Ehlert v. United States/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

The rather stuffy judicial notion that an inductee's realization that he has a 'conscientious' objection to war is not a circumstance over which he has 'no control' within the meaning of the Regulation is belied by experience. Saul of Tarsus would be a good witness:

'Now as he journeyed he approached Damascus, and suddenly a     light from heaven flashed about him. And he fell to the     ground and heard a voice saying to him, 'Saul, Saul, why do      you persecute me?' And he said, 'Who are you, Lord?' and he      said, 'I am Jesus, whom you are persecuting; but rise and      enter the city, and you will be told what you are to do."

The stories of sudden conversion are legion in religious history; and there is no reason why the Selective Service boards should not recognize them, deal with them, and, if sincere, act on them even though they come after notice of induction has been received.

The Court holds that the proper remedy is in-service processing of these claims. That is to say, the claims that come so late, even though they come prior to induction, are to be processed by military rather than by civilian personnel.

This conclusion is not required by the Regulation for, as I have said, sudden conversion is a commonplace in religious experiences. And we deal here with religious, ethical, philosophical attitudes that are commonly summarized in capsule form by reference to 'conscience'.

It is therefore a tour de force for the Court to say that in-service processing by the military is required. Certainly that result is not mandated by the Act. Since it is not, we have a choice in construction which really involves a choice of policy. Faced with that choice we should not hesitate to leave these matters to civilian authorities.

Chief Justice Stone, before coming to this Bench, served with two other lawyers named by President Wilson to screen conscientious objectors in World War I. One of the three was in the military, the other two were civilians. In the account he wrote, he said:

'(I)t was the relatively small residue of nonreligious     objectors who brought to the Board its real perplexities. While conscience is commonly associated with religious     convictions, all experience teaches us that the supreme moral      imperative which sometimes actuates men to choose one course      of action in preference to another and to adhere to it at all      costs may be dissociated from what is commonly recognized as      religious experience. The President's order expressly     recognized that scruples against participating in war might      be conscientious although not religious. How to detect the     presence of such scruples and to distinguish them from the mere      extremist support of more or less novel social or political      theories and from mere individualistic resistance to the will      of the majority, such as one sometimes sees in the petulant      disobedience of an ill-disciplined child, was the difficult      task.'

The mind of the military has reacted more violently to the conscientious objector than the mind of the priest or other civilian.

The story of in-service processing of these claims in World War I is an unpleasant one:

'The phrase 'well-recognized religious sect' was given the     most rigorous interpretation, and any who based conscientious      objections on political rather than religious foundations got      short shrift. Such objectors were either 'shot to death by     musketry,' 'imprisoned for long terms by court martial,' or      subjected to indignities and physical violence 'by their more      patriotic fellows."

Another account is substantially the same:

'In military camp and prison alike, objectors were often     subjected to indignities and to physical cruelty. Some were     beaten; others were hung by their fingers to the doors of      their cells in such a way that their feet barely touched the      floor. In one case, an objector who refused to don the army     uniform was kept in a damp cell, where he contracted      pneumonia and died. His dead body was then dressed in the     uniform that in life he had spurned, and, thus attired, was      sent home to his family. A number of objectors among the     absolutists went on hunger strikes and had to be fed      forcibly.' According to the accounts, the treatment of conscientious objectors in World War II was not as severe as in World War I. But the main disciplinary device was to give the man an order and then court-martial him for failure to obey the order. 'Here punishment varied, but common sentences for objectors were five to ten years, although these were not infrequently reduced on review by Washington. Sentences on the whole were much lighter than those imposed by courts-martial during the First World War but more severe, on the average, than those meted out by civil courts during the Second World War. Sentences of general courts-martial were served in the several disciplinary barracks of the Army, but in some instances objectors were first sent to a 'rehabilitation center,' where the Army gave prisoners a second chance to 'reform'; if 'reformation' did not take place, they served out their sentences in the disciplinary barracks. Army regulations provided for periodic and automatic clemency reviews, the first during the initial six months of the sentence and subsequent reviews once each year.' (Emphasis added.)

I have placed in the Appendix to this dissent a summary of a recent (1969) record in one military center, showing how one conscientious objector in Jones v. Lemond, 396 U.S. 1227, 90 S.Ct. 20, 24 L.Ed.2d 50 was treated.

I do not suggest that every detention center in the Armed Services is like the brig on Treasure Island, San Francisco Bay. Nor do I suggest that every conscientious objector is treated as cruelly as was the plaintiff in the Lemond case. I do suggest however that in my time every conscientious objector was 'fair game' to most top sergeants who considered that he had a 'yellow streak' and therefore was a coward or was un-American. The conscientious objector never had an easy time asserting First Amendment rights in the Armed Services.

What might happen to him in the barracks or in the detention center is, of course, not the measure of what would transpire at the hearings. But the military mind is educated in other values; it does not reflect the humanistic, philosophical values most germane to ferreting out First Amendment claims that are genuine.

Our decisions on conscientious objection leave considerable latitude for administrative findings. On one hand Gillette v. United States and Negre v. Larsen, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168, make it clear that objection to a particular war will not qualify for conscientious objector status. On the other hand, both United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308, demonstrate that the objector need not be religious and his views may be based on broad humanistic grounds. There are subtleties in these positions for, noted, '§ 6(j)'s exclusion of those persons with 'essentially political, sociological, or philosophical views or a merely personal moral code' should (not) be read to exclude those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy.' 398 U.S., at 342, 90 S.Ct., at 1798 (opinion of Black, J.) (emphasis added).

Thus under the Court's interpretations of § 6(j) those who do not qualify are those who lack sincerity, do not oppose all wars, or those who rest their beliefs 'solely upon considerations of policy, pragmatism, or expediency.' Id., at 342-343, 90 S.Ct., at 1798. Decision as to whether an individual is entitled to a conscientious objector status under these broad criteria requires great sensitivity on the part of those who have the final say.

Ehlert's claim itself falls somewhere between Gillette and Welsh. In addition it raises claims between pragmatism and a respect for human life and values. His beliefs are not religious in nature. He stated they came from 'the intellectual atmosphere of the University of California and its surroundings and the natural workings of an eager-to-know and questioning mind.' In a letter refusing induction he stated his objection was 'that the sole purpose of military service in this country today is preparation for a nuclear orgasm which would be totally destructive of human life and values.' On his Form 150 he wrote 'that service in the armed forces of this country at this time is work toward the end of the destruction of the human race. I consider that my duty not to work for the destruction of the human race is superior to any duties which may arise from any human relation.' He added he would use force where its use 'would not make more probable the destruction of the human race.'

While it appears that Ehlert's claim may be sufficiently close to Gillette to foreclose his claim, other claims in this sensitive area may not be as close to Gillette, yet also may be beyond Welsh. In a choice between civilian and military factfinders dealing in an area of conscience clearly the former are to be preferred.

Moreover, proof of a conscientious objector's claim will usually be much more difficult after induction than before. Military exigencies may take him far from his neighborhood, the only place where he can find the friends and associates who know him. His chances of having a fair hearing are therefore lessened when the hearing on his claim is relegated to in-service procedures. For these reasons I would resolve any ambiguities in the law in favor of pre-induction review of his claim and not relegate him to the regime where military philosophy, rather than the First Amendment, is supreme.

Beyond all these arguments is a constitutional one. Induction itself may violate the privileges of conscience engrained in the First Amendment. A compelled act was the heart of the case presented by West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, when children of Jehovah's Witnesses protested the requirement that they salute the flag. We said:

'Struggles to coerce uniformity of sentiment in support of     some end thought essential to their time and country have      been waged by many good as well as by evil men. Nationalism     is a relatively recent phenomenon but at other times and      places the ends have been racial or territorial security,      support of a dynasty or regime, and particular plans for      saving souls. As first and moderate methods to attain unity     have failed, those bent on its accomplishment must resort to      an ever-increasing severity. As governmental pressure toward     unity becomes greater, so strife becomes more bitter as to      whose unity it shall be, Probably no deeper division of our      people could proceed from any provocation than from finding      it necessary to choose what doctrine and whose program public      educational officials shall compel youth to unite in      embracing. Ultimate futility of such attempts to compel     coherence is the lesson of every such effort *  *  *. Those who     begin coercive elimination of dissent soon find themselves      exterminating dissenters. Compulsory unification of opinion     achieves only the unanimity of the graveyard.

'It seems trite but necessary to say that the First Amendment     to our Constitution was designed to avoid these ends by      avoiding these beginnings.' Id., at 640-641, 63 S.Ct., at      1186-1187.

To some conscientious objectors, taking the one step forward is an act violating the conscience, since wearing the uniform in any form is as revolting to them as saluting the flag was to the children in the Barnette case. To another conscientious objector the bearing of arms, not acting as orderlies, say, in military hospitals, is the act at which he rebels. The sorting and sifting of these claims and all varieties of them are best processed by civilians rather than the military. The present Regulations permit it and I would resolve any ambiguities in favor of the procedure most protective of the rights of conscience involved here.

I therefore dissent from affirmance of the judgment below.

On September 15, 1969, I entered a stay in the case of Jones v. Lemond, 396 U.S. 1227, 90 S.Ct. 20, 24 L.Ed.2d 50. Jones was in the United States Navy and his claim to discharge as a conscientious objector arose five months after his enlistment. According to the allegation he had made many attempts over a period of some 37 days to file an application to be discharged as a conscientious objector. He was unable to make a filing or obtain a hearing. He went AWOL on that account and later surrendered himself and with the help of legal advice pressed for processing of his conscientious objector claim.

I did not reach the merits of that controversy, but in view of the representations made I restrained the Navy from confining Jones in the brig at Treasure Island, which according to the affidavits presented to me had become a house of horror.

'After sitting in the room approximately 45 minutes, I heard Mr. Foreman say, 'He is an escape risk and is to be sentenced for 5 months-he is not to be allowed to phone anyone.' Immediately after I heard Mr. Foreman speak, a Marine Sergeant opened the door and said to me 'empty your pockets, f—er.' I began to empty my pockets to which the Sergeant said, 'hurry up, Goddamnit.' When I had finished emptying my pockets the Sergeant said, 'up against the wall-spread your arms and legs.' I spread my arms out against the wall and placed my feet approximately 3 1/2 feet apart. The Sergeant kicked my legs several times and said, 'Move them further.' I then stretched them as far as possible, so the Sergeant kicked me a couple of more times to make sure they were spread as far as possible. He then frisked me, which involved slapping and shoving me against the wall. When he finished his so-called frisk, he handcuffed my hands behind me and said, 'Alright, let's go-one f-k-up and I'll bust your f-kin head open.'

'I was then taken to the Brig and told to stand in front of the fence with my nose on the canvas. I stood at attention with my nose on the canvas and the Sergeant went into the main control room.

'About 5 minutes later the Sergeant came out with another Sergeant. The Sergeant said 'empty your pockets.' I took out a pen and chow pass and offered them to the second Sergeant. He said, 'don't point at me f-ker, put that s-t in your hat.' I emptied my pockets and put everything into my hat. The Sergeant said, 'put it on the ground.' The Sergeant said to the other Sergeant, 'he's still pretty salty-I got him when I picked him up, but he still thinks he's tough.' The reply was, 'don't worry, he won't be so tough, I know what to do with him.' He said, 'spread your arms and legs turd.' I spread out against the canvas. He started kicking me and yelling, 'spread out a hole.' He kept kicking me and yelling until I fell down and then said 'what's wrong with you pussy can't you stand up-get up.' I stood up and he said 'spread out Goddamnit.' He started kicking me again. When I fell to my knees against the canvas he stopped and said, 'can't you stand up squid?' This time I got up and spread out hands on the canvas before he could say so. He then pushed my face into the canvas, slapped my neck and arms, punched me in the sides, yanked the crotch of my dungarees painfully between my legs, slapped and pinched my legs and said, 'alright now stand at attention.' He had now finished frisking me so they both went back into the control room taking with them the contents of my pockets in my hat.

'After much verbal harassment, I was taken to my cell.

'A couple of hours later I heard the orange badges march in. They live in the Annex in 6 6 8 cells, 3 men per cell. I heard a Corporal yelling at an orange badge for not running fast enough during the physical exercise period. He then made the orange badge do push-ups until he collapsed. Then I could hear the Corporal hitting the man and the man crying and screaming for him to stop. When the Corporal stopped they took the man back out into the compound to run and that was the last I heard of him.

'Dinner was brought to my cell and I ate it on the floor as I did with all the rest of my meals.

'Early in the evening a Corporal started harassing a confinee who was locked in the suicide risk cell. Suicide risks have to sit in the cells, which I found to be very cold with my clothes on, in nothing but a pair of underwear. The Corporal kept antagonizing the man until he started screaming and crying. Once the Corporal succeeded in breaking the confinee he started laughing, at which time the other Corporal said, 'why don't you kick his ass for making so much noise?'

'The next day I was taken for a hair-cut. Another confinee cut my hair and while doing so he dropped a clip but couldn't find it. I told him where it was and he said, 'don't let them catch you talking to me, they'll kick your ass.' I kept quiet.

'After much more harassment, I went back to my cell and I heard a man coughing and then a Corporal yelling at him to shut up. Two other Corporals joined in harassing the man and when he couldn't stop coughing they pulled him out of the cell and made him dive on a cup on the floor pretending it was a grenade. They got several other men out of their cells and had them all diving on the cup with the coughing man on the bottom each time.

'It wasn't long after the grenade drills when the turn-key came to my cell and let me out. He had me fold up my blanket and pick up my locker and pulled me out to the control office. In the office there were 4 or 5 Sergeants and a Staff Sergeant yelling and screaming all types of phrases, such as 'you'll be back, f-ker and then you'll really get it.' I now was told to stand holding my footlocker with my arms extended and they seemed to forget me for a moment.

'Then they began talking among themselves and I realized that my lawyer, Don Jelinek and Loren Basham, a member of the Resistance, were outside the Brig in a car and they apparently insisted on remaining there until I was released. The Sergeant said 'This guy (Jelinek) just pissed me off because he just charged in here and slapped this order down and said 'get this man out." Then the Sergeant said, 'I have a psychiatrist over here (pointing to the medical building right behind us), who will back me up saying I am not responsible for anything I do.' He then added, 'In a minute I am going to go out and blow their heads off.'

'Then the Sergeant seemed to gain control of himself. The MP then turned to me and said, 'Just try and run boy, I would love to blow your head right off.'

'I was then allowed outside the Brig where I saw my Lawyer who spoke to me, but I was afraid to answer him for the fear they would beat or shoot us.

'I know they worked me over because of anger because the Military Court of Appeals gave me an order keeping me out of the Brig. Now that a second Court Order has gotten me out of the Brig, I feel they will kill me if I have to go back in again.'  Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.

Selective Service Regulation 1625.2, 32 CFR § 1625.2 (1971), relieves a local board of its general obligation to consider a registrant's claim for deferment whenever the claim is received after the notice to report for induction has been mailed 'unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.' The Court of Appeals held that this regulation relieved the local board of the necessity of considering any claim that a registrant's conscientious objection to war had crystallized after receipt of an induction notice because, in the court's view, registrants have control over such changes in their beliefs. 422 F.2d 332 (CA9 1970). The Court here finds it unnecessary to come to grips with this holding and consider whether a conscientious objection claim comes within the terms of this regulation, since it finds the interpretation of the regulation controlled by 'a reasonable, consistently applied administrative interpretation.' Ante, at 105.

I cannot defer to an interpretation I cannot discover. All of the cases cited by the Court make clear that judicial interpretation of an ambiguous regulation is to be informed by reference to administrative practice in interpreting and applying a regulation, not by reference to positions taken for the purpose of litigation. See cases cited, ante, at 105. Cf. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). The national Selective Service office has apparently made no national administrative interpretation of the regulation. The only other information presently before us indicates that state Selective Service head-quarters in North Carolina and California have interpreted the regulation to require local boards to consider 'late crystallization' claims and to consider whether the registrant's conscientious objection was a change occurring after receipt of his induction notice over which he had no control. Brief for Petitioner, 28 n. 53. If anything, this suggests that petitioner's interpretation should prevail. On this state of the record, however, I hardly think administrative practice can properly form the basis of decision.

Moreover, I do not find the regulation to be ambiguous. In the context of a blanket Selective Service regulation applicable to all claims for deferment and exemption, the reference to 'circumstances' must be taken to refer to any conditions relevant to eligibility for a deferment or exemption. Since conscientious objection to war is the basis for a deferment, it must constitute a 'circumstance' within the plain meaning of the regulation. The question, therefore, is whether that circumstance can be one 'over which the registrant had no control.' On that score, I fully agree with the dissent of Judge Merrill below:

'One simply cannot order his conscience to be still or make     himself believe what he does not believe and I must reject      the implication that it is right and proper that one should      suffer loss of status for having failed to bring his      conscience to heel.

'Conscientious objection, in truth, is a contradiction of     control. Just as a conviction honestly dictated by conscience     cannot be banished at the will of the holder, so, conversely,      a belief conveniently subject to the control of the holder is      not conscientiously entertained.' 422 F.2d, at 339.

In sum, I think the regulation means that late-crystallization claims asserted prior to induction should be processed by civilian personnel of the local boards, who have been designated by the Congress as the appropriate decisionmakers in these cases, rather than by military personnel during in-service processing. I dissent.