Warren E. Burger: We'll hear arguments next in number 325, Negre against Larsen. You may proceed whenever you are ready Mr. Harrington.
Richard Harrington: Mr. Chief Justice may it please the Court. This is a petition for certiorari to the Ninth Circuit Court of Appeals by Louis Negre. Louis Negre is a young man who is a Catholic conscientious objector. He sought discharge from the United States Armed Forces when he was assigned to serve in Vietnam. And his application for conscientious objection discharge having been denied by the army on the grounds that was based on personal moral code. He was assigned to go to Vietnam. So, in this case there is no question that the war in which he was asked to serve was the war to which he objects. He had standing to object to serving in that particular war, to which he was assigned. He sought his writ of habeas corpus before Judge Zirpoli in San Francisco, to restrain the army from shipping him to Vietnam to take part in that war and to be discharged as a religious objector. Judge Zirpoli denied his application for habeas corpus on grounds set out in his opinion and in the course of argument, he made the observation, “that even if my client Mr. Negre were willing to serve in United States, but under the common law concept, he would be aiding and abetting the war.” My client relied however, on the concept that was traditional in the law and also in logic between approximate and remote participation. He indicated that he'll do a practical distinction that he would not participate in any form in the war, but like the man in Kansas who was against World War II, and he was a railroad switchman, he did not decline to flip the switches when the railroad troop trains came through and that was charged against him that he was willing to participate in war. Of course, it would be nonsense to say that a man has to close his eyes when the troop train goes by or else he is participating in war. There is a distinction between non-participation and participation. My client refused to participate and refused to participate in Vietnam.
Warren E. Burger: How long had he been in the service at the time he made his first claim ?
Richard Harrington: He made his first claim, Your Honor, approximately four months after induction into the service and after he had been assigned to serve in Vietnam.
Warren E. Burger: Did he -- does he claim that this belief had come to fruition in that four months period or that it was the assignment to Vietnam that merely triggered a pre-existing belief?
Richard Harrington: I think the latter, Your Honor. He was a Roman Catholic and as I have been at pains to set out in my briefs and as it's set out by the army hearing officer --
Warren E. Burger: Well then these questions were preliminary than to asking, if that's the case, why wouldn't just a cancellation of his assignment to Vietnam satisfy his objection?
Richard Harrington: If that were the case, Your Honor, the army's answer to that in Judge Zirpoli's court was they had no provision for canceling his assignment to Vietnam. On the pragmatic side, the army puts the practicalities contrary to what the Solicitor general does. It says, we don't have any form of duty, where a man can say, I'll serve here, but I won't serve there. They said --
Warren E. Burger: Then his position was taken only because of the army limitation and not for any other --
Richard Harrington: His position was taken only because the army said it had no assignment for him except to compel him to participate in the war in Vietnam and that's where indeed they carried him. They assigned four sergeants, put them on an airplane and carried him to Vietnam, after this Court refused to entertain stay.
Potter Stewart: He is now back in this country and remains in the army reserve.
Richard Harrington: He has four year army reserve obligation and I presume the next time Your Honor that they want him to serve, they will pick them up again and take him again, as they have done on the prior occasion.
Potter Stewart: Well, he was -- as I read your brief he was ordered to Vietnam, he refused, he was then court-martialed for refusal to bail off order and he was acquitted, is that correct?
Richard Harrington: He was acquitted because the army didn't follow its own procedures in processing his application.
Potter Stewart: Not waiving --
Richard Harrington: Well, he filed the first application which was summary, because hastily prepared, that was denied. He filed a second application supported with citation of religious authority and letters from friends. The army said that's just the same, but the army could not persuade the court-martial it was just the same. The seven combat veterans on the court-martial said that's entirely different, please process the second application. The second application was then denied. He again declined to go to Vietnam. I suggest that that court-martial him, he was ready to stay in court-martial, but they carried him off instead.
Potter Stewart: And how long did he stay there?
Richard Harrington: Four months.
Potter Stewart: Then came home?
Richard Harrington: Came home.
Potter Stewart: By military transportation as a result --
Richard Harrington: That's not in the record Your Honor, but he did.
Potter Stewart: We don't know whether he came home, how came home and is now in the not the ready reserve --
Richard Harrington: Now in the ready reserve, with a four-year obligation, to be called on the order of President or for failing to meet his ready reserve obligations at any time.
John M. Harlan: Can I ask you a question at this point?
Richard Harrington: Yes Your Honor.
John M. Harlan: It's a little off what you are arguing? Is there any dispute that the Catholic doctrine, as a doctrine compels and recognizes selective objection to wars?
Richard Harrington: There is -- the Solicitor General takes the view that that puts them in the realm of politics, but if you look at the Catholic religion --
John M. Harlan: No, I am leaving out the legal argument. I am asking about religious tenant. In other words is this not unlike the other case, a purely religiously based objection?
Richard Harrington: Yes, it is Your Honor.
John M. Harlan: That's what I am getting here. And there is no dispute on that between you and the Solicitor General, who doesn't answer the case, of course.
Richard Harrington: Well, he hasn't addressed himself to it, but I can answer that, as follows. Aquinas and his treaties, Part ll, Section 2, question 40, put that very question and he said, the question is that it is always simple to participate in war, his answer was no, that was 1272, teachings of Aquinas by Canon 1366 of Canon Law with the Roman Catholic Church is binding, teaching in all catholics. And that doctrine was reaffirmed not only by Aquinas, but I just counted them in the brief by St. Augustine, by Victoria Salamanca 1520, (Inaudible) 1787. The Baltimore Catechism 1949, Vatican II 1965 and the American Bishops.
John M. Harlan: Well, I didn't suppose there was at least as I read the briefs any dispute about that. My only point is, this is not a Seeger type or a Seeger type or a Welsh type conscientious objection?
Richard Harrington: I think, Your Honor is absolutely correct. Whatever the differences of the court were --
Hugo L. Black: Based on a later religion, on an older religion.
Richard Harrington: It's based on based on older religion, and I am astonished at the suggestion by the government that is not a religious belief because --
Byron R. White: Mr. Harrington, the Church here doesn't select the war that are sensible to --
Richard Harrington: That's true Your Honor.
Byron R. White: And it leaves it to the individual conscientious of its members?
Richard Harrington: Not only leaves it, it mandates the individual, who exercises conscience, because it's the individual who is judged. As Mr. Negre pointed out in his application, the Church isn't judged --
Byron R. White: But it leaves the individual free to exercise his conscience based on any matter, that he wants to claim or relate it to conscience?
Richard Harrington: No, Your Honor, the Church has specific definition of objector to consider --
Byron R. White: The church has taken the position on the Vietnam war --
Richard Harrington: The Church does not take any possession on any factual --
Byron R. White: No it hasn't.
Richard Harrington: That's correct, Your Honor.
Byron R. White: Now what about the Church's instructions about how you go about figuring what is, how you decide whether you are consciously opposed?
Richard Harrington: Well, Your Honor, it's call examination or formation of conscious and you have a duty to properly form your conscious. Again, as Aquinas points out, you commit a mistake which is objectively a mistake, you are not guilty of moral fault for the mistake, but you maybe guilty of moral fault if you haven't properly formed your conscious by careful study, inquiry, prayer and investigation, as far as, you may enter the matter.
Byron R. White: But it gives no instructions about the factors that go in though --
Richard Harrington: Yes, it does Your Honor.
Byron R. White: It just says be careful.
Richard Harrington: No, Your Honor, it says, the fact is, starting from Aquinas as I say in 1272, they are often broken down into lists, whether the war was declared by the properly constituted government is one factor. Whether it's conducted in defense as opposed to a war of aggression is another factor. Whether the means used are proper means and do not injure civilian populations, who are not combatants is the third factor. Accordingly, there are factors which have different numbers on different lists, but they go to the justice of the war in broad sense. Now, one of the tests is whether the harm done exceeds the gain that maybe expected from the war, in other words, and this (Inaudible).
Byron R. White: Yes, but that's based on -- that in each case it's the individual's judgment --
Richard Harrington: Always --
Byron R. White: -- to be exercised?
Richard Harrington: Always and that's also true of the Quaker.
Warren E. Burger: And you can examine or review whether proper standards that you described to Mr. Justice White have been applied.
Richard Harrington: Your Honor, I think the function that was outlined correctly in the Seeger opinion that what the government, draft warrant or hearing officer has to do is to determine are the beliefs religious and are they second, sincerely held. Once they are found to be religious and sincerely held, its no part of government to put on its theological half and say, well, my friend you say its religious and you have supporting letters that it's religious, but we have the government theologian sitting here and he wants to engage in a theological inquisition, whether you are an orthodox catholic? Did you go to Church four times last month? Have you take confession? That's no part of government. What is the government's function as announced in Seeger is to determine why is the belief religious, however that doctrine maybe interpreted.
Potter Stewart: I don't think that wasn't an issue here, anymore than it was in the last case?
Richard Harrington: Your Honor --
Potter Stewart: Am I mistaken?
Richard Harrington: I think, the Solicitor General contends that my client's objection is political. His brief says that despite the fact he is resting it upon teaching of the Roman Catholic Church which has been uniform for 2000 years and despite the fact that the army hearing officer, in his findings set out at Appendix 837 said the following. “His religious training has been extensive and he was extremely devout. His sincerity is shown by his willingness to be incarcerated for his beliefs. The roots of his beliefs are religious. The real question in this case is what are those beliefs? It is not beliefs or not based on religious grounds. Continuing, he continues, the appellate sincerely believes, that the war in Vietnam is wrong and that his failure to object to serving in Vietnam is in violation of his religious beliefs.
Potter Stewart: I say I don't think there is any issue about that --
Richard Harrington: Well, then I am puzzled --
Potter Stewart: Am I mistaken?
Richard Harrington: I am puzzled then Your Honor, why is the Solicitor General is serving that his objection is political because it was found by the fact finder in the case to be religious.3
Potter Stewart: Well, perhaps you don't understand my question. I didn't it understand that the Solicitor Genera was making any such contention. You say you do and where is that in his brief?
Richard Harrington: Well, in his brief Your Honor, he says that anyone who objects not to World War, but only to war as defined in his religion is objectionable in some fashion, is a necessity a political objector.
John M. Harlan: Well, that's where the argument that he uses is not the consequence of acceptance (Inaudible) selected by (Inaudible).
Potter Stewart: The practical difficulty in the future cases is what he is talking about?
John M. Harlan: He is not testing these religious based (Inaudible) objection or sincerity?
Richard Harrington: I think, that's correct, Your Honor.
Thurgood Marshall: Well, Mr. Harrington suppose, one, we give you all the relief you want and two, a very short order (Inaudible) involved with the war in the Middle East, will we then have a choice --
Richard Harrington: Your Honor, I think --
Thurgood Marshall: Of whether or not, even though, I fought in Vietnam, I don't want to fight in Middle East --
Richard Harrington: -- he didn't fight in Vietnam Your Honor.
Thurgood Marshall: No, this hypothetical man did.
Richard Harrington: If the man would have that choice, I would say and the Catholic Church says, he has a religious duty to make that choice. Yes, he must definitely decide.
Thurgood Marshall: And so a religious choice is now on wanting to control the ability of the army to assign its men already in battle?
Richard Harrington: And that certainly is true of the Quaker, Your Honor. If a man, a polder who wrote a book, the Quaker is in England and America, many Quakers fought in the revolutionary war.
Thurgood Marshall: I don't know any case before this where a man in the army has had right to decide where he was going to go?
Richard Harrington: Well, Your Honor, that's why we sought discharge form the army because the army here makes no provision for him to decide where he is going to go. They say, we have no provision.
Thurgood Marshall: And so, if we will refuse then the army has to give guy a choice where he is going go?
Richard Harrington: No, Your Honor, he should be discharged. The army has no provision to --
Warren E. Burger: But they seem to finally work out a provision, an alternative, didn't they?
Richard Harrington: Well, Your Honor, no. What the army did is what they did to Cyrus Pringle. Now Justice Harlan inquired, did Congress always have an exemption. The answer to that question is no. In Civil War, there was no exemption for religious objectors. They took Cyrus Pringle from Vermont, they strapped a rifle on his back, marched him to Virginia, straight into the ground. He wouldn't serve, he didn't serve and that's the pragmatic of a question. Now Congressman Thetus in 1940, the time of great national parallel outline, what the real pragmatic problem here is, which is quite different from the specular problem. He said, if I were to go out and command the troops and I may, I don't want new conscientious objectors in my regiment at all. I would rather they would be some place else, they'd be more bother than their work and a bad example to the other man. He could not do anything with them in the way of training them to be soldiers. I am sure no man who would command the troops would want them. Now, the army's representatives who testified, agreed. The army didn't want these men and you can see why. Who would want a man out in perimeter and one thing you know about him is he won't use his weapon.
Warren E. Burger: Well, that's what I come back to, the army, the government collectively did find an alternative with respect to this man. The result of which is he is not now serving in any active capacity but you say he maybe?
Richard Harrington: The alternative, You Honor, was to overpower him with four strong sergeants, two on each hand, and two on each feet, and carry him off.
Warren E. Burger: They aren't overpowering him today, are they, to keep them in the ready reserve?
Richard Harrington: Well, he is not attending ready reserve meetings, they haven't come out yet. I don't know when they will come out Your Honor.
Byron R. White: Well, do I still -- do I gather that if the army had a provision for a recognized selective conscientious objectors and said we will not send you to Vietnam, we'll send you somewhere else. I take it or am I wrong in saying that you suggest, that would satisfy your position?
Richard Harrington: You are correct, Your Honor, because Negre said, if I work in the Fort Ord Hospital, which I do not regard as approximate participation in war, I am helping sick people down there, so I will be prepared to do that.
Byron R. White: Yes, but you are -- does your client object to just going to Vietnam?
Richard Harrington: He objected to going to Vietnam because he said that would be approximately participating in the war which he felt was --
Byron R. White: How about being assigned to duty with the occupation forces in Europe?
Richard Harrington: No one suggested that he would be assigned --
Byron R. White: I know but what if he were?
Richard Harrington: I don't know what he would do if he were, Your Honor. It's not in the record. The record was that he was assigned to Vietnam and that he refused to do.
Byron R. White: Well, I am just trying to find out what the scope of his objection is?
Richard Harrington: It was the approximate participation in the war which violated the tenants of his --
Byron R. White: And he might object to a lot of other kinds of military services but at least you know he is objecting to this one?
Richard Harrington: That's correct Your Honor. Now, this does pose pragmatic problems for the army as their counsel asserted in lower court.
Harry A. Blackmun: Well, following through on what Mr. Justice White stated, did I understand you to say he is not attending ready reserve meetings?
Richard Harrington: That's what I -- yes, Your Honor, he is attending ready reserve meetings.
Harry A. Blackmun: I assume this is not in the record, but this should be indicative then that he doesn't want to participate anyway?
Richard Harrington: Well, he is kind of -- been solid by his experience with the army, Your Honor, but that's not in the record. The record we have here, he declined to participate in the war at Vietnam and he did say that he was willing to serve in the capacity that was not participation in war.
Warren E. Burger: Is it in the record that he is in the ready reserve now as distinguished from whether he's attending or not attending maybe?
Richard Harrington: No, it's not Your Honor, the Solicitor General in a footnote concedes that the case is not moot. It's under the (Inaudible). He has this obligation which is of a substantial burden on him, and he gets it clear from his four year reserve obligation, fixed by 10 U.S.C. 270 and he can be called to active duty at anytime in the ready reserve.
Warren E. Burger: But why his posture any different now today than what it was on the day before he was assigned to Vietnam and had then served acquiesced to serving for four months you indicated?
Richard Harrington: Well, Your Honor into the -- just for doctrine, he had been called upon the foremost conscience of our participation in that war until he was assigned to serve in the war or sometime for he could anticipate that, that would occur. And that caused him then to make a moral judgment did this comply with religious judgment did it comply with his religion, and that's when he made the judgment and having made the judgment, he then was bound by his religion to refuse to serve. Accordingly, that's what he did do, he did refuse but he was, as I say, carried off, nevertheless. Now I assert Your Honor, our position is quite simple. It's an equal protection position but if the Quaker on my right hand, says, I am not going to serve in the Vietnam war. You say why not, because of my religion. If you compel the man, the Quaker to go, you'd be violating the statute certainly. Now, I have a Quaker, a Catholic on my left hand, he said, I am not going to go. You say why not? He says, because of my religion. They are both acting on the command in the Bible, it's better to obey God than man, they are both acting as taught by the religion but you say, well you are a felon, you have to go because you are Catholic. And in Quaker, they say, well, you may stay on. Now, the only difference is the theological inquisition you find out as the hearing officer said, my client describes abuse to the Pope and to the Church. The Church doesn't teach total pacifism. They say, therefore, you are not exempted, you are not a total pacifist. We think this is a manifest denial of equal protection. Whether Congress could abolish all exemptions, I don't purport to say; what I do say is, it's crystal clear that they can't grant an exemption to members of one religion and deny it to another by picking out of this other man's religion, a doctrine of his Church, pressing for doctrine, not even for conduct, not even for conduct.
Warren E. Burger: Would that doctrine prohibit him or would does it affirmatively permit him to form the same position of conscientious that you've described and attributed to the Quaker?
Richard Harrington: What permit him? Not without denying the authority of Aquinas, who answered as I have mentioned to Your Honor, it's not unlawful to participate in war. You must do so where commanded by the state.
Warren E. Burger: As a matter of his individual application of the conscientious, could he form the same position, total pacifism, that of the Quaker?
Richard Harrington: Your Honor, he couldn't form that position without denying the authoritative teaching of the Church that there are just wars in which he must participate. So the Church might find it to be invincible ignorance, but he wouldn't be an orthodox Catholic. He would then deny the authoritative teaching of his Church which is that there are just wars and if he is assigned to serve in one, he should serve in it, so he can deny it, but then he is not a Catholic.
Hugo L. Black: Dose the Catholic Church decide that this is not a just war?
Richard Harrington: Catholic Church doesn't make the decision in any particular case, Your Honor, whether an act of -- if I kill someone, the Church doesn't tell me it's self-defense or a murder. The Church sets some moral standard. I must decide whether I have committed murder or a self-defense and I am judged by God in the Catholic Church whether I am correct in my decision. But the Church doesn't -- the Pope doesn't issue letter saying that was murder and that was self-defense.
Hugo L. Black: Does your argument not come down to the fact as you say because a man can under the Catholic Church, need not object to particular war, it's left up to him entirely?
Richard Harrington: He must decide in each case whether it meets the standards fixed by his Church. It's not up to him what the standards are, he is bound by the Church standards and the Church teaching, Your Honor. He must apply the Church standards, he can't apply his own, but it's he who has to apply them and that's true for the Quakers. The Quaker decides whether he's a Quaker.
Hugo L. Black: You don't rely either on the the prevailing of four-man opinion in Welsh or Seeger to support that view point?
Richard Harrington: No, I rely and Welsh and Seeger, and particularly in Welsh the Court conceded at least what Congress had in mind was to exempt religious objectors.
Hugo L. Black: That's right, religion.
Richard Harrington: And if my client isn't religious, I don't know what religion is. All the justices agreed that the religious objectors were intended by Congress to be exempted.
Hugo L. Black: Church's religious objection which you say (Inaudible) the individuals?
Richard Harrington: Conscience is always individual. The voice of God is registered on conscience.
Hugo L. Black: Well, that means that any man has a right in the United States to determine whether you go to any war at all, wouldn't he?
Richard Harrington: That's true. Now if the Quakers can convert every man of the country to Quakerism, none would go. That's true today.
Byron R. White: But under --
Hugo L. Black: Quakers believe -- Quakers have this objection doctrine?
Richard Harrington: To the country, Your Honor, the Quakers teach there is no Church doctrine.
Hugo L. Black: Well, I don't know what they call it, but.
Richard Harrington: George Fox was put in jail.
Hugo L. Black: I have always understood that they have told that you didn't, you shouldn't engage in a war at all?
Richard Harrington: Your Honor, to the contrary, George Fox was put in jail for asserting that he got messages directly from the deity, that was regarded as blasphemy. He says, I don't get guidance from the Church. Each man has life, that's conscience.
Hugo L. Black: Well, that would leave, and I am not going to saying you are right or wrong, would that not leave every individual in the nation to decide whether he would serve in a war or not, wouldn't it validate the entire Draft system?
Richard Harrington: No, -- I -- it does not invalidate the Draft system Your Honor because with that existing right, if everyone to become a Quaker if he so desires --
Hugo L. Black: Not a Quaker, I am talking about any religion. If they all leave the man free to go a war or not as he sees fit, how could they be in a Draft system, even if the Congress wanted --
Richard Harrington: Because most men don't judge the war to be unjust under the Catholic standards.
Hugo L. Black: Most of them might not, but suppose a more and more until 98% of them did?
Richard Harrington: If 98% of the country turn Quaker, we wouldn't have a big army but only 11, 10ths of 1% of the draft eligible men --
Hugo L. Black: Suppose Congress would change that statute, then?
Richard Harrington: Yes, I think Congress could abolish the whole of exemption, then they wouldn't discriminate against Catholics. That would be one solution, abolish it all, take them all, but then Your Honor can imagine what a pleasure would be to have a division of conscientious objectors, instead of having like one poor old Negre, you would have 25,000, 30,000 of these guys in the army and I don't think Congress felt that was practical.
Hugo L. Black: I presume you are right, because I don't know any thing about the doctrine but I have no poor thought that it was part of Catholic doctrine, every member of that Church was left free to obey a law and not obey it as he saw fit?
Richard Harrington: Well, Your Honor if the Church isn't an anarchic institution, it teaches obedience to the faith and morals and it teaches obedience to the state, except in the rare and exceptional case where the commands of the state violate God's commands and in that case, they say --
Hugo L. Black: A very few of the individual --
Richard Harrington: As taught by the Church, as instructed by the Church in it's doctrine --
Hugo L. Black: But the Church hasn't taken a position on this --
Richard Harrington: Church has announced the doctrines that Catholics must apply in deciding whether or not to serve.
Byron R. White: But those doctrines some Catholics, if they follow the doctrines will be conscientiously obligated to go to the Vietnam --
Richard Harrington: Yes.
Byron R. White: -- and an another group will be conscientiously obligated not to go to the Vietnam.
Richard Harrington: Absolutely, Your Honor. That's absolutely correct and each must follow the commands of conscience as the voice of God.
Byron R. White: They both are acting with -- on your analysis, religiously?
Richard Harrington: Yes, they are applying the teaching of the Catholic Church. Now if a man is just a political objector and there are some, there is officer's concern from West Point. They say, well, this is a terrible political mistake. If I am assigned, I will go, they say, that's a political objection. As Talleyrand said, worst than the crime, it's a mistake. These are man whose objection is solely political. They say, I am wiling to serve in Vietnam, but I say it's a mistake to go politically. They are not exempt from the army Your Honor. That's what Congress excluded, though that's political objection.
Thurgood Marshall: What happens to the two men in the same position as this man and both of them are against the war in Vietnam and one is Catholic and one is some other religion, Catholic wins and the other man loses?
Richard Harrington: No, if the other man is the Quaker, he wins too.
Potter Stewart: Now let's say he is Presbyterian?
Richard Harrington: He is the Presbyterian? If this is his religious, if the Court finds it's a religious belief, Your Honor, I say, it should owner it for the Presbyterian just as for the Quaker. You shouldn't discriminate against Presbyterians either.
Thurgood Marshall: Well, is there anything in the Presbyterian religion that says that?
Richard Harrington: I am not prepared to say Your Honor.
Thurgood Marshall: Well, assume it does. Just on his own mind, he feels the same way as your petitioner does.
Richard Harrington: Well --
Thurgood Marshall: He believes in God and he believes that God gives him the right to decide which war he is going to fight in. If he can't show that in his Presbyterian religion, he is a dead Presbyterian?
Richard Harrington: Your Honor, I don't think that the constitution and the First Amendment permit any man to be crammed into an orthodox box. If this is a man of sincere personal religious belief, even though he is a heretic to the Presbyterian, the courts and the government must recognize his religion.
Thurgood Marshall: That's your position, why are you expending two-third of your time Catholic religion?
Richard Harrington: I expended two-thirds because --
Thurgood Marshall: (Voice Overlap) my brother Stewart, I don't get it.
Richard Harrington: I am expending, because Solicitor General says my client's objections are political in and off themselves and that's wholly untenable. In fact, and I have set that out, I proved it's untenable.
Potter Stewart: Now is it.
Byron R. White: You say Congress has no constitutional power (Inaudible)
Richard Harrington: That's my assertion, not on grounds of religious doctrine, Your Honor. Now for conduct, yes. If they want to discriminate on conduct, so that they can't be bigamous then that's different law, but here the conduct is the same. Catholic declines to go and the Quaker declines to go.
Byron R. White: You don't just limit yourself to the equal protection argument, do you?
Richard Harrington: Well, Your Honor --
Byron R. White: You certainly have a First Amendment claim, I take it?
Richard Harrington: Yes, certainly the First Amendment is incorporated -- Fifth Amendment incorporates equal protection from the Fourteenth and that goes into the First Amendment. I also have a statutory construction argument. Thank you, Your Honor.
Warren E. Burger: Well, thank you Harrington. Mr. Solicitor General.
Erwin N. Griswold: May it please the Court. Before opening my argument in this case, I would like to clarify two things which came up in the previous argument and which are relevant here. Mr. Justice Harlan referred to a fact that there is in the statute, a reference to a purely personal moral code. I was a little vague in my answer. I now had a chance to find the statutory language. It is in the appendix to the petitioner's brief in this case, the Negre case on page 1a at the back, “and nothing contained in this Title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States, who by a reason by religious training and belief is conscientiously opposed to participation in war in any form,” and then comes this sentence which was unfortunately omitted in the printing of our brief, “as used in this sub-section, the term religious training and belief does not include essentially political, sociological, or philosophical views or a merely personal moral code.” It was because the way the statute has put it as the definition of religious training and belief which we are not questioning here, rather than as having something to do with that participation in war in any form that I omitted it before. Formally, verbally that's the way it is limited.Practically, it seems to me to give some indication of what Congress was trying to get at in formulating the provision itself and then there was a question to me as to whether Congress had ever refused to allow conscientious objection. This is covered on pages 34 to 36 of the supplement to the brief which we filed in the Welsh case which we printed the brief in the Seeger case which gave a detailed treatment of the history. The fact is that at the beginning of the Civil War, military service was a state matter and you will remember, it was always the 7th Massachusetts in the 23rd Ohio and so on. Thereafter, Congress said and some states had conscientious objector provisions and others had different ones, thereafter Congress provided for a draft, but at the beginning it provided that you could provide substitutes and a great many of the conscientious objectors apparently provided substitutes. Finally, thereafter, during the Civil War, Congress enacted the statute which was typical of the form right down through the World War II, “that members of religious denominations who shall by oath or affirmation declare that they are conscientiously opposed to the bearing of arms and who are prohibited from doing so by the rules and the articles of faith and practice of said religious denominations shall when drafted into the military service, be considered non-combatants and shall be assigned by the Secretary of War to duty in the hospitals or to the care of freed men or shall pay the sum of $300 to such persons as the Secretary of War shall designate to receive it, to be applied to the benefit of the sick and wounded soldiers. Provided no person shall be entitled to the benefits of the provision to this Section, unless his declaration of conscientious scruples against bearing arms shall be supported by satisfactory evidence that his department has been uniformly consistent with such declaration.” Now turning to this case, I think though it is someways more complicated, it presents essentially the same legal issue as the preceding case.
Potter Stewart: Before you do, Mr. Solicitor General, is it your contention at all that in this case, that sentence that you read to us, about essentially political, sociological, or philosophical views or merely personal moral code, is it any part of your contention in this case, that the petitioner here comes within that sentence, that his beliefs come within that sentence?
Erwin N. Griswold: Within what sense Mr. Justice?
Potter Stewart: The ones you have just --
Erwin N. Griswold: The political --
Potter Stewart: (Voice Overlap) as used in this sentence?
Erwin N. Griswold: Yes it is, and I think it is the essence of our case.
Potter Stewart: Well, I had not understood that at all.
Erwin N. Griswold: That the -- I hate to get into what is the doctrine of the Catholic Church. I don't think it is relevant to for matter.
Potter Stewart: But I thought it was --
Erwin N. Griswold: I am not an expert on it, but it is insofar as I understand it, it is the doctrine of the Catholic Church that there is a distinction between just and unjust wars which has a theological significance. However, the Church as I understand it does not make that choice for the individual, and that choice I suggest is on a different level, and the determination of the Church between just and unjust wars, that choice is a personal choice. And if the individual's choice is a selective conscientious objection, he is not covered by the statute anymore than is a Quaker who might make the same choice. A Quaker -- the quaker religion, insofar as it is formalized is opposed to war in any form, but there are many good Quakers who have served in wars, Powell Douglas served actively in World War II, Herbert Hoover was Commander-in-Chief of the Army and Navy and if a Quaker says, yes, I understand that's the teaching of my Church, but as far as I am concerned it's a selective matter, I will serve in some wars and not in other wars, then he would not be covered by this statute either.
Warren E. Burger: What you are saying I take it Mr. Solicitor General is that no member of any religious group on that ground make a claim of selective conscientious objection?
Erwin N. Griswold: That is precisely, precisely our position. That is what Congress has said. Congress has said is opposed to participation in war in any form, and the issue is whether he is opposed to all participation in all wars, and he may evidence religion as a reason for supporting the sincerity of his view that he is opposed to all wars, but if he asserts as Mr. Negre does, that he is not opposed to all wars, but he is opposed to this war then he doesn't come within the statute whether he is religiously motivated or not.
Potter Stewart: Well, that's what I thought the issue was rather than the issue being whether or not he was religiously motivated?
Erwin N. Griswold: I have no doubt whatever in my mind that Mr. Negre is religiously motivated.
Potter Stewart: Well that's -- then I misunderstood. I wholly misunderstood you answer to my question.
Erwin N. Griswold: But --
Byron R. White: Well, you still say, it's a personal moral code?
Erwin N. Griswold: I say, it is in the last analysis his choice, not his Church's choice.
Byron R. White: Well, do you say that his refusal to participate in the Vietnam War, you concede is based on a religious belief?
Erwin N. Griswold: Yes, Mr. Justice, but it is not a religious belief which leads him to say that I will not participate in war in any form.
Byron R. White: Well, that's true. That maybe good for statutory construction, but how about the constitutional argument of discriminating between one religion and other?
Erwin N. Griswold: I don't think it does Mr. Justice. I think that --
Byron R. White: Well, between one religious belief and another?
Erwin N. Griswold: I don't think it does, Mr. Justice. I think it discriminates between a person who is conscientiously opposed to participation in war in any form, and one who is conscientiously opposed to participation in this particular form.
Byron R. White: Well, now if both of those beliefs you just described, you concede are religious? You concede that in --
Erwin N. Griswold: In the broad sense which is the result of, I won't say, is decided by, but is the result of this Court's decision in the Welsh case.
Byron R. White: Yes, but let's assume two men both refused to go to Vietnam, and they say -- one of them says, the reason is I religiously oppose war in any form, and the other one says, based on my religious beliefs, I object to the Vietnam War and will not go to the Vietnam War. You apparently concede that both beliefs motivating the refusal are religious beliefs, but the one you would say is entitled to recognition and the other one is not?
Erwin N. Griswold: Yes, Mr. Justice and I would equally say that the belief which asserted that I do not believe in any supreme being, I uphold all organized religion, however, by a reason of deep conscientious feeling I have concluded that I will not participate in war in any form, would likewise be protected. Whether it is religion in the conventional sense or not, makes no difference. The question is that the depth of the view and the nature of the view.
Byron R. White: But still how do you justify the discriminating between those two religious beliefs motivating refusals to go to the Vietnam War?
Erwin N. Griswold: Because one is a view which within the statutory language as it has come to be meant by reason of religious training and belief, is opposed to war in any -- opposed to participation in war in any form and the other is by reason of religious training and belief, however, it's construed, is not opposed to participation in war in any form.
Byron R. White: Well, I agree that's right under the statute, but when you ask to how -- if you ask why the statue is so construed and applied is constitutional, why is it constitutional to discriminates between one religious belief and another?
Erwin N. Griswold: I don't think we are discriminating between one religious belief and another, Mr. Justice.
Byron R. White: Alright.
Erwin N. Griswold: I think you are discriminating between one belief which is opposed to participation in war in any form, whether it is supported by conventional religion or not, and on the other hand a -- an opposition to participation in this particular war whether it is supported by conventional religion or not.
Warren E. Burger: Would it be correct to say, that another way to put your positions Mr. Solicitor General is that, when it's a selective choice subjective on the basis of what war, then the reason for it becomes irrelevant?
Erwin N. Griswold: Yes, Mr. Justice, I think that's what I have been trying to say whether it is religious or not, if it selective, it (A) doesn't come within the statute, and (B) there is nothing in the constitution which requires Congress to recognize it or putting it another way, it does not amount to an establishment of religion or a denial of the free exercise of a religion which is all that the First Amendment covers, nor is it invidious discrimination, insofar as there is an equal protection concept in the Fifth Amendment. Now it's already been pointed out that this case is different from Gillette case since it arises in habeas corpus and is not a criminal case, this I don't think makes any significant difference. It is based on a directive of the department of defense and army regulations which provide for release of people on the basis of conscientious objection, and they shall be judged according to the regulation by the same standards, whether made before or after entering Military service, and that these shall be the selective service system standards. Thus Section 6 (j) is incorporated into the relevant military regulations. I do think it is pertinent to point out again, as has been asserted, as has been stated here by Mr. Harrington that the petitioner is no longer on active duty in the army. He has been transferred to the ready reserve. He can quite readily within the conscientious scruples which he showed during the four months that he was in the army, where he was willing to serve in uniform on this side. He can quite readily comply with the military requirement, which seem to me that if he doesn't, it is simply a clear case of military disobedience which ought to be treated as such. If he does feel that his views have now changed, so that he is opposed to participation in war any form, he is still entitled to file a claim based upon that. I do not understand that he has ever made any such claim. Now, the other difference between this case and the Gillette case as already pointed out, is that the objection in the present case has a clear religious basis within the conventional sense of that term. Now the petitioner is a Catholic. He based his application on well known writings of traditional Catholic authors, including the present Pope and his predecessor Pope John XXIII. And on the basis of these writings he says, that each Catholic must form his own conscience in respect of military service, and that there is a distinction between just and unjust wars. On this basis, he concludes that he cannot conscientiously participate in the war in Vietnam, although he would be prepared to perform noncombatant hospital service in the United States, because such service is not directly in aid of the army in Vietnam. The hearing officer found that he was a devout Catholic, who sincerely believed that the war in Vietnam was wrong. He concluded, however, that the application for discharge should be rejected because in his opinion, the applicant objected to a particular war and not to war in any form, and this was supported by the Department of the Army. The District Court in the habeas corpus proceeding, Pages 47 and 48 of the Appendix, read the or recited the opinion of the hearing officer and concluded that it is a fact when considered together with other facts disclosed in the record, including the timing of the application and petitioner's request for noncombatant status, with the restriction that he be assigned to duties in the United States that these could sustain the opinion of the hearing officer and the decision of the army. It therefore cannot be said that the decision of the army is without a basis, in fact, they are. And the Court of Appeals affirmed holding on Page 51 of the Appendix, that beyond question there was a basis in fact, for the conclusions of the Department of the army. It further pointed out, that the petitioner objects to the war in Vietnam, not to all wars and clearly his views are completely inconsistent with objection to war in any form.
John M. Harlan: Mr. Solicitor General, are there any figures, just to the number of selective conscientious objector claims that have been made since, it was asked in the Sisson case?
Erwin N. Griswold: No, Mr. Justice I know of no such figures.
John M. Harlan: You know what the army has been doing with these selective claims?
Erwin N. Griswold: No, Mr. Justice, I do not. Of course, we have two groups. We have those before the Selective Service System, which would follow one procedure. We have those seeking release from the army which would follow another procedure. Those come in at least four or may be five different services and I do not know if any effort to tabulate the expressly selective claims which have been made since Judge Wyzanski's decision.
Hugo L. Black: May I ask you a question Mr. Solicitor General? You know or know better than the Solicitor General, even the members of the Court, (Inaudible) of these cases. I do not understand why this man has gotten what he wants and he is not being compelled to apply, this wouldn't be moot?
Erwin N. Griswold: Well, Mr. Justice, I share that feeling to a very considerable extent. This man is in the ready reserve. There's a suggestion here by Mr. Harrington not supported in the record, I mean I am not denying it, I just don't know it, that he isn't attending his drills and may be subject to an order of call up. As I have said that seems to me to be a pure case of military disobedience. He has never made a claim of total conscientious objection. This is never been passed on by anyone. His claim is one of the selective conscientious objection and it seems to me that the effect of the department -- army was that he wouldn't be classified as 1-AO, that is as a noncombatant in the military services, which was the service which he did perform. Frankly, I don't myself understand why the case isn't moot, but I suppose that --
John M. Harlan: Well, if you lose this case --
Erwin N. Griswold: The case is cited in the footnotes, have had a chilling effect on me and I didn't quite feel that I could assert that the case was moot or let me put it in other way, if I had moved to dismiss the case on the ground that it was moot, I would have thought that maybe I would not have been successful. But --
John M. Harlan: I would think you are quite right.
Erwin N. Griswold: But it would not – [Laughter]
Hugo L. Black: I am not near so sure.
Erwin N. Griswold: It would not distress me if the Court should conclude that the case was moot. It seems to me that this is a case, where the Court is being called on to decide the ultimate question of principle in a factual situation where it is not really presented.
Hugo L. Black: As I understand the man is where he wants to be. He is objected to going into the war and army has kept him. I don't see where he is has any controversy at the present time?
Erwin N. Griswold: Because he is --
Hugo L. Black: I don't see why we should --
Erwin N. Griswold: Mr. Justice, he is trying very hard to get a decision out of this Court.
Hugo L. Black: That's what I --
Erwin N. Griswold: And he is apparently now, not complying with his reserve obligation, in order that he maybe called back into active service, in order that he may get another order to go to Vietnam, in order that he maybe sure that the issue will be presented. Whether that possibility which turns considerably on his own determination to get a decision on this issue is sufficient to keep the case from being moot, is something which the Court ought to consider, will consider of course, and it seems to me there is much reason to think that this is a case which is essentially moot.
John M. Harlan: But we still have the issue in the other case?
Erwin N. Griswold: We still have -- not, we don't have the Catholic doctrine argument in the other case, we have the selective conscientious. But I think the Catholic doctrine argument can be highlighted by the reply brief which was filed in this case. Incidentally it is full of learned excerpts from Catholic authors through the years, it isn't clear to me how far the Court can properly take judicial notice of such material. If it is relevant, which I don't think it is, because I don't think the Court can go into Church Doctrine of any kind, if it is relevant, it seems to me that it ought to be put in by evidence, it ought to be subject to examination and cross-examination, and there ought to be an opportunity to put in other teachings of other prominent Catholic theologians. And I have no doubt that a very confusing mass of material all together can be found rather than the selected materials which are here. But the point to which I want to make is -– can be seen in two page places in this brief. Page 3, the heading, this is the blue covered reply brief for the petitioner in this case. The Catholic Church teaches that its members have a religious duty to participate in just wars. Now, if there were that, if that were true, there would be a problem. Among other things they couldn't ever be a Catholic Conscientious Objector within the statute. He would always say, well, I will participate in just war, and I would call your attention to the fact that the Mulloy case, which was decided by this court last year, involved a Catholic and had substantial material and the record about Catholic Doctrine and he claimed to be a total conscientious objector. Now, we have filed a petition for Certiorari in another case which is now pending, raising an issue like this, Laird against Capobianco, number 611 which also involves a Catholic who claims to be a total conscientious objector and I think that the light comes on Page 7 of the reply brief. This is a place where there was an error in the printing of the brief and the material has in my copy at least and I hope in yours has been written in long hand. This is the language -- yes, I have it -- this is the language just below the middle of Page 7, Captain Vanvert (ph) right at the middle of Page 7, Captain Vanvert (ph) was correct in capturing the theological gist of the teaching of Paul VI, in the pastoral constitution, that a Catholic has a religious duty to distinguish between just wars in which he may participate, and unjust wars in which he has a religious duty to refuse to participate.
Warren E. Burger: The brief I have is not read that way. It reads, to discriminate between just wars in which he has a religious duty to participate?
Erwin N. Griswold: Well, I am sorry, in the one that I have, it says, distinguish and the one that Mr. Harrington has, it says, discriminate and I don't know whether they couldn't make up their mind or whether [Laughter] whether it was an error.
Warren E. Burger: Mr. Solicitor General, there is a very significant distinction beyond the use of that term. The term, may and must is very, very different?
Erwin N. Griswold: In which he may participate, I believe that is an --
William J. Brennan, Jr.: I am not (Inaudible) with any change.
Potter Stewart: I am not either.
Erwin N. Griswold: Oh! I am sorry, Mr. Harrington's copy. This is interesting because apparently there was a change in view as they --
William J. Brennan, Jr.: Mr. Solicitor General do you read it so I have nothing in mind?
Potter Stewart: I have neither.[Laughter]
Erwin N. Griswold: Well, I am sorry Mr. Justice. The copy that was furnished to me has the language on which I have based my argument and which I will stand on to distinguish between just wars in which he may participate and unjust wars in which he has a religious duty to refuse to participate.
Hugo L. Black: I have the alternative brief.
Erwin N. Griswold: And I venture the suggestion that the sound theological doctrine is that a Catholic may participate in all wars, that in part Catholic may decline to participate in all wars and that he is not under a religious duty to participate in just wars. That he does have a considerable freedom of conscience and I haven't the slightest doubt that that is the practical construction which has been given not only by many individual catholics, but by their religious advisors.
Byron R. White: Mr. Solicitor General, in the other case, in the Gillette case there was no finding in neither the courts below as whether or not a religious belief was involved. But you don't challenge it, but if that were determined that there wasn't a religious belief involved, we wouldn't be reaching to some of these questions in that case either?
Erwin N. Griswold: Well, [Attempt to Laughter] that depends upon what the decision in the Welsh case means and all I can say is that five members of the Court on one ground or another have determined that the word religious training and belief in the statute do not have much significance. Four because they don't think they should have and one because he thinks that constitutionally, they can't have and all that we on this side of the bar can do is to undertake to proceed on the basis of the decision which was reached for varying reasons by five members of the Court, which did in effect ride out from the statute, the word religious training and belief.
Warren E. Burger: Mr. Solicitor General, we will reach that now, but we will enlarge your time.
Erwin N. Griswold: No, I have no more --
Warren E. Burger: Well then, we will allow Mr. Harrington, although he is out of time to have two minutes to respond after lunch, but in the meantime it would be helpful to the Court if you would arrange to say what version you wish on this page and the Court in the interim will arrange to have at least nine copies made so that we will know precisely what position we would act on.
Richard Harrington: That's file ERDA (ph) sheet sir dated yesterday Your Honor.
Warren E. Burger: Well, they haven't reached us yet.
Richard Harrington: I regret.
Warren E. Burger: That's quite late to have it.
Richard Harrington: I certainly apologize, Your Honor.
Warren E. Burger: Very well, we will see it. We'll have it later.
Richard Harrington: May it please the Court. The Court did a marvelous job of printing my brief on very short notice. Printed text is set in the ERDA (ph) sheet filed yesterday with the clerk and before the Court, and the proper correction appears at Page 7 after line 23, discriminate between just wars in which he has religious duty to participate and unjust wars in which he has religious duty to refuse to participate. Now with my two minutes remaining, I will make three points, which will be a record for (Inaudible) I hope. First, the Solicitor General, I think never answered Mr. Justice White's inquiry how the constitution permits discrimination between religions on the grounds of belief in this case.
Warren E. Burger: You have to the -- you have to start with a premise that it is discrimination.
Richard Harrington: I think his premise is that --
Warren E. Burger: If you go from that premise, you don't have any difficulty with the conclusion.
Richard Harrington: If Your Honor, please, that's correct and if you accept the religious believes of Negre here to be that he must fight in just wars and must refuse to fight unjust wars then that is a discrimination on that -- based on that belief.
Warren E. Burger: Is there anything to prevent Presbyterian or Methodist or Baptist or anyone else from applying Pope's doctrine or the, not the doctrine but the historic doctrine of the church?
Richard Harrington: No, Your Honor, that's exactly the point Mr. Justice Marshall made that it's the individual's religion. It's not the place of government to say you are an orthodox believer or unorthodox. And so with the baptist, would come to the belief based on his religion that like the Catholic he must fight in just wars and must refuse to fight in unjust war, and he should get equal protection too in that case.
Hugo L. Black: Which church was that? You are speaking about another church, what was that?
Richard Harrington: Mr. Justice Marshall, questioned me about --
Hugo L. Black: You said the baptist church --
Richard Harrington: Well if the baptist church has such a teaching --
Hugo L. Black: I thought you said, I don't know.
Richard Harrington: Your honor I think in any religion, what I mean to say and I am not speaking as a theologian, before I think our constitution does to permit each of us to have his own religious beliefs.
Hugo L. Black: Why wouldn't that permit? Why wouldn't that absolutely prevent the government and I am not saying it shouldn't prevented or should, why would that absolutely make it impossible for the government have law drafting an army?
Richard Harrington: Because most of the citizens of the country think that the wars -- like to government start just wars and they go willingly and happily and they are pleased to serve.
Hugo L. Black: Well until they get, I believe some of them keep that opinion, and believe in draft?
Richard Harrington: Some after they are drafted lose some enthusiasm but they are nevertheless loyal soldiers and the number of objectors are small, they are two million, two college students, they are only 25,000.
Warren E. Burger: Does your case depend in any degree on how many of them there are?
Richard Harrington: No, Your Honor because --
Warren E. Burger: What if 98% of the people decided to do that, you would make this in mind?
Richard Harrington: I agree entirely and if 98% of the people would adopt the religion and follow it, the country would be much better, but in the field of armed service, if they all became pacifists, we wouldn't have an army. If Congress --
Hugo L. Black: Or a war.
Richard Harrington: Pardon me.
Hugo L. Black: Or a war.
Richard Harrington: Or a war and I would devoutly would hope that the world would come to that condition. Next Mr. Justice Black, I think the case has not moot, it's not moot.
Hugo L. Black: Why?
Richard Harrington: It's not moot, Your Honor for three different reasons. Number one, if the application had been granted when I showed that my client would been discharged and have no reserve obligation whatever, number two, we sought a stay in this Court.
Hugo L. Black: Well, I don't see -- I thought they just objected to getting mixed up in this war?
Richard Harrington: Well, Your Honor, since we departed from the record on the grounds of mootness, I should lay the full record before the Court. The fact to the matter is before this young man went to Vietnam, he amended his application solely in this particular. He said, after what's happened to be, I am unwilling to serve in the United States Army anywhere because it now well appears to me constitute aiding and abetting this immoral war, which violates my religion. Now the Solicitor General never suggested --
Hugo L. Black: Well that's a newly developed --
Richard Harrington: Pardon me.
Hugo L. Black: That must be a newly developed idea of what you are saying?
Richard Harrington: It was Judge Zirpoli pointed out during the trial that he was aiding and abetting the war by releasing another man to go and after he got that admonition from Judge Zirpoli and after this Court a denied stay, he then gave that consideration and he did amend his application in that particular law. Now therefore the case is not moot. The young man feels that he should not participate in this war, even by aiding it and abetting it. And thirdly, as I point out to you, Your Honors, we did seek a stay before he went to Vietnam.
Hugo L. Black: Did he sued under writ of habeas corpus to get out?
Richard Harrington: Yes he is.
Hugo L. Black: On the ground that they might sometimes send him to Vietnam?
Richard Harrington: That's this case Your Honor. Before he went we sued out that writ.
Warren E. Burger: But it was a -- not a new writ since he went into reserve?
Richard Harrington: No, we have to start a new writ, Your Honor. I simply say if Mitchel is the law that he can't raised before he is in the army and this Court will not stay after he is in the army and then we get to this Court having exhausted our remedies, we are too late. There won't be many cases from where we will be able to present our position because there never be any right time. We respectfully submit, we exhausted, we tried to be diligent. We moot as quickly as we could, this is why we are in this Court, he is entitled to be discharged under the constitution and Equal Protection and we ask that he be discharged. Thank you.
Warren E. Burger: Thank you Mr. Harrington. Thank you Mr. Solicitor General. The case is submitted.