"CLAY, aka ALI v. UNITED STATES, 403 U.S. 698"
Case Name: CLAY, aka ALI v. UNITED STATES, 403 U.S. 698
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
NO. 783. Argued April 19, 1971 — Decided JUNE 28, 1971
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.
Chauncey Eskridge argued the cause for petitioner. With him on the briefs
were Jack Greenberg, James M. Nabrit III, Jonathan Shapiro, and Elizabeth
Solicitor General Griswold argued the cause for the United States. With
him on the brief were Assistant Attorney General Wilson and Beatrice
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. V). The judgment of conviction was affirmed by
the Court of Appeals for the Fifth Circuit.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.
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 and "inquiry" as required
by the statute, interviewing some 35 persons, including members of
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,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 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.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.
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.
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.
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
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 teaching of the
Nation of Islam, rest on grounds which primarily are political and
As to the requirement that a registrant's opposition to the 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 full 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,
as he understood the, 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."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.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, 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. 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 392.
The doctrine thus articulated 16 years ago in Sicurella Id., at 392.
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 Federal Constitution, the conviction
cannot be upheld." Id., at 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
MR. JUSTICE DOUGLAS, concurring.
I would reverse this judgment of conviction and set the petitioner free.
In Sicurella v. United States, 348 U.S. 385,1
The wars that the applicant would fight were not "carnal" but those "in defense
of Kingdom interests." Id., at 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 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 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, every day 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."
The Koran defines jihad as an injunction to the believers to war against
"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 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.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 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, 463 and 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.
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).
1The original judgment of affirmance, 395 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. 319. Upon remand, the
Court of Appeals again affirmed the conviction. 430 F. 2d 165.
2The hearing officer was Judge Lawrence Grauman, who had served on a
Kentucky circuit court for some 25 years.
3Applicable 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.
4Brief for the United States 12.
5"We do not here seek to support the denial of petitioner's claim on
the ground of insincerity..." Id., at 33.
1As 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.
"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).
3The 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 Affaird, 1925, p. 43
et seq. (1927); 8 Encyclopaedia of the Social Sciences 401-403 (1932).