Petitioner appealed his local draft board's rejection of his
application for conscientious objector classification. The Justice
Department, in response to the State Appeal Board's referral for an
advisory recommendation, concluded, contrary to a hearing officer's
recommendation, that petitioner's claim should be denied, and wrote
that board that petitioner did not meet any of the three basic
tests for conscientious objector status. The Appeal Board then
denied petitioner's claim, but without stating its reasons.
Petitioner refused to report for induction, for which he was
thereafter tried and convicted. The Court of Appeals affirmed. In
this Court, the Government has rightly conceded the invalidity of
two of the grounds for denial of petitioner's claim given in its
letter to the Appeal Board, but argues that there was factual
support for the third ground.
Held: Since the Appeal Board gave no reason for the
denial of a conscientious objector exemption to petitioner, and it
is impossible to determine on which of the three grounds offered in
the Justice Department's letter that board relied, petitioner's
conviction must be reversed.
Sicurella v. United States,
348 U. S. 385.
430 F.2d 165, reversed.
PER CURIAM.
The petitioner was convicted for willful refusal to submit to
induction into the Armed Forces. 62 Stat. 622, as amended, 50
U.S.C.App. § 462(a) (1964 ed., Supp.
Page 403 U. S. 699
V). The judgment of conviction was affirmed by the Court of
Appeals for the Fifth Circuit. [
Footnote 1] We granted certiorari, 400 U.S. 990, to
consider whether the induction notice was invalid because grounded
upon an erroneous denial of the petitioner's claim to be classified
as a conscientious objector.
I
The petitioner's application for classification as a
conscientious objector was turned down by his local draft board,
and he took an administrative appeal. The State Appeal Board
tentatively classified him I-A (eligible for unrestricted military
service) and referred his file to the Department of Justice for an
advisory recommendation, in accordance with then-applicable
procedures. 50 U.S.C.App. § 456(j) (1964 ed., Supp. V). The FBI
then conducted an "inquiry" as required by the statute,
interviewing some 35 persons, including members of the petitioner's
family and many of his friends, neighbors, and business and
religious associates.
There followed a hearing on "the character and good faith of the
[petitioner's] objections" before a hearing officer appointed by
the Department. The hearing officer, a retired judge of many years'
experience, [
Footnote 2] heard
testimony from the petitioner's mother and father, from one of his
attorneys, from a minister of his religion, and from the petitioner
himself. He also had the benefit of a full report from the FBI. On
the basis of this record, the hearing officer concluded that the
registrant
Page 403 U. S. 700
was sincere in his objection on religious grounds to
participation in war in any form, and he recommended that the
conscientious objector claim be sustained. [
Footnote 3]
Notwithstanding this recommendation, the Department of Justice
wrote a letter to the Appeal Board, advising it that the
petitioner's conscientious objector claim should be denied. Upon
receipt of this letter of advice, the Board denied the petitioner's
claim without a statement of reasons. After various further
proceedings which it is not necessary to recount here, the
petitioner was ordered to report for induction. He refused to take
the traditional step forward, and this prosecution and conviction
followed.
II
In order to qualify for classification as a conscientious
objector, a registrant must satisfy three basic tests. He must show
that he is conscientiously opposed to war in any form.
Gillette
v. United States, 401 U. S. 437. He
must show that this opposition is based upon religious training and
belief, as the term has been construed in our decisions.
United
States v. Seeger, 380 U. S. 163;
Welsh v. United States, 398 U. S. 333. And
he must show that this objection is sincere.
Witmer v. United
States, 348 U. S. 375. In
applying these tests, the Selective Service System must be
concerned with the registrant as an individual, not with its own
interpretation of the dogma of the religious sect, if any, to which
he may belong.
United States v. Seeger, supra; Gillette v.
United States, supra; Williams v. United States, 216 F.2d 350,
352.
Page 403 U. S. 701
In asking us to affirm the judgment of conviction, the
Government argues that there was a "basis in fact,"
cf. Estep
v. United States, 327 U. S. 114,
for.holding that the petitioner is not opposed to "war in any
form," but is only selectively opposed to certain wars.
See
Gillette v. United States, supra. Counsel for the petitioner,
needless to say, takes the opposite position. The issue is one that
need not be resolved in this case. For we have concluded that, even
if the Government's position on this question is correct, the
conviction before us must still be set aside for another quite
independent reason.
III
The petitioner's criminal conviction stemmed from the Selective
Service System's denial of his appeal seeking conscientious
objector status. That denial, for which no reasons were ever given,
was, as we have said, based on a recommendation of the Department
of Justice, overruling its hearing officer and advising the Appeal
Board that it "finds that the registrant's conscientious objector
claim is not sustained and recommends to your Board that he be not
[so] classified." This finding was contained in a long letter of
explanation, from which it is evident that Selective Service
officials were led to believe that the Department had found that
the petitioner had failed to satisfy each of the three basic tests
for qualification as a conscientious objector.
As to the requirement that a registrant must be opposed to war
in any form, the Department letter said that the petitioner's
expressed beliefs
"do not appear to preclude military service in any form, but
rather are limited to military service in the Armed Forces of the
United States. . . . These constitute only objections to certain
types of war in certain circumstances, rather than a general
scruple against participation in war in any form. However, only a
general scruple against participation
Page 403 U. S. 702
in war in any form can support an exemption as a conscientious
objector under the Act.
United States v. Kauten, 133 F.2d
703."
As to the requirement that a registrant's opposition must be
based upon religious training and belief, the Department letter
said:
"It seems clear that the teachings of the Nation of Islam
preclude fighting for the United States not because of objections
to participation in war in any form, but rather because of
political and racial objections to policies of the United States as
interpreted by Elijah Muhammad. . . . It is therefore our
conclusion that registrant's claimed objections to participation in
war, insofar as they are based upon the teachings of the Nation of
Islam, rest on grounds which primarily are political and
racial."
As to the requirement that a registrant's opposition to war must
be sincere, that part of the letter began by stating that
"the registrant has not consistently manifested his
conscientious objector claim. Such a course of overt manifestations
is requisite to establishing a subjective state of mind and
belief."
There followed several paragraphs reciting the timing and
circumstances of the petitioner's conscientious objector claim, and
a concluding paragraph seeming to state a rule of law -- that
"a registrant has not shown overt manifestations sufficient to
establish his subjective belief where, as here, his conscientious
objector claim was not asserted until military service became
imminent.
Campbell v. United States, 221 F.2d 454.
United States v. Corliss, 280 F.2d 808,
cert.
denied, 364 U.S. 884."
In this Court, the Government has now fully conceded that the
petitioner's beliefs are based upon "religious training and
belief," as defined in
United States v. Seeger, supra:
"There is no dispute that petitioner's professed beliefs were
founded on basic tenets of the Muslim religion,
Page 403 U. S. 703
as he understood them, and derived in substantial part from his
devotion to Allah as the Supreme Being. Thus, under this Court's
decision in
United States v. Seeger, 380 U. S.
163, his claim unquestionably was within the 'religious
training and belief' clause of the exemption provision. [
Footnote 4]"
This concession is clearly correct. For the record shows that
the petitioner's beliefs are founded on tenets of the Muslim
religion as he understands them. They are surely no less
religiously based than those of the three registrants before this
Court in
Seeger. See also Welsh v. United States,
398 U. S. 333.
The Government in this Court has also made clear that it no
longer questions the sincerity of the petitioner's beliefs.
[
Footnote 5] This concession is
also correct. The Department hearing officer--the only person at
the administrative appeal level who carefully examined the
petitioner and other witnesses in person and who had the benefit of
the full FBI file -- found "that the registrant is sincere in his
objection." The Department of Justice was wrong in advising the
Board in terms of a purported rule of law that it should disregard
this finding simply because of the circumstances and timing of the
petitioner's claim.
See Ehlert v. United States,
402 U. S. 99,
402 U. S.
103-104;
United States ex rel. Lehman v. Laird,
430 F.2d 96, 99;
United States v. Abbott, 425 F.2d 910,
915;
United States ex rel. Tobias v. Laird, 413 F.2d 936,
939-940;
Cohen v. Laird, 315 F. Supp. 1265, 1277-1278.
Since the Appeal Board gave no reasons for its denial of the
petitioner's claim, there is absolutely no way of knowing upon
which of the three grounds offered in the Department's letter it
relied. Yet the Government now acknowledges that two of those
grounds were not valid.
Page 403 U. S. 704
And, the Government's concession aside, it is indisputably
clear, for the reasons stated, that the Department was simply wrong
as a matter of law in advising that the petitioner's beliefs were
not religiously based and were not sincerely held.
This case, therefore, falls squarely within the four corners of
this Court's decision in
Sicurella v. United States,
348 U. S. 385.
There, as here, the Court was asked to hold that an error in an
advice letter prepared by the Department of Justice did not require
reversal of a criminal conviction because there was a ground on
which the Appeal Board might properly have denied a conscientious
objector classification. This Court refused to consider the
proffered alternative ground:
"[W]e feel that this error of law by the Department, to which
the Appeal Board might naturally look for guidance on such
questions, must vitiate the entire proceedings, at least where it
is not clear that the Board relied on some legitimate ground. Here,
where it is impossible to determine on exactly which grounds the
Appeal Board decided, the integrity of the Selective Service System
demands, at least, that the Government not recommend illegal
grounds. There is an impressive body of lower court cases taking
this position, and we believe that they state the correct
rule."
Id. at
348 U. S.
392.
The doctrine thus articulated 16 years ago in
Sicurella
was hardly new. It was long ago established as essential to the
administration of criminal justice.
Stromberg v.
California, 283 U. S. 359. In
Stromberg, the Court reversed a conviction for violation
of a California statute containing three separate clauses, finding
one of the three clauses constitutionally invalid. As Chief Justice
Hughes put the matter, "[I]t is impossible to say under which
clause of the statute the conviction was obtained." Thus, "if any
of the clauses in question is invalid under the
Page 403 U. S. 705
Federal Constitution, the conviction cannot be upheld."
Id. at
283 U. S.
368.
The application of this doctrine in the area of Selective
Service law goes back at least to 1945, and Judge Learned Hand's
opinion for the Second Circuit in
United States v. Cain,
149 F.2d 338. It is a doctrine that has been consistently and
repeatedly followed by the federal courts in dealing with the
criminal sanctions of the selective service laws.
See, e.g.,
United States v. Lemmens, 430 F.2d 619, 623-624 (CA7 1970);
United States v. Broyles, 423 F.2d 1299, 1303-1304 (CA4
1970);
United States v. Haughton, 413 F.2d 736 (CA9 1969);
United States v. Jakobson, 325 F.2d 409, 416-417 (CA2
1963),
aff'd sub nom. United States v. Seeger,
380 U. S. 163;
Kretchet v. United States, 284 F.2d 561, 565-566 (CA9
1960);
Ypparila v. United States, 219 F.2d 465, 469 (CA10
1954);
United States v. Englander, 271 F.
Supp. 182 (SDNY 1967);
United States v.
Erikson, 149 F.
Supp. 576, 578-579 (SDNY 1957). In every one of the above
cases, the defendant was acquitted or the conviction set aside
under the
Sicurella application of the
Stromberg
doctrine.
The long established rule of law embodied in these settled
precedents thus clearly requires that the judgment before us be
reversed.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
[
Footnote 1]
The original judgment of affirmance, 397 F.2d 901, was set aside
by this Court on a ground wholly unrelated to the issues now before
us,
sub nom. Giordano v. United States, 394 U.
S. 310. Upon remand, the Court of Appeals again affirmed
the conviction. 430 F.2d 165.
[
Footnote 2]
The hearing officer was Judge Lawrence Grauman, who had served
on a Kentucky circuit court for some 25 years.
[
Footnote 3]
Applicable regulations, 32 CFR § 1626.25 (1967 ed.), did not
require that the hearing officer's report be transmitted to the
Appeal Board, and the Government declined to disclose it to the
petitioner. The statements in text are taken from the description
of that report in the letter of advice from the Department of
Justice, recommending denial of the petitioner's claim.
[
Footnote 4]
Brief for the United States 12.
[
Footnote 5]
"We do not here seek to support the denial of petitioner's claim
on the ground of insincerity. . . ."
Id. at 33.
MR. JUSTICE DOUGLAS, concurring.
I would reverse this judgment of conviction and set the
petitioner free.
In
Sicurella v. United States, 348 U.
S. 385, [
Footnote 2/1]
the wars
Page 403 U. S. 706
that the applicant would fight were not "carnal," but those "in
defense of Kingdom interests."
Id. at
348 U. S. 389.
Since it was impossible to determine on exactly which grounds the
Appeal Board had based its decision, we reversed the decision
sustaining the judgment of conviction. We said:
"It is difficult for us to believe that the Congress had in mind
this type of activity when it said the thrust of conscientious
objection must go to 'participation in war in any form.'"
Id. at
348 U. S.
390.
In the present case, there is no line between "carnal" war and
"spiritual" or symbolic wars. Those who know the history of the
Mediterranean littoral know that the
jihad of the Moslem
was a bloody war.
This case is very close in its essentials to
Negre v.
Larsen, 401 U. S. 437,
decided March 8, 1971. The church to which that registrant belonged
favored "just" wars, and provided guidelines to define them. The
church did not oppose the war in Vietnam, but the registrant
refused to comply with an order to go to Vietnam because
participating in that conflict would violate his conscience. The
Court refused to grant him relief as a conscientious objector,
overruling his constitutional claim.
The case of Clay is somewhat different, though analogous. While
there are some bits of evidence showing conscientious objection to
the Vietnam conflict, the basic objection was based on the
teachings of his religion. He testified that he was
"sincere in every bit of what the Holy Qur'an and
Page 403 U. S. 707
the teachings of the Honorable Elijah Muhammad tell us, and it
is that we are not to participate in wars on the side of nobody who
-- on the side of nonbelievers, and this is a Christian country,
and this is not a Muslim country, and the Government and the
history and the facts shows that every move toward the Honorable
Elijah Muhammad is made to distort and is made to ridicule him and
is made to condemn him and the Government has admitted that the
police of Los Angeles were wrong about attacking and killing our
brothers and sisters and they were wrong in Newark, New Jersey, and
they were wrong in Louisiana, and the outright, everyday oppressors
and enemies are the people as a whole, the whites of this nation.
So, we are not, according to the Holy Qur'an, to even as much as
aid in passing a cup of water to the even a wounded. I mean, this
is in the Holy Qur'an, and as I said earlier, this is not me
talking to get the draft board -- or to dodge nothing. This is
there before I was borned, and it will be there when I'm dead, but
we believe in not only that part of it, but all of it."
At another point, he testified:
"[T]he 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 talking still, and saying we are not to even as much as
aid the infidels or the nonbelievers in Islam, even to as much as
handing them a cup of water during battle."
"So, this is the teachings of the Holy Qur'an before I was born,
and the Qur'an, we follow not only that part of it, but every part.
"
Page 403 U. S. 708
The Koran defines
jihad as an injunction to the
believers to war against nonbelievers: [
Footnote 2/2]
"O ye who believe! Shall I guide you to a gainful trade which
will save you from painful punishment? Believe in Allah and His
Apostle and carry on warfare (
jihad) in the path of Allah
with your possessions and your persons. That is better for you. If
ye have knowledge, He will forgive your sins, and will place you in
the Gardens beneath which the streams flow, and in fine houses in
the Gardens of Eden: that is the great gain."
M. Khadduri, War and Peace in the Law of Islam 55-56 (1955).
The Sale edition of the Koran, which first appeared in England
in 1734, gives the following translation at 410-411 (9th
ed.1923):
"Thus, God propoundeth unto men their examples. When ye
encounter the unbelievers, strike off their heads, until ye have
made a great slaughter among them; and bind them in bonds; and
either give them a free dismission afterwards, or exact a ransom;
until the war shall have laid down its arms. This shall ye do.
Verily if God pleased he could take vengeance on them, without your
assistance; but he commandeth you to fight his battles, that he may
prove the one of you by the other. And as to those who fight in
defence of God's true religion, God will not suffer their works to
perish: he will guide them, and will dispose their heart aright;
and
Page 403 U. S. 709
he will lead them into paradise, of which he hath told them. O
true believers, if ye assist God, by fighting for his religion, he
will assist you against your enemies; and will set your feet fast.
. . ."
War is not the exclusive type of
jihad; there is action
by the believer's heart, by his tongue, by his hands, as well as by
the sword. War and Peace in the Law of Islam 56. As respects the
military aspects, it is written:
"The
jihad, in other words, is a sanction against
polytheism, and must be suffered by all non-Muslims who reject
Islam, or, in the case of the dhimmis (Scripturaries), refuse to
pay the poll tax. The
jihad, therefore, may be defined as
the litigation between Islam and polytheism; it is also a form of
punishment to be inflicted upon Islam's enemies and the renegades
from the faith. Thus, in Islam, as in Western Christendom, the
jihad is the
bellum justum."
Id. at 59.
The
jihad is the Moslem's counterpart of the "just" war
as it has been known in the West. [
Footnote 2/3] Neither Clay nor Negre should be subject
to punishment because he will not renounce the "truth" of the
teaching of his respective church that wars indeed may exist which
are just wars in which a Moslem or Catholic has a respective duty
to participate.
What Clay's testimony adds up to is that he believes only in war
as sanctioned by the Koran, that is to say, a religious war against
nonbelievers. All other wars are unjust.
That is a matter of belief, of conscience, of religious
principle. Both Clay and Negre were, "by reason of religious
Page 403 U. S. 710
training and belief" conscientiously opposed to participation in
war of the character proscribed by their respective religions. That
belief is a matter of conscience protected by the First Amendment
which Congress has no power to qualify or dilute as it did in §
6(j) of the Military Selective Service Act of 1967, 50 U.S.C.App. §
456(j) (1964 ed., Supp. V) when it restricted the exemption to
those "conscientiously opposed to participation in war in any
form." For the reasons I stated in
Negre and in
Gillette v. United States, 401 U.
S. 437,
401 U. S. 463
and
401 U. S. 470,
that construction puts Clay in a class honored by the First
Amendment, even though those schooled in a different conception of
"just" wars may find it quite irrational.
I would reverse the judgment below.
[
Footnote 2/1]
As to the Court's analysis of
Sicurella v. United
States, 348 U. S. 385, and
its application of
Stromberg v. California, 283 U.
S. 359, little need be said. The Court is, of course,
quite accurate if opposition to "war in any form" as explained in
Gillette v. United States, and
Negre v. Larsen,
401 U. S. 437, is
the law. But, in my view, the ruling in
Gillette and
Negre was unconstitutional. Hence, of the three possible
grounds on which the Board denied conscientious objector status,
none was valid.
[
Footnote 2/2]
Koran 61:10-13.
"War, then, is here an integral part of the legal system; for in
accordance with the doctrine of the
jihad, which is
recognized as 'the peak of religion,' the Islamic commonwealth must
be expanding relentlessly, like a caravan continuously on the move,
until it becomes coterminous with humanity, at which time war will
have been transposed into universal peace."
A. Bozeman, The Future of Law in a Multicultural World 81-82
(1971).
[
Footnote 2/3]
The last attempt to use the
jihad as a significant
force was made in 1914 by the Ottoman sultan; but it failed, and
the
jihad has fallen into disuse.
See 1 A.
Toynbee, Survey of International Affairs, 1925, p. 43
et
seq. (1927); 8 Encyclopaedia of the Social Sciences 401-403
(1932).
MR. JUSTICE HARLAN, concurring in the result.
I concur in the result on the following ground. The Department
of Justice advice letter was at least susceptible of the reading
that petitioner's proof of sincerity was insufficient as a matter
of law because his conscientious objector claim had not been timely
asserted. This would have been erroneous advice had the
Department's letter been so read. Since the Appeals Board might
have acted on such an interpretation of the letter, reversal is
required under
Sicurella v. United States, 348 U.
S. 385 (1955).