Warren E. Burger: -- this morning in Number 783, Clay against the United States. Mr. Eskridge you may proceed whenever you are ready.
Chauncey Eskridge: Mr. Chief Justice and may it please the Court. This is an important case because it poises the -- a famous athlete, the heavyweight or ex-heavyweight champion of the world against the United States Selective Service System, which treated him we say, unfairly. May it be recalled that in February 1964, the so called Louisville Lip, so called because of his loquaciousness to say the least, he just won the championship of mid great public acclaim. He had just announced that time that he was a so called Black Muslim. At that time, they were considered to be terrorists or subversives because the justice department then was wiretapping his leader, the honorable Elijah Mohammed. Well, soon after he won the championship in March of 1964, it was announced by the officials by the Selective Service System that he had been given two qualifications test, and he had failed both and had been given the classification of 1-Y. Almost two years went by and after many reams of newspaper copy, he was then sent on February 3, 1966 a statement of his acceptability, this because the Selective Service System had lowered his qualifications for admissions into the Armed Forces.
Speaker: What is the classification 1-Y of the (Inaudible)
Chauncey Eskridge: 1-Y means that he is not then, or that he'd only been taken in case of war or national emergency. On February 14, 1966, he wrote a letter to his local draft board, alleging facts which he claims entitled him under the law to several lower classifications, including that of the conscientious objector. Without more, on the February 17, 1966, his local board reclassified him. Then the next day, the local board sent him the usual form 150, which is the application for a conscientious objector. Then on the February 28, he sent the application back, which showing on the face of this application what we consider to be a prima facie entitlement to the status of conscientious objector. In his handwriting, he wrote, “Muslim means peace, total submission to the will of Allah, do not take the lives of anyone, nor war when ordered -- when not ordered by Allah” and in parenthesis he has the word (God, keep our prayers and pay poor rates), that's quotation from his form 150. And the form 50 maybe found in page 17a of the appendix -- I'm sorry, on page 12 a of the appendix. He then appeared before his draft board on March 17, 1966 and the notes of the clerk or the minutes of that meeting appear on page 17a of the appendix and they will get them important, because the notes of the minutes of that meeting are later quoted by the Government as being pertinent in this case. Then the appeal process starts. As you remember in those days, you made an -- you make an application to the Appeal Board, and the Appeal Board refers the matter to the United States Justice department, and the United States Justice department at that time appointed under the statute, a hearing officer who was to have a hearing on good faith and character of the registrant. In this case, it is important that the hearing officer was an ex-chief, an ex-judge, a retired judge from the system of Kentucky, a man in his 60's and who had been on the bench many number of years. And that this judge had this hearing, his name was Judge Grauman. Now, Judge Grauman heard several witnesses. He also had in front of him, the record shows that an FBI report of about six inches. He also was given at the hearing two books, one of which was called the “Message to the Black Man” written by the honorable Elijah Mohammed, and another book entitled “The Holy Qur'an” by Muhammad Ali, not our Muhammad Ali, another one. And there was also introduced a copy of a newspaper that put out by his sect, the Muslims called it the “Muhammad Speaks.” Now, Judge Grauman, he had the first opportunity to determine the credibility of the witnesses and he could determine whether how much credence to put in the testimony of the people in front of him and Judge Grauman wrote his report, and his report appears on page 17a. In some of his notations in what we call the advice letter which is written by the Attorney General -- written by the Selective Service System, I mean, the justice department and this is where we consider the crux of this case is in the so called advice letter. Now, the hearing officer wrote his report and he concluded at page 117a in the appendix that the registrant is sincere in his objections on religious ground, to participation in war in any form and he recommended that the conscientious objector claim of the registrant be sustained, notwithstanding. The justice -- at that time, the Justice department had a conscientious objector section and all letters are written by a man by the name of T. Oscar Smith who was in charge of the section and this letter was written back signed by T. Oscar Smith. And then after having said that the hearing officer had found the registrant sincere, at page 128, he then quotes from “Muhammad Speaks” seven lines from the newspaper “Muhammad Speaks.” Then the next paragraph he gives, that is the writer of the letter gives his opinion of what “Muhammad Speaks” says and what “Message of Black Man” says, it's in the bottom of page 120 and beginning 121, then he gives his opinion. It seems clear on reading these two documents that the teachings of the nation of Islam precludes fighting for the United States, not because of objections to participation in war in any form, but rather because a political and and racial objections to policies the United States as interpreted by Elijah Muhammad. Then he goes on and he reads a part of a hypothetical question which Muhammad Ali, the registrant had answered at the hearing before the hearing officer. Then he quotes part of registrant's testimony, and then he comes to this conclusion. “It is therefore our conclusion that the registrant claimed objections to participation of war insofar as they are based upon the teachings of the nation of Islam rest on grounds which are primarily political and racial.” Now we say that when these men who are on the Appeal Board, who had to read this advice letter, with this language, they interpret it like we interpret it that this is as same as saying that the -- his objection to the war were based on political or racial grounds and not on his religion training and belief. Now, we understand that now the Government in its brief, page 30 -- page 27 in Government's brief, now say that that language was not intended to say they were not religious. Now, the Government says that this language was or that Muhammad Ali was one who had his belief rooted in religious training and belief. But now they say that political and racial and if you interpret it, they say that the record infers the inference that petitioner would fight “tomorrow” in a defensive war on behalf of Muslims. This reminds us of the case of Sicurella where the hypothetical questions was put to Jehovah's Witness, what they would they do if they did so and so, or if so and so and so. Now, they have taken some language, juxtapose against other language, and they come to this conclusion, but nowhere in the record as the registrant ever said that he would fight with weapons against anybody. Now --
William O. Douglas: To what extent do the Blacks and Muslims follow the teachings of the Qur'an? I'm not a world's best authority on Qur'an, although I read most of it, and as I read it, the Qur'an itself provides for participation in so called holy wars?
Chauncey Eskridge: Yes, sir. The holy war --
William O. Douglas: And I don't know about the Black Muslims, do they adopt the Qur'an or --
Chauncey Eskridge: They adopt the Qur'an, especially the one that's edited by Muhammad -- you see, there's two names; Maulana Muhammad Ali, that's their official version. And it -- they use it and they couple it with the black man's experience in the United States. Hence, there's somewhat, it's not clear as to how much they interpret from the Holy Qur'an, how much they interpret from the Bible or from the Message to Black Man.
William O. Douglas: Are you referring with the Negre case recently decided by this Court?
Chauncey Eskridge: I am sir.
William O. Douglas: There, there was a, apparently in the historic relation of that church involved in that case was a segregation of Just War. Is this Jihad in the Qur'an, the equivalent of the Just war --
Chauncey Eskridge: Right.
William O. Douglas: As opposed to the Unjust war?
Chauncey Eskridge: Your Honor, this is the first time that I had ever heard anybody suggest that Black Muslim theology came from any Just or Unjust wars.
William O. Douglas: I'm talking about the Jihad which is in the Qur'an as a war that the Qur'an embraces as the kind of war. I didn't agree with the Court in the Negre case, but I'm just wondering the relevancy of that here?
Chauncey Eskridge: That war means a theocratic war which is the same as the kind of war that Sicurella war or the Jehovah's Witness. They believe in the war of Armageddon which is a war against right versus wrong.
William O. Douglas: I think the Mediterranean literal has seen Jihads, well maybe not for several hundred years, but historically they've been quite a few, haven't there?
Chauncey Eskridge: There may be, but I doubt that they would be what the Muslims speak of as the nation of Islam. What they mean by that is not a territorial area, but it means the religious group.
William O. Douglas: Yes. Well I'm not trying to attribute to the Black Muslims this teaching of the Qur'an because I just don't know, but my question is does the record show what the Black Muslims believe in this respect?
Chauncey Eskridge: Yes sir. The record would show that because in the early part of the testimony, they put on in an assistant minister of the temple, and that was Sam X. Saxon, and his testimony begins at page 22 or 23 of -- no, I'm sorry.
Hugo L. Black: Of the appendix?
Chauncey Eskridge: Of the appendix, page 30 of the appendix. And he speaks of what their beliefs are, and down in -- now he's asked the question. “What book do you follow? What books for publication --“
Warren E. Burger: What page are you on now?
Chauncey Eskridge: Page 40a.
Warren E. Burger: 40?
Chauncey Eskridge: A of the appendix. “What books do you follow? What books for publication if any you use as a basis for the belief of the nation of Islam or the objections of Muhammad Ali as expressed in his papers with file with the draft board, in which you have expressed to Judge Grauman here.” Answer; “I think you could find them in the Holy Qur'an and this book that you got here, “Message to Black Man” written by the honorable Elijah Muhammad.” Now he then points to these two books. Now, some of the quotations from the book “Message to Black Man” are here, made supposed to be relevant as to what the doctrines are and this is where the Government gets its position that if you read that book, the book is saying that it supports tomorrow a defensive war on behalf of Muslims. Well, this is the same as saying that they support the war against the church which was in the same thing the Sicurella that there is no place in this record where either the registrant or the petitioner, or any of his co-religionists say this. And remember, the hearing officer Judge Grauman had six inches worth of an FBI report. They had done an extensive investigation of the background and acquaintances of the registrant. Then --
Potter Stewart: Well, Muslim as I understand it is the nation of Islam, really has no -- certainly cannot be acquainted with the Muslim religion in such nations as Iran and Pakistan and the Arab countries of the Middle East.
Chauncey Eskridge: No sir.
Potter Stewart: It's different. It's a --
Chauncey Eskridge: We make a distinction.
Potter Stewart: And isn't it not pre-largely confined to North America, the United States of America?
Chauncey Eskridge: It is totally confined.
Potter Stewart: And to the (Inaudible)
Chauncey Eskridge: Yes sir. That is -- they've taken some part of what they call Orthodox Islam.
Potter Stewart: Right.
Chauncey Eskridge: And here, they fashion it to the black man's experience in the United States.
Potter Stewart: Right. And so when there's talk of the defense of Islam, we're not talking necessarily about a war in which a Muslim country would be involved in, such as Iran or Pakistan?
Chauncey Eskridge: No sir.
Potter Stewart: A temporal kind of a war where the defensive Islam means the, as I gather from the record, the defense of those who are adherence to this religion?
Chauncey Eskridge: Yes sir. No sir.
Potter Stewart: And that -- the personal defense, isn't that correct, self defense?
Chauncey Eskridge: No sir. The defense -- where they use the word defense, they mean the defense of Islam. They mean the defense of the religion not persons.
Potter Stewart: Well, there's talk though about learning karate and so on?
Chauncey Eskridge: Well not certainly --
Potter Stewart: Which involve --
Chauncey Eskridge: Yes sir.
Potter Stewart: -- personal or self defense, I suppose, not rather than war?
Chauncey Eskridge: That's personal and self defense, but this is a young group of men in the temple called the “Fruit of Islam” who take physical exercise. Some of which is marching, some of which they call drilling which is marching. Some of which is judo and it's those words which would juxtapose, the justice department have chosen a drill and judo, and key words like military orders which would give you the impression that this is a semi-military organization, it is not. This is a small group of men who are young men, who are given this kind of training. And they intended that it'll be used only in defense of themselves or against in defense of their leaders, so that to suggest here that they would use this for a use for weapons against other persons, they don't say this. They just say that they're totally -- their total defense are with their hands when attacked. This is their position. Now, we go farther. We say that if you read this advice letter in which the Department of Justice disparages the religion, and then it adds further down at page 125a, then they go on after they say that his religions is racious and political. Then they go on and the registrant -- this device that are to the Appeal Board says “The main thrust of the letter that he had written in which he claims other, other classifications.” Then they say that there's something wrong with this that he has shifted his position, but remember he was 1-Y all the way up to February 1966, so that he had no occasion to apply for a lower qualification because conscientious objector is higher. So that the hearing officer, when they wrote to the Appeal Board, they should have told the Appeal Board that it wasn't necessary for him to inform the draft board that he was then a conscientious objective because this was a higher classification. But notwithstanding that, they go on and say “The registrant has not shown manifest over at manifestations sufficient to establish his subjective belief whereas here, his conscientious objector claim was not asserted until military service became eminent.” In other words, you're saying that he had a lack of sincerity. Now, not only did this mislead the Appeal Board we say, but this even misled the Fifth Circuit, because in the last opinion of the Fifth Circuit on page 249, footnote 9, the Fifth Circuit on its opinion says, “The Kentucky Appeal Board thereafter continued the 1-A classification of Clay. That there was also a basis of fact for the numerous local boards, State Appeal Boards and Presidential Appeal Boards classification of Clay, thereby including an adverse determination of the question of Clay's basic sincerity.” So that this language, we say of his sincerity through off not only the Appeal Board, but through off the Fifth Circuit. We're asking the Court to take into account that Sicurella also said that where two erroneous positions or one erroneous position was given to an Appeal Board or local draft board that this requires a reversal of a man's conviction because the Court has no way of knowing whether or not one -- which one the draft board accepted because here, the record does not indicate which one of the grounds that the Appeal Board rested upon.
Warren E. Burger: Thank you Mr. Eskridge. Mr. Solicitor General.
Erwin N. Griswold: May it please the Court. This is an appeal from a judgment sustaining a conviction for refusal to report for induction. The defense of course is the question whether the order to report for induction was valid. In the posture of the case as it now stands that turns on the propriety of the action of the Selective Service System with respect to a claim of conscientious objection. The claim was duly filed on the system's form SS150 and was considered by the local board in Kentucky and was denied by that board. The petitioner here took an appeal from that decision and under the procedure which was then established by law, the matter was referred to a division of the Department of Justice. The statute provided upon the filing of such appeal, “The Appeal Board shall refer any such claim to the Department of Justice for inquiry and hearing. The Department of Justice after appropriate inquiry shall hold a hearing.” And then it provided that the department should make its report to the Appeal Board either way and said -- the statute said, “The Appeal Board shall in making its decision, give consideration to, but shall not be bound to follow the recommendation of the Department of Justice together with the record on appeal from the local board.” That procedure was followed here. There was a hearing conducted by an able and experienced hearing officer. He made his report, including a transcript of the testimony and a voluminous number of exhibits to the Department of Justice where it was reviewed along with the experience which the department's officers had from reviewing many other hearings in this type of matter. And the Department of Justice prepared its letter of advice which appears in the record, beginning on page 112 and running for 16 pages, in which it recommended against the allowance of the conscientious objector claim. Now that was approved by the Appeal Board in Kentucky. It was later approved by an Appeal Board in Texas. There was an appeal to the so called Presidential Board, and it was approved by the Presidential Board. Thereafter, the case was tried in the District Court and there were decisions sustaining the action of the Department of Justice advice letter in the District Court and the Court of Appeals. And the case is now here on the grant of certiorari limited to the question of the application of this Court's decision in the Welsh case. Now, the transcript of the hearing before the hearing officer is in the appendix, but I think it is very important for the Court to bear in mind what the nature of that hearing was. It was not an adversary proceeding. The Government was not represented except through the hearing officer who its perfectly plain, acted in the most impartial way and asked questions for the purpose of clarifying things for his own mind, but not in an adversary way. No evidence was offered on behalf of the Government at this hearing, either with respect to the beliefs of the Black Muslim sect, or with respect to the beliefs of the petitioner, except insofar as that may appear from the resume' of the FBI report which was made a part of the hearing.
Warren E. Burger: Are you speaking now Mr. Solicitor General of the hearing officer appointed in Kentucky?
Erwin N. Griswold: The hearing officer appointed by the Department of Justice who held a hearing in Louisville, Kentucky. In this situation it's perhaps surprising that there is as much evidence as there is of the selective nature of the petitioner's objections. There has been one other case before the Court, involving a Black Muslim. That's the case of United States against Carson, in which this Court denied certiorari in 396 U.S., 865 and where the Solicitor General in his brief in opposition took the ground that the objection of the Black Muslim was essentially a selective objection and I can refer on that connection to what this Court said in its recent Gillette opinion. There is danger that is between two would be objectors, both having the same complaint against the war, that objector would succeed who is more articulate, better educated or better counseled.
Potter Stewart: I think its common ground however Mr. Solicitor General, is it not, that the dispositive question is the particularized beliefs of this individual registrant, or that individual registrant rather than the basic tenants of the religious sect to which he adheres?
Erwin N. Griswold: Yes, Mr. Justice. I fully agree it is the --
Potter Stewart: And both ways, there are two sides to that coin?
Erwin N. Griswold: I agree it is the beliefs of this individual, except that in this case, this individual has stated unequivocally that he accepts the beliefs of the sect, and there has been introduced at the hearing as establishing his beliefs. Documents showing the beliefs of the sects and of the sect and I don't see how he can disassociate himself from these materials which he has offered in support of his position.
Potter Stewart: I wasn't suggesting that he could or should, but he didn't confine himself to that, did he?
Erwin N. Griswold: No, Mr. Justice. He --
Potter Stewart: -- I incorporate all that by reference and then now he said now he added a few things.
Erwin N. Griswold: He had not only incorporated there all by reference, he said “I stand on it” --
Potter Stewart: Yes.
Erwin N. Griswold: -- which his not merely incidental background.
Potter Stewart: That was rather a starting point, wasn't it? He went on from there?
Erwin N. Griswold: Yes, Mr. Justice. Now if the Court in this case reads and examines all of the evidence, it will be able to make whatever finding it feels is appropriate. If it thinks that is what it should do and it can't be said that there is no evidence to support whatever finding is made here. It can't be said that there's no basis and fact for whatever conclusion a trier of the facts may be. But this is a question in which Congress has provided in the statute that the judgment of the draft board shall be final. And the Court has said that the standard of review is no basis in fact. Many years ago in the Estep case, the Court said and I read from the opinion; Referring to the provision for finality in the statute. “It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decision of the local boards made in conformity with the regulations are final, even though they maybe erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification.” And so I take it that the question here is whether there is any basis in fact, not whether the balance of the evidence having in mind among other things that this was not an adversary proceeding should go one way or another, but whether there is any basis in fact for the decisions which have been reached by the administrative agencies and by the courts below. And then I would call attention to this Court's decision in the Witmer case in 348 U.S. where the Court said “It is well to remember that it is not for the courts to sit as super draft boards substituting their judgments on the weight of the evidence for those of the designated agencies, nor should they look for substantial evidence to support such determinations. The classification can be overturned only if it has no basis in fact.” Here, the determination has been made by the draft board, approved by two State Appeal Boards by the National Appeals Board. And if the Court follows the “no basis in fact” standard of review, I think that there can be no doubt that there was a basis in fact for the decisions made by all of the agencies of the Selective Service System, and by the two courts below. The case --
Potter Stewart: And just so I can be clear, as I follow your argument, the basis in fact I suppose was not like the Witmer case based on the applicant's insincerity, lack of sincerity, was it?
Erwin N. Griswold: Our position is that the question of sincerity is not before the Court now, not having been raised in the petition and not being covered by the grant of certiorari. We think that the question of sincerity was properly entered at an earlier stage, and that some of the materials to which the petitioner objects in the Department of Justice's hearing letter were entirely relevant pursuant to the Witmer case.
Potter Stewart: What I'm interested in learning is what among the various possible basis, what was the basis in fact? Now the various possible basis, at least in this case were; (A) that he was insincere; (B) that his objection was not religiously rooted or grounded; (C) that his objection was selective, and it was not to war in any form, but to particularize to particular war, some wars, but not other wars, there maybe others. But which of those first three (Voice Overlap) basis of fact?
Erwin N. Griswold: Well, I believe that the only one that is before the Court now is the latter one. That is the only question --
Potter Stewart: Selective objection?
Erwin N. Griswold: That is the only question that is covered by the grant of certiorari, whether petitioner's conviction should be vacated in the light of this Court's decision in Welsh, because the denial to petitioner of a conscientious objector exemption may have been based upon the Department of Justice's erroneous characterization of his objections to participation in wars as political and racial. Rather than religious.
Potter Stewart: Well then, we're not involved with selective objection, are we?
Erwin N. Griswold: Mr. Justice I believe it does just as in the Negre case. I think this case has been in effect decided by the Negre case and that it is in fact indistinguishable from the Negre case. Now, let us look back at the Negre case. There is a case where the objection was undeniably religious. Nobody questioned from beginning to end that Mr. Negre was anything, but a sincere and devout catholic deriving his beliefs from instruction in the church and from teachings of the fathers. He believed on undoubtedly religious grounds that it was his duty to participate in just wars, and his duty not to participate in unjust wars. Now, the Government never contended in anyway that his objections were other than religious in nature, nevertheless, the Government did contend that they were political and practical. This is a contention within the concept of religion. The Government's arguments sustained by the Court is that it is not enough that the objection be religious, but it must also be an objection to participation in war in any form. And without that, the Court's discussion of the establishment and the free exercises clauses of the First Amendment in its opinion, a very constructive and helpful discussion would have been wholly unnecessary because it is -- that is relevant only if the objections are clearly religious, and so they were and so we concede here that the objections are religious. But the distinction between just and unjust wars, those surely having a religious basis in Negre's mind injected political and philosophical considerations into the picture. And it was with respect to this aspect of the matter that the Government contended in its brief that Negre's position involvement a judgment that is “political and particular,” that was one “based on the same political, sociological and economic factors that the Government necessarily considered” in deciding to undertake the war and those passages from the Government's brief are quoted by the Court in its opinion. And similarly here, we do not contend that the petitioner's claim is not religious and we never have contended that his claim is not religious. The contention that it is political and racial is not necessarily a contention that it is not religious. It is a contention which is entirely consistent with its being religious. If a man sincerely believes that he can participate in racial wars or in just wars, he is not a person who is opposed to participation in war in any form. There is in this record a basis in fact for the conclusion that the petitioner's objection, though religious, is selective. Now that is that he is not opposed to participation in war in any form as statute requires, but that is in fact to oppose to fighting what he regards as the white man's wars, although having no religious or conscientious scruples against participation in war which would defend the black man's interest.
Speaker: You don't question the sincerity of Mr. Ali?
Erwin N. Griswold: No Mr. Justice, we do not.
Potter Stewart: Nor as I understand that the fact that it was religiously rooted, religiously --
Erwin N. Griswold: Certainly not Mr. Justice. We assert that it was religiously rooted, just as we did in Negre. No one could conceivably have contended in Negre that his objection was not religious.
Potter Stewart: You haven't -- I assume that you are going to deal with the Sicurella case, Mr. Solicitor --
Erwin N. Griswold: Yes, Mr. Justice.
Potter Stewart: Very good.
Erwin N. Griswold: The petitioner just doesn't want to fight the white man's wars, and I can understand that. But it's not the same sort of belief as the opposition to participation in war in any form which is held by the pacifist, and is required by the statute. Now surely as has been pointed out, the traditional, historical Muslim religion is not pacifist. One need only refer to the crusades and to the more recent seven days war is adequate evidence of that fact. And although my -- counsel for the petitioner here differentiated his client from the traditional Muslims, I would point out that they introduced an evidence in support of his position a modern standard translation of the Qur'an, a translation by a Pakistani, not by a member of the Black Muslims. It's equally sure it seems to me that the Black Muslim religion is not regarded as pacifist, in the sense at least that the Quakers and the Mennonites are pacifists. As this record shows, there are strong racial undertones in the Black Muslim religion, and in the petitioner's beliefs. Now, there is thus a basis in fact for a conclusion exactly parallel to that already reached by the Court in Negre that the objections of the petitioner here, though undoubtedly religious as Negre's were are in fact selected. A different selection to be sure than that made by Negre, but nevertheless selective, and thus not within the statutory prescription which allows conscientious objection to those who are opposed to participation in war in any form.
Potter Stewart: To what wars do you understand the record shows that he would not be opposed?
Erwin N. Griswold: He would not be opposed to wars in which the Black Muslims were attacked or involved, and nor would he be opposed to --
Potter Stewart: That would be a civil war, wasn't it? That would necessarily be a civil war, if this religion is pretty well confined in the United States of America?
Erwin N. Griswold: That would presumably be some kind of a civil war, but might not necessarily be. Again I would like to point out that the record shows that the petitioner went to the Middle East, was accorded the great distinction of being allowed to enter the temple at Mecca. His disassociation with the traditional Muslim religion is by no means complete, and it's by no means clear that if the domestic hierarchy of the Black Muslims decided that its members should participate in general Muslim wars that he would not participate.
Potter Stewart: Well that's -- I had difficulty with this. Are you submitting that this record shows that this registrant would fight in a war in which say Algeria, or Jordan, or Iraq, or Pakistan or Iran were engaged? Do you think that's what --?
Erwin N. Griswold: Well he says so. He says specifically that if the --
Potter Stewart: Makes the Islam mean?
Erwin N. Griswold: -- that if Elijah Muhammad ordered him to do so, which he didn't think he would, but if Elijah Muhammad ordered him to do so, he would and that I think is inconsistent with a pacifist position.
Potter Stewart: I'd understood that the nation of Islam meant the -- those who make up the -- who constitute this religious sect in the United States of America, just like you would say fight in defense in the Episcopalian church or the Methodist church?
Erwin N. Griswold: The --
Potter Stewart: But maybe I misunderstood the record. To me, this is rather important.
Erwin N. Griswold: I shall refer to some parts of the record which I think will support the fact that there is a basis in fact for saying that his objections are selective. That is that he is not opposed to participation in war in any form but that he wants to pick and choose his wars, and his pick is essentially a racial and political choice. Now, of course in reviewing the case, the Court will undoubtedly give close and careful attention to the report or advice letter of the Department of Justice. If with the benefit of hindsight, one goes through this letter looking for flaws. One can find some matters that might have been written differently. But if the letter is read from beginning to end in its entirety, one will conclude I think that it is a very careful thoughtful letter, written by a responsible officer, in the special section under Department of Justice which was set up for the purpose of examining into these difficult questions, and which though not binding on the draft boards, would make a contribution toward thoughtful, uniform national standards on these questions.
Speaker: Is the copy of that letter at the time go to the registrant?
Erwin N. Griswold: I'm not sure of that. I believe a resume' or a summary of it went to the registrant. Now three objections are made to the letter and they don't present easy questions and if one reads the petitioner's brief alone, it's quite plausible, particularly when one is looking for flaws. On more careful examination, however, I believe that the views expressed in the Department of Justice's advice letter were sound and are wholly consistent with this Court's decisions both before and after the letter was written. I think it should be borne in mind that the letter was written after the Seeger decision, of course before the Welsh decision, but on the whole, there is not a great deal of difference between the Welsh and the Seeger decision in their practical application. It's first said that the department's conclusion that the petitioner's beliefs were primary, political and racial, was a violation of the First Amendment. I've already endeavored to view with this. It is I believe entirely refuted by the Negre case itself. No one questioned that Negre's views were based on religious belief, yet they were found by the Court to be so political in essence, so inconsistent with the pacifist position which Congress has recognized in the statute, a pacifist position which need not be based on orthodox religion as it was, but nevertheless must still be a pacifist position that they are not a basis for exemption and the Court specifically held that this was consistent with the First Amendment. Similarly here as I've said, the petitioner's views are religious, that's not questioned, but they are also selective just as Negre's were. The petitioner's opposition to war is not total. There are political and racial exceptions to his objections. There may be room to argue about the evidence on this, but there is much evidence that it is so, and thus there was an adequate basis in fact for the conclusions reached. Probably the most difficult case for us on this point is the Sicurella decision where the Court held and we surely do not disagree that the willingness of a Jehovah's Witness to participate at some time in a theocratic war without carnal weapons was not a sufficient basis for denying him exemption on the ground that he was not opposed to participation in war in any form. Now, there's some related material in this record. There is some references to Armageddon and to the ultimate battle of the Lord against the devil, and the suggestion that members of the lost/found nation of Islam must be spiritually prepared for the eventuality. As far as that's concerned, Sicurella surely is applicable, but there's also a reference in this record to a holy war. That's on page 68a, and here again we will show the tie-end between the petitioner and the traditional Muslim religion. This is the petitioner himself testifying at the hearing, “But the Holy Qur'an do teach us that we do not take part of in any part of war unless declared by Allah Himself, or unless it's an Islamic world war or a holy war. And it goes as far the Holy Qur'an is still talking, and saying we are not to even as much as aid the infidels or the none believers in Islam, even to as much as handing them a cup of water during battle.” And there are other items at this record which support the selective nature of the petitioner's objection. Page 18, the summary of his first hearing before the board, Clay objects to being in service because he has no quarrel with the Vietcong, and page 79a and 80 of the record, there is read to him a quotation from the Chicago Daily News, which he not only says he may but he says he believes is true, beginning at the bottom of page 79a; “Let me tell you what Muslims are taught, to defend ourselves when we are attacked.” Now that's not consistent with the pacifist position, but then continuing “those Vietcong are not attacking me. These Vietcong are riding a very nasty war over there. There's a lot of people getting killed. Why should we Muslims get involved? Besides, I'm fighting for the Government everyday. I'm laying out my life on the line for the Government. 9 out of 10 soldiers would not want to be in my place in the ring, it's too dangerous.” Now he says later on that he was chided by Elijah Muhammad for making such a boastful statement, but he does not deny that he made it.
Speaker: Well, what was the sentence that Clay got?
Erwin N. Griswold: I'm sorry Mr. Justice?
Speaker: What was the sentence that was imposed on Clay?
Erwin N. Griswold: Five years I believe Mr. Justice. Now whether that is subject to reconsideration under the rule, I suppose that it is. Then I would call attention to page 165a of the record. This is a letter written by Clay himself to the draft board and introduced in evidence at the hearing and for alliance from the bottom of page 165a; “Last but not least, the mention is the stand that I took publishly as a conscientious objector to the war in Vietnam. The Illinois Boxing Commission challenged me and ruled that it would permit me to participate in the Ernie Terrell fight to defend my world championship title which would have brought me $2 million, only if I would apologize and retract the words that I stated publicly describing my conscientious scruples against participation in the war in Vietnam.” And then finally on page 185 of the record is an extract from a paper called “Muhammad Speaks” which was introduced in evidence at the hearing, and this is a statement of the Black Muslim belief. Page 185; “We believe that we who declared ourselves to be righteous Muslims should not participate in wars which takes 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 something to fight for.” Now there are a number of other passages in the record to which reference is made in our brief and I shall have to refer to the brief for a further discussion of these. If one reads this letter like a jury charge, perhaps one can find some error in it, particularly at passage on page 127 in the appendix. However, I don't think that it can be so fairly taken out of context, and I call attention to the fact that in the petitioner's brief itself, it's referred -- in the petitioner's petition at page 52, it is referred to as an implication. It has taken on greater strength in their later arguments. We submit on the basis of the materials presented and further developed in our brief that the record clearly presents the basis in fact for the Appeal Board's decisions. There's no question about the petitioner's objections being religious in nature, and so no question about the Welsh case is involved. Insofar as there is a question remaining in the case, it is covered by this Court's long standing decision in Estep which established the basis in fact rule. Using the words of the Court in Witmer against the United States, “it is the policy of Congress to make review within this Selective Service System final in all cases where there was conflicting evidence, or where two inferences could be drawn from the same testimony.” Unless the Court is to sit as a super draft board, it should I submit affirm the judgment below.
Warren E. Burger: Thank you, Mr. Solicitor General.
Potter Stewart: Mr. Solicitor General, the question, the case you've argued is not that that was covered by our limited grant of certiorari, is it?
Erwin N. Griswold: To the best of my ability, Mr. Justice, it has been. I'm sorry if --
Potter Stewart: Well, I just point out that the question to which we limited this grant of certiorari was whether petitioner's conviction should be vacated because the denial to him of a conscientious objector exemption may have been based upon the Department of Justice's erroneous characterization of his objection to participation in wars as political and racial, rather than religious. And as I understand it, you've begun this argument this morning by conceding that they were religious --
Erwin N. Griswold: And so we have all the way along, Mr. Justice. This is nothing --
Potter Stewart: And that the -- you argued the question as to whether or not he was a selective objector, which is not the question in which we granted certiorari?
Erwin N. Griswold: That Mr. Justice, I think is precisely the situation in the Negre case. Our position in the Negre case, in those words in our brief was that Negre's essential objection was political and philosophical, and though based on religious grounds was not the kind of religious objection which was covered by the statute and that is precisely the argument which we make here. We have never contended that Clay's objections were not religious. We have always contended that the nature of Clay's objections is so infused with, so intertwined with political and racial considerations that his religious objections do not make the test of the statute namely that he is opposed to participate in war in any form. And I have been endeavoring to try to develop my argument within the terms of the grant of certiorari, believing or contending that our position here is exactly parallel with that in Negre where the contention was undoubtedly religiously motivated.
Warren E. Burger: Thank you, Mr. Solicitor General. Mr. Eskridge, we'll enlarge your time by two minutes in light of our extension for the Solicitor General.
Chauncey Eskridge: Thank you, Your Honor.
Warren E. Burger: May I ask you before you get underway and avoid an interruption perhaps. At the 185 of the appendix, the belief recited “We do not believe this nation,” that is the United States, the reference is there, “should force us to take part in such wars where we have nothing to gain from it unless it agrees to give us the necessary territory, wherein we may have something to fight for.” Would it be an unreasonable inference from that statement of belief that if for example, hypothetically, even though unlikely, there were some kind of an agreement to give Hawaii or Texas or Alaska or some other area to the Black Muslim nation that then they would fight?
Chauncey Eskridge: May I answer that question?
Warren E. Burger: Would that be a reasonable inference to draw from that statement of belief?
Chauncey Eskridge: No sir.
Warren E. Burger: It would not?
Chauncey Eskridge: No sir.
Warren E. Burger: Then what does it mean? “We have nothing to gain in taking part in such wars, unless America agrees to gives this something like this.” Isn't that a conditional offer to fight under some conditions?
Chauncey Eskridge: No sir. If you take the first sentence, there's two sentences there and now we're reading in the back of Muhammad Speaks newspaper. These ten points appear on the back of Muhammad Speaks newspaper, and the Solicitor General spoke of the Carson case. In that case, the same words, “we believe that we who declared ourselves to be righteous Muslims should not participate in wars which take the lives of humans.” Then they go out “We do not believe this nation should force us to take part in such wars. It forces to take part in such wars if we have nothing to gain from it, unless America agrees to give us the necessary territory wherein we have, may have something to fight for.” Now, this language is ambiguous, but it doesn't suggest that they will fight with weapons in war and in the Negre case, I mean in the Carson case, I would like to read you something that the Department of Justice said, “that at best, Carson's objections, the war is based on political, social and economic consideration and not religious.” So that they are taking a position, in the Carson case, it was not religious, and they're taking position here. I sense a prejudice against the so called Black Muslims that appears in the Government's briefs and which it appears against this defendant who was the heavy weight champion of the world, and whom who had announced that he was a Muslim. And it is that we submit to Your Honor that this contrived language and to -- and the hearing -- the advice letter. Now we don't say that the advice letter, one that's put to the nine justices of the Supreme Court, this advice letter went to Layman who made up the Appeal Board of Kentucky. They had to read this letter and if you all can't get this interpretation, how did this Appeal Board? We say in Sicurella that if there are two erroneous grounds in here, they admit to sincerity. In the advice letter, they did not admit to sincerity and in this advice letter, the language is set, they didn't even admit that he was even more religious. So we're saying to Your Honor, that you have to reverse on the grounds of Sicurella because this is the -- the issues this case and not as how the Justice department finds it.
Warren E. Burger: Do you think then it would be irrational on the record for the draft board and Appeal Board to have read this paragraph that I quoted to you as a conditional refusal only?
Chauncey Eskridge: That one sentence you mean? No sir. It would've been unreasonable for them to have taken that one sentence to reach a conclusion that the Muslims would fight only selective wars.
Warren E. Burger: Very well. Have you concluded Mr. Eskridge?
Chauncey Eskridge: Yes sir.
Warren E. Burger: Thank you very much. The case is submitted. Thank you gentlemen.