Gillette v. United States

RESPONDENT: United States
LOCATION: United States District Court for the District of Columbia

DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 401 US 437 (1971)
ARGUED: Dec 09, 1970
DECIDED: Mar 08, 1971

Facts of the case


Media for Gillette v. United States

Audio Transcription for Oral Argument - December 09, 1970 in Gillette v. United States

Warren E. Burger:

We'll hear arguments next in number 325, Negre against Larsen.

You may proceed whenever you are ready Mr. Harrington.

Richard Harrington:

Mr. Chief Justice may it please the Court.

This is a petition for certiorari to the Ninth Circuit Court of Appeals by Louis Negre.

Louis Negre is a young man who is a Catholic conscientious objector.

He sought discharge from the United States Armed Forces when he was assigned to serve in Vietnam.

And his application for conscientious objection discharge having been denied by the army on the grounds that was based on personal moral code.

He was assigned to go to Vietnam.

So, in this case there is no question that the war in which he was asked to serve was the war to which he objects.

He had standing to object to serving in that particular war, to which he was assigned.

He sought his writ of habeas corpus before Judge Zirpoli in San Francisco, to restrain the army from shipping him to Vietnam to take part in that war and to be discharged as a religious objector.

Judge Zirpoli denied his application for habeas corpus on grounds set out in his opinion and in the course of argument, he made the observation, “that even if my client Mr. Negre were willing to serve in United States, but under the common law concept, he would be aiding and abetting the war.”

My client relied however, on the concept that was traditional in the law and also in logic between approximate and remote participation.

He indicated that he'll do a practical distinction that he would not participate in any form in the war, but like the man in Kansas who was against World War II, and he was a railroad switchman, he did not decline to flip the switches when the railroad troop trains came through and that was charged against him that he was willing to participate in war.

Of course, it would be nonsense to say that a man has to close his eyes when the troop train goes by or else he is participating in war.

There is a distinction between non-participation and participation.

My client refused to participate and refused to participate in Vietnam.

Warren E. Burger:

How long had he been in the service at the time he made his first claim ?

Richard Harrington:

He made his first claim, Your Honor, approximately four months after induction into the service and after he had been assigned to serve in Vietnam.

Warren E. Burger:

Did he -- does he claim that this belief had come to fruition in that four months period or that it was the assignment to Vietnam that merely triggered a pre-existing belief?

Richard Harrington:

I think the latter, Your Honor.

He was a Roman Catholic and as I have been at pains to set out in my briefs and as it's set out by the army hearing officer --

Warren E. Burger:

Well then these questions were preliminary than to asking, if that's the case, why wouldn't just a cancellation of his assignment to Vietnam satisfy his objection?

Richard Harrington:

If that were the case, Your Honor, the army's answer to that in Judge Zirpoli's court was they had no provision for canceling his assignment to Vietnam.

On the pragmatic side, the army puts the practicalities contrary to what the Solicitor general does.

It says, we don't have any form of duty, where a man can say, I'll serve here, but I won't serve there.

They said --

Warren E. Burger:

Then his position was taken only because of the army limitation and not for any other --

Richard Harrington:

His position was taken only because the army said it had no assignment for him except to compel him to participate in the war in Vietnam and that's where indeed they carried him.

They assigned four sergeants, put them on an airplane and carried him to Vietnam, after this Court refused to entertain stay.