JOHNSON v. ROBISON
Legal provision: 38 U.S.C. 211
Argument of Gerald P. Norton
Chief Justice Warren E. Burger: We’ll hear arguments next in 72-1297, Donald Johnson against Robison.
Mr. Norton you may proceed.
Mr. Gerald P. Norton: The ultimate question on the merits as I indicated before is the same here and the same jurisdictional questions arise.
After being classified I-O which means that a conscientious objector opposed to any participation in war in any form, even in noncombatant duty.
Robison took a job in May 1968 at a hospital in Boston where he resided, he was going to school.
Under procedures, I’ll describe later, he asked the local board to sign him to that hospital for his alternative service required under the Selective Service Laws which he was entitled to in lieu of induction having claimed his exemption from service as a conscientious objector.
In August 1968, the local board ordered him to work at the hospital he had selected, effective the preceding may and he would have, at that time been classified I-W which is a classification of people who were I-O and have been ordered to do alternative service and I may use those terms for convenience.
Two years later in May 1970, he finished his alternative service and quit his hospital job and having continued at school at night he graduated from college in 1970 as well.
In 1971, he applied, he got to law school and he applied to the VA for educational benefits under chapter 34 of Title 38 (b) 1966 Veterans’ Readjustment Benefits Act.
The VA decided that he was ineligible because he did not come within the statutory definition of eligible veterans to whom such benefits are made available because he had not been on active duty as those terms are defined in Title 38.
In February 1972, a complaint was filed against the VA and the administrator as a class action for all persons who had served the alternative service and completed their service, and seeking a declaratory judgment that the statute was unconstitutional in extending benefits to veterans of military service, but not to persons who had rendered alternative service.
They also sought a declaratory judgment that plaintiff and members of the class were entitled to receive these benefits.
No injunctions or other specific relief was sought.
Now, the ultimate question here as in Hernandez on the merits is whether it is unconstitutional for Congress to extend certain fringe benefits to a specified category of federal employee, namely certain members of the uniform services and not to extend them to anyone else, who might share some of the circumstances for a background in common with some of those receiving benefits.
I think it might help to provide some background about the statutory scheme involved here.
Congress has of course in number of specifically enumerated powers pertaining to the Armed Forces and under the Constitution and for at least as long as this country has required the services of Armed Forces and its employee, it has exercised these powers to provide benefits to veterans of various types of veterans of military service.
The first Veterans’ Pension Law was passed in 1789 for example for veterans of the revolutionary war and the history of veterans’ benefits maybe traced ever since.
At present, Congress has established a number of programs for veterans of military service.
Some are contractual in nature.
Some are non-contractual, involving essentially fortuitous benefits.
They have a variety of eligibility restrictions and each one has to be taken separately.
We deal here only with the program concerning educational benefits under Chapter 34.
Now, the educational benefits program reflects a number of policy decisions by Congress in 1966.
One of course was the level of benefits which is not as generous as the benefits provided to veterans of Korean War or World War II.
The benefits available to anyone of these plaintiffs is under the law -- under most circumstance is not to be likely to exceed $10,000 because of adjustment for the number of dependents and you would need a great number of dependents to be entitled to $10,000 over the course of the program.
The program is not intended to subsidize education, but merely provide partial assistance.
It’s available, however, without regard to the needs for the benefits and it’s also available without regard to whether your education has in fact been disrupted or hindered.
One limitation in the statute is that you be a veteran as defined in Title 38 which means a person who has served active duty aligned in Military Forces, the Air Force, and who has not been dishonorably discharged.
The 1966 Act further limits the category of eligible veteran for the purpose of Chapter 34, the educational benefits to a person who has more than 180 days of active duty, again, a person who was discharged under the conditions other than dishonorable or of discharged for a service-connected disability.
Justice Potter Stewart: Doesn’t it also include some other people, public health people?
Mr. Gerald P. Norton: It does.
The statute itself does not in terms extend benefits to the public health service or the [Voice Overlap].
Justice Potter Stewart: But another, by another law by reference.
Mr. Gerald P. Norton: Under the 1957 version of Title 38, active duty was defined in a way as to include active duty by commissioned officers of those two organizations within the terms active duty for veterans’ benefits purposes.
So that unless Congress took affirmative action to exclude them, they would be covered.
Now, this reflects a historic equation of service in these two organizations to military service that goes back to World War I days.
These organizations have historically been at from time to time under the direct control of the military.
They have reserved course, they have military structures, they are at times subject to military duty and for purposes of pay and allowances they are included with the military in Title 37 covering compensation of the uniform services.
We -- the statutory background is rather detailed and we haven’t developed it in our brief and if the Court would like, we’d be happy to submit a supplemental memorandum on that point, but there was no affirmative provision of the 1966 Act which dealt with those categories.
There were several other decisions made in 1966 by Congress.
It was a question whether to extend these benefits only to people who had active duty in the military zone or hostilities, but the purpose was broader than rewarding such service so that the Act is broader.
There was a question whether to limit benefits to draftees or the men who had enlisted and again the statute had various purposes which ended up being served by including both.
As I understand, the claims in these cases if the statute had been narrower and had not extended benefits as far as it does, we might not have a case here.
The position is that Congress should have indeed was constitutionally obliged to go even further than it did.
Justice Potter Stewart: The -- it was always intended to extend these benefits to draftees, wasn’t it?
The only question before Congress was whether as you understood what you say whether not to also include volunteers?
Mr. Gerald P. Norton: That’s right.
It was a -- but one purpose [Voice Overlap]
Justice Potter Stewart: And they are arguably by your brothers on the other side would still be made if the benefits have been limited to draftees as they say that there’s nothing in the -- no purpose of Congress to provide an incentive for enlistment or volunteering can be served when you just give these benefits to draftees?
Mr. Gerald P. Norton: Well, that’s true.
If you look one purpose and try to measure all of the benefits in terms of that one purpose that it might be a problem, but there are multiple purposes here and each recipient of the benefits need not be justified by each of the purposes.
I think there’s been a tendency to crisscross the lines.
Essentially, the plaintiff's case comes down to the contention that looking only at people who were drafted into military service and conscientious objectors who performed alternative service, there are absolutely no factual distinctions between the nature of the service rendered that would permit the Congress rationally to conclude that it was an inappropriate action to extend benefits to veterans of military service and not to anyone else.
Now, we think it claimed that Congress took a different view that Congress realized that there were a number of unique and distinctive features of military service which could have supported this distinction so that the distinction cannot be said to be illusory or utterly lacking in substance or any of the other terms that this Court has said must be supported in order to say that the classification is unconstitutional.
Let me turn now to some of the distinctions that Congress had in mind either explicitly or in the nature of things, it could recently have -- had in mind.
For one thing, someone who was drafted into the military service has an obligation of six years, four of which after active duty are in the reserves.
The person who serves alternative service as a conscientious objector has a maximum obligation of two years.
Now, that reserve obligation is not merely a theoretical possibility as it can involve the burdens of training in weekend or summer time duty or other duty and Congress had in mind particularly in 1965 and 1966 when this Act was being considered, the fact that in only a few years before it had been necessary to call up the reserves in connection with the Berlin crisis.
So this was something that was explicitly discussed and it’s a very significant distinction between the two kinds of service because as Congress indicated having this additional liability hanging over his head, a person in the military has a kind of disruption and continuing disruption of his plans and his educational plans.
Now, there is the additional fact that service in the military involves the possibility of being sent anywhere in the world to face a variety of dangerous or hostile conditions.
In the District Court, Robison agreed that it was unquestionable that military service was a hazardous and vigorous demanding than alternative service.
There is been some suggestion in the briefs that conscientious objectors at times do serve abroad, but in fact that it’s the policy of the selective service and was the policy not to order anyone to report for work overseas.
Persons who ended up doing alternative duty overseas were ones who had indicated a willingness to work for one of the -- or established organizations who did overseas service and knew that that was what they’re going to do and what they’re getting into and even then they would not be assigned overseas, but would be assigned to work for a group base in this country who then might use their services overseas.
There is also a very substantial difference in the way in which these two groups select or influence the work they do.
I think the influence that a draftee has over where he works and what he does is notoriously limited, if there is any at all.
He does what he is told and goes where he is told.
However, under the regulations that were in existence in 1965 and 1966 and continued until 1971, a person doing alternative service had considerable opportunity to influence those decisions.
It could as Robison did submit up to three types of employment that he was qualified and willing to do.
If the local board found anyone of them appropriate, it would then order him to do one of those things.
If they did not find anyone appropriate, then they would come up with three and submit them to the registrant and if he didn’t find anyone of those satisfactory, then they would have a conference with the state director.
And if they still couldn’t work out something and finally the local board did have the authority to order the registrant to do work, but only with the approval of the national director.
This is a far cry from the situation presented to a military draftee.
That man understandably that a selective -- that a conscientious objector who was going to alternative service had much greater opportunity to fit his service inconsistent with other obligations he might have such as pursuing his education as Mr. Robison was able to do.
Of course the pay, but I think it is important to note one does apprehension of the District Court.
The District Court quotes a what is cited as a regulation of the selective service which permitted local boards to assign and abruptly reassign persons who were doing alternative service anywhere at anytime even in combat zones.
Now, selective service in knows of no such regulation.
It is not contained in the regulation that is cited in a District Court’s opinion and there was none such that was into factoring the period that Congress was considering this Act or since.
We simply don’t know where it came from and I think there’s a reference on it to one of the briefs which is based on the District Court’s use of it in the opinion, but again, there’s no way we can track it down.
Justice William H. Rehnquist: Mr. Norton, I take it that Judge Geraghty rejected the disposition of the government's that there is a rational distinction between those who were subject to being assigned to hazardous combat duty and those who were not on the grounds that Congress had intended to rely on that distinction, that it probably could have, but I gather he said that wasn’t what Congress had in mind.
What’s the government’s position with respect to that?
Mr. Gerald P. Norton: We’re not saying it’s only a distinction between those subject to hazardous combat duty.
We’re saying that even if you look at all military draftees, the nature of the disruption of their lives was quantitatively and qualitatively different from that of anyone else who was affected by the selective service laws and that Congress could rationally conclude that given these various distinctions that it was appropriate to extend benefits to the military draftees.
Even if you were to accept that the contention that alternative service veterans, if you will, had some disruption of their educations and hence had some need of the same kind of benefit, I think it is permissible certainly under this Court’s decisions in Jefferson against Hackney for Congress to distinguish between different categories of people who might share in some general way a characteristic and extend benefits in a differential fashion as long as the distinction, the classification is not altogether illusory or utterly lacking in any rational meaning.
Justice William H. Rehnquist: You say it’s a question of what Congress might have reasonably considered not what the legislative history shows they did in fact consider?
Mr. Gerald P. Norton: Well, we say that the test that has been announced in this Court’s decisions is the former that could it rationally have been conceived -- is there a state of facts that might have been conceived to justify this distinction?
But we say in addition that there were distinctions that were directly addressed by Congress which support this distinction.
And another one that Congress specifically mentioned was the fact that military veterans have been subjected to deprivations of liberty and loss of freedom, inherent in military discipline and military life, is subject to the universal uniform code of military justice.
And this kind of existence for two or more years creates additional transition problems in returning to civilian life.
There is also the related to a fact that in the military someone may after serving be discharged on grounds other than the honorable indeed in dishonorable grounds because of things done in the military.
Whereas someone who was doing alternative service does not face that possibility if they complete their two years even though they may have done something which would’ve warranted a dishonorable discharged in the military.
They have no such adverse consequence attaching to their service and this has a direct bearing in this case because a veteran of military service served is otherwise within the definition of an eligible veteran but for some reason was dishonorably discharged would not be entitled to these benefits and if under the District Court’s decision here if someone who did alternative service committed the same offense, they would be entitled to it, so that the result of the decision below is to place alternative service people in a somewhat more favored position.
Justice Thurgood Marshall: When you complete your alternative service you don’t get any kind of piece of paper, don't you --?
Mr. Gerald P. Norton: You get a piece of paper saying you have satisfied your, in your --
Justice Thurgood Marshall: It’s not like a discharge?
Mr. Gerald P. Norton: No, it can only be either a completion or an incomplete if you haven’t completed it; they can order you to continue until you do.
Justice Thurgood Marshall: What I mean, are you given something like a card or anything?
Mr. Gerald P. Norton: I think for some --
Justice Thurgood Marshall: I think it’s important in this case is just the matter.
Mr. Gerald P. Norton: Selective service, I think sends you a piece of paper that certifies that you have completed your alternative service.
There is a another point along this line that -- another misapprehension of the District Court is argued and was stated by the Court that a person in alternative service could be subject to prosecution for failure to comply with the reasonable order of his employer.
Now, this was not a part of the scheme, the regulatory scheme when Congress was considering the Veterans’ Benefits Act.
This is under a regulation and it was not adopted until 1971 and it can have no bearing of course on the rationality of the judgment made by Congress in 1966.
Similarly, there are repeated references to guidelines issued by the Director of the Selective Service to the effect that the disruption of alternative service person’s life should be comparable to that of someone in the military.
Again, these were not part of the regulatory scheme when Congress was considering the 1966 Act.
They were introduced at a later time, they were not of binding a legal effect and indeed, one court has held that they were questionable legal significance in any event.
Of course, another distinction is to pay.
A draftee during let’s say the period that Mr. Robison started work was paid I think, at the rate of about $100 a month.
Mr. Robison says that he started work at $80 a week.
There’s no indication in the record as to any increases he may have had after that time, any fringe benefits, or allowances or other compensation.
So that a draftee is in especially difficult position to try to save money and/or to finance education even if he had the time to do it while he was in the service.
Chief Justice Warren E. Burger: Are there any limits on how much a person may receive under alternative service employment?
Mr. Gerald P. Norton: There were not in 1965 and 1966 when Congress was considering this Act.
At a later time, another, one of these guidelines of the Selective Service Director suggested that the pay should be comparable to that or someone in the military, but it is a very general statement and it’s not clear to what effects if at all, it was applied.
Chief Justice Warren E. Burger: It’s not statutory?
Mr. Gerald P. Norton: It’s not statutory.
The statute contains none of these limitations.
Justice William H. Rehnquist: Of course a draftee gets free room and board?
Mr. Gerald P. Norton: Well, that’s true, but it’s free room and board where the military wants them to live which maybe at military base in the far reaches of the world and a place where he is unable to shape his life, so as to pursue his education.
Justice William H. Rehnquist: Well because you made that argument already that this is one of the things that a draftee is subject to, if you treat that as a point, I don’t really see how can you separately treat the fact that all -- that it’s some kind of a detraction from the room and board that the same thing happens or if you are talking strictly in terms of compensation?
Mr. Gerald P. Norton: Well, we don’t know whether on this record whether any of these alternative service people end up getting room and board.
And it can’t be assumed that they were getting -- generally getting it or generally not.
The Congress might have reasonably concluded that the draftee's situation was sufficiently distinct if they justified these benefits.
Of course, as this Court has indicated the question is not whether Congress has assumptions in these regards were actually warranted by the facts, it was whether it was a reasonable determination for Congress to make.
Chief Justice Warren E. Burger: Well, McGowan against Maryland went a great a deal beyond that so that if on any conceivable, on any conceivable basis it could be supported that would be enough?
Mr. Gerald P. Norton: Well, that’s right and that was what I was adverting to earlier.
Chief Justice Warren E. Burger: [Voice Overlap] the last term or the most recent term, I think.
Mr. Gerald P. Norton: I’d like to reserve the balance of my time, if any, for rebuttal.
Chief Justice Warren E. Burger: There’s only one minute remaining counsel, I don’t think we’ll ask you to talk to one minute.
We’ll let you begin fresh at 1 o’clock.
Mr. Rosenberg, you may proceed whenever you’re ready.
Argument of Michael David Rosenberg
Mr. Michael David Rosenberg: Thank you sir.
Mr. Chief Justice and may it please the Court.
This is a class action on behalf of conscientious objectors whose religious beliefs prevent them from serving under military authority.
In every other respect, these men are treated precisely like every other registrant drafted under the Selective Service Act.
They are drafted in accordance with the normal order of call.
They are drafted no matter where they are and under what circumstances their civilian life places them except as to the normal kind of exemptions and deferments.
Justice Potter Stewart: How many of them were killed or wounded in the line of duty during the period of 1965 to 1973?
Mr. Michael David Rosenberg: Your Honor, as far as we can tell, only one, but the statistics are not kept.
The fact is that numerous of them have been injured and your question is quite direct.
They have not served in the military capacity --
Justice Potter Stewart: So there is that difference?
Mr. Michael David Rosenberg: But they are treated in every other respect.
Justice Potter Stewart: Well, you said in all respects but one, I am suggesting that there maybe at least two.
Mr. Michael David Rosenberg: Well, Your Honor the -- it goes directly to the question of whether or not there is any potential for hazardous duty.
For these men, there is just as much potential as any other member of the service.
These men can be deployed at the will of the President, at the will of Selective Service that the President and the Selective Service have not deployed these men to Vietnam on the whole during that period, really only reflects in my mind that their service was more -- it was needed more that they were doing better service here.
There’s no inherent limitation.
Justice Byron R. White: They can -- they couldn’t be deployed to combat duty?
Mr. Michael David Rosenberg: They couldn’t be deployed to combat duty but --
Justice Byron R. White: Well, that makes -- it makes quite a bit, but this doesn’t make a great deal difference to say they can be sent to Vietnam or out of the country.
The question is whether they can be put in the combat duty?
Mr. Michael David Rosenberg: That’s -- well, that’s true Your Honor, but there are I-A-O’s in the service, conscientious objectors.
Justice Byron R. White: Alright, alright.
Let’s just start with the proposition they may not be sent into combat?
Mr. Michael David Rosenberg: They may not be sent into combat [Voice Overlap], Your Honor I haven’t forgotten it, it is obviously critical to this case.
Chief Justice Warren E. Burger: How about the Code of Military Justice, are they subject to the jurisdiction [Voice overlap]?
Mr. Michael David Rosenberg: No, Your Honor, they are not, but as the Senate Report clearly indicates the facts that these men are under discipline doesn’t at all disturb their ability to become students.
As a matter of fact, it enhances their ability to become students.
Chief Justice Warren E. Burger: I don’t see of a connection between -- I’m speaking of the difference at the time they’re engaged in discharging their two-year period of service.
Are they during that period of service subject to courts martial and the military discipline?
Mr. Michael David Rosenberg: No, Your Honor, they are subject to felony -- federal felony criminal prosecutions for their violations.
They are not subject to courts martial prosecution, but at the heart of this case is the question of whether any of these differences and I can see there are differences, whether any of these difference are relevant to the purpose that the Act seeks to achieve.
This Act has stated unlike all the others, I think ever before considered by this Court, the explicit purposes for what has turned out to be one of the major educational programs in the history of this country.
The explicit purpose that Congress established this program form was to compensate for the lost time that a man entails when he does service for his country.
The fact that he is under military discipline, the fact that he might be sent into combat duty does not raise or a lower or in anyway affect the disruption that Congress had in mind when it granted these benefits.
As a matter of fact, Your Honors, it would be a strange or maybe even a cruel irony if the rigors of service were taken into account when and by this Court in assessing this legislation when Congress refused to even parse out in the scale of benefits more benefits for those men who actually went into combat.
More benefits for the people who actually face death on the front lines.
Justice Thurgood Marshall: It could be because all of them were subject to it?
Mr. Michael David Rosenberg: Yes, Your Honor, there is that potential.
Justice Thurgood Marshall: The only difference is that they were all subject to it.
Mr. Michael David Rosenberg: Yes Your Honor, the potential --
Justice Thurgood Marshall: They’re all subject to be thrown into the front line wherever the government is and these men were not subject to that?
Mr. Michael David Rosenberg: No.
Your Honor, there are two questions there that it is true that they were all subject.
For some, the potential wasn’t real and in fact it never materialized and Congress well knew that.
Justice Thurgood Marshall: There are people right now that are crossing the street, they’ve been crossing all their life, but this time they got hit?
Mr. Michael David Rosenberg: Your Honor, it is absolutely true that the potential is there.
That potential vote --
Justice Thurgood Marshall: Don’t you think that some difference to be reckoned with?
Mr. Michael David Rosenberg: I think it’s a difference to be reckon with Your Honor only if the purpose of the Act took that kind of difference into a account but the --
Justice Thurgood Marshall: And they didn’t?
Mr. Michael David Rosenberg: No, Your Honor, specifically in the legislative history throughout the legislative history is the indication that these benefits are not a bonus.
They are not a reward for hazardous duty or the risk of the hazardous duty.
This is given to men for the normal disruption they entail based on their time and service.
Justice Thurgood Marshall: And the men -- and these men, that your man was disrupted how?
He went school, didn’t he, different school?
Mr. Michael David Rosenberg: That’s right.
He went to school part time at night over a period --
Justice Thurgood Marshall: [Voice overlap] for men in the military to go on school?
Mr. Michael David Rosenberg: Unquestionably, Your Honor.
As a matter of fact, thousands have and many of those thousands have gone with Government, have been financed in their educational pursuits by the Government during their time in service.
Justice Thurgood Marshall: With the Government permission?
Mr. Michael David Rosenberg: No.
Justice Thurgood Marshall: He will need the Government.
Mr. Michael David Rosenberg: No, Your Honor, it’s not all with the Government’s permission.
Justice Thurgood Marshall: Well, I don’t believe that that man in Vietnam is going to a Boston College.
Mr. Michael David Rosenberg: No, that’s right but the man stationed at a Boston Base is going to a Boston College at night has the same --
Justice Thurgood Marshall: Do you have anything in the congressional history that said that there was any question that this applied to people who were not in the active military service?
Mr. Michael David Rosenberg: That this did not apply to anyone in the active military service?
Yes, Your Honor.
Yes the National Health Service specifically included and those men received benefits --
Justice Thurgood Marshall: I am talking about this, --
Mr. Michael David Rosenberg: About?
Justice Thurgood Marshall: About that you want.
If you say so we’re through of everything.
Mr. Michael David Rosenberg: Your Honor, not in this legislation.
Not in this legislative history but --
Justice Thurgood Marshall: Well, is that man a veteran?
Mr. Michael David Rosenberg: Your Honor, he is a veteran of alternative service.
He has done two years in the service of his nation.
Justice Thurgood Marshall: He’s a veteran?
Mr. Michael David Rosenberg: In those terms.
Your Honor, it is true that the legislative history --
Justice Thurgood Marshall: In order to be a veteran, don’t you have to have him honorable discharge?
Mr. Michael David Rosenberg: He has a release from his service.
I understand what you’re saying.
He is not a veteran of military service.
He is a veteran of alternative service.
The legislative history does not speak about this man or at least the legislative history directed towards this Act, but the prior legislative history that surrounds these kinds of benefits, in fact, even the predecessors to this Act does speak and it speaks very loudly.
Justice Thurgood Marshall: Is this action from mandamus?
Mr. Michael David Rosenberg: Your Honor, it was an action under the mandamus statute and under Section 1331 general.
Justice Thurgood Marshall: Are you saying that [Inaudible]
Mr. Michael David Rosenberg: Your Honor, I believe --
Justice Thurgood Marshall: [Inaudible]
Mr. Michael David Rosenberg: I am not -- that has not been settled and of course the statute says --
Justice Thurgood Marshall: It doesn’t settle under mandamus?
Mr. Michael David Rosenberg: No, Your Honor because the statute says in the nature of mandamus it doesn’t say mandamus.
Justice Thurgood Marshall: So in the nature between that right?
Mr. Michael David Rosenberg: Well, Your Honor I think if the Constitution --
Justice Thurgood Marshall: You have mentioned don’t have [Inaudible]?
Mr. Michael David Rosenberg: Your Honor, if there is affirmance I think we do have a clear right.
I think the Constitution does give us a clear right to these benefits.
We have been excluded both arbitrarily and I believe this excluded discriminatorily, invidiously.
The history that we have to look at is the history that surrounds the veterans’ benefits program when they emerged during World War II.
Conscientious objectors who did alternative service were specifically excluded by Congress during that period of time.
The question came before Congress; it wasn’t as if Congress overlooked the problem.
Congress faced it a several important times and yet Congress refused to give these men the pittance that they need to compensate for the disabilities that they suffered just as much as anybody in the military.
They received no disability benefits for physical injuries.
They received no dependency allowances and in World War II, they weren’t even compensated for any of the service that they performed.
This is a history that gives birth to the present legislation since the present legislation is modeled almost directly after the Korean War G.I. Bill and after the World War II G.I. Bill.
Justice Potter Stewart: The federal government isn’t inevitably their employers during this period of service?
Sometimes, I guess it is, but often it’s for state or municipal or county hospital or institution and I suppose sometimes for private one, isn’t it?
Mr. Michael David Rosenberg: That’s exactly correct, Your Honor.
But the fact is that there are no guarantees that these men will even get the kind of workmen’s compensation that might cover some of their disabilities.
In fact, one of the petitioners in the Hernandez case working in a hospital contracted hepatitis and as it turns out, he had no compensation whatsoever to cover that disability.
Justice Potter Stewart: He might have Blue Cross?
Mr. Michael David Rosenberg: Well, if he could afford it, the fact is Your Honor, these men are paid on a ratio that gives them the standard of living that a GI has.
But a GI --
Justice Thurgood Marshall: Is that true as to your case?
Mr. Michael David Rosenberg: Yes Your Honor, he received $80 a month.
Justice Thurgood Marshall: When was it?
Mr. Michael David Rosenberg: I mean $80 a week.
Justice Thurgood Marshall: When?
Mr. Michael David Rosenberg: I’m sorry.
Justice Thurgood Marshall: When?
Mr. Michael David Rosenberg: In 1970 or 1969 or 1970.
Justice Thurgood Marshall: Was that the same -- was this guideline out then?
Mr. Michael David Rosenberg: Yes, Your Honor, it was.
It was always outstanding.
Justice Thurgood Marshall: Does it apply?
Mr. Michael David Rosenberg: Yes Your Honor, it did apply.
Justice Thurgood Marshall: [Inaudible]?
Mr. Michael David Rosenberg: Yes, Your Honor, $80 a week to cover obviously room and board and whatever, and food to the extent that person in the military is covered.
But beyond that he received no coverage.
In fact, as I say in World War II, these men did that service and they received no compensation whatsoever.
When the question was brought before Congress whether the money they earned which was in a frozen account should be turned over to their dependents who in many cases were in very bad scrapes -- straits, Congress refused and the colloquy that we reprinted in our brief indicates that Congress refused because it was afraid of public reaction.
It was afraid that the public would react that these men were getting away with something when they definitely were not.
It was an irrational public resentment that has spurred Congress on to the deprivations that they force these I-O conscientious objectors to bear.
Your Honor, these men are subject to a policy of disruption of their lives that is by presidential mandate suppose to be equal to the disruption generally that men in the military suffer.
The Government has indicated that this policy was not written form in 1966.
I fail to see the relevance of that -- the relevance of that.
The fact is that that policy was stated throughout by the selective service directors since the inception of the I-O conscientious objector program.
Justice Thurgood Marshall: How did it applied to this man?
Mr. Michael David Rosenberg: It applies to this man in the sense --
Justice Thurgood Marshall: It stick to the record on basically.
Mr. Michael David Rosenberg: Well, Your Honor this is a class action.
It is a class action because in fact they are men that --
Justice Thurgood Marshall: Well, I want what’s in the record about one of the named plaintiffs to show to what extent his life was disrupted, that’s in this record?
Mr. Michael David Rosenberg: Your Honor, his life was disrupted to the extent that he was forced to go night school to complete one year of college on his own on whatever money he could scrape together.
When he left the service, he did not have enough money to go to school.
He had to work a whole year to put together enough money to undertake his first year of law school.
He had no savings when he left the service, he was as disadvantaged as any member of the military in that respect.
Justice Thurgood Marshall: Is that in the record?
Mr. Michael David Rosenberg: Yes, Your Honor as a matter of fact we stated --
Justice Thurgood Marshall: If the last statement is not in the record, that he was a disadvantage as anybody else in the service.
Mr. Michael David Rosenberg: Well, I can see that, Your Honor.
I didn’t say that way.
Justice Thurgood Marshall: Thank you, so the only disruption was he had to go to night school?
Mr. Michael David Rosenberg: The only Your Honor, that was a substantial disruption.
He was not --
Justice Thurgood Marshall: What other disruption was there, in this record?
Mr. Michael David Rosenberg: As I say, when he left the service he had no money.
It is stated in the complaint in and in affidavit on his behalf.
Justice Thurgood Marshall: Was that because of his disruption?
Mr. Michael David Rosenberg: Yes, Your Honor, that was because --
Justice Thurgood Marshall: Well, how was he disrupted other than the fact that he worked in the day and went to school at night?
Mr. Michael David Rosenberg: He was disrupted because he received an $80 a week compensation for his work and wasn’t able to save a cent.
Justice Thurgood Marshall: Well, how much was he making before that?
Mr. Michael David Rosenberg: I believe --
Justice Thurgood Marshall: Was that in the record?
Mr. Michael David Rosenberg: I believe he was in school.
I’m not sure; I’m not [Voice Overlap]
Justice Thurgood Marshall: So, he’s making nothing before?
Mr. Michael David Rosenberg: I don’t know what he was doing precisely before he entered the service.
Justice Thurgood Marshall: So, that’s the only disruption
Mr. Michael David Rosenberg: Your Honor, as we state in the complaint, this man when he entered law school faced the problem that he would not be able to continue his law school education because he had no savings that’s why he brought the suit, that’s why he applied for a veterans’ benefits.
He had no money, he was poor and he was left poor by the service he did.
Now, nobody is -- nobody say that he shouldn’t have done his service.
This man doesn’t say that.
All he is saying is, that when a man who does military service is left in that condition and Congress gives him compensation for it, this man deserves the same compensation.
Congress hasn’t said that this man is disrupted less than the other.
I will give him less compensation.
It has decided that he should receive no compensation and this is --
Chief Justice Warren E. Burger: At the time he went under this program Mr. Rosenberg, did he then have the option to go into non-combat military service?
Mr. Michael David Rosenberg: He had that option Your Honor and of course our claim here is that under Sherbert, the differential that the Government has established places a burden on the man and we don’t say that this man would’ve bowed under to that burden, but places a burden on that man to give up his religious scruples and serve in the military in a capacity that would gain him benefits.
He didn’t do that.
Chief Justice Warren E. Burger: Do you say that it was irrational, that it is irrational to reach a conclusion that a man in this category suffers less hardship, less disruption than those who go into the regular military service?
Mr. Michael David Rosenberg: I would say Your Honor that in both services there are men who suffer great or lesser disruptions.
On the whole I would say that the men in alternative service suffer the same general scope of disruption as the general run of those who do military service and those who do 1-O -- I-A-O conscientious objector service in the military.
The fact is that there are thousands of people in the military who go to school at night and part-time.
Draftees who go to school at night and during the part-time period that they’re not in service or they’re not serving or employed.
Those men received benefits just as our men I think should even though he did go to school part-time.
This Act doesn’t parse out when benefit should be given.
It is given during war time and peace time.
It doesn’t relate at all to where the men serves or under what conditions he serves.
All it requires the sole criteria for receiving these benefits is 180 days service.
Justice William H. Rehnquist: Mr. Rosenberg, were these benefits available to people in the service between roughly the time that the Korean War ended and the time that Vietnam War started?
Mr. Michael David Rosenberg: Absolutely, Your Honor because the Act applies retroactively.
It took up three to four million people who serve between 1955 and 1966 and gave them benefits.
All of them were made eligible by the Act of 1966.
Justice Byron R. White: [Inaudible]
Mr. Michael David Rosenberg: That expired on the very day that the retroactive affect attached.
In other words there has always been a GI build by virtue of the 1966 Act.
Justice William H. Rehnquist: Well, but I don’t think that quite answers my question because I take it from what you say that although looking back, post 1966, we can say that everybody has been covered.
I take it if one looked at the period of the late 50’s and early 60’s, the veterans then serving were not by any law enforce while they were serving in that --
Mr. Michael David Rosenberg: That exactly correct Your Honor, but it is a fact that in 1966 the Act applied retroactively to everyone who served between 1955 that is the termination date of the Korean GI Bill in 1966.
No matter where they served or under what conditions and it -- the scope is three to four million people were brought under the coverage.
As a matter of fact this is an enormous education program which the date has expended over $8.8 billion.
Justice William J. Brennan: Mr. Rosenberg, may I ask you, do I actually read Judge Geraghty opinion is finally entering in effect with an interpretation of the statute that it is at least covering your clients?
Mr. Michael David Rosenberg: No, it is not an interpretation of the statute, Your Honor.
It is declaration --
Justice William J. Brennan: Is it because Justice Harlan’s technique in Welsh, didn’t he?
Mr. Michael David Rosenberg: Yes, Your Honor and of course I think the format set down in the Frontiero case where the Court affirms that in a situation like this where a program can be nullified or extended, the extension will be granted if it would probably -- if it was likely that Congress would want to maintain the program even with this additional coverage and I can’t see Your Honor how Congress would refuse and deny millions of people benefits just because of few others would get benefits.
Justice William J. Brennan: But I gather from what your argument earlier you think the statute on its face reflects a deliberate congressional purpose to exclude.
Mr. Michael David Rosenberg: Yes, Your Honor, I do believe that.
I do believe that based on the legislative history, we found since the District Court opinion.
I will say we did not present it to the District Court.
It was very hard to come by but from the material we have been able to gather, I do believe now that it was a congressional intention, a deliberate intention to exclude these men.
Justice William J. Brennan: Well, now the extension that Justice Harlan suggested in Welsh rested on his feeling that the statute, we then had before as contravened the establishment cause.
Mr. Michael David Rosenberg: Yes, Your Honor, I believe that’s true.
Justice William J. Brennan: And what do you --
Mr. Michael David Rosenberg: I --
Justice William J. Brennan: -- suggests that Judge Geraghty hinges his extension to you?
Mr. Michael David Rosenberg: On the Fifth Amendment that it violates the equal protection component of the Fifth Amendment, that these men have been arbitrarily excluded.
Now, I will say Your Honor before this Court, we reassert our position under Sherbert and Verner and under the heightened scrutiny need demanded by the equal protection guarantee.
We are entitled to that scrutiny and we are entitled to a constitutional ruling at that level.
In other words, we believe --
Justice William J. Brennan: Constitutional ruling to what affect?
Mr. Michael David Rosenberg: A ruling that without a compelling state interest, without any compelling interest in this exclusion, this exclusion both denies that the free exercise of religion under the First Amendment and denies equal protection under the Fifth Amendment.
Justice William J. Brennan: With what consequence for the statute is written?
Mr. Michael David Rosenberg: The consequence would be Your Honor that the clause that excludes would be extended to cover or were not or read not to exclude these people who have done alternative service for 180 days.
Your Honor, I do want to assert that while the District Court -- the District Court’s ruling did cover the First Amendment claim we are making here and I believe we are properly making it again, the Government has not responded to it.
We assert that under Sherbert and Verner just like in Sherbert and Verner variable government benefits, compensatory benefits are being denied to one who asserts because of religious belief, a view that here she cannot undertake some conduct which brings them within the scope of eligibility.
In other words, this is a conditioning of veterans’ benefits on this man’s relinquishing his religious beliefs.
Your Honor, if there is a compelling interest in excluding these men as harshly as Congress has done, I’d like to hear it and the Government has offered none, none whatsoever and we come down to that position.
Is the Government able to supply any compelling or real reason why these men are excluded?
The Government may say that it’s an attempt to save money.
Your Honor, I submit with the program of this size covering these many people, would it be possible that Congress wanted to save the pittance that would be saved if a few thousand were excluded.
I don’t believe that’s true and in addition, I also don’t believe that the mere objective of saving money is a compelling interest.
On the whole Your Honor, there has been no interest, affirmative interest deserted by the Government whatsoever.
The only interest that the Government asserts is that there are some find line distinctions in many cases between the kind of service one man does and the kind of service that another does.
Those distinctions done obtain in every case and they don’t warrant an absolute exclusion from these valuable benefits.
If Congress wanted to draw that fine line it has the language to do it.
It could have said, we want to give benefits to those who have done military service they faced the rigors and we want to give less money to those who have not faced those rigors of military service, but who nonetheless have been disrupted.
Congress could’ve chosen that group because as the Government concedes both classes of people have suffered educational disruption.
Congress invoked an absolute exclusion.
Justice William H. Rehnquist: Well, if you say they could’ve given less money to the conscientious objectors.
It's hard for me to figure out how they could constitutionally do that if you’re right and still not be able to give no money?
Mr. Michael David Rosenberg: Your Honor, I was positing that on the Government’s positions that there was a difference.
If there was such a difference it was likely Congress would’ve reflected it in its legislation.
I don’t believe there is a difference.
I am positing my statement on a Government assertion that there is a difference in the nature of service.
What we have here an absolute exclusion, one that reflects no differences and one that shuts out one man in the harshest type of situation and it shuts him out from needed compensation in the same way that he is always been shut out from all the other kinds of needed compensation provided to veterans.
Your Honors, if we have to come down to drawing parallels, I submit there is no distinction between the service that a 1-O man performs and the service that I-A-O man performs, that is the conscientious objective in the military.
Both men are subjected to the authority of the Government, both man have been drafted.
Both are likely to serve in areas where combat is on going although both are prohibited by their religious beliefs from engaging in combat.
As I said, the I-O conscientious objector maybe deployed at any time, anywhere by the President.
That control means that his potential in any given situation is as great as any other man who serves in this Government, in a national interest and in the national defense.
Justice Lewis F. Powell: Mr. Rosenberg.
Mr. Michael David Rosenberg: Yes, Your Honor.
Justice Lewis F. Powell: Personnel in the alternative service in organized units of any kind?
Mr. Michael David Rosenberg: The I-O conscientious objector?
Justice Lewis F. Powell: Yes.
Mr. Michael David Rosenberg: In some cases, Your Honor.
In some cases they serve in camps and are in units not in terms of military units.
Justice Lewis F. Powell: But what about the appellee in this case?
Mr. Michael David Rosenberg: The appellee, no.
Now, he served in a hospital.
Justice Lewis F. Powell: I know, to whom did he report?
Mr. Michael David Rosenberg: He reported first to the director of the hospital I imagine and then to the State Director of Selective Service and finally to the President.
Justice Lewis F. Powell: How often did he report to the State director of this [Voice Overlap]
Mr. Michael David Rosenberg: Your Honor, I am not aware.
I am not aware and obviously if you done a service properly there are probably would be no contact unless of course, unless of course the decision was made on the part of the President that these men were needed some place out and then there would be a whole rearranging of their circumstances and they would be shipped off to whatever assignment the President deemed necessary.
Justice Lewis F. Powell: Does the record show how many times that President made any such decision during the period in question?
Mr. Michael David Rosenberg: No, Your Honor.
The fact is that I-O conscientious objector service has changed latitudes since its inception.
At first, these men served in the camps, in federal government camps and now they are not serving in federal government camps and serving in mixed responsibilities, but as the exigencies of any crisis period, they could be deployed wherever the President needs them the most and the only assumption I think the Court can reach is that these men have been deployed where the President has deemed their services the most necessary and the most valuable.
I want to reiterate one further point.
This Act states purposes that are explicit.
This Court has never before, I believe, had the opportunity to review an Act with the explicit stated purposes.
If new purposes are to be added, new substantive purposes are to be added I believe it cannot be done in this context.
Congress has stated its purposes and by virtue of that statement, I believe has excluded alternative purposes.
Justice William H. Rehnquist: Well, take the example of the National Labor Relations Act when it was first passed.
As I recall the recital of the legislative purpose there was that interstate commerce was being disrupted because of strikes and so forth.
Now, do you think it have been open to somebody to come in on that legislative history and say, well in fact there was no disruption of interstate commerce here and so this doesn’t lead the purpose that Congress said when it was enacted so we can’t apply the -- even though by its terms it might apply?
Mr. Michael David Rosenberg: Your Honor as I understand the question it would seem to me that if Congress’ decisions were based on no facts whatsoever and purely arbitrary, then I believe a Court could enter that area, otherwise, I think not.
That the Court is bound by the stated purposes and those purposes are binding on the Court to the fullest degree as they are here.
Justice William H. Rehnquist: It’s certainly different than some of our cases you have said about Equal Protection of any conceivable set of facts?
Mr. Michael David Rosenberg: There is no question, Your Honor and I concede that, but none of those cases involved legislation that stated on the face of the legislation, they are for direct purposes to this education program we have just created and that’s what this legislation does.
Justice William H. Rehnquist: Well, can you be there at sure that in a legislation we were dealing in the other case is they weren’t stated purposes, but that the Court just didn’t think they were important?
Mr. Michael David Rosenberg: Your Honor, I have canvassed many.
I can’t say that I have canvassed them all and from what I can tell there has never been a case like this.
I see that my time is almost up, are there any further questions because I do believe that at this point I would just simply reiterate that we do assert that Sherbert versus Verner governs this case and a compelling interest is required and none has been offered by the Government that under Equal Protection we are entitled to the strict scrutiny review because in this case First Amendment protected activity that is religious liberty is affected by the regulations that we’re challenging and in an addition, I submit Your Honors, based on the history that we have disclosed in our brief that the I-O conscientious objector during war time is a suspect class that has no access to the political forums that is at the mercy of public resentment as the history discloses and there has been ill-treated consistently throughout their history and deserves the protections of the suspect classification.
Chief Justice Warren E. Burger: Thank you Mr. Rosenberg.
Mr. Norton, do you have any further?
Rebuttal of Gerald P. Norton
Mr. Gerald P. Norton: Just a few comments.
With respect to the last remark about the public attitude toward conscientious objectors and suggestion that Congress had a purpose of somehow penalizing people who were conscientiously opposed to participation in war.
There is not a shred of evidence of any such intention under laying the classification embodied in the 1966 statute, that is conceded in the plaintiff’s brief.
What they have done is gone back to a various things said in World War II, very different circumstances, different public attitude towards war, towards conscientious objection.
The attitudes and views expressed then by the congressmen have no bearing on what happen in 1966.
Indeed, I think the Court has acknowledged that the Congress has demonstrated an increasing degree of accommodation to the views of conscientious objectors in the statutes that have been enacted as time has gone on.
I think it’s wholly unsupported contention to make.
The comment concerning the statement of purposes and the Act underlines one of the deficiencies of the District Court's approach in this case we believe and he took a very strict and narrow reading of the purposes.
Now, this Court has never said that the Court is confined to an explicit statement of purposes in considering the validity of a statute.
Indeed in the Moreno case, the Food Stamp case last year, the Court first considered the explicit purposes that were stated and then went on to consider whether they were other possible purposes that might have justified the statute.
It's a perfectly proper and established approach.
Now, there is one continuing misapprehension that pervades the argument on the other side and that is that there is in the statute an exclusion.
The statute is not in terms to exclude anyone, all it does, is extend benefits to a defined category of persons who rendered military service.
People who rendered alternative service are not the only people who denied benefits; everyone else who is not within that category is denied benefits.
Someone who has conscientious objection to participation in war and who does not happen to fall within the statutory exemption, and therefore, he goes to prison instead as Mr. Gillette chose to do.
His life was disrupted by the Selective Service laws but he is finally not entitled to benefits.
So it is wrong to --
Justice Potter Stewart: But the claim is, as I understand that at least that it’s under inclusive and that was a basic claim wasn’t it, in Wells?
Mr. Gerald P. Norton: Well, that is the claim, but I think it is wrong to characterize the statute as carving out an exclusion of any definable --
Justice Potter Stewart: Under inclusive?
Mr. Gerald P. Norton: Definable group.
Justice Potter Stewart: Would you think that’s an unfair way to characterize the argument?
Mr. Gerald P. Norton: Well, they say they should be cover is as well, that’s true.
Justice Byron R. White: Well, let’s say -- they say it’s unconstitutionally under --
Mr. Gerald P. Norton: Yes, that’s correct.
Justice Byron R. White: [Inaudible]
Chief Justice Warren E. Burger: Suppose it’s under inclusive in the sense that doesn’t include Peace Corps Veterans in the broad sense but the question in this case is whether it is constitutionally under inclusive as Justice White suggests?
Mr. Gerald P. Norton: Well, that true and I have that in mind and I think we come back in that case to the -- your question that was raised whether it would be sufficient if there could be any distinction between these two categories and whether then it would be permissible to grant a different level of benefits to military veterans than to alternative service selection.
Justice Harry A. Blackmun: Mr. Norton, could the man who served in military service for a 179 days make the same argument?
His life has been just as much disrupted, but he is excluded by the statute?
Mr. Gerald P. Norton: He would have the same and he could argue that it is irrational to cut it off at 179 or 180 days.
Any statute that extends benefits or imposes restrains, that draws line is bound to create people on the other side of that line.
These are legislative decisions, these are policy judgments which we feel are within Congress' power to make.
If the claim being asserted is as persuasive and as meritorious as the plaintiffs argue, there is no reason to think that if it were addressed to Congress so that Congress will focus specifically on it, it would be turned down.
They’re asking this Court to do something that Congress has not explicitly ever done itself.
Justice Byron R. White: Mr. Norton, assume that, for the moment, that Section 211 so barred the judicial consideration of the questions in this case, does the Government has any other objection to the jurisdiction of the Court, of the District Court?
Mr. Gerald P. Norton: Well, --
Justice Byron R. White: I suppose sovereign immunity --
Mr. Gerald P. Norton: As I indicated in the Hernandez that Larson --
Justice Byron R. White: Well, how about -- do you question the jurisdictional amount for example?
Mr. Gerald P. Norton: Well, we have raised the question whether under the law he would ever be entitled to as much as $10,000.
Justice Byron R. White: Well, how long do you raise a question?
Do you object -- do you make a jurisdictional objection?
Mr. Gerald P. Norton: That was yes, that was asserted below.
Justice William J. Brennan: But what other benefits?
Justice Byron R. White: Do you --
Chief Justice Warren E. Burger: Assert here?
Justice Byron R. White: Do you assert here?
Mr. Gerald P. Norton: It’s yes, it’s contended in our briefs and we say the date --
Justice Byron R. White: And no other contended, no other basis or jurisdiction other than 1331?
Mr. Gerald P. Norton: Well, they have relied on the mandamus statute, but they're seeking of declaratory judgment --
Justice Byron R. White: Is the judgment inappropriate?
Mr. Gerald P. Norton: We say yes that is inappropriate, for that offers relief in the nature of mandamus but this is not a case that is within the terms of that statute as --
Justice Potter Stewart: In this case, I don’t believe that complainant didn’t ask for writ of mandamus, do you?
Mr. Gerald P. Norton: No, it asked only for declaratory relief.
Justice Potter Stewart: By contrast to the previous case?
Mr. Gerald P. Norton: That’s right, and of course that declaratory judgment statute, this Court has said does not grant jurisdiction but really provides a remedy.
Justice Potter Stewart: And it would be --
Justice Thurgood Marshall: [Voice Overlap] $10000 in that year.
Suppose this man cannot get any education without this help, and there the difference, would the difference be whether a man whose educated make his life come or not?
Mr. Gerald P. Norton: Well, that would be going -- I think beyond the bounds of prior decisions, it’s really in jurisdictional amount.
What they are seeking in this case is a claim to a certain amount of money help.
Justice Potter Stewart: And it’s less than $10,000?
Mr. Gerald P. Norton: It’s less than $10,000.
Justice Thurgood Marshall: But they -- as I understand they are claiming an education which they can’t get without that money, I’m just giving you what there side is.
Mr. Gerald P. Norton: Well, I understand and they are trying to boost up the monitory value by relying upon consequential events that may or may not happen --
Justice William J. Brennan: [Voice Overlap] $100.
Mr. Gerald P. Norton: They vary depending upon the size of the family.
Originally, in 1966 the basic allotment for an individual who is full time student was a $130.
Justice William J. Brennan: For how long?
Mr. Gerald P. Norton: For up to 36 months of education and that is since twice have been increased in the current base figure I believe is $220.
Justice William J. Brennan: For how long?
Mr. Gerald P. Norton: Again, 36 months of period.
Now, if you have dependents -- a married, I don’t know if particularly goes by numbers or spouse but there is a scale that increases the benefits depending on the number of dependents.
Justice William H. Rehnquist: Is tuition over and above that or is that the total?
Mr. Gerald P. Norton: That is the total.
Justice Potter Stewart: So we are talking about $8,000 here --
Mr. Gerald P. Norton: Something in that order --
Justice Potter Stewart: -- not 10, not and but you don’t -- in your brief at least you relegate this to the footnote?
Mr. Gerald P. Norton: Well, I think that is because our principle reliance is on 211.
Justice Potter Stewart: What do you have to say about the asserted jurisdiction under 1361?
Mr. Gerald P. Norton: Well, we say that does not apply here either because we’re not seeking relief --
Justice Potter Stewart: Now, in the preview case they would’ve seek mandamus?
Mr. Gerald P. Norton: They did there but --
Justice Potter Stewart: If in this case say, it’s simply added that in the prayer of their complaint, you find no difficulties under 1361?
Mr. Gerald P. Norton: Well, the relief they’re seeking is not relief in the nature of mandamus, we don’t believe.
As Mr. Justice Marshall indicated that it’s traditionally involved in ministerial duty involving a clear legal right in that --
Justice Potter Stewart: Of course, if you know there’s good deal in the legal leadership about a writ on nature but on a writ of mandamus, whether or not that means what mandamus we all learned in law school not just the ministerial act.
Mr. Gerald P. Norton: But on the face of the statute if they have clearly no legal right, they have to go beyond the statute to make their claim.
Justice William H. Rehnquist: Mr. Norton as I understand the law that's established by decision of this Court that the Declaratory Judgment Act does not confer on independent basis of jurisdiction on this Court if it’s not a present by some other jurisdictional grant.
Have there been any decisions one way or the other as to whether to 1361, the mandamus section confers an independent grant of jurisdiction?
Mr. Gerald P. Norton: I am not entirely sure, I think there may be some lower Court decisions about ways, but I think it is in construed by some courts as granting jurisdiction within its rather narrow limits if it is a case appropriate for that kind of relief.
Justice William J. Brennan: And this is not within those limits, you say?
Mr. Gerald P. Norton: That is our position.
I would just conclude with one comment about the First Amendment argument.
We did address the First Amendment issues in our brief in Hernandez.
We did not explicitly address them in a reply brief in our brief in Robison, but they are covered there and I would say briefly that unlike the situation in Sherbert against Verner, where the denial of employment compensation constituted a continuing pressure upon the claimant to forgo or religious scruples and to work on Saturday.
Here there is no such continuing pressure.
A decision was made by Mr. Robison back in 1968 to take advantage of an exemption from military service that Congress had made available and that is the source of his present situation and there is no continuing pressure on him.
He claims -- does not claim that the possibility of receiving benefits exerted any pressure on him.
In fact, if it did exert pressure it wasn’t very effective pressure because he went ahead anyway.
Chief Justice Warren E. Burger: Thank you Mr. Norton.
Thank you Mr. Rosenberg.
The case is submitted.