United States v. Seeger – Oral Argument – November 17, 1964

Media for United States v. Seeger

Audio Transcription for Oral Argument – November 16, 1964 in United States v. Seeger

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Earl Warren:

Number 50, United States versus Daniel Andrew Seeger, Number 29, Forest Britt Peter versus United States and Number 51, United States versus Arno Sascha Jakobson.

Mr. Greenawalt, you may proceed with your argument.

Kenneth W. Greenawalt:

Mr. Chief Justice, may it please the Court.

I would like to argue this case on the basis on which it was decided in the lower courts and not on the assumptions which were being made in this Court.

In the first place, the question presented here has been not correctly stated in my opinion in the government’s brief.

I have here the petition for a writ of certiorari of the government.

And there, it seems to me they correctly presented the question which was in these terms whether in granting an exemption from military service to those who by reason of religious training and belief are conscientiously oppose to participation in war in any form.

Congress could constitute and limit such exemption to individuals who have a belief in a relation to a Supreme Being involving duty superior to those arising from many human relation.

Now, I have restated that in our — in my brief and that to my mind is the basic question involved in this case.

Tom C. Clark:

The selective service — the agency at the administrative level your client won, didn’t he?

Kenneth W. Greenawalt:

The hearing officer recommended that if he’s given an exemption on the basis of his religious training with the —

Tom C. Clark:

According to the Department of Justice of the theories to whether or not —

Kenneth W. Greenawalt:

And the Department of Justice denied exemption solely on the ground that he did — that he was not religious within the meaning of the definition in the Section 6 (j).

Now, there is not a single finding throughout any of these agencies or courts that Seeger’s belief was based on any sociological, political, philosophical, ethical, or in personal moral ground.

Tom C. Clark:

As I understand, the Second Circuit decision may exclude those from the religious test.

Kenneth W. Greenawalt:

You mean the Kauten case?

Tom C. Clark:

Kauten case.

Kenneth W. Greenawalt:

Yes, that’s right.

Now, the stipulation on the trial was that his conscientious objector is sincere.

There is certainly no question about that.

This whole record was overlaid with sincerity.

And it was predicated on religious training and belief as been found and defined in the Kauten case.

Tom C. Clark:

But I gather that the government, the Solicitor General hesitated that it was really attacking the finding of the Selective Service Board that if they qualify — again he had a two-pronged argument.

Kenneth W. Greenawalt:

Well, if he’s attacking the definition of religion in the Kauten case, he didn’t say so.

Tom C. Clark:

You say that isn’t probably here.

Kenneth W. Greenawalt:

Well I — the stipulation was that religious — that his conscientious objector was based with religions, and was — would have been — would have qualified him to exemption under the Religious Training and Belief Clause of the 1940 Act as defined in the Kauten case and in the Downer case and the Badt case in the Second Circuit.

Tom C. Clark:

Do you say that’s never been challenged?

Kenneth W. Greenawalt:

That’s never been challenged up to this time.

Now —

Tom C. Clark:

Up to this time, yes.

Kenneth W. Greenawalt:

That’s right.

And the stipulations are all a matter of record here.

I have the record and I have such a brief time to reply to an hour’s argument.

I prefer now to go to these stipulations on the trial.

But the fact of the matter is that here’s the whole brief of the government and also the reply brief is taken up for this argument that Seeger is not religious and that the contest here is between a nonreligious exemption and a religious exemption.

Now, that is not the issue at all.

The issue here is — it is between a religious objector of a certain character who has one concept of religion and the question of whether he has to have a religion based on a relationship to a Supreme Being.

Now, that’s the issue in this case.

And that we’re not in this case so far as Seeger is concerned on the matter of whether exemption should be given to nonreligious people.

A lot of itself was a very interesting question and raises some important constitutional questions but the question here is whether Congress can make a law which distinguishes between people who believe or religions which believe in a Supreme Being and those which do not believe in a Supreme Being.

Because the very first question on Seeger’s questionnaire which he had answered categorically was this.

Do you believe in a Supreme Being?

Answer, yes or no.

Now, that’s the only choice he has.

And he put a third box.

He put it right there, he crossed the third box.

And he said, the belief in a Supreme Being, the existence of a Supreme Being cannot be proved or disapproved and therefore I would prefer not to answer the question in this form, but this does not mean to say that I have no faith.

And that’s right in his record.

So that the —

Potter Stewart:

Well, what did he indicate he had faith in, his fellow human being?

Kenneth W. Greenawalt:

Well, he had — he said that he’s —

Potter Stewart:

Well, I see that he as the —

Kenneth W. Greenawalt:

Well now, I –-

Potter Stewart:

— by the Solicitor General the word — the word religious it says that we have to deal with these cases but — but what do you mean by the fact that his conscientious objector was based on his religious training and belief.

Does it have anything to do with something extra human?

Kenneth W. Greenawalt:

Well, I think he — I think — now you got back into the Kauten case again.

In the Kauten case —

Potter Stewart:

No, I’m asking about this case.

Kenneth W. Greenawalt:

I know but in the Kauten case, they define —

Potter Stewart:

I’m not just talking to this man, what his conscientious objector —

Kenneth W. Greenawalt:

This man is conscientious objection is based on a religion certainly as defined in the Kauten case.

And that is a religion which says that conscience in a sense is the voice of God.

And if your — if your — if your commitment or if your conscience is against war as a totality and not against a particular war, and it’s not political but it’s a matter of a religious impulse.

And I want to say here now that certainly if the commitment against war is a religious impulse.

There are many religious groups including Christianity where this is a primary tenet of their faith.

Blessed are the peacemakers, said Jesus.

Love your enemies, and so on.

And he was held into this world with his angels’ peace on earth to fill the man.

Potter Stewart:

I know about that but how about this man?

But what —

Kenneth W. Greenawalt:

Alright he believe —

Potter Stewart:

What did conscientious objection based on?

Kenneth W. Greenawalt:

He believes in peace, again he’s against war as a totality.

He says that this is a conscientious objection which has come to him through the inner recesses of his mind and he calls it conscience, and I — that’s exactly what he —

Potter Stewart:

Based on his — based on his love of his fellow man?

Kenneth W. Greenawalt:

Based on many things.

Potter Stewart:

On what?

Kenneth W. Greenawalt:

Well, he — I — if I have —

Potter Stewart:

I think that’s — recommendation of this case, that’s the reason I’m asking the question.

Kenneth W. Greenawalt:

Well, sure I —

Potter Stewart:

Certainly, the foundation of your difference in this area between you and the Solicitor General.

Kenneth W. Greenawalt:

When I — he said I believe in and devotion to goodness for its own sake and not simply because it’s impelled from an outside source.

Now, that’s —

Potter Stewart:

(Voice Overlap) that can help.

Kenneth W. Greenawalt:

That’s right.

In other words, he didn’t — he doesn’t throw a line between a — a compelled from the outside and impelled belief from the inside.

That’s one thing the Fourth Circuit Court of Appeals said the Congress couldn’t do with all the distinction between those things.

And he said among other things.

However, skepticism or disbelief in the existence of God does not necessarily mean lack of faith anything or whatsoever.

The (Inaudible), there’s sufficient proof.

Kenneth W. Greenawalt:

The irony and skepticism may be constituted with a positive faith.

The action taken through fear of God, a desire for external reward is not moral conduct but expediency.

And then he went on to say that he believe in goodness for its own sake and not because it was compelled from an outside source.

Potter Stewart:

Didn’t he say or suggest that he was skeptical about the existence of any — any divinity.

Kenneth W. Greenawalt:

He said he — it couldn’t be proved and it couldn’t be disapproved and therefore, he left the question open.

Now, that’s — if that’s skepticism and Thomas Jefferson was also skeptic.

Potter Stewart:

Well that so it — that really doesn’t help.

I’m just asking you, what this man’s conscientious objection was based upon.

Kenneth W. Greenawalt:

It’s based upon —

Potter Stewart:

Is that he — didn’t — he didn’t claim any belief in divinity, did he?

Kenneth W. Greenawalt:

That certainly has stipulated that he did not claim a belief in the Supreme Being.

We stipulate when he’s in trial.

Potter Stewart:

One or many, he did not —

Kenneth W. Greenawalt:

Our statute says a Supreme Being and I’m not throwing any line in my answer to you about that.

But I want you to — want to remind the Court that that means monotheism, it doesn’t mean any polithe —

Potter Stewart:

You have to say one single Supreme Being.

Kenneth W. Greenawalt:

It says a Supreme Being —

Potter Stewart:

A and maybe many others —

Kenneth W. Greenawalt:

Well, I’m not so sure about that.

Potter Stewart:

Suppose someday you’d believe in all the Greek gods would be —

Kenneth W. Greenawalt:

I’m not so sure.

That’s polytheism.

But the government wants to expand a belief in a Supreme Being to cover all sorts of divinities and gods, minor, and lesser, and — and spirits apparently although it don’t include that.

And the question is, can they do it under this definition of — because this definition comes from a case where they acquitted a Supreme Being with God, one god, a Supreme Being.

And that comes from the Berman case definition, comes eventually back to Chief Justice Hughes’ definition in the Macintosh case where he said that religion was — he defined it as a belief in a Supreme Being or god.

Now, the question here — yes, pardon me sir.

Arthur J. Goldberg:

(Inaudible)

Kenneth W. Greenawalt:

I would say that that’s probably true.

I think Judaism and Christianity are based on belief in a single Supreme Being basically.

But I don’t —

(Inaudible)

Kenneth W. Greenawalt:

That’s right.

I think also the doctrine of –- I think the doctrine of Brotherhood of Man doesn’t necessarily and fall upon the belief or disbelief in the Supreme Being however.

And —

(Inaudible)

Kenneth W. Greenawalt:

And well not at all, his definition says, I have a conscience which is — which I think is — which in the words Socrates is my voice.

And this is the thing that compels me.

It’s not something from a god.

I’m not doing it under force.

I’m doing it pursuant to this in — internal compulsion by conscience.

Now, you define conscience and — and that’s what the Court tried to do in the Kauten case.

It said this is a religious impulse.

(Inaudible)

Kenneth W. Greenawalt:

Well, of course the statute, I see what you mean but the statute I — that’s why I called your attention to the holding of below.

It wasn’t based on this moral or philosophical ground.

It was based solely on the ground that his belief did not come within the belief of the Supreme Being.

Now, this — this raises immediately the question involved in the Torcaso case.

Can Congress draw a line?

Can they make a law that draws a line between a belief in a Supreme Being of that concept of religion and one that doesn’t believe in that — in that kind of religion.

Potter Stewart:

Well you’re suggesting that the duty of Congress if it exempts anybody at all on the basis of conscientious objection to — to exempt the whole spec — spectrum of First Amendment beliefs?

Kenneth W. Greenawalt:

I would say to answer to your question and I do it directly as this.

In this case, if Congress is going to give exemptions to religious people of religious training and belief, then they got to give exemptions to every person of any religious training and belief.

They can’t distinguish between one type of concept of god or religion and another type.

Potter Stewart:

Well, I suggest that if you’re right, then Congress can’t draft anybody if they exempt anybody because I can say it’s my religion that I don’t believe in war and it’s also part of my religion that I’m not going to tell you why.

Kenneth W. Greenawalt:

Well, I would —

Potter Stewart:

Well I just don’t believe in war and I don’t want to be drafted and that’s my religion.

Kenneth W. Greenawalt:

I would — I would probably disagree with you because I have here the laws of the United — of all of the countries of the world.

And at least 10 countries have laws where they — where they exempt conscientious objectors without any strings attached whatever.

And in Switzerland for instance, they — is the only other country, the rest of them do it on — in England for instance, the conscientious objector is exempted.

And the only question is, is he sincere?

Kenneth W. Greenawalt:

Now, in these other Scandinavian and other countries, and I don’t think I’d leave this for the Court, the same thing applies in all of those draft sections.

Earl Warren:

Can you do that Mister?

Kenneth W. Greenawalt:

Yes, I will.

And the only other one that I know about is Switzerland where they allow a — an exemption because of a religion or moral ground.

In other words, it’s and — with the alternative.

Now, so far as I can see, the Peace Draft Act and these other Draft Acts were very successful on achieving their result.

The only question was the man sincere.

And I say, I don’t — I’m not —

Potter Stewart:

I would guess that 99 out of 100 people would sincerely want — not want to be drafted.

Kenneth W. Greenawalt:

Well, I think you’re wrong.

I think that the experience is not so at all.

And I’m not an expert on the — on this but I think that the figures show that there’s a relatively few number of people who claim conscientious objection status.

Now, if they are recognized as a conscientious objector, then they can do nonmilitary work, noncombat work but they can do civilian work if the authorities give them permission to do so.

But until they get non-conscientious status, they cannot get into these categories at all.

That’s what happened to Seeger.

He was facing a prison term because he couldn’t reach the status of a non-objector.

Now, there’s also a clause in the Act that will permit — permit this Court to knock out the Supreme Being Clause and preserve the rest of the — of the Act because there’s a separability provision in the 1951 redraft of this Act which says that if part of it should be to try and valid, the rest of it will still stand.

So that this Act could come back to the point where it was in 1940, allowing for military training and belief exemption.

Now, I’m not here to argue the question as to whether they should not give exemptions, whether they should give exemptions to nonreligious people.

I don’t think I have to reach that point nor do I think the Court has to reach that point but whether under this prior decisions of that court, it might have to be reached sometimes on the question.

Because I don’t think Seeger under the stipulations in this case, is a nonreligious objector, and I don’t think the government can put him in that category ready for the purposes of arguing this appeal.

Potter Stewart:

Well again, I know we’re both talking about something that’s very difficult to define.

As I gather, you — your definition of religion doesn’t necessarily — you have a definition of religion which does not require any belief in divinity of any kind.

Kenneth W. Greenawalt:

I don’t have any definition of religion but I say that there are many definitions of religion and there are many religions that do not believe in a Supreme Being.

Potter Stewart:

Or how about any divinity, any kind of divinity?

Kenneth W. Greenawalt:

Yes, I would say that that’s true too that there — for instance I’m not — it seems to me that that the question in this case is not what was stated yesterday as two distinctions between these religions but I would say that the Ethical Culture Society and I remember standing at this place in the Zorach case.

And Mr. Justice Frankfurter said to me, “Mr. Greenawalt, do you regard the Ethical Culture Society as a religion?”

I said, “I don’t know.”

He said, “You go back to New York and look at their charter and see.

And the Ethical Culture Society is chartered under the New York Religious Corporations Law.

Kenneth W. Greenawalt:

And if you look at the definition of religion in their charter, you would not see that there’s any sign of any belief in divinity.”

Potter Stewart:

Well, how about a devoted, dedicated, sincere, all out belief in one of the — in one of the classical philosophies such as Stoicism or Epicureanism?

Kenneth W. Greenawalt:

Well, I wouldn’t know whether —

Potter Stewart:

(Voice Overlap) any religious or not?

Kenneth W. Greenawalt:

I don’t know.

I don’t know whether it’s religious or not.

Potter Stewart:

In other words, let me — I’m drafted and I’m — I’d say in the — in my hypothesis I’m very sincere and I’ve dedicated and devoted my life to being an Epicurean.

And I’d say I don’t want to be drafted because the mattresses aren’t soft and the food isn’t good and there’s not good music, and things like that in the army.

And because of my Epicureanism, I’m conscientiously opposed in the military service —

Kenneth W. Greenawalt:

Well, I would say that that man was not sincere if he told —

Potter Stewart:

Well but how about hypothesis, I am sincere.

Kenneth W. Greenawalt:

It is not religiously sincere because conscience does not say that bed isn’t soft and that’s why I wouldn’t serve in —

Potter Stewart:

Well I’m an Epicurean by definition.

Now, is that religious?

Kenneth W. Greenawalt:

Do you say you’re an Epicurean?

Potter Stewart:

No but I — I’m giving a hypothetical line.

Kenneth W. Greenawalt:

I’m not sure.

As I read the history of Epicureanism, it is in my limit to say I was there — it wasn’t very religious but I’m not so sure about this.

Potter Stewart:

Yes, I —

Kenneth W. Greenawalt:

That it’d be better but —

Potter Stewart:

Perfectly systematic, classical in philosophy.

Kenneth W. Greenawalt:

If it were religious then I would say they would come within the First Amendment, yes, and if it could come within that definition of religion.

Tom C. Clark:

Then you’re saying you don’t have to go to that far (Inaudible).

Kenneth W. Greenawalt:

That’s what I’m saying.

I’m saying this statute goes a line between two types of religion and he cannot do that.

I’m not trying to go the whole game — gamut of religions in this case.

And that’s why I say that the line it was drawing as to the question in this case is not what is religion but must it be related to a Supreme Being belief in the — in the Act drawn by Congress.

That’s the question in this case.

It’s whether religion can be defined and enshrined by Congress to a belief in the Supreme Being.

And can the government overlay the First Amendment with a belief in the Supreme Being?

Kenneth W. Greenawalt:

Can they do that?

Does that mean that religion in the First Amendment means a belief in the Supreme Being?

And if that so, does the — does the religious test in the clau — in the sixth — in Article VI means that you don’t have to take a religious test except that you do have to take a test that you believe in a Supreme Being?

If that — if that is the law of this country, then it’s been somewhat disregarded because I think that we have had public officials in this country who would have a hard time defining their religion.

I think Abraham Lincoln was one of them.

Lincoln never belonged to a church.

He was never under a priest.

He didn’t believe in any articles of creed.

And he did his own reading.

He has his own training and belief.

He did his own reading and Old Jefferson was a member of a church.

He barely so went to church and his whole philosophy of religion or religion was developed from his readings, and so on.

And the feast, if this test in Article VI, religious test has to be related to a belief in a Supreme Being, then nobody could be an officer of this government unless he takes an oath that he believes in a Supreme Being.

Hugo L. Black:

I suppose that that’s the rule that this man could be appointed in notary republic in Maryland even though he said what he believed about what you’re saying?

Kenneth W. Greenawalt:

That’s right.

He wouldn’t have gotten a point what if he said that he was a —

Hugo L. Black:

And to name these soldiers, officers, what position would that place in the —

Kenneth W. Greenawalt:

Pardon, Mr. Justice Black, I didn’t —

Hugo L. Black:

If you name these soldiers, officers, you can draft these officers instead of soldiers, would they come under that doctrine?

Kenneth W. Greenawalt:

You mean, is there a different rule applying in the notaries as there is to a soldier?

Hugo L. Black:

What I meant was that you’re bringing in Torcaso which may or may not be relevant.

But if it is, I would think that if the government could not require an officer to take an oath, maybe he couldn’t require soldiers to take an oath.

Kenneth W. Greenawalt:

Oh I see–

Hugo L. Black:

— unless he’s going to say that that’s the charter links to offices were labeled as —

Kenneth W. Greenawalt:

Oh I see what you mean.

You mean under this clause of Article VI of the Constitution?

Hugo L. Black:

Yes.

Kenneth W. Greenawalt:

Yes.

Well it says no religious test shall be required and I think that the word religion in clause six or Article VI has to be also related to the term religion in the First Amendment.

I don’t think it can give two different meanings to these — only two definitions or only two statements of religion in the Constitution.

Kenneth W. Greenawalt:

Now, let me say again as I said in my brief, there’s absolutely nothing in the Constitution that refers to God or a Supreme Being.

And there’s only two usages of the word religion, one is in the First Amendment and one is in clause — in Article VI where it says no religious test shall be required to a governmental officer.

Now, as to the — as to the religious test clause, it’s certain was a deliberate part of the framers of the Constitution that a man should not have to believe in God to become an officer of this government.

Because they put in that term, no religious test shall be required.

Hugo L. Black:

Would that apply for an officer of the army?

Kenneth W. Greenawalt:

Yes, it applies to any officer, any officer of trust under the United States, that’s right.

And I can conceive of a — if Congress had pass a law of saying that in Article VI, no religious test shall be required except a belief in a Supreme Being.

It seems to me that would be unconstitutional.

And yet that’s precisely what the government is trying to do in this case.

They’re saying that the term religion means in the First Amendment that there has to be a belief in a Supreme Being before it can be applied.

And I don’t believe that’s true.

I think that the term religion is, in my brief, I cited a few definitions but you ask me to define religion, I can’t define religion any more than — than you can.

But there are a lot of people that have defined religion and the government I might say in their brief here.

I think this is rather a distinct admission.

Seeger’s views are religious as some careful thinkers and writers used the term.

And then he goes on to say down a little bit further that these beliefs are religious in the definitions here they are.

One of Seeger’s views although is religious as some psychologist and theologians used the term, nevertheless, they are not religious within the meanings of the First Amendment.

Now, if there are theologians that define religion on the terms of Seeger’s belief, how can this Court or Congress say that it doesn’t include that kind of religion?

I don’t understand that.

Is — was Jefferson right when he says that legislatures are not — legislators are not in infallible?

That’s what he said.

These infallible people can’t determine or these fallible people can’t determine what shall be the religions of our country here.

And my point in this case, I haven’t had a chance to argue this thing in — in the terms that I’d like to argue or even to reply to the to the government’s brief but I would like to say one thing about the government’s brief.

Seeger belongs to no organized sect, follows no ritual, knows no catechism, acknowledged no scriptures, worsips not in a church or temple and follows no priest.

Now, that covers a lot of people including Mr. Lincoln.

If the Quakers don’t have any –-

(Inaudible)

Kenneth W. Greenawalt:

He certainly did.

(Inaudible)

Kenneth W. Greenawalt:

That’s right.

Kenneth W. Greenawalt:

But the Quakers don’t have any catechism.

They don’t have any ritual.

I’ve been to a Quaker meeting myself where I sat there for an hour and not a word was said.

And they — we’ll walk in and walk out without a word being said.

Now, is that not a religious meeting?

I thought it was a very religious meeting.

No church —

Potter Stewart:

The difference is your man, Mr. Seeger has affirmatively said that he is very skeptical about the existence of any divinity of any kind.

Kenneth W. Greenawalt:

He didn’t said, Mr. Just — he didn’t quite said that.

He said, “I can’t prove it and I can’t disapprove it.”

Potter Stewart:

And therefore skeptical.

Kenneth W. Greenawalt:

Leave the question open.

He —

Potter Stewart:

I don’t believe in that.

I don’t believe in any divinity.

Kenneth W. Greenawalt:

No, he didn’t say that.

He said I’m an Agno — he said in effect, “I’m an Agnostic.

I can’t prove it —

Potter Stewart:

Well say then you don’t believe in divinity if you don’t know and you don’t in one.

Kenneth W. Greenawalt:

No, I don’t agree with you.

There was an — a former sect in this country called the Seekers and they kept their minds open until they finally decided where they were going.

And I think Seeger is in the —

Potter Stewart:

A nonbeliever.

I don’t think he’s different from a disbeliever.

Kenneth W. Greenawalt:

Well, he’s (Voice Overlap)

Potter Stewart:

You don’t know you don’t believe in the divinity, do you?

Kenneth W. Greenawalt:

He didn’t say he didn’t believe in a divinity.

He said, “I don’t know whether there is a divinity or not.”

Potter Stewart:

I’m skeptical about it.

Kenneth W. Greenawalt:

Well he said I —

Potter Stewart:

And he didn’t based on his conscientious objection upon any belief in any kind of a divinity, is that fair to say?

Kenneth W. Greenawalt:

Well, not unless you call it conscience of divinity which I like —

Potter Stewart:

Well, I don’t call it that, do you?

Kenneth W. Greenawalt:

In the Kauten case, they did.

And I think that that’s where —

Potter Stewart:

Well, it’s quite a way your conscience comes from.

Kenneth W. Greenawalt:

Well they didn’t call it a divinity.

They called it a — they say he — they equated conscience Judge Hand with the voice of God.

Now, it’s not a divinity on the sense that it’s a — an outside other worldly divinity but it is an inner compulsion which most of us don’t know where it comes from but it comes to it just like Socrates didn’t know where the demon ruled and came from but at least it was a religious impulse.

That’s what —

Hugo L. Black:

Can I ask you at that point about Socrates you’re answering these questions now really.

Are you saying you demand in some ordering position that Socrates wrote in disclosing statement that it’s translated right?

We go out with separate ways, I to die and you to live which is best.

God only knows.

Kenneth W. Greenawalt:

I think that’s right, Your Honor.

As my time expires, I think I probably — I have five minutes.

Of course, I haven’t had chance to review this case in the context to which I wanted to but my brief is rather complete.

I say that this law violates the establishment clause because it does give official approval to one type of religion or one concept of religion as against another concept of religion.

And it — and it punishes directly or indirectly the person who does not accept the concept set forth in that law.

It’s an official government sanction of a particular concept of religion.

And I say it violates the Free Exercise Clause too.

And I say that that’s even clearer because the government says in its brief many times that these exemptions are given because they want to protect the free exercise of those people who were covered by these exemptions.

In my reply to that, if that is so, what happens to the people who are religious but who do not come within this definition of religion?

What about their free exercise?

And I say that the Seeger’s free exercise is also prohibited in this case — this doesn’t mean to say that he had a right to the exemption.

I recognize that Congress doesn’t have to give exemptions.

I would even recognize that they might limit those exemptions to religious people although I’m not sure about that.

But I do say that once they give exemptions, once they give a benefit, once they give an exemption, once they give a privilege, then they’ve got to apply the equality rule.

They’ve got to be equal as between the people who are getting the benefits as you said in the Speiser case and also in the Sherbert case.

And I go one step further.

Kenneth W. Greenawalt:

I say this is the violation of the Fifth Amendment because here was the classification of religions not raised as it was in the Bolling case but of religions which is in conflict with the First Amendment.

And therefore the Due Process Clause and the embodiment of the Equal Protection Clause which is in the Fifth Amendment, becomes vey clear in relation to the First Amendment because there you have an exact definition of what Congress can’t do.

And therefore you’re not rela — you don’t have to fall on the broad definition of due process.

Now, finally I say that the Selective Draft case had nothing to do with this case because well I think that case was wrongly decided.

It was based on a different statute.

I don’t think Congress has a right to exempt only those who belong to duly constituted religions.

But I don’t have to argue that point here.

I simply say the case doesn’t apply.

Now, to come back to the point of what is religion of the Constitution, I think religion in the Constitution has to cover all kinds of religion.

I don’t think it has to cover acts which are not religious.

I don’t misunderstand it.

I don’t think it has to cover acts that are not religious simply because somebody says they’re religious.

But I think it covers all sincere religious beliefs whether they’re based on a belief in a Supreme Being or not.

And I don’t believe the Congress has a right to draw a line which was not drawn in the Constitution in relation to the protections and the benefits of the First Amendment by distinguishing between theistic and nontheistic religions.

And I think that the government — now unless this Court wants to overturn the definition of religion in the Kauten case.

I think the case have been tried and decided on the theory that this man is religious under the terms of religion in the Kauten case.

If you don’t agree with that, then of course, then he’s not — maybe he isn’t religious.

I don’t know.

But as long as he got that definition in here, then it seems to me that you got to say the Judge Hand was wrong in his definition of religion in the Kauten case.

Because I think Seeger definitely comes into that religion and the — and the government has so stipulated.

Finally, I want to say that I didn’t have the chance to refer to some of the statements made in the argument yesterday, but I was upset by this statement that people — that history for instance.

Now, history doesn’t prove that Congress was right here at all.

I’ve gone through all the statutes from the first statute of Massachusetts and I quoted the one from the first statute in Rhode Island to my brief.

There’s not a single statute of exemption which defines religion in terms of a distinction between a belief in a Supreme Being and a belief in not a Supreme Being.

The statutes for the most part give an exemption for religions or maybe specific religions, but they don’t define the term religion in terms of a belief in a Supreme Being so there’s no president here, just for this particular statute.

This statute derives from Judge — Chief Judges Hughes’ definition of religion in the Macintosh case which was adopted in the Berman case in the Ninth Circuit.

And there’s where this thing has its origin.

And the question now is whether this Court is going to overlay or embody in the First Amendment a limited concept of religion which is a belief in a Supreme Being.

And I say if you do it, you are going to exclude not only 65 million Americans who are non-church goers and who do not belong to any religious sects or whatever, and do not recognize priest, and do not go to meetings, and to have no formal religious training at all.

The books will tell you that that’s the number — over 45% of Americans who belong to no church, no organized religion.

Kenneth W. Greenawalt:

They’re going to be excluded on the — on the definition of religion and say nothing of these many people who are members of primitive or oriental groups who have different religious beliefs than that.

I personally think that Mr. Seeger is a very religious man and I think that he’s religious in the same sense essentially that some of our great statesmen who are religious that is, they have a sense of religion which is not compelled by a god who’s going to say, “If you do this, you’re going to be punished and if you don’t do this, you’re not going to be punish or you’re going to get some afterlife benefits if you do this, and so on.”

He believes in religion in the sense that he wants to think that goodness should be related to this life and to the conscience which is compelling him to do these things.

And it seems to me that this — the Circuit Court of Appeals was absolutely correct in this position that Congress cannot draw this kind of a line under the Constitution.

Another way of putting your position I take it is, that there’s no wrong so far as the religious clause in the First Amendment is concerned for any accommodation in terms of drawing a line.

Kenneth W. Greenawalt:

There’s no — there’s no room for an accommodation that draws a line between concepts of religion or types of religion, yes Your Honor.

Now, whether there’s room for an accommodation that draws a line between religion and non-religion, I think is a different question.

And I think that’s not the question involved in this case but it could be argued and I said in my brief that it was — there are other statutes and other countries where they don’t draw this religious line.

But I say under the First Amendment, they cannot draw lines between different types or concepts of religion.

That’s my — my point.

Byron R. White:

I gather you say that the issue here is whether Seeger’s views are religious or not and —

Kenneth W. Greenawalt:

That’s right.

Byron R. White:

— that issue was really precluded by stipulations in the trial court.

Kenneth W. Greenawalt:

That’s right and there’s not a single finding in any of the administrative boards —

Byron R. White:

Well, I find in the record if you referred to is that there’s a stipulation by Mr. Friedman in the —

Kenneth W. Greenawalt:

That’s right.

Byron R. White:

Orally in the court which indicates that if you accept that review in Kauten then Seeger’s views —

Kenneth W. Greenawalt:

That’s right.

Byron R. White:

— are religious, but isn’t that really the question as whether you’re going to accept Kauten or are you aren’t?

Kenneth W. Greenawalt:

Well, that’s one of the questions but I also —

Byron R. White:

Well, you say it is a question.

Kenneth W. Greenawalt:

I think it is.

Byron R. White:

Well it is an issue in this case as to whether Seeger’s views are religious or not.

Kenneth W. Greenawalt:

I think if you — if he use throughout the definition of religion in the Kauten case, that Mr. Seeger might have justified his —

Byron R. White:

But if you (Voice Overlap) religion it just means you’re throwing out your — you’re reexamining or not reexamining, we haven’t ever reexamine it —

Kenneth W. Greenawalt:

If you’ll examine the record carefully, you see that I reserve the right to state that his viewed covered other than the definition of religion in the Kauten case.

In other words, I accepted their admission but I didn’t say that was — it wasn’t confined by it.

Byron R. White:

The Second Circuit didn’t — as I read the opinion of the Second Circuit, it doesn’t go on the assumption where there is no issue about whether Seeger’s views are religious or not.

Kenneth W. Greenawalt:

Well, they referred — they said the government was very —

Byron R. White:

(Voice Overlap) the Second Circuit accepted — frankly they — the proposition that yes there is an issue here about whether Seeger’s views are religious.

Byron R. White:

And we’ve got to decide first whether they’re religious or not.

If we decide they’re religious, then we have the question of equal protection.

Kenneth W. Greenawalt:

They did say, however, that the government frankly had conceded that his views were religious.

Byron R. White:

Well he said was that the government has frankly conceded that his views are religious if you accept the views of the Kauten case, if you accept the definition of religion in the Kauten case.

And that’s what Judge Kaufman —

Kenneth W. Greenawalt:

I think —

Byron R. White:

— Judge Kaufman says.

Kenneth W. Greenawalt:

— not possibly, it’s correct.

Potter Stewart:

What (Inaudible) do you think if any that the decisions of this Court have in the free speech area of the First Amendment, where we have recognized the Congress made accommodations in terms of the national security and the right to remain silent which should be given by the First Amendment written literally in appeal to Communist investigation.

Kenneth W. Greenawalt:

Well I’m aware of the conflict between members of the Court whether the —

William J. Brennan, Jr.:

Well the conflict is —

Kenneth W. Greenawalt:

Whether it’s an absolute or whether (Voice Overlap) for the purpose —

William J. Brennan, Jr.:

Do you think they have any bearing?

Potter Stewart:

I don’t think they — I like to put your answer in this way.

I don’t think there can be an accommodation between one type of religion and another type of religion.

That line, I don’t think can be drawn.

Well you’ve made that in the free speech area.

Kenneth W. Greenawalt:

I don’t know what case you’re referring to.

I’m referring to Barenblatt and other cases at that time.

Kenneth W. Greenawalt:

Certainly, in the Schempp case and in the Sherbert case —

Federal cases, I’m not talking about Fourteenth Amendment.

I’m talking about federal cases.

Kenneth W. Greenawalt:

Well I would — my answer to this is I don’t think that Congress can accommodate one group of religious people as against another group of religious people.

But that isn’t the government’s argument.

The government’s argument is that there is a line that can be drawn here in terms of the definition as to how far this exemption is going to go although in other areas, the accommodation might not be a permissible one.

Kenneth W. Greenawalt:

Well, whether those cases are rightly decided or not, I don’t know but I would say this, the government cannot, the Congress cannot, in my opinion, accommodate under the exemptions of the Draft Act those who believe in one type of religion and against those who don’t.

It seems to me this is perfectly clear because I do not believe that you can overlay the First Amendment with the belief in a Supreme Being.

I don’t think you can.

Tom C. Clark:

Is your client a Communist?

Kenneth W. Greenawalt:

Is he what?

Tom C. Clark:

A Communist?

Kenneth W. Greenawalt:

He certainly is not.

I must say that my first connection with Mr. Seeger was with the American Friends Service Committee.

I’m a non-Quaker member of the American Friends Service Committee.

And he’s working with the American Friends Service Committee so that I think he’s — I had up here which I am very glad to leave the Court.

He said in his — he said in his dissertation that he had been greatly influenced by this pamphlet called Speak Truth to Power.

Now, this is a Quaker publication.

It’s written on a religious basis.

If you’re interested in seeing this thing, I would gladly leave it with the Court.

But this is — he said, I have been greatly influenced by this pamphlet which is a religious pamphlet, so that his views are very close to Quakerism, although he’s not formally affiliated with the Quaker group.

He really works for their friends, the American Friends Service Committee.

(Inaudible)

Kenneth W. Greenawalt:

I would say it’s not a —

(Inaudible)

Kenneth W. Greenawalt:

Well —

(Inaudible)

Kenneth W. Greenawalt:

I want to be sure that the Court neither Mr. Seeger nor I have any connection whatever with any Communist organization but I had been the Chairman of the Bill of Rights, President of the Bar Association.

I’m very sensitive to these questions.

Now, I do not know whether this is a rational line or not.

I do think it’s an arbitrary line and I think it’s a classification which is invidious under terms of the First Amendment.

Now —

Potter Stewart:

Well, that becomes the Fifth Amendment argument —

Kenneth W. Greenawalt:

Well, that is the Fifth Amendment too.

Potter Stewart:

But which is it?

Kenneth W. Greenawalt:

It’s both.

I think it’s an invidious classification under the Fifth Amendment because it violates the First Amendment.

Potter Stewart:

Well, do — now, is it your claim basically that if Congress exempts anybody at all from military service, then they have to go to the — on the basis of their beliefs.

Then they have to go the entire scope of the First Amendment.

Kenneth W. Greenawalt:

I would — the government raised these questions.

Whether they have to exactly conform?

Kenneth W. Greenawalt:

And they said it’s immaterial whether they exactly conform.

Potter Stewart:

Well I —

Kenneth W. Greenawalt:

And I say they should exactly conform with the First Amendment but I don’t think —

Potter Stewart:

To the whole spectrum of the First Amendment.

Kenneth W. Greenawalt:

Whatever his religion under the First Amendment, they’ve got to conform to that.

Yes, that’s my position.

Now what is not religion under the First Amendment, is another story.

Byron R. White:

But what Justice Stewart’s question was does any exemption have to cover every belief, not only religious belief, but other beliefs that are protected under the First Amendment.

Kenneth W. Greenawalt:

I would say either —

Potter Stewart:

Either political or moral —

Kenneth W. Greenawalt:

Well no, it doesn’t have to cover (Voice Overlap).

Potter Stewart:

Well I thought the First Amendment protects all those things.

Byron R. White:

Well, I think that was his question.

Kenneth W. Greenawalt:

So far as the First — the first part of the First Amendment that I’m talking about, the religious clauses, I say, it protects religious beliefs.

I wasn’t talking about other terms.

Potter Stewart:

Well then, wouldn’t that be an invidious discrimination to exempt people only for the reason of religious beliefs and not because of their political or any religious beliefs.

Kenneth W. Greenawalt:

I should like to argue that —

Potter Stewart:

First Amendment protects all of those beliefs and disbeliefs.

Kenneth W. Greenawalt:

I think this has been an interesting argument.

I don’t want to —

Potter Stewart:

Well I’m asking what your argument is.

Kenneth W. Greenawalt:

I don’t believe that this is my case though.

My case here, it has to do with the distinction between religious beliefs and not the distinction between nonreligious belief and religious beliefs.

Tom C. Clark:

Under equal protection.

Kenneth W. Greenawalt:

That’s right, it’s under that too.

Potter Stewart:

I thought it was under the establishment.

Kenneth W. Greenawalt:

It’s under that too.

It’s under all of them.

It’s under both.

And if you read my brief carefully, you’ll see why it is.

Kenneth W. Greenawalt:

Because if the exemptions to religious people, as the government says, is in exercise of their — is to in — to give them their free exercise of religion.

I say the government cannot give the free exercise to a religion.

There are certain groups of people who are religious and not give it to the other people who are religious.

And this isn’t because any of them were entitled to exemptions.

But because once they give it to some, they can’t give it — take it away from other.

Potter Stewart:

Well then, that’s not a free exercise, that’s a due process claim.

Kenneth W. Greenawalt:

Well that’s part of it.

(Inaudible)

Kenneth W. Greenawalt:

I don’t know.

This is a – this is a field –-

Potter Stewart:

Well, in other words, if you’re right on the free exercise argument then the government has an obligation, absolute constitutional obligation to exempt everybody from military service whose religious convictions or whatever nature make them oppose they military service.

Kenneth W. Greenawalt:

I say they almost —

Potter Stewart:

Is that correct?

Is that right?

Kenneth W. Greenawalt:

I say that once they give it to any religious group, they got to give it to all.

Potter Stewart:

Well, that’s not a free exercise claim.

That’s a due process claim, as I understand it.

Tom C. Clark:

(Voice Overlap) equal protection under the Fifth Amendment is — is necessarily a due process question because —

Kenneth W. Greenawalt:

Yes.

Tom C. Clark:

— the answer is under Equal Protection Clause.

Potter Stewart:

That’s what I’m talking about.

Byron R. White:

Well of course, the Circuit Court of Appeals based on the Fifth Amendment rather than the First to the —

Potter Stewart:

But if you’re right, is this — it appears with this person’s, Mr. Seeger’s free exercise in religion, then it would follow I should think that the government — the Congress has an absolute constitutional obligation to exempt everybody from military service who is religiously opposed the military service.

Otherwise, it would impair that person’s free exercise, isn’t it?

Kenneth W. Greenawalt:

I think you’re right, Mr. Justice Stewart.

But I want to say that my argument does not go that far.

My argument does not say that government could not take that exemption away from religious people.

I simply say once they give it to some people, it’s a denial of the free exercise of the people who they don’t give it to who were religious.

That’s what I’m saying that they —

Potter Stewart:

But it’s a denial of equal protection, isn’t it?

Kenneth W. Greenawalt:

No, possibly, that’s the way I’m phrasing, yes.

(Inaudible)

Kenneth W. Greenawalt:

That’s right, they did.

Hugo L. Black:

(Inaudible) no argument is on that all —

Kenneth W. Greenawalt:

Well it’s very (Voice Overlap) it’s a very distinct case and I’ll take I under any.

Hugo L. Black:

(Voice Overlap) under the Due Process Clause or anything.

Kenneth W. Greenawalt:

But the travel in this case is that the questions are far more interesting on the application of those questions.

I think they’re really very interesting questions of law here.

Earl Warren:

Mr. Beeson.

Duane B. Beeson:

Mr. Chief Justice, may it please the Court.

The case to which I am going to address my argument is the Peter case, Number 29, which was discussed in the argument of the Solicitor General yesterday.

And it’s here on writ of certiorari issued to the Ninth Circuit.

The Ninth Circuit affirmed the conviction of Forest Britt Peter for refusing to submit himself to induction into the armed services.

As the Solicitor General indicated yesterday Peter had maintained throughout the proceedings before the draft board, the trial court, as he was entitled to exemption as a conscientious objector under Section 6 (j) of the Act.

There are two questions before the Court in the Peter case.

One is the constitutional question of which has been discussed in Seeger.

But the threshold of the question is whether Peter qualifies under the Supreme Being test as it is written and properly construed in the Section 6 (j) of the Act.

More specifically, it is our contention that the Ninth Circuit has misconstrued and misinterpreted the Supreme Being test and accordingly the wrong rule of law was applied in this case.

A similar case, similar question will also be raised in the Jakobson case because both Jakobson and Peter had taken that position that the do need the requirements of the Supreme Being Test a position which Seeger does not take.

As the government has stated, neither the constitutional nor the statutory questions in any of these cases can be properly considered without having firmly in mind the nature of the beliefs which are involved.

And accordingly at the outset, I would like to summarize Peter’s statement of the belief as presented in the record.

I think it’s proper to dispose it once however I have certain misconceptions that I think may have arisen in the Solicitor General’s argument with respect to Peter and some of his background, some of his beliefs.

I think that there are certain considerations that were raised here which cannot be properly accepted by the Court in reaching a decision in this case.

I refer to several of the factors to which the Solicitor General mentioned as convincing him and supported the government’s position that Peter’s claims were properly denied.

It was mentioned for example that Peter had no religious background, no family religion in the course of his being raised.

It was also mentioned that Peter did not originally claim an exemption at the time that he registered for the draft or filled out the classification form.

Thirdly, it was mentioned that he belongs to no religious sect, and has adopted no body or organized body of systematic religious principles.

He was pictured as being a person who is just stubborn in his own intellectual convictions with respect to any number of things that he considers important.

Now, these considerations are relevant only to the question of whether Peter was sincere in his beliefs.

They have no relevance as to the substantive content or the nature of what suppose the beliefs are.

Duane B. Beeson:

And of course, it’s perfectly true that a conscientious objector registrant may be denied his exemption status that he is shown to be insincere.

But the question of insincerity has been eliminated from this record altogether for purposes of decision here.

The Ninth Circuit and I’m quoting from its opinion, has assumed that the appellant petitioner here was absolutely sincere.

Instead, the sole basis for the Ninth Circuit’s decision was that it felt that Peter did not qualify having met the — as having met the Supreme Being test.

So the question is not sincerity, the question is not whether it was religious background and Peter has avoided.

Or what time that he raised the question of his exemption status.

The question is what is the content of his beliefs as stated in the record?

And do they meet the Supreme Being test?

When the classification form was originally filled out, not the classification form that the forms for the conscientious objector was originally filled out by Peter in this case, he came to the question of which said, do you believe in the Supreme Being?

And he wrote in the form at that point, “It depends on the definition.”

He expanded his views in a separate sheet which he attached to the form.

And incidentally, this statement of his that depends on the definition, appear throughout all of the various proceedings which Peter went through before the draft board, the appeal board even into the trial court.

He was never certain that any time, what the government meant by the term Supreme Being.

And I suspect that our presence here today would indicate that he has some reason to be uncertain himself.

There is uncertainty perhaps in the phraseology inherently.

But in the sheet which he attached to the form, he’s made the following statements.

He says, the human life for me is a final value like this —

Potter Stewart:

Where are you reading from?

Duane B. Beeson:

I’m reading from page 27 of the record, Mr. Justice, and it’s also reprinted on page 3 of our brief.

Potter Stewart:

Thank you.

Duane B. Beeson:

Since the human life form is for me a final value, I considered a violation of moral law to take human life.

I think I have reached this conviction out of my reading of such writings as those of Blake, (a Christian mystique) noted in parenthesis, Emerson, Whitman, and Moore, modern poets who have touched on the question.

I consider this belief to be superior to my obligation to the state.

And insofar as this conviction is religious, it has been best described by Reverend John Haynes Holmes as follows.

Religion is the consciousness of some power manifest in nature which helps man in the ordering of his life in harmony with his demands.

It is the supreme expression of human nature.

It is man thinking his highest, feeling his deepest, and living his best.

He also made his statement in the same form on the same page of the record indicating that he believed that human life and human experience was — and the human spirit was sacred.

Before the draft board, Peter submitted other statements that supported his position and an explanation of his beliefs.

And he wrote as follows in one of the statements.

Duane B. Beeson:

This is on page 33 of the record which is reprinted on page 4 of our brief.

I quote, “I have this god inside me.

To be truthful, I don’t know if it’s a long or short god, or even a superior god much less a Supreme Being.

And I have no idea what its sex is.

I’m even worried about calling it god that after all a great deal of death has been done in the name of God.

This god I have inside me goes off every once in a while and opens me to emotions, to beauty, sadness, and sadness of the universe.

That is now and again I feel the compulsion to meet the world around me, I’m filled with wonder, I’m possessed as it were.

I feel so good I think I’m crazy.

So my god isn’t beyond me, it’s within me.

It opens me to godliness in the world.”

Before the appeal board, he furnished a further statement stating it very briefly on page — this is on page 57 of the record, I believe, that he is moved by many of the elements in the world and creation.

He states, he might say I believe in them.

I believe in these elements because they are there.

In subsequent statements including a letter to General Hershey, he refers to — now I’m quoting from page — from the letter beginning on page 82 of the record.

He says, “I place the stress of my belief on the products, the elements in creation rather than on a reverence towards the possible creator of these elements and this piece of the universe.

These are reverence for the elements in the universe before that of the possible creator might be an orthodox but it does not foreign to religious thought (witness the writings of Buddha those were attributed to him and early followers).

And they lay out to —

Arthur J. Goldberg:

(Inaudible)

Duane B. Beeson:

I think that there is certainly biblical support or precisely to that point of view Justice Goldberg.

He also states that he feels that it’s proper to turn his conviction religious because it’s based I’m quoting, “on a vision and a dedication to that vision.

And I feel this vision and my commitment to it, it’s into a depth of tradition having gotten into specific historical group.”

He says further, “I motivated by what Albert Schweitzer calls a reverence for life.

I think of myself as a receptive organ through which the tragedy and beauty of the world are perceived.”

And the final — the next to final statement that I will read is as follows.

“The presence of other living beings in the universe sounds like call, presents a vision, a fact, mysterious reality that I cannot deny into which I feel an impulse to relate.”

The final quotation which I think will help summarize the views of Britt Peter is found on page 86 of the record, which he states, “There is a love of life and reverence toward living things expressed by many poets throughout the ages.

They seem to be brothers, the heir of some common goddess though he has never been finally named or particularized.

Now —

Potter Stewart:

I suppose somebody who believed in a goddess or in many goddesses and gods would be literally within the terms of the statute that Congress pass, wouldn’t he?

Duane B. Beeson:

Within the meaning (Voice Overlap)

Potter Stewart:

And many other Supreme Being.

It doesn’t say a single exclusive one Supreme Being.

Duane B. Beeson:

Well, I have a conceptual difficulty, Mr. Justice Stewart in comporting the idea of polytheism into the term “a Supreme Being”.

Your point may well be taken, I don’t know.

Potter Stewart:

It’s the matter of the literal reading of the language I think.

Duane B. Beeson:

It seems to me that a Supreme Being by its own —

Potter Stewart:

It’s a one Supreme Being or a single Supreme Being

Duane B. Beeson:

Well, with the Supreme, it almost connotes the feeling of exclusiveness —

Potter Stewart:

Well I thought there was a peak order in the gods of the Greek mythology, wasn’t there?

There was one.

There was one supreme and the others were —

Duane B. Beeson:

It’s difficult to concede a co-equal supremacies —

Potter Stewart:

Now, where — that’s it — and yet that’s a — kind of any religion of three supremacies.

Duane B. Beeson:

We may be dealing in semantics, Mr. Justice Stewart.

The divinity of course has —

Potter Stewart:

Consider divinity —

Duane B. Beeson:

Yes of threefold co-equal power, I don’t know whether that would be possible or correct to use the term Supreme with respect to anyone of them in that sense.

Perhaps and I think that we agree with what we’re saying that we have difficulty with the words we used to articulate our thoughts and this is not unique in this case.

Potter Stewart:

So there’s whole three of them.

Duane B. Beeson:

It certainly is.

Now, it’s not easy of course to say in one or two sentences, words that will describe exactly what Mr. Peter believed.

I think that his beliefs probably can best be — if they have to be classified at all into a — into the category of mysticism.

He certainly acknowledges some type of power by these beliefs, some type of power that exists

And as he says the mysterious reality some power manifest in nature, call it what you will.

He doesn’t pretend to define it.

He can’t.

He doesn’t think that he can.

But its existence is nonetheless acknowledged and I don’t think it’s possible to deal with the statements that I have summarized here in any other way it is consistent with what they mean.

Now, the Ninth Circuit determined that these beliefs did not come within the definition of Supreme Being.

At this point, I think that it’s very important to understand the precise question before the Court in terms of the decision that must make in view of the Ninth Circuit’s opinion.

Duane B. Beeson:

And here, I feel the government has not put the question with sufficient preciseness with deference to the — the government and particularly to his advocate into his class when I learned the law when he followed a somewhat different calling.

I think that the question is not whether the — there would be support in this record or the draft board to find that Peter did not believe in a Supreme Being.

Rather the question is whether the Ninth Circuit has applied the correct rule of law in adjudicating the record before it, in adjudicating Peter’s case.

The Ninth Circuit, this is fundamental to my position here, has taken the view that Supreme Being under Section 6 (j) of the Act requires a belief and a duty indeed I think — well I can go so far as to say an anthropomorphic god.

That appears as far as I can discern to be the point of view and the point of departure for the court below.

In this sense, we have a different situation that we have in either of the Jakobson case or the Seeger case both of which came out f the Second Circuit.

Now, I think that it’s important to demonstrate that the Ninth Circuit has done what I have stated because it does alter the nature of the question to be decided.

If I am correct in saying that the Ninth Circuit has applied the wrong rule of law and has misinterpreted Section 6 (j), I don’t think that this conviction up here can stand irrespective of what the regional trier of fact might have been able to conclude on the basis of the various fragments in the record.

The reason that I give for my view of what the Ninth Circuit has followed in this case, are as follows, the fundamental decision which the Ninth Circuit has followed, since these World War II period is the Berman case that was its own decision.

In Berman, the Ninth Circuit departed from the Kauten view that religion and under the 1940 Act could be — could include — was comprehensive enough to include the voice of conscience, and said that it was — that religion required something more than that, and to determine, to articulate what more was required the Ninth Circuit in Berman quoted Justice Hughes’ dissent in the Macintosh case, and the quote was as follows.

“The essence of religion is belief in a relation to god involving duties superior to those arising from many human relations.”

And secondly, the Berman case also quoted Justice Hughes’ language in the same case, Macintosh case, philosophy, and morals, and social policy without the concept of deity cannot be said to be religion in a sense of that term as it is used in the statute.

Berman, as I see it stands for the proposition that religion and a belief in a deity are one and the same thing.

In the Peter case, the case told him before the Court the Ninth Circuit not only relied on the Berman but quoted the same descending language of Justice Hughes where he equates religion with a belief in God.

Now this, in my view, is an erroneous interpretation of Congress’ intent when it used the term Supreme Being.

I think that Congress meant a concept broader than an anthropomorphic deity but it used Supreme Being.

And in this point of view, I have the company of the government.

The government accepts that same basic interpretation of the word Supreme Being.

But the government says nothing about the Berman case or nothing about the Peter’s decision of the Ninth Circuit which in my view makes quite an opposite reading of the term Supreme Being.

This places the Peter case in a somewhat different context I think but neither the Seeger nor the Jakobson case.

We are dealing here as you see with the decision of the court below which has interpreted Supreme Being not as the Second Circuit has but to require some kind of acceptance of a anthropomorphic deity.

If the Ninth Circuit is wrong in that respect, as the government would indicate if it’s so to use the import of the decision, then the conviction cannot stand.

And I think that it becomes incumbent to view to require the Ninth Circuit to review at the least or I think in this particular record, this case would –- with this the Court would have the option itself of reviewing the record and coming out with the determination that Peter’s beliefs qualify him for exemption under the correct reading of the statute.

The correct reading of the statute and here again the government and I in Court is that acceptance of any type of faith or belief and that authority beyond that and there, and call it what you will, some ultimate authority which goes beyond human relationships, then there is an adequate basis for the exemption.

Potter Stewart:

As I read the Ninth Circuit opinion and I just have it before me here, what they know was that that the record could support a substantial foundation for the conclusion that the — Mr. Peter’s conscientious objection being drafted to military service is based upon a merely personal, moral code.

Duane B. Beeson:

Yes, Your Honor.

That is the —

Potter Stewart:

And that I suppose wouldn’t — you wouldn’t say that that was the — that that was a merely a personal moral code.

That is not involved the dictation by your obligation to a divinity, does it?

Duane B. Beeson:

This is true, Your Honor but the Ninth Circuit has done what it means by that.

Duane B. Beeson:

I’m sure that from reading the rest of it, the context is that there are two sides of this picture.

One is the Supreme Being side and the other side is that if you don’t believe in that, you necessarily are governed by — if you’re sincere, governed by a personal moral code or political, sociological other considerations of that nature.

In other words, the Ninth Circuit sets up the same dichotomy that this language of the statute itself set so.

But in my view it does not give sufficient breadth to one facet of that dichotomy namely the meaning of the phrase “Supreme Being”.

Potter Stewart:

Well I — as you say I think the government agrees with you –-

Duane B. Beeson:

Yes, I think it does.

Potter Stewart:

Insofar as your argument does but I don’t think it argues with you as insofar as what the Ninth Circuit understood with that.

Duane B. Beeson:

Well, it hasn’t said one way or another, perhaps it assumed sub silentio in the — by the nature of this argument that it makes.

But I don’t want to be misunderstood as saying that there is absolutely no room for doubt in the interpretation of the Ninth Circuit’s decision either.

The Ninth Circuit is having as much trouble apparently as everyone else of finding proper words to express his feelings.

But the frequency with which it uses the term deity, and god, and relies upon that, at best suggests a very serious ambiguity and the more probable law I think is the conclusion that it is talking about something on the lines of the fundamentalist or anthropomorphic god.

Potter Stewart:

Anthropomorphic means that a man is a god in the form of man or man which is (Voice Overlap)

Duane B. Beeson:

Heavenly father —

Potter Stewart:

An identity

Duane B. Beeson:

An identity, it does not use the word anthropomorphic.

It does use the word god.

It does use the word deity.

Perhaps, I am embellishing by adding that phrase.

Potter Stewart:

As to being questioned around rather consulting the dictionary.

Duane B. Beeson:

We may all end up there.

The conclusion to my argument on this phase is the case is that Peter’s beliefs do, I think, necessarily bring him within the concept of a faith in something broader than man’s obligation to man alone.

That may, well be religion as Justice Goldberg has suggested by one of his questions.

But we don’t have to stop there in this case.

Peter talks about some power manifest in nature.

He talks about the god inside him, the mysteries of the universe, mysterious reality, mystery of the heart of the essence of being alive.

Now, those are all phrases which I have taken under his own statements.

This is something which goes beyond near human relations.

It may not be god and indeed he indicated quite frankly that he didn’t believe in God and the Ninth Circuit was correct in holding that he didn’t believe in God.

But it goes to a belief in some higher power even though he can’t define that power.

And I think that there is no requirement in Section 6 (j).

Duane B. Beeson:

Indeed if there could be one constitutionally that the applicant must be able to define the nature of the power in which he believes is only that he held post of the belief in the existence.

Potter Stewart:

You said the record does support a conclusion that he believed in a higher power, extra human.

Duane B. Beeson:

That is correct Mr. Justice Stewart and I will go further than that to say that it compels that conclusion.

And that is why that I say that I think it would not be inappropriate remedy in this case for this Court to remand with the directions, giving a correct definition of Supreme Being with the directions to the court below to reevaluate the — the record in light of the correct interpretation.

I think that the record in here is clear enough so that there’s no need to do that.

That we have here a man that believes in some type of higher authority and there’s the only possible reasons for not concluding that or those which had been advanced by the Solicitor General which are not pertinent to the content of the belief it only as to a sincerity.

But sincerity as I’ve indicated has been precluded in consideration by this Court by the assumption made below.

Byron R. White:

What standard was employed in the administrative process?

Duane B. Beeson:

The only thing we have to go on are Justice — Mr. Justice White is that the report of the Department of Justice and the hearing officer under the Department of Justice, both concluded that Peter did not have a belief in relation to a Supreme Being.

This followed such questions as for such statement in the report that he did not pray —

Byron R. White:

But this is really the relevant inquiry, isn’t it, whether what standard was employed at that level?

Duane B. Beeson:

I think that if the erroneous standard was applied by the Ninth Circuit that the — it wouldn’t be proper to go beyond that.

We have here the decision of the court below not to deal with and if that’s –-

Byron R. White:

But assume we — let’s assume we decided the Ninth Circuit to employ the wrong standard at the administrative level, the right standard doesn’t employ then there was evidence to support the decision of the administrative level.

What then reverse?

Duane B. Beeson:

If the record was fair enough, perhaps it would not be necessary to reverse then.

If there is any ambiguity I should —

Byron R. White:

The question is whether — the question is the validity of the decision of the administrative level.

Duane B. Beeson:

I understand that and I’m suggesting that you would not take –- you’d be in the position to affirm the Ninth Circuit without reversing it in the hypothesis that you –-

Byron R. White:

What standard do we use in reviewing the decision of the administrative process?

Duane B. Beeson:

Oh the standard there is a very strict one insofar as scope of reviewed — review is concerned.

Byron R. White:

What is it?

Duane B. Beeson:

If there’s any evidence in the record as support —

Byron R. White:

Is there any evidence in the record to support the —

Duane B. Beeson:

Yes, this is true but —

Earl Warren:

(Voice Overlap) Mr. Beeson.

Duane B. Beeson:

Yes excuse me, Mr. Chief Justice.

But the standard under the Estep case is whether there’s any evidence to support.

But of my position —

Byron R. White:

Is there any inquiry here then you say the Court of Appeals used the wrong standard.

Byron R. White:

You want us to turn to make an independent review.

Now, so and – and our approach then could be whether or not, there is any evidence in the record to support the administrative decision, is that true?

Duane B. Beeson:

Well, in the first instance, I suppose it’s the job of the Circuit Court rather than this Court to make that review in the posi —

Byron R. White:

Well you said that — you said the — you suggested that you want us to go ahead and make the independent examination.

Duane B. Beeson:

I think that the record is not clear in this case.

Byron R. White:

Well, but nevertheless the standard we use in the proceeding with that examination of the record is to determine whether there’s any evidence at all to support –-

Duane B. Beeson:

There’s no question about that but this depends — excuse me.

William J. Brennan, Jr.:

(Voice Overlap) with that first depending whether the administrative agency, the power that you suggest —

Duane B. Beeson:

Absolutely.

William J. Brennan, Jr.:

— is the correct standard.

You say that you find it wrong.

Duane B. Beeson:

This is correct.

And I think that the record will certainly bear that out in the nature of the way which that report came down from the Department of Justice.

There is no indication there that they were doing other than determining that Britt Peter had no belief in God and therefore was not —

Byron R. White:

Well, he assume that the Department of Justice at that stage took a different view of what the — of what that section meant than the Department of Justice has not taken.

Duane B. Beeson:

There are answers to that question which go to the practicalities that exist in the Department of Justice and his relations to the other sections that deal with these matters but I —

Byron R. White:

Well — but you may assume that so I — but the answer was — you said the only concrete evidence is the standard they use and the Department of Justice is what now?

Duane B. Beeson:

The questions which we’re consider immediately prior to making the recommendation and the Department of Justice report for such matters “Are prayerful?”

William J. Brennan, Jr.:

What page are you in?

Duane B. Beeson:

On page 37 of the record.

I’m reading about halfway down the paragraph that begins on bottom of page 36.

The hearing officer reported that he told the registrant the belief in the Supreme Being was required and that no time to the registrant suggests that he had a belief in Supreme Being and in answering and hearing the officer’s question “Are you prayerful?”

The registrant had stated, “No, I don’t pray” and there were other indications in the report which deal not the content of his belief but rather to whether he was sincere.

This is about although we have in connection with the content of his belief as against sincerity in that report.

Now my position, I want to have it absolutely clear is that this record does not permit a conclusion no matter what the scope of review is that this individual did not believe in some kind of mysterious power beyond the obligations of man to his fellowman.

I would like to finish simply by stating few words that the constitutional question which is reached only if we are wrong on our statutory interpretation question is somewhat different here than in the Seeger and Jakobson case if I am correct in saying that the Ninth Circuit’s view is that Section 6 (j) requires a belief in the deity.

And that is the narrower concept certainly.

And the Constitution I think would come into play far more quickly.

With respect to that kind of definition there would — the broader definition of — of Supreme Being which has been advanced by the government.

Thank you.

Earl Warren:

Mr. Adlerstein.

Herman Adlerstein:

Mr. Chief Justice and the Justices of the Court.

The government conceded yesterday that this respondent believed in the Supreme Being.

They only left one issue open and that was whether he had personal beliefs or his beliefs related to superior duties.

I would like to refer to the record, pages 44 through 46, showing conscience objection was based upon a belief in the Supreme Being.

He cites from moral standards which his divinely given reason could accept.

Man was partly akin to the supreme reality and partly spiritual.

He had dignity and life is sacred.

Therefore, he could not sacrifice another man’s life.

All of these are related to Supreme Being and it is therefore not personal.

There is no personal connection at all.

The government still says that these beliefs are personal not related to a Supreme Being.

I would like to call the Court’s attention also to the government’s brief, pages 25 and 26, in which they set forth at least eight or 10 superior duties which this respondent has admitted – which the government has admitted this respondent has eight or 10 superior duties.

And then I would refer the Court to — there are too many to consider in the record 73 to 83, 100 to 102, in which many superior duties are shown.

They certainly have — had a — there were two relationships to deity, one was a vertical relationship and one was a horizontal relationship.

The vertical was a direct relationship with man to God alone.

The horizontal was a relationship of man to God to his fellowmen which means he was concerned with his duties towards his fellowmen and certainly there’s nothing personal about that even though it’s related to man because that’s what all religion is, your relationship to God, to man.

(Inaudible)

Herman Adlerstein:

You started what?

(Inaudible)

Herman Adlerstein:

That is correct, Your Honor and I’ve cited that in my brief.

If I’ve given various examples of that.

Now, he said they were givens of life, givens which are given from deity such as life which must be protected.

His duty is to learn about it and protect it.

He said his acceptance of the world involved altruism, brotherhood, and love of fellowmen.

And he said the man is closer to God.

I said one point is this godness is deity, and he says man is closer to godness when he says, I will not allow myself to be inducted into the arm services is because of the way I feel about human life and one who says I wonder if they’ll suddenly overseas, I always did want to travel, which certainly shows a superior duty to his fellowmen.

And he said that man is obeying a higher law than a social or legal one when he basis his action and attitudes to stem from the way he feels about the basic givens of life, the basic givens means there’s something given by deity.

Now, the government says all these beliefs are personal.

And here’s what he says.

Herman Adlerstein:

The essence of his religious quest to seeking knowledge of the ultimate nature of that created by the supreme reality or man in searching for moral standards which is divinely given reason could accept or satisfying the ultimate nature of man.

The government says that his most important religious lord of no man or that will ever willfully sacrifice another man’s life didn’t qualify as his superior duty.

But respondent preceded this statement when he said life is all that man has ever given, all of these arranged by man.

Divinely given things are very warmth joy, sense of aliveness because of this life is sacred.

Death ends divinely given things.

And that’s why he couldn’t kill.

Now, the government says that respondent did know the nature of deity.

Of course, that’s true.

No religion ever professed to know the nature of deity.

We have that in the case of Moses and the burning bush when God appeared before Moses in the form of a burning bush.

And then there could be many others in the New Testament in the form when a voice came out of the clouds.

I’ve cited these in my brief.

Now, it also says that prior forth that he disagreed with theism.

He didn’t disagree with theism.

He merely said he didn’t posit theism.

On the other hand even if he disagreed with theism, Paul Tillich and that’s quoted, and this is quoted in the opinion of the Court of Appeals below.

He said — Paul Tillich said that theism is transcended by absolute faith, the government itself in its argument and in his brief said that Paul Tillich is a man of religion when they accept him.

The government further said that these views are political and sociological.

Well of course political and sociological views in the first place can’t be religious and are religious if they are backed up by deity.

And all the churches and all the center gods practice politics and religion.

Politics and sociology and economy and all these different practices because that has to do with man and must be part of religion because the religion is concerned with these things as long as it is supported by deity.

It all comes from the laws of God that we must be interested in our fellowmen.

Now, when I say these views are sociological and political, he said he faced his conscientious objection in the above convictions which said that God is the creator of man.

Life is all that he has ever given.

Life is sacred.

No man ought ever sacrificed other man’s life.

Now, this certainly is not a personal, political, or sociological reason.

He even when he explained it into more detail, he said that war is incompatible with this most sacred conviction.

Even the most deprived persons have spiritual aspect, all this — all the same as anybody else in relation to deity.

These are all values, the basement was contradicted to sacred convictions.

Herman Adlerstein:

Now he entered some questions that regard to under what circumstances he would use force.

And he said that all his answers were these and so that anything he said which sounds personal was not personal.

I’m not personal because they all are related to this statement.

They have the result of these basic religious convictions concerning the sanctity of life and the dignity of the individual.

Now, these certainly do stem from deity and in that person at all.

And finally he whines it up by saying, one can stand for the sanctity of life by not killing when his most sacred convictions tell him not to kill.

Now, even if we assume that some of these reasons were personal, I’m not conceding it but I’m going to assume it that some of these reasons were personal.

He gave enough reasons which were related to deity to cause him to be accepted as religious statements, the mere fact that some people have certain personal reasons.

There are only some of them who are personal.

The others who are religious could not be tracked from that and this Court has actually held that and — and the Sicurella case.

The mere fact of having some convictions, religious and some not, if the religious convictions meet the statute six, Section 6 (j) then all the religious statements are accepted and qualify the person to be within the section.

The — we say that when the Department of Justice recommended that these beliefs were moral beliefs that that was an erroneous recommendation and therefore the classification cannot stand.

There was a very important paper even submitted to the hearing officer in which religious beliefs were set forth and this was called a moral statement.

And whereas it actually set forth statements of religious convictions in which he say it refers to the spirit of this godness and he said this godness was the same as Gandhi’s real presence of god within.

And then he whined up by saying “God is love”.

And these certainly are religious statements and when the Court made — when the Department of Justice made these statements that calling it moral convictions then of course, it meant an erroneous recommendation to the appeal board and it should be set aside.

Potter Stewart:

But you turn now to the material appearing on page 73 and 83 of the —

Herman Adlerstein:

Well, that was a 43-page statement which was submitted to the local boards and that the local board hearing under somebody eighth and ninth.

Potter Stewart:

Now, where it was – where does the statement appear to which you just have referred?

Herman Adlerstein:

That appears in connection with the hearing or the — hearing officer and the Department of Justice as Exhibit 42 at page 127.

Potter Stewart:

127, thank you.

Herman Adlerstein:

It starts so by saying religion consists of a deeply felt consistent set of values and so forth.

And then I refer to the second paragraph where he equates his godness with Gandhi’s mysterious power and which he whined up and says he felt the real presence of God within which is at the very bottom of the page.

And then the bottom of page 20 — 129 which is two pages later says, thus the expression, “God is love for all these limitations, thus succeed in pointing to an objective source of morality.”

Now, this god then was called by the hearing officer a statement on a moral position in spite of all these references to deity.

The local board found the respondent to be honest in his beliefs, and therefore accepted all the statements and religion, and otherwise.

On the other hand, the hearing officer because of the certain suspicion of the timing of his claim and making a claim deferment for a back injury has said that he was insincere claim.

So he made two recommendations that he was insincere and also that his belief was a moral code and not a religion.

In view of the fact that he made an erroneous recommendation regarding the moral code instead of religion and the appeal board not having decided on which ground it was making its classification, therefore, the classification cannot stand the course of the two contradictions.

There was a contradictory report and we have no way of knowing which — which one was adopted and that the court below assumed that the adopted, the statement that these beliefs were moral.

Herman Adlerstein:

And further the Court said that unless a broad interpretation that was made by the statute to include this religion as well as other religions, it might be unconstitutional and in order to avoid a possible unconstitutionality, this religion must be considered equal to all other religions that have been within Section 6 (j) of the statute.

Thank you.

Perhaps my time is up.