Model Case Brief

You may wish to have a model form for your briefs in early cases you argue. There are two ways by which I will help you. First is the formula given below, which is what I've taught you in class. Second is by putting a pair of briefs on display. Both are from a case, Gillette v. U.S., argued in this course in the past. Both petitioner's and respondent's sides are represented here.

The formula:

_______________ v. ______________

________ U.S. _______ (19__)

Counsel for the respondent (or petitioner): Your name

Facts and Judicial History:

Do not argue here. Simply recite all the facts that the justices need to know so they can decide the case. Don't try to hide what does not favor you, but be complete.






Issues to be decided by the Court:

1. Is the .... etc.? Yes (or No). My client . . , etc.


2. Does the .... etc.? Yes (or No). As this court ruled in . . ., etc.

(In these issues, back up each argument with an "authority," in this order as they exist:

a. Constitution of the United States;

b. Precedents of the U.S. Supreme Court;

c. U.S. Statutes, or regulations;

d. Precedents of other courts;

e. Logic;

f. Other.)





In general, if you're arguing the side that actually won the case, you probably want to follow the reasoning of the real court in its decision. If you are arguing the other side, you probably want to find the dissenters, and use their arguments.

In neither case may you reveal to the Mock Court how the Real Court actually decided. You are supposed to play as if it is the very day the oral arguments were heard, and as if you know only what was known that day. Be very careful in this regard not to cite cases that were handed down after the oral arguments in the real case but before the real ruling came down. That happens a few times in the cases we argue in Mock Court.

Gillette v. United States
401 U. S. 437 (1971)

Counsel For Petitioner: Ned Gallagher

Facts and Judicial History. There are two cases joined here, involving the same point: so-called "selective" conscientious objection. My client, Guy Gillette, when called up by the draft board, argued that he should be granted CO status because, although he was willing to serve to defend the United States against invasion or in a United Nations' peace-keeping force, he was deeply opposed to the "unjust" war in Vietnam. The U.S. District Court for Northern California denied Gillette's petition for habeas corpus relief because his objection was to a "particular" war, while the statute requires opposition "to participation in war in any form." [Military Selective Service Act of 1967, 50 USC App , sec 456(j).] The Circuit Court affirmed.

Issues to be decided by the Court.

1. Is Gillette's petition for conscientious objector status sufficient? Yes.

Where the law limits CO status to those opposed to "war in any form," it is defective.

a) Gillette's refusal to serve is "symbolic speech," and is therefore protected by the First Amendment. The opposition among large segments of our society to the Vietnam war is well-known. That so many are opposed to the war suggests that it may actually be an "unjust war," or at least an "incorrect policy." Courageous men like Gillette who are willing to sacrifice themselves to challenge such a war and policy are actually making a political statement of precisely the sort that the Founding Fathers desired to protect when they wrote the Ist Amendment.

b) The United States government itself recognizes its obligation to enable citizens in this free society to appeal to a higher law than Congressional statutes and Defense Department regulations. For example, quoting again the Selective Service Act, men are exempt from conscription if they object to "participation in war in any form."

c) Moreover, DoD directive 1300.6 (May 10, 1968), IVA and B, says that it is "more essential to respect a man's religious belief than to force him to serve. . . . Bona fide conscientious objection . . . will be recognized."

d) But the same DoD directive concludes that "Objection to a particular war will not be recognized," leaving Gillette's views unrecognized. As he testified, "I object to any assignment in the United States Armed Forces while this unnecessary and unjust war is being waged." His grounds were "respect and love for man, faith in his inherent goodness and perfectability, and confidence in his capability to improve some of the pains of the human condition."

e) When such a conflict exists between a statute or regulation on the one hand, and deeply held beliefs on the other, it is the duty of the Supreme Court to uphold the individual's beliefs, and by so doing remind the other branches of government of their obligation to enable citizens in this free society to appeal to a higher law than statute or regulation.


That there is a 'higher law" is not questioned in American legal thinking. Here is a chance to endorse it.

Gillette v. United States
401 U. S. 437 (1971)

The Solicitor General of the United States: Ned Gallagher

Facts and Judicial History.

The draft law, the Military Selective Service Act of 1967, provides in paragraph 6(j) that no person shall be subject to compulsory "service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." The statute goes on that such training and belief must "not include essentially political, sociological or philosophical views."

Gillette refused to report for induction, claiming he was a conscientious objector to war. He said that he would participate in a war of national defense or of international peace-keeping but not in the Vietnam war, which he considers an "unjust war." He said his objection is "based on a humanist approach to religion," fundamental principles of conscience and deeply-held views about the purpose and obligation of human existence. Since 6(j) allows exemption only on the grounds of opposition to "war in any form," he says it discriminates between him and others who oppose all wars, and so favors some religions in violation of the First Amendment.

This case does not involve a challenge to the constitutionality of the war in Vietnam. Nor does it involve a challenge to the constitutionality of the military draft. Nor does it involve a challenge to Gillette’s sincerity. Here there is but a challenge to 6(j) of the statute.

The U. S. District Court for California rejected Gillette's objection to this particular war. The Circuit Court affirmed.

Issues to be decided by the Court.

1. Does depriving Gillette of an exemption from induction violate the "establishment of religion" and "free exercise" clause of the First Amendment? No.

a) Petitioner’s argument amounts to the claim that 6(j) discriminates between types of religions, those that oppose all wars and those that oppose "unjust" wars. But it does not.

b) "Neutrality" is the test whenever government touches religion. "Separation of church and state" does not create an impenetrable wall between the two. If it did, the State could neither tax a church nor decide not to tax it. In Everson v. Bd 330 US 1 (1947), where the state was allowed to transport parochial school kids, and in Engel v. Vitale 370 US 421 (1962), where the State was not allowed to write public school prayers, this Court recognized that state and religious matters frequently do touch. Only "neutrality" is demanded by the First Amendment, not no relations.

c) Neutrality can be assured if, when government activities do touch on the religious sphere, as they might here in Gillette , those activities are (i) secular in purpose, (ii) evenhanded in operation, and (iii) neutral in primary impact. The test is easy to apply, and 6(j) is certainly neutral: (i) raising an army is secular not religious, (ii) 6(j) allows a broad range of exemptions as in Seeger and Welsh (cited below), and (iii) the entire law is neutral in that no religious training is favored or punished.

2. Is the Government's position in this matter reasonable? Yes.

a) That a nation involved in a bitter war should nevertheless allow broad exemptions from military service based on religious opposition to all war is eminently reasonable.

b) In Seeger v. U. S. 380 US 163 (1965), this Court threw out the clause in 6(j) that required that the religious belief be based on a belief in a Supreme Being. It was reasonable that the Court do so.

c) In Welsh v. U. S. 398 US 333 (1970), the Court held that when a philosophical belief was tantamount to a religion, it could satisfy the requirement in 6(j). That, too, was reasonable.

d) But Gillette poses an opposition that is better heard in a political campaign. He is no conscientious objector but opposes only this one war. The lower decisions should be affirmed.

3. Would Gillette's own claim of an exemption violate the "establishment of religion and "free exercise" clause of the First Amendment? Yes.

Using the same test cited in 1(b) above: Gillette's claim is a religious activity touching on a government sphere, yet:

a) it is not religious in purpose but secular in that he wants to avoid military service;

b) It is not evenhanded in operation but serves only him; and

c) it is not neutral in primary impact but disrupts a legitimate power of the U. S. government, I,8:12.

Last revised: November 2, 2008