WELSH v. UNITED STATES
On March 27, 1964, Elliot Ashton Welsh II was ordered by the Selective Service to report for physical examination after having been classified I-A and available for military service. Walsh requested and filed application for conscientious objector status. On his form, Welsh specifically indicated that his objection was not rooted in religious belief; he responded "No" where the questionnaire asked if he believed in a supreme being. An appeal board rejected his application. Welsh refused to appear for induction and, on June 1, 1966, was sentenced to three years imprisonment. The Court ruled in United States v. Seeger (1965) that conscientious objector status was not reserved to individuals of a traditional religious background. On appeal, however, the United States Court of Appeals for the Ninth Circuit found that because Welsh denied any religious foundation for his beliefs, whereas Seeger had characterized his pacifist beliefs as "religious," Welsh's conviction was valid.
Can Welsh claim conscientious objector status even though he professes no religious-based objection?
Legal provision: Selective Service, Military Selective Service, or Universal Military Service and Training Acts
Yes. In a 5-3 plurality opinion authored by Justice Hugo L. Black, the Court declared a registrant's characterization of his beliefs as nonreligious to be "a highly unreliable guide for those charged with administering the exemption." According to Justice Black, the term "religious" is broadly scoped, and denying conscientious objector status because of a refusal to use the term "places undue emphasis on the registrant's interpretation of his own beliefs." The Court therefore reasoned that conscientious objector status applies to "all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war."
Argument of J. B. Tietz
Chief Justice Warren E. Burger: Number 76, Welsh against the United States.
Mr. Tietz, you may --
Mr. J. B. Tietz: Mr. Chief Justice and gentlemen of the Court.
This is a draft prosecution for refusal to submit to induction because the petitioner didn't get the conscientious objector classification.
Everyone concedes that he was truthful and sincere.
He is not an atheist so that isn't involved.
He objects to all wars, so that's not involved.
But the main objection of the Government is that his religion when which he started out by saying, “I'm nonreligious” is the bone of contention.
Before we get to the First Amendment point, I would like to deal with the two threshold matters that could be dispositive of the case.
The first is the short circuit, the corner cutting by the Government at the induction proceedings.
I have briefed I think as adequately as I can one point raise by the Government that there must be a showing of prejudice.
I rely on the Ninth Circuit rational in Welsh and in rather in Briggs and then Oshatz.
One point of the Government I didn't deal with adequately in the briefing is that the Government argues that the security questionnaire is for the benefit of the Army.
Now, that's the same argument that was made by the Government when the Briggs matter of not getting the last minute cursory inspection came up is the same argument that was argued by the Government, used by the Government in the Welsh matter when he didn't get tendered to him the security questionnaire, and for the rational in there, they decided that it was required.
Now, the same thing runs through the thread here.
There is one point though that it's not too material and that is, of the Government keeps saying that he refuse.
Actually, he didn't refuse, he raised the question, and then, the best reason why they short circuited him is in the one sentence statement of the Government rather in the opinion -- the majority opinion below that district judge who wrote the opinion concurred in by one of the circuit judges.
They put up this way rather than delay appellant's induction pending investigation, induction station personnel ordered him to step forward.
That's his brief description of the short circuit as possible.
Now, my thought is this, as long as it's a part of the Army regulation that no man shall -- no selectee shall be inducted when he either qualifies or refuses to execute the oath pending a thorough investigation.
He's entitled to that.
And just as in these other cases I mentioned, that was held to have sufficient prejudice, it should apply here, because not as the Government argues that he can -- by that avoid induction possibly for months enforcing the military to waste its intelligence resources, all the Government has to do.
I mean, all of the Army has to do is strike out a few words, substitute a word or two and they can have it in the Federal Register in two or three dates.
Now, fortunately for the security of a country, the Army is alert and when it sees things that it should deal with it does fairly prompt.
For example, when I get back in the practice in 44, about the first man in the office was Yost.
He was on-leave from Camp Roberts where he said he'd been forcibly inducted.
He testified in the trial court.
I was standing with a great many other men who had passed the physical examination and the inducting officer came over and said, hold up your right hands and repeat the oath after me.
Testified as one Jehovah's Witnesses, I couldn't take an oath, I didn't raise my right hand, I said nothing.
The trial judge believed and granted the writ.
The Government took an appeal.
But before an en banc decision affirming the appeal, the Government saw the light, the Army saw the light, and it changed the induction proceeding crucial point, point of no return from an oath to a stepping forward.
Now, that still persist to this day, that's the way it's done for selectees to become inductee.
Ten years later though, the Army -- I had to consider another matter and that's when Corrigan came in the office.
These are reported appellate, the decisions of course and Corrigan says, “I'm in the stockade at the Fort Ord and I'm here because I'm trying to make a good soldier out of me.”
When I asked him, “How's coming if you're in the stockade you're here?”
He testified, we were seated in a theater-like arrangement.
I was in the back row when we've jumped up as the sergeant told us to do and the officer came in.
The officer said, “And now, when I call a name of each of you, you'll take one step forward and that step is in the Army of the United States.”
He said, the members so crowded that no one except in a front row could do anything but shuffle to speak.
They shuffled, I didn't shuffle.
I didn't make a move.
The trial judge decided it in another way asking, “When did you make up your mind that you're a conscientious objector?”
He said, “While I was standing there.”
The judge set us too late and I couldn't do anything about it.
It's never too late to face civil penalties rather than go into the military service.
Now, the Court of Appeals unanimously, reversed on the basis that there was no evidence that he'd moved to state board and I think that one thing that helped them to reach that opinion was an affidavit that I filed with the closing brief and which I said, “I've gone down to the induction station and I see that they've seen the light.”
They now have a different procedure, they have a roll of chairs around three sides facing the podium as everybody can see the podium and they have a white line painted four feet from the wall.
So, the man can see when they cross the -- when they cross the Rubicon or any of expression you might want.
So that the Army learns and I say that in other cases for example, I won't belabor it.
I'll just cite one more reported case on the trial level ex parte Barielle (ph).
When Barielle (ph) secured the writ down in San Diego, the record which we got from the Selective Service System show that he was a married man and that was in the Selective Services System records.
It was quite a bit of publicity.
It is Stars and Stripes of Europe, Stars and Stripes of the Orient so it alarmed the Army.
And what they did, they got the Selective Service System to change the regulation from saying that a husband is to be given 3-A to father and that's the way it is today.
And many other illustrations can be given at the Selective Services -- the one word change.
I don't want to belabor it but if there's any question about that, there are many can be recited.
So, I say that as long as it's the law, I think that Government agency should follow its own regulations.
It may -- it can do a way with them in a few days.
Now, the next point I wish to go in to is also one, that if the Court agrees on me can be dispositive of a case and that is the point that which if he had been before this Court some years ago when Seeger with the other two different consolidated for the oral argument for decision Jacobson and Peter.
I say he would've had exactly the same decision.
He would've been held to have a parallel brief --
Chief Justice Warren E. Burger: Counsel, may I suggest to you that you used about one-third of your time and really haven't got to the issue yet.
So, I see it and I think you might well address yourself to it more sharply.
Mr. J. B. Tietz: And the point I may make turn back now is that he has exactly the same situation as Seeger did.
He qualifies as the Circuit Judge Hamley put it.
He showed there's no basis in fact for saying that he didn't have a parallel equivalent belief.
In fact, I think his in a better position than Seeger for this reason.
Justice Byron R. White: Was this one of the questions you present here?
Mr. J. B. Tietz: The three that there's a constitutional point, that there is a security questionnaire point and that the man meet the base of all have been briefs that this point I'm arguing now that he qualifies has been briefed thoroughly and curiously enough.
It's a very striking thing.
The Government's argument that it doesn't qualify is almost word for word certainly follows the same path and frequently the very same phraseology that the Government's brief in Seeger because the Government very conveniently for everybody as a supplement to its brief.
Put in the argument portion of a Seeger decision.
Now, page 2 (a) and 3 (a) of the supplement are showed that they said then Seeger doesn't meet this standard.
Seeger has a personal moral code and therefore he must attack the constitutionality.
And we attack it as a matter of insurance and because it's involved but, I think that when you run a parallel, you'll find that this man, it was from the early childhood to about 15, he attended the Presbyterian Sunday School then he attended the Christian Science Sunday School.
His mother was a Christian Scientist and I would assert though I don't have to that one session that once mother's need is all that one needs for training.
So, he had the training.
Now, the opinion of the court below in a words of the dissenting judge, they concede that he have the strength of conviction, the strength of belief that he just doesn't have in the religious background.
Well, he has as much religious background as Seeger did. Seeger and he did almost the same thing with the form.
Chief Justice Warren E. Burger: Well, are you arguing now that his -- the case is based on religious belief and conviction or that it is not and it doesn't make any difference?
Mr. J. B. Tietz: I say both of them, but I'm arguing now the former for this reason.
That's precisely the conclusion that Circuit Judge Hamley came to that he didn't.
Although, he went over the constitutional questions such as at the grave one, he said they did not to reach it because he does comply.
That's what unfortunately for us.
The Circuit Judge Hamley concluded and that is our conclusion.
When Seeger encountered the form, he struck out certain words and put quotation marks about the word “religion.”
Now, I take that to mean that was Seeger was saying if you want to call what I believe religious unfortunately the Court did.
This Court did.
Let's say he has the equivalent, you can do that but he disavows of being religious.
Now, Welsh did more, he struck out the word “religious” but as I argued in the briefing, a man is not wholly to be judged by what he says and especially he wrote a reply to the Attorney General's recommendation to the Appeal Board.
A reply that he was permitted to encouraged, invited to write by the regulations then enforce Congress has done a way with that now.
He wrote a reply which as the Circuit Judge Hamley says adequately answered.
He learned from the Seeger decision that under that definition, he then could be considered to meet the requirements of the laws.
So, he hasn't made I think from that standpoint.
Now, on the questions of the constitutionality that of course is one which I argued as thoroughly as I could, I pointed out the four or five decisions of this Court which as I interpret and say not only may not Congress distinguish between religions but it may not distinguish between religion, any religion and I wish to save a few minutes of my time for possible rebuttal.
Chief Justice Warren E. Burger: Thank you.
Mr. Solicitor General.
Argument of Griswold
Mr. Griswold: May it please the Court.
This is a difficult troublesome case.
I hope that I can be of assistance to the Court in coming to a solemn solution of the problem that presents.
The statutory provision is clear.
It is set out near the top of page 9 of the Government's brief.
At the time the events occurred here.
This Court had already decided the case of United States against Seeger but the statutory provision still contain the language which appears at the middle of page 9.
Defining religious training and belief as belief in a relation to a supreme being involving duties superior to those arising from many human relation but does not include essentially political, sociological or philosophical views or a merely personal moral code.
In 1967, this was amended to strike out the reference to a supreme being.
So that it now says simply the term “religious training and belief” does not include essentially political, sociological or philosophical views or a merely personal moral code.
The facts in this case are not so clear.
The majority of the court below felt that the defendant had raised no constitutional question there.
Applying the statute to the facts in the record and taking into account the narrow scope of review in these cases, the Court concluded with Judge Hamley dissenting that there was a basis in fact for the conclusion of the Selective Service authorities that Welsh's objections to service were not based on religious training and belief and thus that he did not come within this court's decision in the Seeger case.
The Hearing Officer who met and talked with him reported that he and I quote, “he stressed that his belief is that his opinions have been formed by reading in the fields of history and sociology and that they are purely rational as opposed to religious.
Of course, we fully accept the construction of the statute made by this Court in the Seeger case.
The statute which provides exemption for military service for persons who, in this statutory language by religious training and belief are oppose to war in any form.
Nevertheless, there was nothing there in the Seeger case which wrote out all content from the word “religious” and which was applied to training and belief in that statute by Congress.
It does seem to us that the whole that the position of the defendant here comes within the statutory provision would be plainly contrary to the manifested congressional intent.
After all, Congress did say religious training and belief.
I turn then to the constitutional question, if the Court should conclude that that question is open to the petitioner here.
Justice Potter Stewart: But before you do Mr. Solicitor General, if this man had come within the statute as defined in Seeger, what would've happen to him?
He would not have been exempt would he?
He would've been assigned either to noncombatant duty and within the military or else to a nonmilitary civilian work?
Mr. Griswold: If his draft board had found that he team within the statute and there was not evidence on which it could have found otherwise, then he would've been entitled to one or the other of two classifications either 1-A-O or 1-O.
Now, 1-A-O is available for a military service but noncombatant.
Essentially, a medical service, they are put in but sometimes other types of service.
1-O would be completely exempt from military service but subject to civilian service of the statute says national importance and they are usually assigned to civilian hospitals or to other types of nonmilitary work.
Justice Potter Stewart: And are they assigned either 1-A-O or 1-O and obligated to serve at the same point in time as they would've been obligated to serve in the military at the remaining 1-A?
Mr. Griswold: Yes exactly, Mr. Justice.
At the time that they are so classified, they are entitled to the other classifications 2-S for students and 4-F for help and 3 --
Justice Potter Stewart: But assuming he'd otherwise have been a --
Mr. Griswold: (Voice Overlap) 3 for independency but if they get classified 1-A then they can contend that they are entitled to 1-O or 1-A-O Indeed, they can contend for that before they are classified 1-A, and if they are so classified, they are ordered to serve but in the alternative capacities.
Indeed, the civilian service is customarily called alternative service.
Justice Potter Stewart: And there is no exemption statutory or regulatory -- no exemptions from all together from compulsory service for one who would be in 1-A except that he is a conscientious objector as defined by the (Voice Overlap)?
Mr. Griswold: No, Mr. Justice.
They are all subject to service.
There are at least two constitutional provisions which are relevant.
There's not only the First Amendment but also the power explicitly given to Congress by Article I, Section 8, Clause 12 to raise and support armies.
Now, this is unqualified.
It's not limited at the time of war or otherwise restricted except that appropriations for the purpose shall not be longer than a term of two years.
Let us look particularly at the First Amendment.
I need hardly say that it provides that Congress shall make no law respecting in the establishment of religion or prohibiting the free exercise thereof.
There are the two clauses, the Establishment Clause and the Free Exercise Clause.
Generally, they are in complete harmony but occasionally there is some tension between them and this may be such a case.
With respect to the First Amendment, I would like to divide my approach under several headings.
These are one, the text which has nothing to do with the problem of this case, second, the contemporaneous history, third the subsequent practical construction and four, the precedents.
All of these, I think support our position here.
In most fields, that would be enough though perhaps here and altogether they are but a slender rift.
First, the text, the section -- suggestion that what is involved here is an establishment of religion ignores what the members of the First Congress knew well.
They were thoroughly familiar with established religions.
They have them in at least Virginia, Massachusetts and New Hampshire and probably other states.
Indeed, one of their objections was to make it clear that Congress could do nothing to interfere with these existing established churches.
I know that an establishment has been carried further but to take it as far as would be required here.
Would be it seems to me the case of the tyranny of words of what then Chief Justice Cardozo referred to as the tendency of a principle to expand itself to the limit of its logic.
My one-time colleague Paul Freund in his Book on Law and Justice has a passage which seems to me they'd be relevant here.
He was referring to this Court's dealing of problems with respect to the regulation of commerce and I quote, “Marshall's exuberant nationalism sought to solve the problem with clear cut absolutes.
The power over commerce among the states is exclusively vested in Congress.
The power to tax involves the power to destroy.
Goods in the original package are immune from local taxation when brought in from a sister state.”
All of these absolutes have had to be abandoned.
What had used to compare his views of the world with that and his friend Bert and Russell?
Bert sees it at that noon on a brilliant sunny day.
I see at that dawn on a misty morning John Marshall was however improbable to spiritual ancestry of periods and other respect the brick precursor of Bert and Russell.
In his view of national and state powers over commerce, over Bert and Russell in his view of national and state powers over commerce has not a century and a half of experience shown that the white headway was the path of greater wisdom.
And then part from the text of the amendment, the contemporaneous history and understanding of the First Amendment.
It was for this reason that I had the argument portion of the Seeger brief reprinted and made available for the convenience not only of the Court but of counsel.
There is a more reprinted here than a strict be necessary to my present argument but I was fearful that if I didn't included all someone might say that it was not fully representative of our position and I'm particularly interested in the fact that on pages 26 (a) to 45 (a), there was set out by Solicitor General Cox in his step a full discussion of the historical development of the First Amendment.
I had first thought that we would -- we worked that and then I concluded that we were not going to able to improve on it.
I then thought we would simply cite it in our brief that I thought that might be inconvenient and so I had this supplement prepared.
It's perfectly plain --
Justice Thurgood Marshall: I don't find that in my record.
Mr. Griswold: It's a -- has a great cover like all government documents, it is called the supplement to brief for the United States and I hope that it is made --
Justice Thurgood Marshall: The supplement is in the supplement.
Mr. Griswold: It's called supplement to brief for the United States.
There is first that pre-revolutionary relief which was habitually given by nearly all of the colonies to the members of the four-historic piece churches.
There were actions, similar actions by the continental congress then there was the consideration of the Bill of Rights in the First Congress.
There were numerous state proposals relating to churches and this show that what was in the minds of those who sought amendments on religion were three concerns.
They feared that Congress might one, infringe religious liberty.
Two, establish or record preferential treatment to one particular religious sect.
And three, undermine the existing state religious establishments.
When the -- what became the First Amendment was under consideration in Congress.
The proposal of James Madison was that the provision read that no person religiously scrupulous shall be compelled to bear arms.
Representative Scott made a very similar proposal which is printed at the bottom of page 31 (a) of our briefs.
The provision which was adopted by the House simply referred to establishment, a religion.
Congress shall make no law respecting and establishment of rel -- no that's what the final provision was.
Congress shall make no law establishing articles of faith or a mode of worship.
It then went to the Senate where we have no information as to what happened and the Senate version plainly related to establishment in the sense of an established church.
It then went to a conference from which the final version was adopted.
Similarly, in connection with the war of 1812, that is set out on page 33 (a) of the supplement.
The provision which was adopted by one House relating to the historic piece churches never enacted in the law because the treaty terminating the war that became known before the statute was passed.
Now, there is of course Jefferson's wall of separation but he was not one of the draftsmen of the First Amendment.
He was in France in 1789.
He's striking phrase came a number of years later and may have become an example of what again quoting Judge Cardozo what he had in mind when he observed that the search is for the just word the happy phrase that will give expression to the thought but somehow the thought itself is transfigured by the phrase when found.
And then we have on page 35 (a) of the supplement of the statute which was passed during the civil war.
Both the Confederate Congress and the United States Congress and all of the provision of the United States Congress is at the bottom of the page 35 (a) but both of them exempted members of the established organizations that federal statute reads, that members of religious denomination who shall by oath or affirmation declare that they are conscientiously oppose to the bearing of arms and who are prohibited from doing so by the rules and articles of faith and practice of said religious denominations should be entitled to a kind of exemption.
And similarly, the statute which was passed by Congress in the First World War, 125 years after the Constitution was adopted.
The exempted members of any well-recognized religious sect or organization at present organize in existing and whose existing creed of principles forbids its members to participate in war.
That is on page 40 (a) of the supplement.
And then finally turning to the precedents, there is the decision of this Court in the selective draft law cases cited on page 20 of our brief.
Where this question was briefed and argued by a John W. Davis, Solicitor General and where the Court treated it rather summarily.
It is not usually noted but I think it is relevant to note here that one week later, the Court decided on the authority of the selected draft law cases.
The Rothenberg case in 245 U.S. 480 where the contention was specifically made that allowing exemption to members of a religious sect violated the First Amendment and the Court found that that could be disposed off on the basis of the selective draft law cases.
There's also the Free Exercise Clause.
It's obvious that Congress has over the year and legislated within the influence of that clause.
That Congress has endeavored to accommodate the various draft laws it has passed, the claims made under the Free Exercise Clause.
Several cases decided by this Court within the past few decades support the power of Congress to make such an accommodation.
On page 21 of our brief, we have cited the Everson case where the Court found that the public money could be used to pay the cost of transporting students to schools even though some of the students went to parochial schools.
On page 21, we also cited the Zorach against Clauson, the released time case where it was held that it was valid under the First Amendment for public authority to release children from school to attend religious educational classes.
Then, there are the Sunday Closing Law Cases decided on pages 22 and 23 of our brief which not only it seems to me a relevant and in involving the interrelation of law and the First Amendment but also the particular fact that it appeared that in 21 of 34 states which had Sunday laws there were exemptions for Sabbatarians and provisions that if they kept closed on Saturdays they could be open Sunday and the Court at page 608 of 366 U.S. said and I quote, ”This may well be the wise solution to the problem” and that of course was a clear accommodation.
There are analogies in other statutes passed by Congress.
For example, this very statute, the selective draft law, it contains an outright exemption for ministers and for the divinity students with which this Court as dealt in the (Inaudible) case not suggesting at all that the exemption was unconstitutional.
There are numerous provisions in the tax laws not only allowing deductions for contributions to churches.
There is in Section 1402 (a) 8 of the Internal Revenue Code, a special rule for computing the self-employment income of an individual who is a duly ordained commissioned or licensed minister of a church or a member of a religious order.
In 1402 (h), there is a really rather choice on exemption for persons who are members of a recognized religious sect or division thereof and are adherence of established tenants or teachings of such sect or division by reason of which they are conscientiously opposed to acceptance of the benefits of any private or public insurance which makes payments for death, disability or old age or retirement or for medical care.
Persons who are within a particular division or sect of a religious group which objects to social insurance have an exemption.
The propriety of the exemption based our religious training and belief has at least been recognized and accepted by this Court in recent years.
There is first I would mention the Whitmore case in 348 U.S. where the Court said because the ultimate question in conscientior objective cases is the sincerity of the registrant in objecting on religious grounds to participation and more in any form.
And then finally, there is a Seeger case itself where the notion or the idea that the restriction to religious training and belief was valid is surely implicit.
It's perfectly plain of course that the Court gave a very broad construction to the meaning of religious training and belief to which we take no exception whatever but there is nothing in that case which indicates that the Court was intending to write the word “religious” out of the statute or to holds that it was unconstitutional.
Indeed, if the religious training and belief provision is invalid why does not the whole exemption provision fall which would lead to the affirmance of the judgment below.
There's nothing arbitrary or capricious violative of the Fifth Amendment in the judgment Congress has made.
The test of drawing the line is an exceptionally difficult one but we believe that there is a qualitative difference.
A difference of degree perhaps but none the worst for that between religious and nonreligious objection to war which Congress could reasonably recognized in deciding whom to subject to involuntary military service.
The Constitution does not set up freedom of conscience despite appealing arguments made in brief amicus curiae to the effect that that might be a good thing to do.
It does not equate conscience with religion.
Congress could reasonably draw the line as to who shall and who shall not be compelled to serve by taking into account as the Constitution does the right to exercise one's religion freely.
This was an appropriate place for legislative judgment that Congress has power to make this judgment is in our view implicit in the power expressly granted to raise and maintain armies.
The test of reconciling the constitutional commands of the establishment and the Free Exercise Clause is not exclusively a matter of judicial concern.
Courts are not the only agencies of our Government which are bound to support and defend the Constitution of the United States.
In circumstances where the tension between these provisions is taken, the preferable course for the courts to follow is to set outer limits but to live the legislature considerable school or the alternative is to substitute judicial attitudes for those of the elective representatives of the people on matters where the constitutional lines are not clear and where the considered views of the representatives of the people is entitled a great weight.
The sound constitutional approach in construing the Establishment Clause in such circumstances is one of reasonable accommodation not with an application of thoughtful resolution of difficult problems and not formalistic absolutes and that is the approach we raise here.
The petitioner has raised a further question and I would point out that in -- though I don't want to be technical that in the petition in this case only two questions were raised, only first the question of the constitutionality of the statute.
There is no question presented as to whether the petitioner comes within the statute.
And second, this technical question about his failure to sign a form a time of induction.
This latter question, we have dealt within our brief and I leave consideration of it to the discussion there.
For these reasons, I urge that the judgment of the Court of Appeals should be affirmed.
Justice John M. Harlan: Are you going to argue some more facts and statistics of the (Voice Overlap)?
Mr. Griswold: Mr. Justice, I am not planning to argue more about religion in Sisson.
Justice John M. Harlan: You're not.
Mr. Griswold: There are two problems in this simple little statutory phrase by reason of religious training and belief is opposed to war in any form and this is the argument I propose to make about religion.
Both questions are involves in the Sisson case and the argument there is essentially that I -- the way I planned it is to deal essentially with the selective conscientious objection there.
Justice John M. Harlan: Well, then I think I like to ask you this question.
It's necessary to answer it now.
Suppose and despite the history of you established to argue take a very broad suite that this Court has built of Establishment Clause decisions.
You start from the premise while the Constitution did not require the Congress to give any exemption religious or otherwise to anybody that Congress interest of giving effect in some way that if the Exercise Clause within the religious exemption and in order to give that, what is the answer with the argument and having chosen that course that purports (Inaudible) that the broad scheme of this Court's position as an establishment?
Mr. Griswold: I don't know Mr. Justice that I can say much more than I have.
My first argument on that would be that the Establishment Clause have been pushed very far and it ought to be pushed any further or more specifically --
Justice John M. Harlan: Than that?
Mr. Griswold: More specifically that it ought not to be push to apply to this particular situation and I can find no doctrinal or historical basis on which it should be indeed all the evidence seems to me to be the -- to the contrary.
The other question is what I tried to deal with very summarily to short the time, but it seems to me to be essentially a Fifth Amendment question that is whether it is a proper classification.
A classification which Congress could reasonably make and not be arbitrary under the Fifth Amendment to allow exemption to persons by reason of real -- all these views by reason of religious training and belief and not to allow them to others.
And on that, here again, feeling is much as argument has a great deal to do with that I suppose.
It does seem to me that an argument can be made that there is a difference in quality between objections which in the broadest base are religious in nature having some connotation with the unknown with the unknown with what's above now beyond this.
On the one hand and those which are merely intellectual, merely rational, merely internal on the other.
That is an argument which isn't easy for me to verbalize because in the quicker tradition that I'm familiar with, it's the inner voice which expresses the external force.
But so that I can't say it's just a question whether it's external or internal.
But it does seem to me that it relates to whether it deals with the unknown and what is beyond this on the one hand and what the man out of his own intellectual activity rationalizes to a conclusion for himself and my position on that would be that that is a classification -- a distinction which Congress has made for a 175 years which was well understood and contemplated at the time the Amendment was adopted that it would not be a construction of the Constitution to say that Congress can not do it.
It would be an extension of it beyond anything that was contemplated either at its drafting or in a century and a half since then.
Justice John M. Harlan: Thank you.
Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.
Rebuttal of J. B. Tietz
Mr. J. B. Tietz: It's my belief that Seeger definitely decided the question that there is to be no distinction between internally derived belief and external derived belief.
If I'm wrong on that, the opinion of the Court is present then Seeger might be modified, but I don't think Seeger should be modified.
Now, Whitmore with one case that decided that case turned on veracity.
He wasn't considerate sincere because he jumped into conflicting plaint.
In this case, everybody considers this man sincere and that is in an essence, the most important single factor.
Chief Justice Warren E. Burger: I think we'll hear you that if you stay closer to the mike, Mr. Tietz.
Mr. J. B. Tietz: Oh, sorry.
And that's so important because no one on earth knows the truth except the man himself that believe him but we don't believe him.
In this case, everybody believes him.
They merely say didn't have of the origin of his beliefs.
Now, the argument has been made historically on page 35 (a) and on that whole history helps the Government here and we've made very little effort to go back into history but on page 6 of our reply brief, we pointed out that Madison wrote to Jefferson.
I'm sure that the rights of conscience are particular and so on.
So, that the concern over conscience and incidentally there was little statement there that writes a conscience based on religion.
I'm not saying that religion may not be the best source of conscience, but there are other sources of course for conscience too.
The Court can come close to equating conscience and religion, and to many people now was stated 27 years ago by Judge Hand in the Kauten case that's as much as most people have now.
Maybe the pendulum has swing the other way but that's where we are.
Now a question was asked about the 1-A-O and the 1-O duties by Mr. Justice Stewart, a rather curious picture about this case is that when this man initially presented his claim he was classified in one Hill.
It's only as his beliefs developed that he claimed the 1-O and then other than procedure was send on for the big investigation inquiry by the FBI and so on.
And the result depending solely on the interpretation of the Department of Justice and his recommendation in the Appeal Board ended him up without even the 1-A-O.
I'm not saying that was very wrong but I'm saying it's interesting that they thought what his said running through.
Now, with respect to the selective draft cases, it's very true that Rothenberg is based on Arver, the selective draft cases but that's like building a pyramid up by my shaky point, we've attacked that in our brief and probably as much as we could.
I have some things to say in rebuttal to what has been just brought out.
It's the best statement of it, more concise than I can make is the Circuit Judge Hamley's on page 1091.
Well, just disclaimer of a religious motivation was predicated upon the misunderstanding of a statutory meeting of a term as construed in Seeger.
When he finally realized the broad reading which Seeger gave to that term, Welsh made it clear that he did have a religious motivation.
So all the Government has said in his brief the great weight must be given to what the petitioner says.
His last statement which is unrefuted and not to impugn in any way is that he believes not only strongly in what his always believed but that he comes within the statute.
Chief Justice Warren E. Burger: That comes pretty close to saying --
Mr. J. B. Tietz: I beg your pardon?
Chief Justice Warren E. Burger: That comes pretty close to saying Judge Hamley's opinion helped the petitioner understand the basis of his claim?
Mr. J. B. Tietz: Oh, the cart is before the horse, Mr. Chief Justice.
Chief Justice Warren E. Burger: But you just suggested I thought I misunderstood you that he didn't articulate this position till after he had read Judge Hamley's opinion?
Mr. J. B. Tietz: No, no and that's why I used the --
Chief Justice Warren E. Burger: Well, then I did misunderstand.
Mr. J. B. Tietz: -- a rather crude expression that cart before the house.
Judge Hamley is referring to the record that was before that court.
He's referring to what I mentioned before that provisions of the, what we call the special appellate procedures for registrants professing conscientious objector and provide it that after the Attorney General made his analysis of everything and his recommendation to the State Appeal Board.
The registrant is to be permitted to file a rebuttal if he doesn't in 30 days and that rebuttal included just were I have been quoting and that is what Judge Hamley was referring to.
That was all in the record before the trial court and before the Court Of Appeals and I believe that when this is all read it will be seen that even if the Court should have a feeling that the Government has some base for saying we didn't raise the point which I dispute that plain error exists and the court then can say, this man is the same as Seeger.
This man should be dealt with the same as Seeger.
Now, I'm not saying that I give up the constitutional point as I mentioned before.
I put that in just for insurance, it's a very strong insurance and it's a very strong case as Judge Hamley points out.
He says he don't have to reach it but he went into it quite bit of detail.
He pointed out that the Everson and the other cases support the point we're making that to take religion as against non-religion is forbidden by the First Amendment.