Clay v. United States/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

I would reverse this judgment of conviction and set the petitioner free.

In Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436, the wars that the applicant would fight were not 'carnal' but those 'in defense of Kingdom interest.' Id., at 389, 75 S.Ct., at 405. Since it was impossible to determine on exactly which ground the Appeal Board had based its decision, we reversed the decision sustaining the judgment of conviction. We said: 'It is difficult for us to believe that the Congress had in mind this type of activity when it said the thrust of conscientious objection must go to 'participation in war in any form.' Id., at 390, 75 S.Ct., at 405.

In the present case there is no line between 'carnal' was and 'spiritual' or symbolic wars. Those who know the history of the Mediterranean littoral know that the jihad of the Moslem was a bloody war.

This case is very close in its essentials to Negre v. Larsen, 401 U.S. 437, 91 S.Ct. 828, decided March 8, 1971. The church to which that registrant belonged favored 'just' wars and provided guidelines to define them. The church did not oppose the war in Vietnam but the registrant refused to comply with an order to go to Vietnam because participating in that conflict would violate his conscience. The Court refused to grant him relief as a conscientious objector, overruling his constitutional claim.

The case of Clay is somewhat different, though analogous. While there are some bits of evidence showing conscientious objection to the Vietnam conflict, the basic objection was based on the teachings of his religion. He testified that he was

'sincere in every bit of what the Holy Qur'an and the teachings of the Honorable Elijah Muhammad tell us and it     is that we are not to participate in wars on the side of      nobody who-on the side of non believers, and this is a      Christian country and this is not a Muslim country, and      theGovernment and the history and the facts shows that every      more toward the Honorable Elijah Muhammad is made to distort      and is made to ridicule him and is made to condemn him and      the Government has admitted that the police of Los Angeles      were wrong about attacking and killing our brothers and      sisters and they were wrong in Newark, New Jersey, and they      were wrong in Louisiana, and the outright, every day      oppressors and enemies are the people as a whole, the whites      of this nation. So, we are not, according to the Holy Qur'an,     to even as much as aid in passing a cup of water to the-even      a wounded. I mean, this is in the Holy Qur'an, and as I said     earlier, this is not me talking to get the draft board-or to      dodge nothing. This is there before I was borned and it will     be there when I'm dead but we believe in not only that part      of it, but all of it.'

At another point he testified: (T)he Holy Qur'an do teach us that we do not take part of-in any part of war unless declared by Allah himself, or unless it's an Islamic World War, or a Holy War, and it goes as far-the Holy Qur'an is talking still, and saying we are not to even as much as aid the infidels or the nonbelievers in Islam, even to as much as handing them a cup of water during battle.'

'So, this is the teachings of the Holy Qur'an before I was born, and the Qur'an, we follow not only that part of it, but every part.' The Koran defines jihad as an injunction to the believers to war against non-believers:

'O ye who believe! Shall I guide you to a gainful trade which     will save you from painful punishment? Believe in Allah and     His Apostle and carry on warfare (jihad) in the path of Allah      with your possessions and your persons. That is better for     you. If ye have knowledge, He will forgive your sins, and     will place you in the Gardens beneath which the streams flow,      and in fine houses in the Gardens of Eden: that is the great      gain.' M. Khadduri, War and Peace in the Law of Islam 55-56      (1955).

The Sale edition of the Koran, which first appeared in England in 1734, gives the following translation at 410-411 (9th ed. 1923):

'Thus God propoundeth unto men their examples. When ye     encounter the unbelievers, strike off their heads, until ye      have made a great slaughter among them; and bind them in      bonds; and either give them a free dismission afterwards, or      exact a ransom; until the war shall have laid down its arms. This shall ye do. Verily if God pleased he could take     vengeance on them, without your assistance; but he commandeth      you to fight his battles, that he may prove the one of you by      the other. And as to those who fight in defence of God's true     religion, God will not suffer their works to perish: he will      guide them, and will dispose their heart aright; and he will lead them into paradise, of which he hath told them. O true believers, if ye assist God, by fighting for his     religion, he will assist you against your enemies; and will      set your feet fast. * *  * '

War is not the exclusive type of jihad; there is action by the believer's heart, by his tongue, by his hands, as well as by the sword. War and Peace in the Law of Islam 56. As respects the military aspects it is written:

'The jihad, in other words, is a sanction against polytheism     and must be suffered by all non-Muslims who reject Islam, or,      in the case of the dhimmis (Scripturaries), refuse to pay the      poll tax. The jihad, therefore, may be defined as the     litigation between Islam and polytheism; it is also a form of      punishment to be inflicted upon Islam's enemies and the      renegades from the faith. Thus in Islam, as in Western     Christendom, the jihad is the bellum justum.' Id., 59.

The jihad in the Moslem's counterpart of the 'just' war as it has been known in the West. Neither Clay nor Negre should be subject to punishment because he will not renounce the 'truth' of the teaching of his respective church that wars indeed may exist which are just wars in which a Moslem or Catholic has a respective duty to participate.

What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust.

That is a matter of belief, of conscience, of religious principle. Both Clay and Negre were 'by reason of religious training and belief' conscientiously opposed to participation in war of the character proscribed by their respective religions. That belief is a matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute as it did in § 6(j) of the Military Selective Service Act of 1967, 50 U.S.C.App. § 456(j) (1964 ed., Supp. V) when it restricted the exemption to those 'conscientiously opposed to participation in war in any form.' For the reasons I stated in Negre and in Gillette v. United States, 401 U.S. 437, 463 and 470, 91 S.Ct. 828, 843 and 846, 28 L.Ed.2d 168, that construction puts Clay in a class honored by the First Amendment, even though those schooled in a different conception of 'just' wars may find it quite irrational.

I would reverse the judgment below.