There has been continued controversy over the penchant of President Donald Trump to pardon celebrities or political figures or, most recently, a woman who was championed by Kim Kardashian. Today Trump announced that he is considering a pardon for the late boxing sensation Muhammad Ali — not long after he granted a posthumous pardon to boxing legend Jack Johnson (who was advocated for by celebrity Sylvester Stallone). This case however raises the added curiosity that Ali’s conviction was overturned by the Supreme Court in Clay v. United States, 403 U.S. 698 (1971)(when Ali was still under his birth name of Cassius Clay). Obviously, there is no conviction to pardon or commute in this case. In addition to the overturning of the conviction, draft dodgers were given amnesty previously by both Ford and Carter.
The Clay case has always interested me because of its curious handing by the Supreme Court and the legitimate basis for the draft board and appellate officials to question the basis for Ali’s assertion.
The Clay decision in 1971 overturned the conviction in an 8-0 vote (Thurgood Marshall recused himself because of his earlier involvement with the case as Solicitor General). It was a surprising result due to the underlying law and, as was later revealed, the initial votes of the justices.
Ali notably was declared unfit for service when he first reported for the draft in 1964 because his writing and spelling skills were viewed as sub-standard and raising serious concerns over whether he could fully understand written instructions. However, when the need for recruits increased the following year, those standards were lowered and he was declared 1-A in February 1966. Ali then declared himself to be a conscientious objector as a Muslim. Ali insisted “War is against the teachings of the Holy Qur’an. I’m not trying to dodge the draft. We are not supposed to take part in no wars unless declared by Allah or The Messenger. We don’t take part in Christian wars or wars of any unbelievers.”
That claim from the outset was problematic. Many Muslims were serving in the military and there was considerable scholarly material establishing that Muslims can serve. More importantly, Ali seemed to base his objections not on the threshold requirements of his faith but rather the specific war in Vietnam. Ali famously declared in 1966: “I ain’t got no quarrel with them Viet Cong . . . They never called me ni**er.”
The draft board in Louisville, Kentucky was understandably skeptical and it referred the case to the Justice Department for an advisory opinion. The DOJ wrote back that Ali did not meet any of the three basic criteria for such a claim. The DOJ’s letter was too dismissive and unfairly rejected the claim on all three elements – an overstatement that would later lead to the overturning the conviction.
After the board rejected his claim, he appealed and lost again in 1967 by a vote of 4-0 in the federal district court in Houston. He then refused to be drafted and was eventually indicted and convicted by a jury of six men and six women. All were white. His conviction was reviewed and upheld by the federal appellate court.
When the case went to the Supreme Court, the reaction of the justice was largely the same. According to later accounts, the eight justices voted 5-3 to uphold the conviction and Justice John Marshall Harlan was given the task of writing the opinion. However, one of Harlan’s clerk’s went outside of the record of the case and gave Harlan literature on the Black Muslim movement and beliefs. Harlan changed his mind and produced a deadlock of 4-4. Eventually, the justices found a technicality to avoid the stalemate: concluding that the Justice Department wrongly dismissed the claim on all three criteria and that Ali did have a credible claim on a couple of the elements.
Ali had to show three elements. First, he had to show that he is conscientiously opposed to war in any form. He then had to show this opposition is based upon religious training and belief. Finally, he had to show that his objection was sincere. It is hard to see that Ali did not have a conscientious objection or that his objection was not sincere. More importantly, the record was not sufficient on the basis for rejecting that claim. However, his religious basis for the opposition was and continues to be highly questionable.
The DOJ letter noted that
“As to the requirement that a registrant must be opposed to war in any form, the Department letter said that the petitioner’s expressed beliefs “do not appear to preclude military service in any form, but rather are limited to military service in the Armed Forces of the United States. . . . These constitute only objections to certain types of war in certain circumstances, rather than a general scruple against participation in war in any form. However, only a general scruple against participation in war in any form can support an exemption as a conscientious objector under the Act. United States v. Kauten, 133 F. 2d 703 . . .
It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. . . . It is therefore our conclusion that registrant’s claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.”
That is a good-faith reason for a denial on one of the criteria. However, faced with a deadlock, the Court ruled on the insufficiency of the record:
“Since the Appeal Board gave no reasons for its denial of the petitioner’s claim, there is absolutely no way of knowing upon which of the three grounds offered in the Department’s letter it relied. Yet the Government now acknowledges that two of those grounds were not valid. And, the Government’s concession aside, it is indisputably clear, for the reasons stated, that the Department was simply wrong as a matter of law in advising that the petitioner’s beliefs were not religiously based and were not sincerely held.”
The Court therefore never ruled that Ali had a valid claim, as is often wrongly reported. Moreover, the Court could have ruled on the sufficiency of the single criteria on the existing record but chose to find an alternative course to secure a unanimous ruling. It was in other words a judicial punt.
With thousands of Muslims serving bravely in our military as well as prior wars, the claim of Ali is both highly dubious and troubling. When we are called to serve, there is an obligation of the government to treat people equally and to enforce the obligation to serve in a consistent manner, including the basis for conscientious objection. While the government did not adequately support its decision on all three criteria, Ali never adequately put forward a clear conscientious objection. If Trump is pardoning Ali because he was unfairly denied a waiver for religious reasons, he should consider the implications for future such claims for our military.
The continued debate over the Clay decision is separate from the fact that Trump would be giving a purely symbolic pardon for a conviction that has already been set aside. Ali was fortunate to have his conviction overturned when much stronger claims were upheld by the courts. A pardon is neither necessary nor warranted for Muhammad Ali.