Warren E. Burger: Number 50, United States, Petitioner, versus Daniel Andrew Seeger. Mr. Solicitor General.
Archibald Cox: Mr. Chief Justice, may it please the Court. Since the next three cases all involved provisions of the Selective Service Act relating to conscientious objectors, the Court approved in an arrangement between counsel that I should present the Government's opening argument in all three cases in one piece, and at then each of the opposing parties would have an opportunity to reply with respect to his case. The reason for this is that all three cases do raise basic questions concerning the constitutionality of the provisions, relating to conscientious objector, whereas two of them also present separate questions concerning the interpretation or application of the statute. I shall argue the Seeger case first and devote the great bulk of my time to it, because it does present the basic constitutional issue, which is the one with which we are the most concerned. The Universal Military Training and Service Act provides as we all know, for drafting young men into the armed forces as needed for national defense. Generally speaking, the obligation is universal, although the provisions for deferment of those who are engaged in vital occupations. Section 6 (j) of the Act provides for special treatment of a defined class imprecisely and I may say misleadingly known as conscientious objectors. Conscientious objectors as defined in Section 6 (j) are not exempt from National Service. They are subject either to service and noncombatant capacities or to other important National Service as determined by local draft boards under regulations issued by the President. Those who are not subject to combatant service are defined in Section 6 (j). The relevant portions of which are printed on page two of the Government's brief in the Seeger case, Number 50 in the fattest of the briefs. It provides for an exemption from combatant training and service of anyone who by reason of religious training and belief is conscientiously opposed to participation in war in any form. And then it goes on to define what is meant by the belief part of religious training and belief. And it means, the statute says, an individual's belief, in relation to a Supreme Being, involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophically views or merely personal moral code. The affirmative part of definition could be read doubtless with emphasis upon Supreme Being so as to require something which perhaps I might best describe as a fundamentalist god. We adopt a more liberal interpretation, having in mind not only the diversity of religions in this country, but also the fact that such eminent theologians such as Professor Tillich and Dr. Robinson, the Anglican Bishop of Willich defined the -- construe the idea of the personal god and defined god in such terms as the ultimate ground or root of our being. As we read the statute, therefore, it does not require belief in any particular kind of god. The emphasis, we think, is between the contrasts on the one hand between the human duties that arise on between men solely from their relation to their fellows. And on the other hand, duties, as the statutes put it, superior to those arising from any human relation. The essence we think is the dichotomy between transcendent or divine obligations and essentially political, sociological, or philosophically views, or a merely personal moral code. It's plain that Seeger's beliefs, fall in the later half, the nonreligious half of this dichotomy. The Court will read his own statements. “To me, I think it is fair to emphasize four points about them that standout." First, Seeger's objection to serving in the armed forces was we agree, sincere and conscientious. He pairs to have reached his conclusions after study and reflection. Second, Seeger plainly did not believe in a god or gods, however defined. Now, in duties transcending the obligations that arise among men, simply the fact -- from the fact that we are in a human society together, he rejected as pure expedience -- I mean that's his words, actions taken through fear of God, and said that he had more respect for the nobler pagan spirit of antiquity, but for a belief in -- belief in and devotion to goodness, and for their own sake, and to a purely personal ethical code. Third, I would say that Seeger's philosophy did contain a sense of obligation. He spoke rather movingly of the duty of a person to give his life meaning by relating constructively, I think he put it, to the human surroundings in which he lived. Fourth and most important, Seeger's opposition to war is overwhelmingly political. Political in the sense that it is directed to the kind of things that the Government must consider in determining of whether to require Universal Military Service in determining what is its policy toward defense would be and what its foreign policy would be.
Potter Stewart: This -- on this point that you find yourself an issue with your adversary don't you, that even in this case, there's a claim that this objection is -- has a religious basis, isn't that correct?
Archibald Cox: Well, apparently, yes. I think the part of the tumble with that, Mr. Justice Stewart, is in the word religion which has so many meanings. And if I may just finish the point I was making, I then going to direct myself I think to that direct point. I was emphasizing that I would say it was political and philosophical, that's a conclusion. But I do emphasize that his concern as he put it, was with the welfare of humanity and the preservation of democratic values. From that standpoint, he argued that the preparation for war was wrong. The philoso -- the philosophy behind the arms race is that military preparedness will deter aggression. By arming ourselves and we're not provoking others to arm, was not this process -- was it not this process that led to war in the past. Sooner or later resentment and anger will outstrip fear and war will break out. And those are --
Arthur J. Goldberg: (Inaudible)
Archibald Cox: I don't think that their --
Arthur J. Goldberg: Their partly political or (Inaudible)
Archibald Cox: I would think that they're part of their argument if that was all there was to it politically. I should try to emphasize here. Indeed, the essence of my case is almost the proposition, Mr. Justice Goldberg that one starts at one end. And it can describe things that are purely political. And one can describe at the other end things that we would all agree were clearly religion. And in between the two, there is this continuum.
William O. Douglas: I don't suppose you'd have any doubt what he could -- this is a First Amendment case on the Free Exercise Clause that this man was practicing a religion if he is conducting services --
Archibald Cox: I would have -- I wouldn't argue that the Congress could do anything to affect this man's belief, to prevent, to interfere with any rituals, to prevent any proselytizing, anything that has to do with the holding of beliefs or the observance proselytizing of beliefs. I say that this is a case dealing with secular canon. Also again, and I do not want to get too far ahead of myself because this is a terrible tangle if I may put it that way. Again, I think that this is dilemma that to provide at all for the opportunity for men to follow their religion in this area, the definition of those who are exempt has to be couched in the terms of belief, the terms which we would of course much rather not have secular legislation deal, but that that is one of the dilemmas, that Congress was entitled to take into account. Now, all I'm saying - seeking to emphasize here without -- I don't really mean to characterize Seeger's argument too much. I'm trying to state what it was. And the point that I want to emphasize is that it is in terms primarily of the wisdom, of policy decisions, the wisdom of defense, the wisdom of war. He argued in his statement the first two World Wars failed to make the world safe for democracy. And World War III is not likely to be more successful. War, he said, was self-defeating. Not only because of the slaughter of innocent people but because it inevitably resulted in the destruction of the democratic, social, and political values for which our society stood. It is in terms of social, political, perhaps philosophical, and yes humanitarian objectives. Now so of our many things, Mr. Justice Goldberg, that are religious. But I think that I would argue that what is -- that the center of religion at least, remember that we're dealing with shades of conduct, it hold has something more than those purely humanitarian arguments to it, something that belongs to the realm of the spirit, something other than reason, something reaching deeper than reason usually.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, it seems to me that with all respect, that that's quite an impossible interpretation. The language in the statute came from Mr. Chief Justice Hughes' dissenting opinion in the Macintosh case, and both have it. And there it seems to me that he was contrasting political and sociological, philosophical views in a much broader sense in the judgment as to the particular war. Second, I think it has to be born in mind that this particular part of the definition, the later part of Section 6 (j) was to put in following some judicial interpretations in the Selective Service Act of 1940. Now, when the Selective Service Act of 1940 was enacted going beyond the old conscientious objector section of the World War I statute, two kinds of arguments were presented to Congress. The old exemption have been confined to what I may put in members of the peace churches. One had to be a member of a sect that taught objection to war in any form. There was trouble defining what was a sect. The primary argument, however, I would say as I read the hearings before the Congress and they were very long hearings, was that it was felt that this was unfair to the people of known religions, where the religion did not teach opposition to war as part of its creed, but where that individual as part of his religion nevertheless, have felt the sincere opposition to war. Then another line of argument that was presented was that anyone who was conscientiously opposed to war should be exempted. And it seems quite clear that when Congress spoke of religious training and belief that it was attempting to take care of the first class and not the second. But even if that should be wrong, the Ninth Circuit accepted that view. The Government had always accepted that view. The Second Circuit apparently had departed from it. Even if that should be wrong, Congress clearly put this language in the statute for the purpose of rejecting the Second Circuit's view and accepting the Ninth Circuit's view. So there's a matter of interpretation. I really think this means political in a broad sense as it's shown, I submit to you, by the -- by the context that associates political with philosophical, political philosophy. It associates it with socio -- sociological, which surely is not directed simply at a single war. Or a personal moral code of which again could hardly be directed in that direction. If I were to try to sum up Seeger's views in the sentence, I would say that he felt a strong conscientious obligation to act and live by his political opinions, even to the point of resistance to the duly constituted civil authority. Now, I do come to the point that was raised about the use of the term religious. It seems to me that some confusion arises, Mr. Justice Stewart, from the fact that religion -- religious is being used here in a lot of different senses. I think the facts may be fairly stated in this way. It was stipulated at the trial that some theologians whom Seeger might call as witnesses would testify that his views were religious within the meaning of the definition in the old Second Circuit Kauten case that was rejected by the amendment of the Section 6 (j). And of course, we stand by that stipulation that some theologians would have so testify. And I think it's fair to say that as a matter of usage, there are people who use the word religious in a way that encompasses Seeger's views. Second, whether Seeger's views are religious in the sense in which the word is used in the constitution is a matter of argument. Well, that depends of course, not only on how you characterized Seeger's views but on how one interprets the term religion or free exercise thereof in the Constitution. Third, I think it is --
Potter Stewart: The constitutional scope to be given at least to the Free Exercise Clause of the First Amendment --
Archibald Cox: But I opposed --
Potter Stewart: Yes.
Archibald Cox: I'm going to come to that --
Potter Stewart: Alright.
Archibald Cox: I think we would get lost if we get into that right now. I don't mean to be rude but this is --
Potter Stewart: No please, you may resume.
Archibald Cox: Third, I think there is agreement and certainly we argue that Seeger's views are not religious within the meaning of Section 6 (j). And I would try to keep the sense in which I used the term religious clear. I shall try to use it always unless the context shows otherwise in the sense in which it shows in the statute, and not in some of the other sense. Now, in saying that Seeger's views are not religious, I don't mean to denigrate it. We're in an intensely difficult area here. It's intensely difficult for the civil authorities to require any men, which he conscientiously feels that he should not do. But this is a problem after all, as Congress faces it and as the draft authorities face it, that deal with awful choices. We're talking about the life and death perhaps of an entire nation, of an entire civilization. And I think what Congress has essentially tried to say in Section 6 (f), and what we say it has the right to say is it when one is in that kind of area making these awful choices, then Congress has the right to say, “So long as your argument is that we are going about preserving democratic values, western civilization, and the ideals of American life. So long as your argument is in those terms, then the community has the right to set its judgment after consideration ahead of yours. Unhappy as it may be that someone must be forced to act in a way that his reason tells him he shouldn't act. But if the argument, that the objector made, is transported to another realm, if it's in a -- I would use the adjective “higher realm”. But if it's in a different realm, if it's in the realm of faith, of the spirit, of the divine, transcendent, then the Congress says, “We can't argue with you and we recognized your scoop.” And our argument simply is that Congress has the right to recognize that division, shady as the lines may often be, and that Congress has the right to make a choice that draws a line provided that it addresses itself, solely to drawing the line in terms of seeking to promote religious freedom. Now, I want to say a word if I may, about the question presented here, because it's intensely important that we be clear as to just what the question in this case is. Since Seeger does not fall within the exemption, granted by Section 6 (j), he as far as to argue that it is unconstitutional to draft him for combatant service while exempting those who are opposed to war because of what are religious reasons within the statute. The argument I take it is that he is the victim of an unconstitutional discrimination that can be avoided so long as those who are within the Section 6 (j) are exempted, only by exempting him also.
William O. Douglas: I suppose you agree with him that the exemption was only in Protestants.
Archibald Cox: I would agree -- well I think if the exemption was only for precedence, I would agree that a Catholic, a Jew, so on could raise the question. I am not sure that Seeger could raise the question. Indeed this is the part that I am seeking to emphasize that we are not concerned here --
William O. Douglas: I understand but I -- I understood he wasn't Catholic.
Archibald Cox: Oh no not Seeger.
Speaker: (Inaudible) Born a Catholic.
Archibald Cox: Well, I understand that he is not a communicant today which is what I meant. The point I'm trying to emphasize is that I think Seeger might show, Mr. Justice Douglas discrimination against him. That it's not enough for him to argue that this statute discriminates against Buddhists with gods. But it discriminates against the Ethical Culture Society. If it does, that the Court can't pass on the constitutionality of this statute in rem, especially since its meaning depends so much on its application. And that Seeger must therefore show that there is an unconstitutional discrimination.
William O. Douglas: That goes to standing.
Archibald Cox: I suppose so, yes. Also when you're standing in different senses, I say it goes to whether any constitutional right of his has been taken away as distinguished from standing to sue. Now, that's what I was seeking to keep separate. So what -- so I think --
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, I did not -- I didn't think it was necessary, Mr. Justice Goldberg. There are so many cases one could put. I think that what would have to go into Buddhism in some detail and he would as I have for what I know about it have to understand the views of the particular Buddhist. I've quoted a statement of Buddhism in the footnote in my reply brief that would suggest to me, speaking simply and intellectually and I don't know but we've had no cases that we can we discover. But I would think that a Buddhist might well qualify under the statute. I would think that a Buddhist or a member of the Ethical Culture Society might be able to make a very different constitutional case than Seeger assuming that the statute as interpreted does not include it which I -- I don't assume, I have no bases either in the rulings that have been made as best that I've been able to discover them and they're not -- not an IBM machine or in anything I've been told that a Buddhist would be excluded.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, I would think that the class here that Seeger would represent, would be a class whose views are, in my words, essentially political or sociological, a class which does not claim any of the indicia of religion in the sense of worship, in the sense of belonging to a flat, adhering to a creed, acknowledging a catechism, any organized religion, any moral code that others adheres to. All of those things seem to be to be indicia of religion. And that really the problem we're dealing with in a sense is how much of what you have that we all would call religion, which religion in the traditional conventional said, may be taken away and you still have religion left. Now in Seeger, you have a quiet different problem with than you would have with the Buddhist or anyone else. So that I say, I don't think it's just in terms of standing to sue, I thinks it's in terms of the differentiation between Seeger and others, is not an constitutional differentiation against him now that maybe that there are other unconstitutional differentiations.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: No, I have the key of the emphasis that I would put on the statute. I don't mean to rid Supreme Being out of it. The key of the emphasis that I would put on the statute is the difference between duties, as we know each other just because we are in the community and duties which to me, transcendent or divine that go -- reach over and above of human relationship. Another way putting it which I try to suggest was the kinds of considerations that the Government debates so that the executive and legislative branches suffer over when they have to make these decisions about defense or war and peace, and the kind of question that belongs in a different realm. Now, those it seems to me are poles apart. And that the heart of the problem here results from the fact that they are poles apart. The way I plan to approach the constitutional issue, the substance of it, and the way I find that gets most quickly into the heart of it is by looking at this problem of what to do about conscientious objector loosely speaking, as it faces the Congress or a legislator because that forces you, thinking about the Constitution as well as what ought to be done but looking at it prospectively rather in -- than in arrears, because that forces you to really face up to the hard questions. But other course that Congress might have followed would be less subject to the objections made here. What is it about this statute in terms of what could be done that is unconstitutional? Now, I started looking at it that way with three things that seem to me to be facts. One is that the American people from long before we became an independent nation has believed that there are some men usually members of the peace churches, who should not be ordered to fight of because this would require them to disobey what they believe to be the revealed commands of their god, of the doctrines, or perhaps being the epitome of that class of people. And we have always felt that some such allowance should be made of -- that a man who took that position, if he didn't fight as he wouldn't, should not be put in jail. Second, it seems to me there's also a fact that in the absence of conscription, men would have all kinds of reasons why they should not go into the army or perhaps the farthest over on the -- toward to pull away from the dunkard that we need to go is the man who reason on simply practical terms that defense and war are always self-defeating, in practical terms, that the damage to human welfare, of the wealth, on the opportunities that are lost in war never can be equaled by the games from war. Therefore as a purely material political man, one should never fight any war. The third, I suggest as I have before us, argued by the petitioner, that between those two, there is what I've called the continuum. That one shades into the other or that the views in between have indifferent degrees, different elements and different combinations of each element of belief. And that you really can't tell where one divides into the other. Now, given those facts, it seems to me that three conclusions inescapably follow. First, that although a sec -- Selective Service Act that deals with secular conduct, there is no escape for framing any classification and easing the plight of any conscientious objector in terms of opinion or belief. You just can't appoint. Congress might exempt no one and override all objections including the deepest religious objections and those based most clearly on revealed command. It might exempt to everyone who have some reason that he personally thought he didn't want to or shouldn't serve in the armed forces. Congress can go a good way to eliminate the differences as indeed it has done because it requires everyone to give some national service and for -- and during war has taken everyone out of his home in civilian intern. But under any course, it takes any account of religious objectives to war. It must frame the exemption in terms of a man's opinion or beliefs. And I suppose that raises the initial constitutional question, does the First Amendment prohibit Congress from classifying men for military service on the basis of their belief, religious, or otherwise. We think the answer is plainly that the Congress may provide for such classification, where necessary to accommodate the demands of religious liberty, to the needs of national defense. It seems to us that the contrary argument based as they are in the briefs on the quotations from prior opinions to the effect that Congress may not differentiate between religion and nonreligion, or may not differentiate between religions, all are too broad and too undifferentiated. They failed to note the very different context which Mr. Justice Douglas has suggested already, in which those words are uttered and the differences between that case and this one. Now, in our reply brief, we have set out three categories and I simply want to refer to them very briefly. First, where legislation or other governmental action challenged under the First Amendment, attempts to punish or regulate beliefs or ritual or the professional beliefs, then of course the widest possible scope is given to the protection and the widest possible scope may be given to the word religion. Here, the aim after all, is to guarantee people freedom of mind. To guarantee each man his own cosmology, his own philosophy in life, his own right to profess, his own right to proselytize, his right to do those things about what might say the subject's doubt within religion. It doesn't matter whether his belief is religious or nonreligious. Indeed it's been suggested and I think the very sound basis that since the First Amendment protects other forms of opinion is really no need when you're dealing with this area of belief as such for proselytization, or profession the area dealt within Barnette, the area dealt within Torcaso, then there is no occasion really to distinguish between what's religion and what are some other form of belief. Now, it rests I submit even within exemption for conscientious objectors falls in a quite different area. It's secular legislation. It deals with secular conduct resulting from beliefs. Secular conduct of course may conflict with religious liberty, either because it requires conduct inconsistent with the teachings of religion, as was true in Sherbert v. Verner, or in the Prince case, or the old Jakobson case on vaccination, or because government regulation in conjunction with the observance of one's religious beliefs, the soothing conduct of the belief results in some kind of economic loss that is in Braunfeld and Brown. But the Court has always recognized a difference between legislation that attempts to intrude into the field of beliefs as such, or professions, or proselytization and legislation that regu -- that deals with the secular conduct resulting from beliefs. And while Congress is absconded to its power in the latter area, it's not at all uninhibited. It's perfectly clear that it is a great deal broader than it is in the areas like those in Torcaso and Barnette. Now the second category of cases of course, the Court at bar in the second category perhaps in many other, deals with support of religion or involvement of the Government in religion in one form or another. I questioned, as we have in our reply brief, whether the field that from which the Government is excluded here, is as broad as it is where you're dealing with the problem like Torcaso or Barnette. There are many things that are called by some people to be religious, which I can't believe the Government may not aid or support or be involved in. For example it is said that ethics is religion, but surely one of the functions of our schools is to convey from one generation to the next some of the basic ethical principles of the community. This case, however, whatever may be the merit of that suggestion, this case does not involve, in any meaningful sense, support for religion. To say that the Constitution requires Congress to ignore religious beliefs in imposing secular duties that conflict so directly with the teachings of religion as an order to engage in combat, in violation of what the man, the individual believes is the command of his -- the literal command of his God not to kill. It goes way beyond any meaning that's ever been put on the Establishment Clause. And to give such an exemption, I suggest, is not in any sense to aid religion. The Act deals here, this Act, deals with the beliefs of man as facts neither encouraging them nor discouraging them. Indeed I think it's fair to say that just as Congress concluded, that it was inhuman, harsh to require a son, all of whose brothers had been killed in the service to be drafted, was so cruel to his family, so here there was a similar feeling that given a man who would be put in jail for disobeying the command of his God was a lack of humanity. It should have showed you compassionate exemption and one to of course aim at promoting the free exercise of religion. I think the contrary argument makes much to light of religious faith, alright. It asserts that the people of conscientious objector are going to take on or give up their beliefs because of the differences it perhaps stated. In the first place, I don't think anyone simply by his assignment to one form of national service or another is likely to be influenced at his beliefs. In the second place, the Act makes it very clear through the test of sincerity that anyone who takes on a -- what he calls a religious belief or from that motivation of course would be given a 1-A and not a 1-O classification. Now, I do acknowledge, of course, that there is some difference in treatment between anyone exempted from combatant service or at one drafted through combatant service. And I suppose there are those who would regard one as in advantage over the other. If there were any way of avoiding that difference of treatment, it would seem quite possible that the First Amendment would require Congress to avoid it. But here we come up to what I think is the second of the hard realities of this case of the insoluble, inescapable dilemmas. And that is that you cannot treat the one who is exempted and you cannot treat the religious objector like the man who has no religious objections and still provide for the free exercise of religion. There just isn't any way it could be done. Either you're going ahead classifying differently because of his faith and his desire to pursue these conducts to his faith, or you're going to ignore this faith.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, I think I really hadn't quite come to that point, Mr. Justice Goldberg. I shall indeed. The point I was trying to make here was simple that if one is going to provide for the free exercise of religion, he must treat the religious objector somewhat differently from the general run of the community. I did not mean to suggest that he must draw the line between religious objectors and nonreligious objectors. I did mean to suggest that he must draw the line in terms of belief and I intend to dwell on that a little bit further. But my point now is that simply to the extent that there is in this classification, anything that can be called aid, advantage, benefit, I don't think it can fairly be called support but anything of that kind for religion or for conscience if it was driven and drafted in those terms, that it's inescapable, that there is no way of not making some difference according to beliefs. Now this -- this is very important in terms of answering the arguments, that you can't treat religion differently from nonreligion as it is important in treating, entering the argument you can't treat two religions differently, because it's inescapable. If you're going to do anything for the free exercise of religion here, that there will be some differentiation between people according to their beliefs. Now, that much differentiation, we think Congress has done everything possible to reduce it, that much differentiation, we think, is permitted or justified even though not required by the problem of accommodating the Free Exercise Clause with the other requirements of the First Amendment. And on this point, it seems to be that the precedent shows very clearly that we are right. Those most closely in point of course are the decisions beginning with the Selective Draft cases in 245 U.S. where the Court sustained a narrower exemption than the present one both against the argument that it improperly favored religion as against nonreligion, and against the argument that it improperly favored are the peace churches or members of the peace churches against those whose individual religious belief was opposed to war in any form but who's created -- but whose church did not adhere to such faith. Those cases have been cited with approval in a number of recent opinions in this Court. We've gathered them and quoted from them at some length in our brief. They include the opinion by Mr. Justice Brennan, in the Sunday Blue Laws cases. Also the opinion I think, or the opinions I think of Mr. Justice Harlan and Mr. Justice Frankfurter in the Sunday Blue Laws cases. Again in the -- in the Schempp case, the opinion of Mr. Justice Brennan and the opinion of Mr. Justice Harlan and Mr. Justice Goldberg suggest very strongly that Congress may grant exemptions from secular legislation where necessary to accommodate the requirements of the secular legislation to the free exercise of religious belief. Sherbert and Verner certainly would seem to support that proposition indeed it seems to hold that under some circumstances that may be a requirement, a constitutional requirement and not just something permissible. And the dissenting opinion by Mr. Justice Harlan and Mr. Justice White, clearly recognizes although they held that it was not a constitutional requirement, that there is some leeway for accommodation by the legislature or the Congress in working out this kind of the accommodation of between the demands of religious freedom and in this case the needs of national defense. Now, I come to a point I've already alluded to several times but I like to deal with it more precisely. The third inescapable fact, if one asks, what can Congress do in this area? The third inescapable fact that confronts anyone facing that question, I'm seeking to allow for the free exercise of religion in relation to military conscription is that wherever the line is drawn, the any exemption or classification will have to involve inescapably fine shadings of belief. And really the question here I think when you come down to it, is whether the First Amendment leaves some room for Congress to decide where the line should be drawn between the fine shadings of belief, or whether the Court or because the Constitution requires it is going to hold that it must draw that line. Now, the polar cases as I've said before are relatively easy to deal with but no one has any trouble distinguishing between that about 18th Century Quaker, or the Mennonite, the Dunkard and others on the one hand, and those who object to military conscription on the ground that building up the national defense will lead to further building up and mobilization on the other side that eventually this will lead to war and that all war is defeating in humanistic terms. The problem is that these two merged into each other. Now, where is the line between religion, conscience and disinterested political or economic judgment? Is the test one of the stubbornness of belief of its source, of its ultimate justification? Where do political and economic policy break off and philosophy begin? And where does philosophy break off and religion begins?
Potter Stewart: If the court should try to formulate an answer to the questions you're now asking, wouldn't we be thinking a bit with the First Amendment ourselves?
Archibald Cox: I think yes. And I agree in substance with you, Your Honor, and I think I understand and was going to make a little later the point that I understand you to suggest. I think the great fallacy in the opinion of the court below, and in the arguments of counsel here, is the failure to recognize that wherever the line is drawn, there will be cases on opposite sides of it, which differ only in degree at which other persons might put in a different category because they give somewhat different scope to the terms ethics, philosophy, political or religious. I think that in this area the very simple and attractive, I must acknowledge proposition, that the First and Fifth Amendments prohibit any differentiation between forms of religion, is itself too undifferentiated. It's supposed too broad and too narrow. It's much too narrow as applied to the area that Mr. Justice Douglas referred to as the First Amendment question where you're really regulating a belief. It's much too narrow when you're dealing with support for religion in the sense of Engel or Schempp with that problem regardless of the result. But it's much too simple, too broad when you come to this problem of classification. It really is a gross I submit with reference to the court below and the counsel, a gross over simplification to pretend that the line between what is religion and what is not religion, it vows no shadings of degree. And to pretend that there are no relevant differences in terms of this problem between what might be termed by some definitions to be religion. And then I would go on as we have in our brief, to raise the question whether it helps very much to approach the problem in terms of religion. You will find in some of the briefs amicus a great many different definitions of religion. The psychologists, sociologists have a definition. The fundamentalists, the 18th Century -- 19th Century church had very different definitions. And some theologians have moved towards the definition of the psychologists, others have remained fundamentalists. It would seem to me that for the Court to choose, as Mr. Justice Stewart suggests, between one of those definitions of religion and to say that that is the constitutional religion was far more an interference with what's really important in the First Amendment but for the Court to say, that the Congress may make a careful, non-invidious classification, closely related to permissible aims. Now, of course it's suggesting the Congressmen make a classification of resulting from differences in belief I hasten to add that it must be very closely scrutinized so that there will not be the kind of difference that Mr. Justice Douglas mentioned before. So there will be no suggestion why we like Catholic and we don't like Buddhist or Catholics have so many hundred thousand votes and the very few Buddhists are sent to Hawaii. That kind of difference of course violates the standards of due process established by the Fifth Amendment especially when it's read in conjunction with the First. Our argument, I hope and certainly is not intended to contain any suggestion that there's to be a difference based upon on some kind of an invidious classification, or based upon judgments concerning the orthodox, the truth of what a man beliefs, not truth of whether he believes it but the abstract truth of what he believes, or based upon some notion of the word with different views. That's all out.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, I didn't -- I really didn't intend to address myself to any other line of differentiation with this one. The line that was drawn in the Selective Service Act of --Selective Draft Act of 1968 or 1978 did come close to making a line between organized religion and unorganized religion. And the Court held unanimously that that was constitutional, I don't intend to disavow that. I don't have that case, but I don't intend for a moment to disavow it.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: I agree that he uses the word religious, that he says he is religious, and counsel says he is religious.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, I think there are a number of points I'd like to suggest, Your Honor. One, without meaning to quibble, he doesn't say that is his belief. He says he has more respect for it. Second, remember as the case comes here, the question as what to draft board might have concluded about his beliefs, and not how we would interpret because he doesn't have to take everything exactly at face value. Third what I'm arguing, I could see that as a better usage many people would denominate his beliefs religion but nor as I said earlier I'm not quite sincere about this. I don't mean to denigrate his conscience or his beliefs. He's -- depressed by and he's quite a fellow unhappily, providing for the national defense can be inconsistent with that. But I don't think what I am suggesting is whether somebody would call this religious or not. In some sense of the term, isn't decisive, that if the question that Congress had the power to say as I have tried to argue, that this involves drawing a line. This question involves shadings from one view into another of what are easy to separate. And that if Congress draws the line for secular purposes, and solely either in terms of secular differences, or for the purpose, Mr. Justice, of attempting to separate out what is religious as we would all agree by any definition, from what is political or philosophical or sociological as we would all agree from any definition, by any definition. But if it is addressing itself to that and that if the line it draws can be justified in terms of that objective, then it doesn't introduce a lot of other invidious things, then we say that it is not prohibited even by the First or Fifth Amendment.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, I confess I don't understand that, Mr. Justice. It seems to me that I say, I don't want to fight, I have a duty to bring up my children and I regard that as a transcendent duty. No, I don't put that in terms of religion. I don't think it's any different from my unwillingness to take a bribe as to the position the Solicitor General would take in this Court or whether he will let 91 days go by before he files a petition for certiorari. I -- somewhere, the line has to be drawn. I really don't think you escape it by introducing the word conscience. I also would say that we know certainly a sharp difference between of what is conscience and what is religious.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: No. I don't think so really for two reasons. First, I think even the line in terms of conscience, if you think about it, is a line in terms of beliefs. It's a line that has to do with people's state of mind. You would simply move it farther out away from what we would all call religion. But it still remains a line based on something subjective. Second, I think that it goes beyond anything that can be fairly called the free exercise of religion, that religion does mean something other than conscience. The illustrations that occurred to be is it clearly would be against if I don't mean to be rude, but clearly be against the conscience of any justice of this Court to let the substance of a decision be known before the opinion day on Monday, to friends or to induce paper reporter or to anybody else. I can't relate that to religion and equally of --
Arthur J. Goldberg: (Inaudible)
Archibald Cox: I think that there are many cases in which they tend to become the same thing. All I am again saying is that these things do tend to run together, as it is inescapable that someone draws a line. But I think that at one end of conscience, that one end of religion, they are virtually separate as day and night. I think we all know men, there are many things they wouldn't do because of conscience. But who of themselves would say, that they attributed no religious significance to it. Now, I don't -- I think Congress could have drawn the line clearly the other way, Mr. Justice. It might be that if arrive where the Congress we would draw the line and where the British drew the line. I don't say this is the only line that could be drawn. I say that this is a constitutional line. I say that it is a reasonable workable line. The arguments that we make as part of that proposition are developed at some lengths in our belief. I spent so much time trying to show that one is free to take them into account that there really isn't time to develop them here. But you'll recall first there the argument of history shows that this is a reasonable line. That this is a line between religion and conscience, if I may use those terms as been one of various forms of conscription have made throughout our history. Occasionally, you find conscience used in early statutes. I strongly suspect that it meant religious conscience but I have nothing to show one way or the other. But the line nearly always has been in terms of religion. I suggest second, that this has over the years through two world wars, through Korean period, and the intensely difficult period of a drastic peace talks approved a pretty workable line both in the sense that it's been administrable, and in the sense that both those drafted and their families that all seem to have found it pretty acceptable. We say for a third thing that this line does take care of what seems to be at the pole of what is clearly religion and to be drawn in terms that has applied to one like Seeger, do tend to differentiate some place of penumbra whether you call it religion of nonreligion. And finally I think it is significant, we've argued this at more length in our brief, that the definition of religion in the statute conforms very closely to what has been our national sense of what is religion down through history. The Court has often said that we are a religious people whose institutions presupposed a divine being. I take that it means divine being only in the -- somewhat in the sense certainly today that I have used it. I don't mean to suggest that if the legislation was trespassing in the people's belief or profession, or that if it had to do with some part for religion that in a national conscientious would justify that of course, nor indeed do I suggest that this is the only justification here because this would come to a difference that it might exclude Buddhists and some other strange sect. What I do say is that along with the other considerations, that it is relevant to take into account that the law that touches so many people, so many millions of people so imminently, closely and so fearsomely at many times in our history that the national understanding of what constitutes religion would certainly affect Congress could take into account. Now, I plan to go on, Mr. Chief Justice if I may to the second of these cases, the Peter's case. The constitutional arguments that I have made, apply equally to the Peter's case which I shall argue next, and to the Jakobson case, the third of these cases. I have no intention of repeating it. I shall devote my self now simply to the separate issue in each of these other two cases. Peter first registered with this local -- I should have said one thing more. Peter claims that he falls within the definition of the exemption in Section 6 (j), that is his opposition to war, is based upon belief in a Supreme Being involving duties superior to the duties that arise out of human relationships and it's that point that I'm going to address myself to it. Peter first registered with this local draft board while a student at Reed College. He did not claim at that time to be a kind of conscientious objector. But a year later, when he filled out a standard questionnaire form the draft board, he submitted a poem expressing opposition to war even then he didn't claim classification as a conscientious objector. In February 1958, he voluntarily withdrew as a student at Reed College. And within a bearing of few days or few weeks if not few days thereafter since he had lost or having lost his student deferment, he requested forms that he might express his conscientious objection. The draft board denied the classification and after a hearing, it reaffirmed his denial of the 1-A classification. Peter appealed. There was the usual FBI investigation, a hearing that he and two witnesses attended before a hearing officer. A report recommendation by the Department of Justice and ultimately his draft board voted again to deny conscientious objector status. Out of those materials, they've emerge a sketch of Peter's life and belief, that I want to summarize very briefly. Peter's family had no religious affiliation and he was not brought up in a religious background. As a high school student he had been introspective and exceedingly independent. And some of his teachers testified that if he ever reached the conclusion, that it was morally wrong to kill there would be no doubt about having the perseverance to be a conscientious objector. He then went to Reed College, where he left a reputation for good moral character but deficient scholarship. He's never been very good student apparently. He withdrew from Reed as I have said in February 1958, and immediately thereafter, having then lost the deferment as a student, requested classification as a conscientious objector. After leaving college, he lived -- rather bohemian existence apparently in San Francisco. Most of it in the cust -- in the company of (Inaudible). He was interested, I would guess in a rather unsophisticated untutored way in music, art, and poetry. He worked for Bree Spells (ph) once as a hall man, once as a photographer's assistant, once as a temporary clerk at post office. For one reason or another, he didn't keep any job very long. His post office job, he left with the expedition that the job involved driving truck as indeed as a substitute, and that he would not drive a truck as he said as a matter of conviction. He explained his views about military service, war and religion at some length. But I think they could be epitomized and fairly epitomized by a short passage in a letter that he wrote to the Director of the Selective Service System when he asked him to take an appeal to the president for the classification of the Appeal Board. In that letter he explained his opposition to military institutions, saying the presence of other living beings in the universe, sounds a call, presents a vision, a fact, a mysterious reality that I cannot deny and to which I feel the impulse to relate. I view physical violence on the other hand as a denial of life, and I really think that it is fair to say that that is the essence although he used great many more words of his objection to military service. The hearing officer and the Department of Justice recommended denial of the claim to exemption, the Appeal Board by a vote of five to nothing did deny it. When Peter was called for induction, he refused to submit and this prosecution followed into the courts. Now District Court entered a judgment of conviction and the Court of Appeals affirm because it found that Peter's belief, involved no sense to responsibility to an authority higher and beyond at a worldly one. I would emphasize that under the settled course of decision here, the only question is whether the Local Selective Service Board and the Appeal Board, had any basis whatever for concluding that Peter is not conscientiously opposed to war by reason of religious training and belief. And that belief, as I said in the previous case, must involve duties associated with some relation, to something that can be called a Divine Being. Call it God, a person, an ideal, an abstraction, that involves duty superior to those arising from the human relation. To prevail in other words, Peter must show that the record is devoid of anything, that which support for conclusion that he had such a belief. I make a good deal of this point because it seems to me, that the essence of the Selective Service System is that this question perhaps especially this question, of where the ones entitled to deferment is a conscientious objector, should be resolved by the people who could see and hear the registrant -- the registrant, concise him up and do the community what sort of people who are in it as possible, and thus form a judgment but which necessarily would involve some application of the term to the individual. The elements that convince me, that there was such a basis in this record, it convince me that Peter's objections could be found not to be based on religious training and belief, are a little different from those emphasized in our brief. I think our brief treats it a little too conceptually and abstractly I should say my brief, because I'm not blaming anyone else, I wrote it. But I do think the essential elements can be stated rather frequent. First, Peter did not come for the religious background and had no religious training. Second, his original claim to conscien -- to classification as a conscientious objector whether he made did not assert that his objection was based on any religious training or belief. Third, he belong to no religious sect, he did not worship, he had no form of creed, he had no body apparently of moral or ethical principles, no thought out body, I don't mean anything other than that. All of his life, he'd been independent to the fight of being a rebel. And I don't say that to criticize him at the slightest. I say it simply to indicate that he would be -- he was a personality who would be capable of challenging the Government's drafting in but without the sustenance that comes from religion. And this seems to me to be a significant point in deciding the nature of his objection. But most important, Peter's life and his statements of his belief convey no sense of ethical obligation, no moral code except concern for life, no belief in duty or belief in a sense of obligation. In this respect, it seems to me that Peter's case compares rather unfavorably with Seeger's because Seeger did if you will recall speak quite movingly of the moral responsibility to make one's life worthwhile and of his admiration for what he described as the pagan stoics. But there seem here perhaps I don't understand Peter, but I do submit to the Court that there is a basis in the record, from which the draft board could fairly draw the conclusion, that Peter had no sense of religious obligation.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: I must have a -- page 20 of the Peter record?
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, this is an answer to a question of what he means by religion. Alright, in answer to a question whether he acknowledges the existence of a Supreme Being. It does not seem to me to be inconsistent of whether by statement that his declarations of the whole or his life and the whole do not show that he had this kind of conviction himself.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, I'm sure, let me say this.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: I have no doubt that Peter had -- in a sense poetic, a deep, a mystical feeling, a belief in life, its existence that he had a feeling that was stirred by living things, by the processes of creation. He apparently had a mystical sense of oneness with those things.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, again, Mr. Justice, I think the essential difference between what it seems to be suggestive by your question, and this is that you take some one thing that enters into religion, and what it makes that religion.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, no. No, but I really don't think that -- excuse me. I didn't mean to say that. What I meant to say was that in terms of having a body of ethical or moral beliefs, a sense of obligation that Peter compared unfavorably to see. There is not that slight question I have fully agreed with, that to the extent that religion involves mystical quality and I think that it is in its purest form that clearly does, that Peter had a strong mystical quality. I would emphasize that. I think with Peter's case reading it most favorably to the -- it should be read it other way. But reading in most favorably to the draft board, I think Peter's case comes down to this, his claim to religion. That he believes in life as I say believes in existence, that he feels a mystical sense of oneness with living things. That he says that war is death and destruction, and therefore he will not participate. It's fair to add that for the same reason he wouldn't drive a truck. He does have a very genuine, I'm not trying -- I'm trying to describe it not to make fun at it. He does have a genuine feeling for life. And what our case really comes down to, this case doesn't have anything to do with the deism, or what you mean by God. Our case is simple, that a deeply mystical sense of the importance of life and the feeling of oneness in the world with the processes of creation. But devoid of all other aspects of religion does not, we submit, meet the definition of religion in Section 6 (f). It seems to me that -- there are many illustrations one can think of it that kind of feeling about life. If I put it in personal terms, it took a long time for me to bring myself to slaughter a chicken. I've never understood how a man could drown kittens. I went hunting -- went along with a man once hunting, and while climbing on the mountain, you have to feel a good beauty, joy, excitement, once he shot and got the elk, everything was death and ashes, I wouldn't go hunting again. But I don't think that kind of feeling standing alone meets the kind of definition of religion,in terms of involving higher duties in those among men. And I really think that's what our case comes down to so far as Peter is concerned.
William O. Douglas: Is it with shotgun or (Inaudible)
Archibald Cox: Well I -- there are these things I did learn. I slaughtered chickens quite frequently. I've learn to do it. But I -- there is -- maybe these were happy illustrations that -- you almost have to put these things in personal terms. There is something different between a feeling for life, however poetic or mystical, and religion. That's really where my case stands on, and so far as Peter does.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: I -- except for the quotation here, I don't really know about that Bratt and Gilbert.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Well, again perhaps I don't understand you. Again of course, there is a tremendous amount of mysticisms in religions. But I don't think that makes mysticism religious.
Arthur J. Goldberg: (Inaudible)
Archibald Cox: Yes, but I would say that that standing alone was not enough to compel the draft board, to find that Peter's belief met this kind of definition and religion which we think is constitutional.
Potter Stewart: Mr. Solicitor General, right at the early part of the argument in this case, you quoted a phrase or two from that what you said, you thought expressed continuously the essence of Mr. Peter's case.
Archibald Cox: Yes.
Potter Stewart: Could you tell what page -- where is that to be found?
Archibald Cox: It's in his letter to the Selective Service System which I think you will find begins at page 81 in the record, Mr. Justice, 81.
Potter Stewart: Yes.
Archibald Cox: The third case is the Jakobson case. Let me say at the outset, that Jakobson seems to us to have a very serious and substantial claim, that his opposition to war does rest on religious training and belief within the meaning of the statute. Indeed for me, the very contrast between Jakobson's background life and thought than Peter's is the most persuasive evidence that Peter's opposition to war is not ground for classification as a conscientious objector, within the meaning of the statute. And I think the two are quite distinct. Jakobson first registered with his local board on September 2nd, 1953. At that time, he made no claim to be classified as a conscientious objector, but forwarded a doctor's certificate indicating that he had a disabled back ailment, but he was classified 1-A. He sought that was given a student deferment but nothing was said about conscientious objection. In January '56, where he took a leave of absence from college, he then was reclassified 1-A. He again submitted his doctor's certificate pertaining to his back, and seeking deferment on grounds of health. When he was accepted for the army physically, then for the first time, he claimed in a letter to his draft board, that he ought to be classified as a conscientious objector. Then he asked at that time to be classified at Section 1 (a) (o), which would require it to enter the armed forces, but would exempt him from combatant training and belief, that he was granted that exemption. Now sooner when he got that exemption then he wrote and he said he decided that -- that wasn't was what he was entitled to by reason of his beliefs. And he asked for exemption classification as 1-O, which would excuse him from taking or getting a part in the military service at all. That was denied by the local draft board. He then appealed to the Appeal Board. The Appeal Board treating the case de novo as it is obliged to do, classified him 1-A. The Appeal Board or rather the hearing officer of the Appeal Board, based his recommendation that submit Jakobson be classified 1-A upon two grounds. First he said that Jakobson's claim was based on a personal moral code and that he was not sincere in his belief, that the second was lack of sincerity and first the moral code. The Appeal Board simply voted four to nothing, to deny the exemption. Jakobson also refused to submit to induction. The District Court entered a judgment of conviction and Jakobson's appealed. The Second Circuit, we think correctly, said that it couldn't tell of which theory the Appeal Board's determination went. That therefore either was inadequate, the conviction must be reversed with the Selective Service System free to take whatever further action it deemed appropriately. The Second Circuit then inquired whether into Jakobson's view assuming their sincerity, amounted to religious training and belief. And a belief in a Supreme Being to whom obligations superior to those above men existed within the meaning of the statute. And in an opinion by Judge Friendly that the Court concluded that Jakobson did have such beliefs. Again, I emphasize the question is simply whether the record permits the draft board to come to a contrary conclusion. We do not quarrel in any material respect with Judge Friendly's interpretation of the statute. I'm also not inclined that to stress any difference really, as to whether Jakobson's presentation of his views about the nature of God, fails to come within the statute. They are remarkably similar to those of that Professor Tillich, Dr. Robinson. It does seem to us, however, that the record supports the conclusion that his views about war, what everybody think about the existence or nature of what he call goodness or another occasions as supreme reality, had very little -- that they had very little to do with each other. That his argumentation about war was essentially of political, humanitarian, political philosophy what you put in that sense, humanitarian or a personal moral code. He stated his objections at two places that appear in the record, one is R-46 to 48, the other is R-114, 150. And they come to an end of this. His first objection was that war is violently destructive, killing thousands of innocent person, destroying cities. He says all the creative effort, all the time and money, all that could and should go into the effort to relieve poverty and combat disease, is channeled into destruction. This I submit is a judgment that the community is called upon to make of course. The second reason is that, the soldiers on the other side are often as innocent as the soldiers on our side. Third, he says that war springs from and generates a moral intellectual and emotional atmosphere that breeds further violence and more wars. The ends we all desire do not justify the methods of war, he said. But I also believe that the methods of war are not a practical means to the end. But again I think that he argued it in terms of that policy or politics. And then he says finally, the better way to bring about a peaceful world is for individual whose experience is directing is for individuals, whose conscience is directed to do so, to stand against the core of the problem by refusing to adopt the techniques of war. That again is in terms of how to bring about the democratic political, social, humanitarian ideals that the community holds and that the community is charged in determining how to promote. It does not lift the argument as I see it to the different or higher realm in the sense of transcendent, that the statute refers to when it speaks about obligation beyond those arising among men.