RESPONDENT: United States
LOCATION: United States District Court for the Central District of California
DOCKET NO.: 76
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 398 US 333 (1970)
ARGUED: Jan 20, 1970
DECIDED: Jun 15, 1970
Facts of the case
On March 27, 1964, Elliot Ashton Welsh II was ordered by the Selective Service to report for physical examination after having been classified I-A and available for military service. Walsh requested and filed application for conscientious objector status. On his form, Welsh specifically indicated that his objection was not rooted in religious belief; he responded "No" where the questionnaire asked if he believed in a supreme being. An appeal board rejected his application. Welsh refused to appear for induction and, on June 1, 1966, was sentenced to three years imprisonment. The Court ruled in United States v. Seeger (1965) that conscientious objector status was not reserved to individuals of a traditional religious background. On appeal, however, the United States Court of Appeals for the Ninth Circuit found that because Welsh denied any religious foundation for his beliefs, whereas Seeger had characterized his pacifist beliefs as "religious," Welsh's conviction was valid.
Can Welsh claim conscientious objector status even though he professes no religious-based objection?
Media for Welsh v. United States
Audio Transcription for Oral Argument - January 20, 1970 in Welsh v. United States
Warren E. Burger:
Number 76, Welsh against the United States.
Mr. Tietz, you may --
J. B. Tietz:
Mr. Chief Justice and gentlemen of the Court.
This is a draft prosecution for refusal to submit to induction because the petitioner didn't get the conscientious objector classification.
Everyone concedes that he was truthful and sincere.
He is not an atheist so that isn't involved.
He objects to all wars, so that's not involved.
But the main objection of the Government is that his religion when which he started out by saying, “I'm nonreligious” is the bone of contention.
Before we get to the First Amendment point, I would like to deal with the two threshold matters that could be dispositive of the case.
The first is the short circuit, the corner cutting by the Government at the induction proceedings.
I have briefed I think as adequately as I can one point raise by the Government that there must be a showing of prejudice.
I rely on the Ninth Circuit rational in Welsh and in rather in Briggs and then Oshatz.
One point of the Government I didn't deal with adequately in the briefing is that the Government argues that the security questionnaire is for the benefit of the Army.
Now, that's the same argument that was made by the Government when the Briggs matter of not getting the last minute cursory inspection came up is the same argument that was argued by the Government, used by the Government in the Welsh matter when he didn't get tendered to him the security questionnaire, and for the rational in there, they decided that it was required.
Now, the same thing runs through the thread here.
There is one point though that it's not too material and that is, of the Government keeps saying that he refuse.
Actually, he didn't refuse, he raised the question, and then, the best reason why they short circuited him is in the one sentence statement of the Government rather in the opinion -- the majority opinion below that district judge who wrote the opinion concurred in by one of the circuit judges.
They put up this way rather than delay appellant's induction pending investigation, induction station personnel ordered him to step forward.
That's his brief description of the short circuit as possible.
Now, my thought is this, as long as it's a part of the Army regulation that no man shall -- no selectee shall be inducted when he either qualifies or refuses to execute the oath pending a thorough investigation.
He's entitled to that.
And just as in these other cases I mentioned, that was held to have sufficient prejudice, it should apply here, because not as the Government argues that he can -- by that avoid induction possibly for months enforcing the military to waste its intelligence resources, all the Government has to do.
I mean, all of the Army has to do is strike out a few words, substitute a word or two and they can have it in the Federal Register in two or three dates.
Now, fortunately for the security of a country, the Army is alert and when it sees things that it should deal with it does fairly prompt.
For example, when I get back in the practice in 44, about the first man in the office was Yost.
He was on-leave from Camp Roberts where he said he'd been forcibly inducted.
He testified in the trial court.
I was standing with a great many other men who had passed the physical examination and the inducting officer came over and said, hold up your right hands and repeat the oath after me.
Testified as one Jehovah's Witnesses, I couldn't take an oath, I didn't raise my right hand, I said nothing.
The trial judge believed and granted the writ.