed by the statement that 
“he could not, without being a hypocrit [sic], take part in 
anything such as war or anything that is against the Moslim 
[sic] religion” (A. 18a).

The board retained petitioner in class 1-A on March 17, 
1966 and on March 28, 1966 he appealed its decision. 
(A. 4a). In his letter of appeal he asserted that he was 
entitled to a lower classification on medical grounds, for 
hardship reasons, and because “my religious beliefs decree



7

that I not serve in any military purpose to promote war. 
I reaffirm my stand thereon as my prior duty to Allah 
(God) the Supreme Being over all.” (A. 21a).

On May 6,1966 the Kentucky appeal board reviewed peti­
tioner’s file, tentatively determined that he should not be 
classified in class 1-0 as a conscientious objector or in 
any lower class, and referred the file to the Department 
of Justice for an advisory recommendation and an FBI 
investigation (A. 4a-5a, F. 472). After the completion of 
the investigation, a special hearing was held on August 
23, 1966 before former Kentucky Circuit Court Judge 
Lawrence Grauman in Louisville, Kentucky, at which peti­
tioner, his mother and father, his tax attorney, and an 
assistant minister of Muhammad’s Mosque No. 29 of Miami, 
Florida, testified (A. 22a-llla).

On the basis of this record, the hearing officer reported:

“that the registrant stated his views for about one hour 
in a convincing manner; that he answered all questions 
propounded to him forthrightly; that there was no 
evidence of trying to evade . . . questions; and that he 
was impressed by the registrant’s statements (A. 115a). 
. . . [He] believed that . . . the registrant was of good 
character, morals and integrity (A. 116a) . . . [and] 
concluded that the registrant is sincere in his objec­
tions on religious grounds to participation in war in 
any form and he recommended that the conscientious 
objector claim of the registrant be sustained” (A. 117a- 
118a).1

1 This report was never disclosed to petitioner or even made 
available to the appeal board even though it strongly supports his 
claim for exemption. Cf. Brady v. Maryland, 373 U.S. 83 (1963) ; 
Gonzales v. United States, 364 U.S. 59 (1960) ; United States V. 
Purvis, 403 F.2d 555 (2d Cir. 1968).



8

Despite this completely favorable report, however, the 
Department of Justice, in a letter to the appeal board from 
T. Oscar Smith, Chief of the Conscientious Objector Section, 
dated November 25, 1966, found that petitioner’s conscien­
tious objector claim was not sustained and recommended 
that he not be classified in class 1-0 or in class 1-A-O as a 
conscientious objector to either noncombatant or combatant 
service (A. 127a). The Department rejected the claim on 
the ground that petitioner’s beliefs did not satisfy the statu­
tory requirements that they be based on “religious training 
and belief” and that they constitute objection “to participa­
tion in war in any form.” It characterized petitioners’ 
beliefs, based on the teachings of the Nation of Islam, as 
“political and racial” rather than religious; and concluded 
that petitioner did not oppose participation in all wars, but 
was only opposed to wars on behalf of the United States 
(A. 121a), and to the Vietnam war in particular (A. 124a). 
The Department also asserted that petitioner had failed to 
sustain his burden of showing that his beliefs were sincere 
because of his alleged failure to consistently manifest his 
conscientious objector claim (A. 127a).

On the basis of this recommendation, but without setting 
forth any reasons, the Kentucky appeal board classified 
petitioner 1-A on January 6, 1967 (F. unnumbered). After 
the return of his file from the appeal board, on January 12, 
1967, the local board refused to reopen petitioner’s classifi­
cation and reclassify him to IV-D as a minister of Islam 
pursuant to his request of August 23, 1966 (A. 5a) At the 
request of the National Selective Service Director Hershey, 
however, on January 19, 1967 the board reopened peti­
tioner’s classification but again classified him 1-A (A. Sa­
ba). Petitioner appealed to the appeal board for the South­
ern District of Texas (where he then resided) which, on 
February 15, 1967, affirmed his 1-A classification (F. un­
numbered).



9

General Hershey appealed petitioner’s classification to the 
National Selective Service Appeal Board which voted to 
classify petitioner 1-A on March 6, 1967 (A. 7a). Petitioner 
was ordered to report for induction on April 28, 1967, at 
which time he refused to submit.

At the subsequent trial, the District Court denied peti­
tioner’s motion for acquittal on the ground that there was 
a basis in fact for the denial of his claims for ministerial 
and conscientious objector exemptions. With respect to 
petitioner’s conscientious objector claim, the court merely 
concluded:

“I don’t think he [petitioner] has said in so many words, 
‘I am an [sic] conscientious objector, I do not believe 
in killing or bearing arms and therefore I want to be 
assigned to noncombatant duty or to work of national 
importance under civilian direction” ’ (A. 190a).

On appeal, the Fifth Circuit quoted the passage from the 
Department of Justice’s recommendation concerning the 
“political and racial” nature of the teachings of the Nation 
of Islam and the alleged objection only to certain wars; it 
quoted at length from what it termed “ a penetrating anal­
ysis of the beliefs of the Black Muslims” which emphasized 
their allegedly anti-white, anti-Christian and segregationist 
philosophy; and it pointed out that the Justice Department- 
had found that petitioner had not established the sincerity 
of his beliefs. Without further analysis, it found that “ there 
was more than adequate evidence to justify the denial of his 
claim” (A. 227a).

A petition for certorari was filed in this Court on July 7, 
1968. As a result of the Solicitor General’s admission that 
five conversations of petitioner had been monitored by elec­
tronic surveillance, on March 24, 1969 this Court granted 
the petition for certiorari, vacated the Court of Appeals’



10

judgment, and remanded the case to the District Court for 
a determination of the effect of the surveillance on peti­
tioner’s conviction. Giordano v. United States, 394 U.S. 
310 (1969).

The District Court held that petitioner’s conviction had 
not been tainted, and on July 24, 1969 it entered a new 
judgment of conviction and resentenced him to five years’ 
imprisonment and a $10,000 fine (A. 2a). On his second ap­
peal to the Fifth Circuit, petitioner raised again all of the 
issues which had been decided against him on the first ap­
peal, including the denial of the conscientious objector 
exemption. The Court declined to reconsider its prior de­
cision, with the exception, however, of determining that the 
decision in Welsh v. United States, 398 U.S. 333 (1970) did 
not affect its disposition of petitioner’s conscientious ob­
jector claim (A. 249a).

SUMMARY OF ARGUMENT 

I
In order to support a claim for a conscientious objector 

exemption under §6(j) of the Universal Military Training 
and Service Act (hereafter referred to as the “Act” ), a 
registrant is required to meet three basic tests. He must 
demonstrate that he is conscientiously opposed to partici­
pation in all wars; that this opposition is by reason of re­
ligious training and belief; and that he is sincere in his 
beliefs.

Petitioner was denied such an exemption in the present 
case as a result of a decision by a Selective Service board2

2 After the Department’s adverse recommendation, petitioner 
was classified 1-A by the appeal board for the Western District of 
Kentucky on January 6, 1967 (P. unnumbered), by Local Board 
No. 47 on January 19, 1967 (A. 5a-6a), by the appeal board for



11

which, did not give any reason for its rejection of his 
claim. Bixt the advisory opinion from the Department of 
Justice upon which this board relied, recommended that 
petitioner’s claim be denied because of its failure to satisfy 
any of the statutory criteria. All of the Department of 
Justice’s conclusions, however, were clearly erroneous and 
they cannot support the denial by the appeal board of 
a conscientious objector exemption to petitioner. Since 
there is no other basis in fact in the record for the denial 
of the exemption, petitioner’s conviction should be reversed 
and the indictment dismissed.

The Department of Justice rejected the findings of the 
hearing officer that petitioner “is sincere in his objection 
on religious grounds to participation in war in any form” 
(A. 117a-118a). Indeed, it asserted that petitioner’s beliefs 
did not satisfy the statutory requirements because they 
“ rest on grounds which primarily are political and racial 
. . . [and] constitute only objections to certain types of war 
in certain circumstances . . .” (A. 122a-123a).

Petitioner submits that the Justice Department erred in 
its conclusion with respect to both the source and the 
content of his beliefs. Since the Nation of Islam clearly 
constitutes a religion within the meaning of the Act, the 
implicit determination that petitioner’s beliefs were not 
“ religious” was erroneous. The refusal to recognize that

the Southern District of Texas on February 15, 1967 (F. unnum­
bered), and by the National Appeal Board on March 6, 1967 
(A. 7a). Presumably, each classification insofar as petitioner’s 
conscientious objector claim was concerned was based upon a re­
view of the same evidence. For the purpose of our consideration 
here, it is immaterial that there was more than one denial of the 
exemption after the Justice Department’s recommendation. If the 
Department’s advice was erroneous, it is as likely to have infected 
all of the decisions as it would only one decision. Consequently, 
for convenience we will refer only to the denial of the exemption 
by the Kentucky appeal board.



12

the Nation of Islam is a religion under the Act also 
affronted the First Amendment’s guarantee of religious 
freedom. Adherence by a registrant to unpopular “political 
and racial” doctrines as part of his religious beliefs cannot 
constitutionally provide the basis for discriminating 
against him with respect to the statutory exemption.

The conclusion that the contents of petitioner’s views on 
war did not qualify him for the exemption was equally de­
fective. Since the only war which the record reflects that 
petitioner was willing to participate in was a theocratic or 
holy war, the Department’s conclusion that he was not 
opposed to participation in all war is in conflict with this 
Court’s decision in Sicurella v. United States, 348 U.S. 385 
(1955). Since it is the registrant’s views on war that are 
central to his entitlement to the exemption, it was error 
for the Department of Justice to consider the doctrines of 
petitioner’s religion in the face of his own unequivocal ob­
jection to participation in all wars. However, the doc­
trines of the Nation of Islam are perfectly consistent with 
petitioner’s beliefs in that they prohibit participation in 
all war except theocratic war. The Department’s contrary 
conclusion was based on an interpretation of the meaning 
and significance of religious doctrines that is forbidden by 
the First Amendment and is in conflict with this Court’s 
decision in Presbyterian Church v. Mary Elisabeth Blue 
Hull Church, 393 U.S. 440 (1969). And to the extent that 
the Department relied on petitioner’s expression of opposi­
tion to the Vietnam war to support its conclusion that 
petitioner merely objected to participation in a particular 
war, it also erred. Opposition to the war in Vietnam is 
consistent, rather than inconsistent, with conscientious ob­
jection to all armed conflict.

Finally, in its recommendation to the appeal board the 
Justice Department erroneously implied that petitioner



13

could not, as a matter of law, meet his burden of establish­
ing his sincerity because of the lateness of the filing of his 
claim. It was also error for the Department to maintain 
that the appeal board could even consider lateness as evi­
dence from which it could draw an inference of insincerity. 
Petitioner was not required to bring his claim to the atten- 
of his local board any sooner than he did because he was 
unacceptable for induction for virtually the entire period 
from when his conscientious objections to war crystallized 
until when he did assert the claim. Petitioner’s persuasive 
and fully corroborated explanation of why he did not file 
his claim until February, 1966, moreover, completely rebuts 
any inference of insincerity. And the fact that petitioner 
simultaneously sought several exemptions for different, 
but not inconsistent, reasons is totally irrelevant to the 
sincerity with which he asserted his conscientious objector 
claim.

II

Since no reason was provided by the appeal board for 
the denial of a conscientious objector exemption to peti­
tioner, it is impossible to determine whether it concluded 
that petitioner’s beliefs did not satisfy the statutory re­
quirements because they were not “religious,” because they 
did not constitute objections to all wars, or because they 
were not sincerely held. Inasmuch as petitioner clearly 
made out a prima facie case of his entitlement to the ex­
emption, if any of the Department of Justice’s advice upon 
which the appeal board may have relied was erroneous, his 
conviction must be reversed. The integrity of the Selective 
Service System can only be maintained if courts do not 
blindly endorse draft board decisions that are based upon 
errors of law. And serious criminal convictions cannot be 
supported by determinations so fraught with doubt.



14

ARGUMENT

I.

There Was No Basis In Fact For the Denial to Peti­
tioner of a Conscientious Objector Exemption.

A. The Finding By The Department of Justice That 
Petitioner’s Beliefs Were Primarily Political and 
Racial Was Erroneous and Constituted a Viola­
tion of the First Amendment.

That petitioner’s opposition to war was the result of 
“ religions training and belief” within the meaning of §6(j) 
of the Act cannot be doubted. It was never open to question 
that petitioner’s beliefs were based on the doctrines of 
the Lost Found Nation of Islam, and it is clear that the 
Nation of Islam is a religion within the traditionally ac­
cepted meaning of that term. In the language of Chief Jus- 
tice Hughes in United States v. Macintosh, 283 U.S. 605 
(1931):

“ The essence of religion is belief in a relation to God 
involving duties superior to those arising from any 
human relation” (283 U.S. at 633-34) (dissenting 
opinion).

And, in Welsh v. United States, 398 U.S. 333 (1970), after 
a careful analysis of the legislative history, Justice Harlan 
concluded that religion within the meaning of §6(,j) meant 
at least the “ formal organized worship or shared beliefs by 
a recognizable and cohesive group” (398 U.S. at 353) (con­
curring opinion).

It is unnecessary to belabor the point that the Nation of 
Islam falls within either of these conventional definitions, 
both of which are far narrower than the definitions or reli­



15

gion endorsed by this Court in both Welsh and United 
States v. Seeger, 380 U.S. 163 (1965). It is based on a belief 
in Allab as the Supreme Being, and the Koran or Holy 
Qur’an is the chief source of its dogma. The religious 
doctrines and rituals of the members of the Nation, also 
known as Muslims or Black Muslims, are derived largely 
from classical Islam, but their beliefs on certain funda­
mental points have clearly been shaped by the experience 
of the Black man in the United States.3 Despite certain 
wide departures from the traditions of orthodox Islam, 
however, Elijah Muhammad, the Nation’s spiritual leader, 
was welcomed to Mecca in 1960 by the powerful Hajj Com­
mittee, which is responsible for accepting or rejecting 
pilgrims journeying to the Holy City.4

Consistent with this country’s tradition of religious toler­
ance, courts have not hesitated to recognize the Nation of 
Islam as a valid religion that is entitled to the same con­
stitutional protection accorded to other religious move­
ments.5 As one federal court concluded:

“It is sufficient here to say that one concept of religion 
calls for a belief in the existence of a supreme being

3 C. E. Lincoln, The Black Muslims in America 219 (1961) [here­
after cited as Lincoln]. The Nation’s formal organization can be 
traced to the early 1930s in Chicago, but its spiritual roots probably 
lie in the Moorish Science Temple Movement of Noble Drew Ali 
and the United Negro Improvement Association of Marcus Garvey, 
both of which flourished after World War I. Id. at 50. Ever 
since the early years of the movement Elijah Muhammad, known 
as the “Prophet” and the “Messenger of Allah,” has been its 
spiritual leader. Under his guidance, the membership of the Na­
tion of Islam has increased to what was conservatively estimated 
at 100,000 in 1961, with more than fifty temples in major cities 
from coast to coast. Id. at 217.

4 B. E. Garnett, “ Invaders from the Black Nation: The Black 
Muslims in 1970,” p. 12, Special Report, Race Relations Informa­
tion Center, Nashville, Tenn. (1970).

5 See Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967); Walker v. 
Blackwell, 411 F.2d 23 (5th Cir. 1969); Sostre v. McGinnis, 334



16

controlling the destiny of man. That concept of reli­
gion is met by the Muslims in that they believe in 
Allah, as a supreme being and as the one true god. It 
follows, therefore, that the Muslim faith is a religion” 
(Fulwood v. Clemmer, supra, 206 F. Supp. at 373).

Yet, faced with the overwhelming evidence that the Na­
tion of Islam is a religion as well as with the conclusion 
of the hearing officer that petitioner’s opposition to war 
■was a result of “ religious training and belief,” the Depart­
ment of Justice concluded that petitioner’s opposition to 
war “ insofar as it is based on the teachings of the Nation 
of Islam rests on grounds which primarily are political 
and racial” (A. 122a). In light of the fact that §6(j) ex­
pressly denies an exemption to registrants whose views 
on war are “ essentially political, sociological or philosoph­
ical,” there can be no doubt the appeal board would con­
clude that it was the Justice Department’s opinion that 
petitioner should be denied an exemption because Ms views 
were “primarily political and racial.” 6

Read as a whole, the Justice Department opinion letter 
and the resume of the FBI investigation reinforce the con­
clusion that the Department wTas of the view that petitioner’s

F.2d 906 (2nd Cir. 1964) ; Sewell v. Pegelow, 391 F.2d 196 (4th 
Cir. 1961) ; Long v. Parker, 390 F.2d 816 (3rd Cir. 1968); Wallace 
v. Brewer, 315 F. Supp. 431 (M.D. Ala. 1970) ; Knuckles v. Prasse, 
302 F. Supp. 1036 (E.D. Pa. 1969); SaMarion v. McGinnis, 253 
F. Supp. 738 (W.D. N.Y. 1966); Banks v. Havener, 224 F. Supp. 
27 (E.D. Va. 1964); Fulwood v. Clemmer, 206 F. Supp. 370 (D. 
D.C. 1962) cf. United States v. Freeman, 388 F.2d 246 (7th Cir. 
1967); United States ex rel. Barr v. Besor, 309 F. Supp. 917 (D. 
D.C. 1969).

6 This was especially true before this Court made it clear in 
Welsh v. United States, 398 U.S. 333 (1970) that opposition to war 
that is based on political views or other beliefs that are nonreligious 
in the conventional sense does not automatically defeat a reg­
istrant’s claim for exemption.



17

claim should be denied because it was not “ religious.” 
First, United States v. Kauten, 133 F.2d 703 (2d Cir. 1943) 
is the only case cited by the Department in support of its 
determination that petitioner’s beliefs did not satisfy the 
statutory requirements (A. 123a). As this Court recog­
nized in United States v. Seeger, 380 U.S. 163 (1965), 
Kauten was a case which held “that exemption must 
be denied to those whose beliefs are political, sociological 
or philosophical in nature, rather than religious” (380 U.S. 
at 178). Secondly, the Department did not refer to the 
Nation of Islam as a religion anywhere in the opinion let­
ter. Not only did it studiously ignore any acknowledgement 
of the conventional religious aspects of the Nation, but it 
emphasized what it obviously considered its nonreligious 
characteristics. Thus, it characterized the teachings of the 
Nation of Islam as “political and racial objections to pol­
icies of the United States as interpreted by Elijah Muham­
mad” (A. 121a), and it pointed out that the essential views 
of the Black Muslims are “that the white man is their 
enemy, and that the black man should disassociate him­
self from the United States Government and its institutions 
and secure an independent nation for the black man within 
the United States” (A. 120a-121a). Finally, the discussion 
of the doctrines of the Nation of Islam contained in the FBI 
resume mentioned only its allegedly anti-white attitude, 
the fact that some of its members have refused to register 
under the Selective Service Act, the existence of a “mil­
itary-like” organization known as the Fruit of Islam, and 
the erroneous report that Muslims disclaim allegiance to 
the United States (A. 151a-152a).7

7 Muslims are directed to respect and obey the laws of the United 
States (A. 37a). See also Elijah Muhammad, Message to the Black­
man in America, 163, 180 (1965) (Exhibit D to Special Hearing, 
A. 41a). It has been observed that Muslims are scrupulous in this 
obedience. Lincoln, at 248.



18

Indeed, on at least one occasion the Justice Department 
at its highest level has explicitly taken the position that 
the Nation of Islam is not a religion within the meaning 
of §6(j) of the Act. Thus, in his memorandum in opposi­
tion to the grant of certiorari in Carson v. United States, 
No. 398, O.T. 1969, the Solicitor General argued that a 
local hoard could properly deny a conscientious objector 
claim that was based on the teachings of the Nation of Islam 
because the registrant’s “ alleged opposition to war was not 
based on ethical principles but on essentially political 
views” (Memorandum for the United States in Opposition, 
p. 2). And in affirming that registrant’s conviction the 
Fifth Circuit evidently accepted the Department’s argu­
ment for it concluded that his beliefs “ reflect an opposition 
to war which smacks of being essentially political, rather 
than religious . . . ” Carson v. United States, 411 F.2d 631, 
633 (5th Cir. 1969), cert, denied, 396 U. S. 865 (1969).8

The effect of the Department of Justice’s letter, there­
fore, was to recommend that petitioner be denied a con­
scientious objector exemption on the ground that his oppo­
sition to participation in war was not “religious.” Such a 
recommendation was clearly erroneous and cannot support 
the denial of petitioner’s claim because, as we have pointed 
out, the Nation of Islam satisfies the accepted definition 
of religion within the meaning of the Act.

By refusing to recognize the Nation of Islam as a religion 
because of its allegedly “political and racial” teachings,

8 During petitioner’s trial the United States Attorney even re­
marked that petitioner:

“became converted to the Muslim faith in 1964. In my opinion 
that is where his troubles began. This tragedy and the sadness 
of having lost his title and having been convicted of a serious 
felony I think is because of his coming under the influence of 
the Muslim faith in the United States, which is just as much 
political as it is religious” (R. 355).



19

moreover, the Justice Department penalized petitioner be­
cause of what he believed, and it deprived him of the bene­
fits of the statutory exemption afforded to the members of 
all other faiths. In so doing, the Department violated the 
governmental neutrality toward religion that is commanded 
by the First Amendment.

As this Court recently stated in Epperson v. Arkansas, 
393 IT. 8. 97 (1968):

“ Government in our democracy, state and national, must 
be neutral in matters of religious theory, doctrine and 
practice. It may not be hostile to any religion or to 
the advocacy of nonreligion; and it may not aid, foster, 
or promote one religion or religious theory against 
another or even against the militant opposite. The 
First Amendment mandates governmental neutrality 
between religion and religion and religion, and between 
religion and nonreligion” (393 TJ. S. at 103-04).

Thus, the constitutional ideal is “absolute equality before 
the law, of all religions, opinions and sects,”  Abington v. 
School District of Schempp, 374 IT. S. 203, 215 (1963), 
and the Government may not “penalize or discriminate 
against individuals or groups because they hold religious 
views abhorrent to the authorities,” Sherbert v. Verner, 374 
TJ. S. 398 (1963); Fowler v. Rhode Island, 345 U. S. 67 
(1953). Local boards and courts, therefore, may no more 
reject the religious beliefs of a registrant because they 
consider them “political and racial” than they can because 
they consider them “ incomprehensible.” United States v. 
Seeger, 380 IT. S. 163, 194-95 (1965); see Washington 
Ethical Society v. District of Columbia, 101 IT.S. App. D.C. 
371, 249 F.2d 127 (1957).

A central purpose of the First Amendment was to pro­
tect the adherents of unorthodox and unpopular faiths such



20

as petitioner’s from persecution and discrimination at the 
hands of the majority. But on the record in this case, it 
cannot be said that just such persecution did not account 
for the Department’s adverse recommendation and the sub­
sequent denial of petitioner’s conscientious objector claim. 
The Black Muslims have been commonly, although errone­
ously, thought to be a fanatical, extremist, black nationalist 
organization intent upon achieving political separation 
through violence. See E. U. Essien-Udom, Black Nation­
alism 308-323 (Paperback edition 1969). The fear, hatred 
and distrust that it has engendered among white people 
has often resulted in political and religious oppression, 
see e.g., Wallace v. Brewer, 315 P. Supp. 431 (M.D. 
Ala. 1970); Fultvood v. Clemmer, 206 F. Supp. 370 (D.D.C. 
1962); Muhammad Ali v. State Athletic Commission, 316 
F. Supp. 1246 (S.D. N.Y. 1970), that recalls that to which 
the Jehovah’s Witnesses were subjected not long ago. See 
e.g., Marsh v. Alabama, 362 U. S. 501 (1946); Fowler v. 
Rhode Island, supra; West Virginia State Board of Edu­
cation v. Barnette, 319 IT. S. 624 (1943) ;  Nisnik v. United 
States, 173 F.2d 328 (6th Oir. 1949). Indeed, the record in 
this case is replete with evidence of the hostility and re­
sentment that was directed at petitioner both because of 
his race and his religious affiliation.9

The official hostility toward the Muslims has been shared 
by the federal government, which has itself been deeply 
involved in the investigation of the Nation of Islam for

9 The FBI resume, for example, is full of examples of how peo­
ple thought that the Muslims were hatemongers (A. 130a) who had 
brainwashed petitioner (A. 134a) and that petitioner was stupid to 
associate with them (A. 135a). In addition, petitioner’s Selective 
Service file contains hundreds of letters and newspaper articles 
reflecting racial and religious prejudice against him (A. 233a). 
These documents had been sent to the local board and placed in 
petitioner’s file pursuant to regulation (R. 175).



21

many years.10 This investigation has included systematic 
FBI wiretapping and electronic surveillance of the Mus­
lims, and around the clock wiretaps on the phones of 
the Muslim spiritual leader, Elijah Muhammad.11 Indeed, 
Mr. Hoover has called the Muslims “a very real threat to 
the internal security of the Nation,” 12 and the use of wire­
tapping indicates that his conclusion was taken seriously 
by the Attorney General.13 Gf. Wallace v. Brewer, supra, 
315 F. Supp. at 441, 440-50.

In such a context, it is little wonder that the Justice De­
partment, which was at the same time treating the Muslims 
as political terrorists, would conclude that the Nation of 
Islam was not a religion, or that the appeal board would 
rely upon that conclusion to deny petitioner a conscientious 
objector exemption. In United States v. Ballard, 322 U. S. 
78, 87 (1944), Justice Douglas remarked:

“If one could be sent to jail because a jury in a hostile 
environment found those [religious] teachings to be 
false, little indeed would be left of religious freedom”

10 See Testimony of J. Edgar Hoover at the Hearings on Appro­
priations for the Judiciary and Belated Agencies, Department of 
Justice, Before the Subcom. on Departments of State, Justice and 
Commerce, 89th Cong., 1st Sess. at 320 (1965); Id. 2d Sess. at 256
(1966) ; Id. 90th Cong. 1st Sess. at 622 (1967); Id. 2d Sess. at 543 
(1968) ; Id. 91st Cong. 1st Sess. at 542 (1969).

11 Three out of the four logs of illegal surveillances that were dis­
closed to petitioner in the course of the remand proceedings in this 
ease resulted from wiretaps on the phones of Elijah Muhammad 
in Phoenix, Arizona and Chicago, Illinois (A. 238a- 239a).

12 See Hearings, supra note 10, 90th Cong. 1st Sess. at 622
(1967) .

13 Prior to the enactment of the Omnibus Crime Control and Safe 
Streets Act of 1968 (18 U.S.C. §2510 et seq.) wiretapping could 
only be undertaken by federal officers with the express authorization 
of the Attorney General in cases where national security was at 
stake (See Memoranda of Presidents Roosevelt, Truman and John­
son (R.P. Yol. I 16-21)).



22

But that is just what happened to petitioner when the 
Department of Justice denied the validity of his religious 
beliefs, the Selective Service System rejected his consci­
entious objector claim, and the courts below found him 
guilty.

The First Amendment means at the very least that Gov­
ernment cannot, because of a dislike of religious doctrines, 
deny to the followers of one religion what it accords to 
adherents of others. However abhorrent are the beliefs of 
the Black Muslims to the Department of Justice—however 
“political and racial” it considers the sources of their 
doctrines—the Nation of Islam nevertheless constitutes a 
religion within the contemplation of the Act and its mem­
bers are entitled to the benefits of the conscientious ob­
jector exemption. There was no basis in fact, therefore, 
for denial of petitioner’s claim on the ground that his 
opposition to participation in war was not based on “re­
ligious training and belief.”

B. The Department of Justice’s Conclusion That 
Petitioner Was Not Opposed To Participation in 
War in Any Form is in Conflict With This Court’s 
Decision in Sicurella v. United States, is Based 
Upon a Constitutionally Impermissible Interpre­
tation of Religious Doctrine, and Improperly 
Relies Upon Petitioner’s Objection to the Vietnam 
War.

With respect to the substance of petitioner’s objections 
to war, the Justice Department concluded that he did not 
satisfy the requirements of §6(j) because he was only op­
posed to participation in certain types of war in certain cir­
cumstances rather than to war in any form (A. 122a-123a). 
This determination was based entirely upon three consid­
erations: the fact that, in the Department’s view, peti­
tioner had admitted that there were some wars in which



23

lie would participate; the Department’s view that the teach­
ings of the Nation of Islam only precluded participation 
in war on behalf of the United States; and the fact that 
petitioner had expressed the opinion that he could not 
participate in the Vietnam war. As we point out below, 
none of these considerations can support the conclusion that 
petitioner was not opposed “to participation in war in any 
form.” On the contrary, the record convincingly estab­
lishes that petitioner’s convictions with respect to war satis­
fied the statutory test.

1. Petitioner’s Objections to Participation in War.

"VVe start with the premise that it is the convictions, of the 
registrant and not the doctrines of his religion that must be 
the central concern of the Selective Service System. United 
States v. Seeger, 380 U. S. 163, 184-185 (1965). Thus, 
affiliation with a particular religious sect, even though it 
may be pacifist, does not automatically entitle one to 
conscientious objector status, United States v. Simmons, 
213 F.2d 901 (7th Cir. 1954), rev’d on other grounds, 348 
U. S. 453 (1955), nor does the fact that a registrant’s 
religion does not proscribe participation in war disqualify 
him for the exemption. United States v. St. Clair, 293 
F. Supp. 33 (E.D. N.Y. 1968). It is, of course, unnecessary 
that the conscientious objection arise from church member­
ship at all. United States v. Owen, 415 F.2d 383 (8th Cir. 
1969). As this Court has recently held, it is enough that 
because of beliefs which “ function as a religion in his life,” 
a registrant is opposed to participation in all wars. Welsh 
v. United States, 398 U. 8. 333, 339 (1970).

The record in this case clearly establishes that petitioner 
was opposed, because of his interpretation of the doctrines 
of his religion, to participation in all war with the excep­



24

tion of a theocratic war or a war in which he was directed 
to fight by Allah.

At the special hearing before Judge Grauman, petitioner 
discussed his opposition to war in considerable detail. He 
stated that:

“ the Holy Qur’an do teach us that we do not take part 
of—in any part of war unless declared by Allah him­
self, or unless it’s an Islamic World War, or a Holy 
War, and . . .  we are not to even as much as aid 
the infidels or the nonbelievers in Islam, even to as 
much as handing them a cup of water during battle” 
(A. 68a).

Later he explained his understanding of what he had de­
scribed as the “Islamic World War,” the “Holy War” or 
the “War of Armageddon:”

“We are only preparing for the war of Armageddon 
divinely. We talk that the battle will be between good 
and right, truth and falsehood, and we are taught that 
the battle will be between God and the Devil and so 
therefore, we hope and pray that we are still with the 
Honorable Elijah Muhammad, for when that hour and 
day come that we can be told what side to go to. We 
are trying to be prepared where we can go on the 
right side. . . . and we just hope that we are spiritually 
and physically and internally and mentally and morally 
able to get on the side of Allah and the Honorable 
Elijah Muhammad when Armegeddon start . . . for we 
are only preparing for Allah in spirit . . .  in a spiritual 
way” (A. 106a).

Even in the holy war, which petitioner believed would be a 
physical conflict between the forces of good and evil 
(A. 107a), he did not believe that he or his fellow Muslims 
would actually participate.



25

Indeed, in the course of the hearing petitioner stated that 
he would not fight in a war unless:

“the Honorable Elijah Muhammad looked me in the 
face and he who I believe is directly from Allah, Al­
mighty God Allah, and if he looked at me and advised 
me, which I ’m sure he wouldn’t do, to fight in any 
kind of war, if he advised me to I would” (A. 101a).

When further pressed on the hypothetical question as to 
whether he would fight if Elijah Muhammad told Mm to, 
petitioner made it clear that he thought any such command 
was inconceivable. He said:

“I can speak for him [Elijah Muhammad] right here 
and now, that I know he would not say anything like 
that if he is truly following the Holy Qur’an and what 
he teaches us that God taught him . . .  I don’t believe 
that, and I would actually say that I could guarantee 
you my life that he won’t advise me to do something 
like that . . . ” (A. 101a-102a).

Otherwise, petitioner believed in the use of force only 
for self-defense. He explained:

“ [B ]y our teaching and by wre believing in God, whose 
law is self-preservation, we are taught not to be the 
aggressor, but defend ourselves if attacked and a man 
cannot defend himself if he knows not how. . . . So, 
we, the Muslims to keep in physical condition, we do 
learn how to defend ourselves if we are attacked since 
we are attacked daily through the streets of America 
and have been attacked without justification for the 
past four hundred years” (A. 104a-105a).

Finally, petitioner considered boxing a sport and himself 
a scientific boxer who was not “violent” in the ring:

“I never get violent. I never lose my head and I ’m 
known for being a calm, cool boxer and I never feel as



26

though I ’m violent and I never fight and act like I ’m 
violent” (A. 98a).

Petitioner’s testimony at the special hearing was per­
fectly consistent with every statement he had previously 
made in connection with his conscientious objector claim 
from the time he first asserted it on February 14, 1966. In 
his letters of February 14th and March 28th, in his special 
conscientious objector form (SSS Form No. 150), and at 
his personal appearance before the local board he main­
tained that he was opposed to taking any part in earthly 
wars and to killing human beings (A. 10a, 13a, 18a, 21a). 
Literally everyone who testified on behalf of petitioner at 
the special hearing or who was interviewed by the FBI, 
moreover, was of the opinion that petitioner was opposed 
to participation in any military service whatsoever (E.g. 
A. 27a, 32a, 54a, 56a, 133a, 134a, 135a, 136a, 137a, 139a).

In the face of his consistent and unequivocal opposition to 
participation in all wars, the Department of Justice could 
find only one remark made by petitioner in the entire record 
to support its conclusion that there are real wars in which 
petitioner would participate. At one point, petitioner ex­
plained that the Holy Qur’an and Elijah Muhammad taught 
Muslims:

“that we are not to participate in wars on the side of 
nobody who—on the side of nonbelievers, and this is a 
Christian country. . . .  So we are not, according to the 
Holy Qur’an, even as much as aid in passing a cup of 
water to the—even a wounded” (A. 96a-97a).

Presumably, on the basis of the negative implication of 
the statement that Muslims were taught not to participate 
in wars on the side of nonbelievers, the Department con­
cluded that petitioner was willing to fight in wars on behalf



27

of Muslims. But even assuming that this is a fair reading 
of petitioner’s statement, it is perfectly clear in light of 
the rest of his testimony that the only war he would ever 
participate in, even on the side of Muslims, was a Holy 
War or a war in which he was directed to fight by Allah. 
Indeed, this fragmentary statement upon which the Depart­
ment places so much reliance is perfectly consistent with 
petitioner’s previous statement that “ the Holy Qur’an do 
teach us that we do not take p art. . .  of war unless declared 
by Allah himself, or unless its an Islamic World War, or 
a Holy War, and . . .  we are not to even as much as aid the 
infidels or the nonbelievers in Islam, even to as much as 
handing them a cup of water during battle” (A. 68a). Thus, 
at the only time that Muslims could ever participate in 
war, the war of Armageddon, petitioner would take part 
on the side of Islam; but at all other times he would not 
give the slightest amount of aid to anybody engaged in war.

In Sicurella v. United States, 348 U. S. 385 (1955), this 
Court held that this kind of theocratic conflict was not 
“war” within the meaning of § 6(j) and that a registrant’s 
willingness to participate in it did not disqualify him for a 
conscientious objector exemption. In words equally appro­
priate to this case, the Court said:

“ Granting that these articles picture Jehovah’s wit­
nesses as anti-pacifists, extolling the ancient wars of 
the Isrealites and ready to engage in a ‘theocratic war’ 
if Jehovah so commands them, and granting that the 
Jehovah’s Witnesses will fight at Armageddon, we do 
not feel this is enough. The test is not whether the 
registrant is opposed to all war, but whether the regis­
trant is opposed on religious grounds, to participation 
in war. As to theocratic war, petitioner’s willingness 
to fight on the orders of Jehovah is tempered by the 
fact that, so far as we know, their history records no



28

such command since Biblical times and their theology 
does not seem to contemplate one in the future. And 
although the Jehovah’s Witnesses may fight in the 
Armageddon, * * * [we] believe that Congress had in 
mind real shooting wars. . . . We believe the reasoning 
of the Government . . .  is so far removed from any 
possible congressional intent that it is erroneous as a 
matter of law” (348 U.S. at 390-91).

Petitioner’s views on war, based upon his understanding 
of the doctrines of the Nation of Islam, are indistinguish­
able in any material respect from those of the Jehovah’s 
Witness in Sicurella. He was opposed to all except theo­
cratic war, he would fight only in self-defense, he did not 
believe in carrying weapons and there was no possibility 
in his mind that he would ever be commanded to engage 
in war by his God. Consequently, there was nothing in 
petitioner’s beliefs that could provide a basis in fact for 
the denial of his claim. To the extent that the Justice 
Department relied on them, its recommendation is errone­
ous as a matter of law.

2. The Teachings of the Nation of Islam.

In its advice letter the Department took the position that 
the doctrines of the Nation of Islam precluded only partici­
pation in war on behalf of the United States, but allowed 
participation in earthly wars on behalf of other, presum­
ably Muslim, nations. But as we have pointed out above,14 
it is only petitioner’s views on war, not those of his 
religion, that are relevant to his conscientious objector 
claim. Thus, even if the Department’s interpretation 
of the Muslim doctrines concerning participation in war

14 See p. 23, supra.



29

was a reasonable one it could not legitimately provide 
a basis for rejecting petitioner’s claim in the face of his 
interpretation that those doctrines precluded him from par­
ticipating in any earthly war. See United States v. Seeger, 
380 U. S. 165, 184 (1965); Welsh v. United States, 398 U. S. 
333 (1970). Even if on the basis of some theological 
absolute petitioner misinterpreted the doctrines of the Na­
tion of Islam, he is nevertheless entitled to the exemption 
because, as the hearing officer found and the record over­
whelmingly supports, he was opposed to participation in 
all earthly wars by reason of what he believed to be the 
dictates of his religion.

But even assuming that the doctrines of the Nation of 
Islam are considered relevant in the abstract to petitioner’s 
conscientious objector claim, the record in this case demon­
strates that these doctrines support and are completely 
consistent with the beliefs petitioner expressed. The con­
trary conclusion by the Department of Justice not only finds 
no support in the record, but is based on the kind of inter­
pretation and analysis of the meaning and significance of 
Muslim religious doctrines that is forbidden by the First 
Amendment.

In determining whether the doctrines of a particular 
religion preclude participation in all war within the mean­
ing of § 6 ( j)  of the Act, the Government must be limited 
to a literal reading of the tenets of the faith. It must take 
at face value what is stated in the accepted sources of the 
religion or by the accepted religious spokesmen; it may 
not supply its own interpretation of the religion or any 
of its doctrines. See United States v. Ballard, 322 U. S. 78 
(1944). For as this Court has held, the First Amendment 
forbids courts or other secular authorities from playing 
any role in determining the “ interpretation of particular 
church doctrines and the importance of those doctrines to



30

the religion.” Presbyterian Church v. Mary Elizabeth Blue 
Hull Church, 393 U. S. 440 (1965). This is so because:

“If civil courts undertake to resolve such controversies 
[over religious doctrine] . . . the hazards are ever 
present of inhibiting the free development of religious 
doctrine and of implicating secular interests in mat­
ters of purely ecclesiastical concern” (393 U. 8. at 449).

The Justice Department and the Selective Service System, 
therefore, can no more make petitioner’s entitlement to a 
conscientious objector exemption turn upon their interpre­
tation of certain doctrines of the Nation of Islam, than 
could the Georgia courts award church property on the 
basis of the interpretation and significance that they as­
signed to aspects of church doctrine.

The “neutral principle” which must govern the Govern­
ment’s determination of whether or not the doctrines of a 
particular religion preclude participation in all war, to the 
extent such an inquiry is relevant, is that Government in­
quiry must stop at a literal reading of accepted religious 
sources. In short, it may not interpret or analyze the doc­
trines of the religion.

Such a reading of the sources in this record is com­
pletely in accord with petitioner’s own understanding of 
the meaning of Muslim doctrines concerning participation 
in war. Elijah Muhammad explained the meaning of Islam 
in his Message to the Blackman in America (1965) (Ex. D 
to Special Hearing, A. 41a) in this way:

“ The author of Islam is Allah (God). We just cannot 
imagine God being the author of any other religion 
hut one of peace. Since peace is the very nature of 
Allah (God), and peace He seeks for his people and 
peace is the nature of the righteous, most surely Islam 
is the religion of peace (p. 68).

* # *



31

“The very dominant idea in Islam is the making of peace 
and not war; onr refusing to go armed is our proof 
that we want peace” (p. 322).

Muslims are, therefore, forbidden to carry weapons or to 
participate in any war and one of the central dogmas of 
their faith states:

“We believe that we who declared ourselves to be righ­
teous Muslims should not participate in wars which 
take the lives of humans” (Id. at 164).

The only use of force that is consistent with the Muslim 
faith is self-defense, which Elijah Muhammad believes is 
justified by God and by Divine Law (Id. at 217). But even 
then, Muslims may not use weapons; if they are attacked 
by armed persons they must rely upon Allah to protect 
them (Id. at 319).15 16

Although Muslim doctrine condemns war among nations 
and men, an ultimate theocratic war has an important place 
in the religion. This war is foreseen as one directed by 
Allah which will destroy the enemies of the black people. 
After this destruction, which is variously described as a 
series of natural disasters, the falling of bombs from a 
wheel-shaped plane in the sky or an ultimate war among 
nations, black people will live in peace under the guidance 
of Allah (Id. at 270, 291-92).

15 The Black Muslim doctrines concerning war can be clearly 
traced, moreover, to the Holy Qur’an, translated by Maulana 
Muhammad Ali, which was submitted by petitioner as Exhibit C 
at the Special Hearing (A. 41a). This version of the Qur’an 
views war as an evil that can only be justified when it is necessary 
to defend Muslims against religious persecution. See Maulana 
Muhammad Ali, Translation of the Holy Qur’an 2 :190, 2 :191, 
2 :216, 2 :217 and commentary at pp. 80-81, notes 238, 239, pp.
90-91, note 277 (5th ed. 1963).



32

In support of its interpretation that the doctrines of the 
Nation of Islam only preclude participation in war on 
behalf of the United States, the Department relies almost 
entirely upon the article of the Muslim faith that states:

“We believe that we who declare ourselves to be righ­
teous Muslims, should not participate in wars which 
take the lives of humans. We do not believe this nation 
should 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 some­
thing to fight for” (A. 120a).

The only thing that is clear about this statement is its 
absolute opposition to participation in wars which take 
human lives. The rest of the passage is ambiguous; it can 
be read simply as a statement of the fact that Muslims 
do not benefit from wars fought by the United States be­
cause they have no stake in the country; it can be read as 
suggesting that if the Muslims were given some territory 
there might be some circumstances under which they would 
fight; or it can be read as saying that Muslims would even 
fight on behalf of the United States if they were given some 
territory.

But even if it is read as suggesting the possibility of 
a future willingness of Muslims to fight under some cir­
cumstances, there is no indication that even under such 
circumstances they would participate in a war that was 
inconsistent with the teachings of their faith or that would 
be considered “war” within the meaning of §6(j). Thus, 
fighting without weapons in self-defense, in defense of 
friends and co-religionists, or in defense of community 
would neither violate their religious scruples nor disqualify 
them from the exemption. See United States v. Owen, 415 
F.2d 383, 390 (8th Cir. 1969); United States v. Haught on,



33

413 F.2d 736, 742 (9th Cir. 1969); United States v. Purvis, 
403 F.2d 555, 563 (2d Cir. 1968); Taffs v. United States, 208 
F. 2d 329, 331 (8th Cir. 1953), cert, denied, 347 U. S. 928 
(1954); Shepherd v. United States, 217 F.2d 942, 944 (9th 
Cir. 1954). Moreover, the inference that Muslims might 
fight at some time if they were given territory is even 
more speculative than the statement of the registrant in 
the Owen case that it was possible that he might change 
his mind about participating in war if his country were 
invaded (415 F.2d at 390). Here, as in Owen, the statement 
relates to a contingency and cannot supply a basis in fact 
for denial of a conscientious objector exemption (Ibid). 
And the possibility of the Muslims fighting for territory 
that the United States has given them is at least as un­
likely an eventuality as the theocratic war that this Court 
considered too far removed from Congressional intent to 
be considered “war” within the meaning of the Act in 
Sicurella v. United States, 348 U. S. 385 (1955).

The only other basis for the Justice Department’s con­
clusion that petitioner only objected to participating in 
war on behalf of the United States are the statements 
attributed by the FBI resume to Elijah Muhammad and 
two co-religionists that the teachings of the Nation of 
Islam precluded petitioner “ from participating in any form 
in the military service of the United States” (A. 120a). 
But it is sheer sophistry to argue that this statement 
(which is clearly correct) implies that the teachings of 
the Nation of Islam do not preclude Muslims from fighting 
for some other nation. Moreover, it is patently absurd to 
attribute such doctrinal significance to the wording of 
a summary of FBI reports which were based on field 
interviews by agents (R.P. vol. I l l  252-53). Indeed, the 
Justice Department was being less than candid when it 
gave such weight to this particular phrase while at the



34

same time it ignored statements in the same context 
that were inconsistent with its conclusion. Thus, Elijah 
Muhammad is reported in the same paragraph of the 
resume to have said that petitioner had been advised 
“ that no member of the Nation of Islam may bear arms 
against anyone”  (A. 149a), and that he believed that peti­
tioner was sincere “ in his objection to any form of mil­
itary service” (A. 148a) (Emphasis added). Similarly, the 
Department overlooked the statements by co-religionists 
that petitioner would not “violate the tenets of this teach­
ings [Nation of Islam] by engaging in military service” 
(A. 150a); that because of his practice of the teachings 
of Elijah Muhammad, petitioner is “completely sincere in 
his claim of conscientious objector to military service” 
(A. 152a-153a); and “ that war, killing and violence are 
wrong and in direct contradiction to these teachings” (A. 
153a).

It is apparent that none of the specific references to 
Muslim doctrine or writings can support the Department’s 
conclusion that they precluded only participation in wars 
on behalf of the United States. Rather, the Department 
based its conclusion upon its view that the Muslims’ op­
position to participation in war was primarily motivated 
by their hostility toward the United States government. 
Thus, the Department interpreted the writings of Elijah 
Muhammad to express the “ essential” views of the Black 
Muslims that “the white man is their enemy, and that the 
black man should disassociate himself from the United 
States Government and its institutions and secure an in­
dependent nation for the black man within the United 
States” (A. 120a-121a). The Department then interprets 
the Muslim doctrines opposing participation in all war in 
light of this supposed fundamental opposition to the 
United States and concludes that the teachings of the



35

Nation of Islam only preclude fighting on behalf of the 
United States “because of political and racial objections 
to policies of the United States as interpreted by Elijah 
Muhammad” (A. 121a).

This conclusion, therefore, is based on an interpretation 
of the tenets of the Muslim faith which conflicts not only 
with the interpretation of those teachings by petitioner 
and every other Muslim who testified or was interviewed 
by the FBI, but also with a literal reading of the Muslim 
doctrines themselves. As we have pointed out, such an 
intrusion by Government into purely religious affairs vio­
lates the First Amendment, Presbyterian Church v. Mary 
Elisabeth Blue Hull Church, supra; United States v. 
Ballard, 322 U. S. 78 (1944).

The treatment of petitioner by the Department of Jus­
tice provides a convincing example of the evil that the 
First Amendment’s proscription against the interpreta­
tion of religious doctrine by Government is intended to 
guard against. For when secular authorities undertake 
to make serious liabilities turn upon the content of re­
ligious beliefs, the danger is great that their own moral, 
ethical and political standards will influence their inter­
pretation of those beliefs. United States v. Ballard, 322 
U. S. 78 (1944); see Founding Church of Scientology v. 
United States, 409 F.2d 1146 (D.C. Cir. 1969); cf. United 
States v. Kuch, 288 F. Supp. 439 (D.D.C. 1969). What 
emerges from the record in this case is the feeling, in­
deed the conviction, that the Government’s interpretation 
of Muslim doctrine was shaped not by what Muslim doc­
trines said about participation in war, but by its precon­
ceived notion of what kind of an organization the Muslims 
were. As we have already pointed out, the Department 
of Justice evidently believed that the Muslims were a 
subversive, military-like organization that was a threat to



36

national security.16 And it is probable that the Depart­
ment even thought that the Muslims might seek to ac­
complish their goal of a separate black state through 
violence or insurrection at the command of Elijah Mu­
hammad. This belief is clearly manifested in the opinion 
letter by its concern with the ambiguous passage about 
the possibility of Muslims fighting if they had territory 
and with petitioner’s statement that he would fight if 
commanded to by Elijah Muhammad (A. 120a-121a).

Thus, although any such suspicions have never been sub­
stantiated—and have been thoroughly discredited by most 
observers17-—it is plain that the Department started its 
consideration of petitioner’s claim with this notion in 
mind and set about proving it from the record. In short, 
for the same reasons that led the Department to con­
sider the Muslims a threat to national security, it simply 
chose to disbelieve the truth of their religious scruples 
against participating in all wars. But in so doing, the 
Government entered upon a domain that is forbidden by 
the First Amendment, and its determination cannot sup­
port the denial of petitioner’s conscientious objector claim.

3. The Vietnam War.

We need not dwell long on the Justice Department’s 
recommendation that petitioner’s conscientious objector 
claim should be denied because his opposition to war was 
based in part upon objections to the Vietnam War (A. 
124a).

16 See pp. 20-21, supra and note 13.
11 See Lincoln, at 205 (1961); E. U. Essien-Udom, Black Na­

tionalism, 308, 311-323, 351-365 (1969); E. Litt, Ethnic Politics 
in America, 89-91 (1970) ; B. E. Garnett, “ Invaders from the 
Black Nation: The Black Muslims in 1970” , p. 25 (Special Report, 
Race Relations Information Center, Nashville, Tenn., 1970).



37

This conclusion was based chiefly upon a newspaper ar­
ticle which reported petitioner as saying:

“I am a member of the Muslims and we don’t go to no 
war unless they are declared by Ali [sic] himself. I 
don’t have no personal quarrel with those Yietcongs.

^
“Let me tell you, we Muslims are taught to defend our­
selves when we are attacked. Those Yietcongs are not 
attacking me” (A. 123a).

In addition, at the time of his appearance before his local 
board, petitioner is reported to have said that he “ objected 
to being in service because he has no quarrel with the Yiet 
Cong” and “ that he could not, without being a hypocrit, 
take part in anything such as war” (A. 18a).

In context, however, both of these statement constitute 
affirmations of his opposition to participation in all wars 
and his willingness to fight only in self-defense. In the 
first statement, he correctly explains that since Muslims 
are permitted only to fight in self-defense he cannot fight 
the Yietcong who are not attacking him. And the second 
statement probably reflects a similar explanation, as re­
corded by the clerk of the local board. In neither case 
is there any indication that he objected only to the Yietnam 
war, or even that his objections to the Vietnam war were 
grounded upon political or philosophical considerations. 
Cf. Gillette v. United States, No. 85, O. T. 1970; Negre v. 
Larsen, No. 325, O. T. 1970.

However, as many courts have now recognized, a regis­
trant’s opposition to the Vietnam war, is consistent rather 
than inconsistent with a conscientious opposition to partici­
pation in all war, and cannot provide a basis for the denial 
of a conscientious objector claim. United States v. Cum­



38

mins, 425 F.2d 646, 650 (8th Cir. 1970); United States v. 
Pence, 410 F.2d 557, 562-63 (8th Cir. 1969); United States 
v. Haughton, 413 F.2d 736, 742 (9th Cir. 1969); Bates v. 
Commander, First Coast Guard District, 413 F.2d 475, 479 
(1st Cir. 1969); Kessler v. United States, 406 F.2d 151, 
155 (5th Cir. 1969); United States v. Prince, 310 F. Supp. 
1161, 1165 (D. Me. 1970); United States v. St. Clair, 293 
F. Supp. 337, 344 (E.D. N.Y. 1968). As the court in Bates 
said:

“ The fact that petitioner wrote letters prior to sub­
mitting his application expressing political opposition 
to the war does not disqualify him from being a con­
scientious objector. See Fleming v. United States, 344 
F.2d 912 (10th Cir. 1965). The fact that he may abhor 
the Vietnam war and regard it as ‘warfare’s most 
horrible manifestation at this time’ does not detract 
from his religious belief which is amply documented. 
To hold otherwise would require a finding that religious 
belief cannot co-exist with political opinion. The state­
ment of such a proposition contains its own refutation” 
(413 F.2d at 478).

Even if petitioner’s statements are read as expressing 
a particular objection to the Vietnam war, therefore, they 
cannot, as a matter of law, supply a basis in fact for the 
denial of his conscientious objector claim in light of his 
amply documented opposition on religious grounds to par­
ticipation in all war.



39

C. The Department of Justice Erred in Concluding 
that Petitioner Had Failed to Sustain the Burden 
of Establishing the Sincerity of His Claim by 
Virtue of the Lateness of its Assertion and the 
Fact that He Asserted Other Consistent Claims 
For Exemptions at the Same Time.

A  third basis for the Justice Department’s recommenda­
tion to the appeal hoard that petitioner’s conscientious 
objector claim be rejected was its conclusion that peti­
tioner had not sustained his burden of establishing the sin­
cerity of his claim (A. 127a). The Department attributes 
his failure to prove his claim chiefly to the fact that peti­
tioner did not assert it until February, 1966, after he had 
been a conscientious objector for at least two years. In 
what must have sounded to the lay appeal board like the 
citation of a rule of law that absolutely precluded peti­
tioner from being elasified as a conscientious objector, the 
Department concluded:

“ [A] registrant has not shown overt manifestations 
sufficient to establish his subjective belief w’here, 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” (A. 127a).

Of course, the correct legal standard is not, as the Jus­
tice Department certainly implied, that a registrant who 
does not assert a conscientious objector claim until military 
service is imminent can never show “ overt manifestations 
sufficient to establish his subjective belief.”  Rather, the 
correct rule is simply that tardiness in the presentation 
of a conscientious objector claim may in some circum­
stances provide the basis for an inference of insincerity. 
United States v. Bornemann, 424 F.2d 1343 (2d Cir. 1970);



40

United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970) 
(en banc) ; see Witmer v. United States, 348 U.S. 375 
(1955). The assertion of such an erroneous standard upon 
which the appeal hoard might naturally rely was clearly 
prejudicial to petitioner in that it may have aborted the 
board’s consideration of the great deal of other evidence 
bearing on the issue of petitioner’s sincerity. For that 
reason alone, reversal is warranted. See United States v. 
Bornemann, supra; United States v. Gearey, 368 F.2d 144 
(2d Cir. 1966), cert, denied, 389 U.S. 959 (1967).18

But this Court need not rely on such a narrow ground. 
On the facts of this case, it was error for the Department 
of Justice to even maintain that the failure of petitioner 
to present his conscientious objector claim prior to Febru­
ary, 1966, was an objective factor that the appeal board 
could consider as tending to show insincerity.

Petitioner first asserted his conscientious claim in his 
letter to his local board dated February 14, 1966 (A. 9a). 
This letter 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 
asserted, after he had been already classified 1-A. He was 
classified 1-A three days after he wrote the letter, and one 
day before his local board sent him the special conscientious 
objector form (A. 4a).

Petitioner’s conscientious objections to participation in 
war crystallized in January, 1964, at about the same time

18 The court in United States v. Englander, 271 F. Supp. 182 
(S.D.N.Y. 1967) criticized even the citation of legal authority in a 
similar context because “it could well have a tendency to suggest 
that a particularized factual judgment has somehow the status of 
generally applicable ‘law’.” (271 F. Supp. at 184, n. 2). The 
Government is even more likely to mislead the appeal board where, 
as in the present case, the particularized factual judgment is stated 
as if it were a rule of law.



41

that he formally became a member of the Nation of Ts1a.ni 
and that he was first called for his pre-induction physical 
examination (A, 85a-86a). When he had first registered 
for the draft he knew nothing of Islam “ and if yon had 
drafted me that day I would have went”  (A. 89a). Al­
though not long thereafter, probably sometime in 1961, 
petitioner became a follower of Elijah Muhammad and ac­
cepted the teachings of Islam, he did not have to confront 
the decision of whether he was a conscientious objector 
because “I had nothing to worry about and I had nothing 
about war on my mind” (A. 86a), Indeed, he candidly 
admitted that:

“at that moment . . . I ’d probably accepted [military 
service] because my beliefs and my sincerity and my 
knowledge wasn’t strong enough to give me the courage 
to say, and, the inspiration to say, ‘Well, I ’ll die be­
fore I do this’ ” (A. 86a).19

The crux of the issue, then, is whether a lack of sincerity 
can be inferred from the fact that petitioner did not assert 
his claim for a conscientious objector exemption at any 
time between the time it arose in January, 1964 until after 
he was found to be acceptable for induction in February, 
1966. Obviously, the hearing examiner considered this 
issue important because he questioned petitioner about it 
closely (A. 85a-95a). And in concluding that petitioner 
was sincere in his claim he placed great weight on the

19 Although petitioner stated that he was a conscientious objector 
at heart from as early as 1961, in light of all his testimony it seems 
clear that he never really faced the question squarely or had to 
make a decision about it until January 1964. He testified:

“Well, I would say truthfully, the onliest time that I really 
thought about it—the onliest time that I was conscientious 
that I would have to make a decision was the first time that 
they mentioned going to take a physical my first—the first 
time I had to go get tested” (A. 86a).



42

statements of two of petitioner’s business associates, one 
of whom was known to him personally and the other by his 
outstanding reputation. Both associates corroborated com­
pletely petitioner’s testimony that his conscientious objec­
tions to war had arisen early in 1964, and they explained 
that they had persuaded petitioner not to seek the exemp­
tion at that time for fear that the stigma of his affiliation 
with the Muslims would cause substantial financial losses. 
Instead, they convinced him to take all of the required steps 
prior to induction in the hope that it might not be necessary 
to claim the exemption and ruin his career (A. 131a, 133a- 
134a). Cf. United States v. Broyles, supra, 423 F.2d at 1303.

As it turned out, petitioner was not forced to make 
the decision to file his claim. When he was found not 
acceptable for induction first in January and again in 
March, 1964 and was classified 1-Y, he felt that it was un­
necessary to seek exemption from service. He explained 
that :

“I have no need the first two times that I was called up 
to, because they never accepted me, but I ’m sure that 
if they had I—as a matter of fact, Allah is my witness 
here that if they had called me when I was in Miami 
and I had passed the test then I would have had to 
do—just say I ’m a conscientious objector . . . ” (A. 
95a).

Similarly, petitioner’s business associate was “convinced 
that [petitioner] would have filed his conscientious-objector 
claim at that time if he had not failed to pass his Armed 
Forces physical examination” (A. 131a). Petitioner re­
mained unacceptable for induction from January, 1964 un­
til February 3, 1966, and he notified the board of his con­
scientious objector claim almost immediately after he re­
ceived notice of the determination of his acceptability 
(A. 11a).



43

Petitioner was, therefore, unacceptable for induction and 
classified 1-Y virtually from the time his conscientious ob­
jections to participation in war crystallized in January, 
1964 until he did assert his claim in February, 1966. Since 
1-Y is a lower classification than the 1-0 classification for 
conscientious objectors (32 C.F.R. §1623.2), petitioner was 
not required by the applicable regulation (32 C.F.R. §1625.1 
(b)) to present his conscientious objector claim to his local 
board until after he was classified 1-A. United States v. 
Bornemann, supra, 424 F.2d at 1347; United States v. 
Rutherford, —— F.2d —— (8th Cir. No. 20,137, Feb. 3, 
1971). But, as we have seen, petitioner presented his claim 
as soon as it became apparent that he would be reclassified. 
Thus, petitioner is in precisely the same situation as the 
registrant in Bornemann, where the court held:

“We are thus of the view that Bornemann brought his 
conscientious objections to the attention of his board 
as soon as 32 C.F.R. § 1625.1(b) required him to do so. 
In our view it would be improper to penalize him for 
failure to act with greater dispatch than the regulations 
demanded. We conclude, therefore, when the Depart­
ment of Justice maintained that Bornemann’s failure 
to present his claims prior to August 1966 was an 
objective factor that the Appeal Board could consider 
as tending to show insincerity, it erred” (424 F.2d at 
1348).

The Department’s identical conclusion with respect to peti­
tioner was, therefore, similarly in error.

In any event, in light of the undisputed explanation as to 
why petitioner did not assert his claim when it first arose, 
there can be no inference of insincerity. Where there is 
such a prima facie adequate explanation of lateness, only



44

a disbelief in the credibility of the registrant can support 
a denial of his claim. United States v. Broyles, supra, 423 
F.2d at 1303. Since petitioner’s testimony was accepted by 
the hearing officer and was corroborated in every detail by 
the other witnesses at the special hearing as well as by the 
FBI investigation, there is no basis for questioning his 
credibility.

The only other factor to which the Justice Department 
refers as tending to discredit petitioner’s sincerity is the 
evidence that petitioner sought other exemptions at the 
same time as he sought a conscientious objector exemption. 
The advice letter suggests that he was insincere because:

“the record of his efforts to have the local board re­
consider his classification indicates that the registrant’s 
primary concern was not his conscientious-objector 
claim, but the financial hardship which would result 
from his induction into the Armed Forces” (A. 124a).

But we fail to see how the simultaneous assertion by a 
registrant of consistent claims for exemption on various 
grounds, including medical, hardship and conscientious 
objection, can support an inference of his insincerity. Not 
only do Selective Service regulations place upon the regis­
trant the duty to provide his local board with information 
which would result in his being placed in the lowest class 
(32 C.R.R. §§ 1623.2, 1625.1(b)), but he has the statutory 
right to apply for any exemption for which he qualifies. 
See United States v. Cummins, 425 F.2d 646, 650 (8th Cir. 
1970) ; Capobianco v. Laird, 424 F.2d 1304, 1306 (2d Cir. 
1970); United States v. Owen, 415 F.2d 383, 390 (8th Cir. 
1969); United States v. Peebles, 220 F.2d 114, 118 (7th Cir. 
1955); Taffs v. United States, 208 F.2d 329, 331 (8th Cir. 
1953), cert, denied, 347 U. S. 928 (1954).



45

As the court in Owen noted:

“ [T]he fact that Owen sought other classifications after 
being denied a 1-0 classification is in no way incon­
sistent with his claimed conscientious objection. . . . 
Neither do we feel that registrants claiming consci­
entious objection may apply for other unrelated clas­
sifications only at their peril. To so hold would chill the 
right Congress sought to protect in enacting § 6(j) and 
would undermine the principles of individual con­
science” (415 F.2d at 390).

A  conscientious objector claim may be denied only when 
there are some objective facts in the record that cast doubt 
on the sincerity of the claim. W timer v. United States, 348 
U. S. 375 (1955). Suspicion or speculation cannot suffice, 
and disbelief must have an honest and rational foundation. 
Untied States v. Hesse, 417 F.2d 141, 144 (8th Cir. 1969); 
United States v. Corliss, 280 F.2d 808, 814 (2d Cir. 1960) 
cert, denied, 364 U. S. 884 (1960). On the record of this 
case, it is apparent that there is no such basis for the dis­
belief of petitioner’s claim. Apart from the lateness of its 
assertion, which was more than adequately explained, all 
of the evidence conclusively established his sincerity.



46

II.

Petitioner’s Conviction Must Be Reversed If The 
Department of Justice’s Advice Was Erroneous With 
Respect to Any One of the Grounds Upon Which It 
Recommended That Petitioner Be Denied a Conscien­
tious Objector Exemption.

We have argued above that the Department of Justice’s 
advice was erroneous with respect to each of the several 
grounds upon which it recommended that petitioner’s con­
scientious objector claim be denied and that there was no 
basis in fact in the record for denial of the claim by the 
appeal board. However, if the Department’s advice was 
erroneous in any material respect, petitioner’s conviction 
must be reversed. This is true even though the appeal 
board might have legitimately denied the claim upon some 
other ground.

As this Court held in Sicurella v. United States, 348 U. S. 
385 (1955), where the Department of Justice had errone­
ously recommended that a registrant be denied an exemp­
tion on the ground that he was not opposed to theocratic 
war:

“ . . .  we feel that this error of law by the Department, 
to which the Appeal Board might naturally look for 
guidance on such questions, must vitiate the entire pro­
ceedings at least where it is not clear that the Board 
relied on some legitimate ground. Here, where it is 
impossible to determine on exactly which grounds the 
Appeal Board decided the integrity of the Selective 
Service System demands at least that the Government 
not recommend illegal grounds” (348 U. S. at 392).



47

In the present case, petitioner clearly made out a prima 
facie case for his entitlement to a conscientious objector 
exemption with respect to each of the statutory criteria: 
the religious basis of the claim, his conscientious opposition 
to participation in all war; and his sincerity. On the face 
of the record there is no legitimate ground upon which it is 
obvious that the appeal board could have properly rejected 
petitioner’s claim. And since the appeal board gave no 
reasons for its action, there is no way of knowing whether 
it rejected petitioner’s claim on the ground that it was not 
religious, that he was not opposed to all war, or that he 
lacked sincerity.

Thus, if the Department of Justice’s advice was errone­
ous upon any one of these grounds upon which the appeal 
board may have relied, the conviction must be reversed 
even if a court can find a basis in fact to support a denial 
on one of the other grounds. In Kretchet v. United States, 
284 F.2d 561 (9th Cir. 1960), for example, the court said:

“We are unable to determine from the record whether 
the board in refusing appellant’s claim for exemption, 
did so because of appellant’s lack of sincerity or be­
cause it believed that appellant’s conscientious objec­
tions were not based upon religious training and be­
lief, or because appellant was not opposed to war in 
any form, or whether such action was based upon all 
three grounds or on any two of them. The advice 
given by the Department of Justice to the appeal 
board that it could refuse to sustain appellant’s claim 
for exemption on the ground that he was not opposed 
to war in any form, in our view, was clearly errone­
ous and fatally infected the adverse recommendation 
of the Department of Justice” (284 F.2d at 565).



48

This rule that a registrant’s conviction must be reversed 
where the board may have relied upon an erroneous rec­
ommendation by the Department of Justice in denying- his 
conscientious objector claim has been widely followed. 
United States v. Jakobson, 325 F.2d 409 (2d Cir. 1963) 
aff’d sub nom. United States v. Seeger, 380 U. S. 163 (1965); 
United States v. Washington, 392 F.2d 37 (6th Cir. 1968); 
United States v. Haughton, 413 F.2d 737 (9th Cir. 1969); 
Ypparila v. United States, 219 F.2d 465 (10th Cir. 1954); 
United States v. St. Clair, 293 F.2d 337 (E.D. N.Y. 1968). 
Indeed, it is now the law in many circuits that where a 
registrant makes out a prima facie case for the exemption 
his conviction must be reversed where the record does not 
disclose any reason for the denial of his claim. Scott v. 
Commanding Officer, 431 F.2d 1132 (3rd Cir. 1970); United 
States v. Broyles, 423 F.2d 1299 (4th Cir. 1970) (en banc); 
United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970); 
United States v. Abbot, 425 F.2d 910 (8th Cir. 1970).

The rationale of these cases is, of course, the avoidance 
of blind endorsement by courts of erroneous draft board 
decisions. United States v. Broyles, supra, 423 F.2d at 
1304. Courts will not indulge in the speculation that the 
boards have acted on proper grounds when no reasons are 
stated, or that erroneous advice by the Department of Jus­
tice did not prejudice the registrants. Indeed, even where 
there is the possibility of prejudice as a result of ambigui­
ties in the Department’s advice letter, courts have refused 
to place their imprimatur on the board’s denial of an ex­
emption. As one court concluded, such “a key determina­
tion so fraught with doubt cannot be adequate ground for 
conviction upon a grave criminal charge” United States v. 
Englander, 271 F. Supp. 182, 184 (8.D. N.Y. 1967); see



49

also United States v. Bova, 300 F. Supp. 936 (E.D. Wis. 
1969).20

In the present ease, therefore, where the appeal board 
may have relied upon the erroneous advice of the Depart­
ment of Justice in denying petitioner’s conscientious ob­
jector claim, the integrity of the Selective Service System 
requires that Ms conviction be reversed and the indictment 
dismissed.

20 In Bov a the hearing officer had reported that the registrant 
had been a religious for a time while he attended Catholic semi­
naries ; that he had later displayed an interest in civil rights move­
ments; and that his claim appeared to be based upon his own 
religious beliefs and not upon Roman Catholicism (300 F. Supp. at 
938). The Department, however, wrote that the hearing officer 
“reported that the registrant was born and reared a Roman Catholic 
and was religious for a time . . .  but thereafter became interested in 
civil rights movements . . . [and] that registrant’s claim for exemp­
tion appeared to be based not upon adherence to Roman Catholicism 
but that he appeared to be sincere in his own belief that he is a 
conscientious objector . . .” (300 F. Supp. at 939). The court ac­
quitted the registrant on the ground that the Department had 
conveyed the erroneous impression to the appeal board that the 
registrant had at one time been a religious person but had aban­
doned his religion for “civil rights movements.” Because of the 
importance of a registrant’s religious beliefs for the conscientious 
objector exemption, the court concluded that “ the erroneous view 
of the defendant’s beliefs that is conveyed by the Justice Depart­
ment recommendation is by its very nature material” (300 F. Supp. 
at 941).



50

CONCLUSION

For the foregoing reasons, the judgment of the Court of 
Appeals should be reversed and the case remanded to the 
District Court with instructions to dismiss the indictment.

Respectfully submitted,

J ack Greenberg
James M. Nabrit, III
J onathan Shapiro
E lizabeth B. D uB ois 

10 Columbus Circle 
New York, New York 10019

Chatjncey E skridge
123 West Madison Street 
Chicago, Illinois 60602

M. W. P lummer 
412 Main Street 
Houston, Texas 77002

Attorneys for Petitioner



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