Clay v. United States

Context

The Supreme Court decided Ali’s conscientious objector case against the backdrop of a country increasingly divided over the civil war in Vietnam and the use of the draft to select the American soldiers needed to continue the conflict. By 1970, the year before the Court’s decision in Clay v. United States, the debate had become almost ubiquitous within American public institutions—except the Supreme Court. Indeed, the Court repeatedly resisted attempts by legislators, draftees, and even states to have it pronounce on the underlying legality of the war in Vietnam, resting on strained notions of judicial restraint to avoid taking sides. However, there was one class of Vietnam-related cases the Court did try routinely: those based on claims to exemptions and deferments from conscription, particularly claims of conscientious objector status. Under section 6(j) of the Military Selective Service Act, individuals could not be subjected to “combatant training and service in the armed forces” if, “by reason of religious training and belief,” they were “conscientiously opposed to participation in war in any form.”

One of the questions that invariably arose in such cases was whether conscientious objection to a particular war, rather than objection to war as such, qualified the objector for such an exemption. Thus the question became, Does the statute support the idea of “selective” conscientious objection? Three months before it decided Ali’s case, the Supreme Court answered that question in the negative in Gillette v. United States, with Justice Thurgood Marshall—best known for arguing the landmark school desegregation case of Brown v. Board of Education of Topeka—writing for an eight-to-one majority. As Marshall explained, “However the statutory clause be parsed, it remains that conscientious objection must run to war in any form.” For Ali, one of the more visible members of the Nation of Islam, the war in Vietnam was an unjust one fought by nonbelievers. Indeed, contemporary news stories and even some judicial opinions often repeat an inflammatory quote that may well have been misattributed to Ali—that “no Vietnamese ever called me a nigger.” Ali’s case therefore raised a question the Court had yet to answer: whether a religiously grounded but nonpacifistic belief was a legally protected basis for objecting to military service.

A separate but equally important element in Ali’s case was the issue of race. Well into the mid-1960s, African Americans were heavily underrepresented on local draft boards, leading to claims that the boards routinely acted in a manner that was racially discriminatory. In 1967 only 0.2 percent of 641 local board members in Kentucky were black, even though African Americans constituted 7.1 percent of the state’s total population. In Texas, only 1.1 percent of the local board members were black, as compared with 12.4 percent of the total population. Many of these concerns were bolstered by the 1967 report of the National Advisory Commission on Selective Service, which recommended a number of reforms that were not adopted—at least not initially. Instead, inductees turned to the courts and to arguments that such underrepresentation on the local draft boards violated constitutional principles of equal protection.

Ali’s case therefore became a lightning rod for some of the most heated religious, racial, social, and political conflicts of the day. In such an atmosphere, it is perhaps unsurprising that the Supreme Court ultimately rested its decision on what may fairly be described as a legal technicality, avoiding the harder and more divisive questions that the case raised.

To fully understand Ali’s case, it is worth reviewing the U.S. method of filling its military ranks in the 1960s. Between 1948 and 1973, the United States utilized a conscription system rather than an all-volunteer military. Whether America was engaged in a war or not, young men were required to register for the Selective Service, the agency charged with implementing a military draft. Vacancies in the armed forces were filled from this pool of eligible men when the number of volunteer soldiers in the U.S. military fell short. In 1960, when Ali (then still going by his birth name, Cassius Clay) registered for the Selective Service, men between the ages of eighteen and a half and twenty-five were eligible for the draft.

Early in 1966, after Local Board 47 in Louisville, Kentucky, had classified Clay I-A, meaning that he was fully qualified for induction into the military, he filed a Special Form for Conscientious Objector, seeking a religious exemption from combatant training and service in the armed forces. He based his claim for exclusion from military service on his adherence to the tenets of the Nation of Islam. Ali’s application for conscientious objector status, or, alternatively, classification as a Muslim minister, was rejected both by Local Board 47 and by the Kentucky Appeal Board, which then referred the matter to the U.S. Department of Justice. Following an extensive investigation by the Federal Bureau of Investigation, a Justice Department hearing officer concluded on August 23, 1966, that Ali was sincere in his beliefs and recommended that Ali’s request for conscientious objector status be granted. Despite that conclusion, in a letter dated three months later, the Justice Department’s Office of Legal Counsel formally recommended to the Kentucky Appeal Board that Ali’s request be denied. Specifically, the letter asserted that Ali failed to meet the three basic tests that the Supreme Court had established for conscientious objector status: that he objected to all forms of war, that his objection was grounded in religious training and belief rather than in politics, and that his objection was sincere. Pivotal to the future of the case was the fact that the Justice Department failed to specify which of the three tests Ali had failed to meet.

Following the Justice Department’s recommendation, the Kentucky Appeal Board formally denied Ali’s request for conscientious objector status. Although Ali proceeded to file a series of lawsuits seeking to block his induction, all of them were dismissed. Ali reported for induction into the U.S. military on April 28, 1967, in Houston, Texas (since he resided in Texas at the time), as ordered, but he declined to step forward when his name was called. Ten days later, he was indicted by a federal grand jury in Houston for knowingly and willfully refusing induction into the armed services—a criminal offense punishable by up to five years in prison and a $10,000 fine. After a two-day trial in June 1967, he was convicted by a jury and given that maximum sentence. The jury, composed of six white men and six white women, reportedly deliberated for just twenty-one minutes.

Ali appealed his conviction to the U.S. Court of Appeals for the Fifth Circuit on several different points. In addition to claiming that his request for both conscientious objector status and ministerial exemption had been wrongly denied, he argued that the composition of the Selective Service draft boards was racially disproportionate (with blacks heavily underrepresented), and so the boards were themselves unconstitutional. But in a unanimous ruling handed down on May 8, 1968, a three-judge panel of the Fifth Circuit rejected each of Ali’s claims. The Court of Appeals sidestepped Ali’s challenge to the racial composition of the local Selective Service boards, noting first that, even if the claim were factually accurate, that would not automatically void the decisions in the case and also emphasizing the de novo, or in-depth, review by the racially diverse National Appeal Board, which, in the court’s view, necessarily removed any hint of racial prejudice from Ali’s case. As to Ali’s claims that he was entitled either to a ministerial exemption or to conscientious objector status, the Fifth Circuit further noted that the denial of those claims had some “basis in fact”; the court concluded that the National Appeal Board had properly resolved Ali’s case and that his conviction was therefore valid.

Ali’s last hope for a reversal of his conviction was a hearing by the U.S. Supreme Court. His case, Clay v. United States, was argued before the Court—with Justice Thurgood Marshall not participating—on April 19, 1971, and the Court handed down its unanimous decision ten weeks later.