Conscientious Objection

Conscientious Objection A conscientious objector refuses to participate in war because of ethical, moral, or religious principles. Congress and the Supreme Court have struggled to accommodate such beliefs to two public interests: first, the power of the national government to raise an army; and, second, the First Amendment prohibition on an establishment of religion and its related guarantee of free exercise of religion. According to the Court in United States v. Seeger (1965), these First Amendment provisions acquire special meaning because of “the richness and variety of spiritual life in our country” and because “over 250 sects inhabit our land” (p. 174). Conscientious objection issues are presented when the government raises an army by conscription, or when someone who has enlisted in the military undergoes a change of views and becomes opposed to participation in war.

The 1917 Draft Act required all able‐bodied males to serve but provided that members of any “well‐recognized religious sect or organization” whose creed forbade “members to participate in war in any form” would be assigned to noncombatant service. Draft‐age objectors claimed that this provision violated the Establishment Clause because it excluded honest believers who were not members of historic “pacifist churches,” such as the Society of Friends, and infringed on free exercise of religion. The Supreme Court tersely rejected both claims in the Selective Draft Law Cases (1918).

The Court revisited the issue in United States v. MacIntosh (1931), holding that the Constitution does not require Congress to exclude conscientious objectors from military service. Five justices held that the naturalization statute could be construed to require MacIntosh to declare his unqualified willingness to bear arms. In dissent Chief Justice Charles Evans Hughes argued that the statute did not require an oath that the applicant bear arms and that respect for religious conviction and our national history of tolerance for conscientious objection counselled the Court to construe the statute favorably to the applicant.

When Congress passed the Selective Training and Service Act of 1940, it relied upon Chief Justice Hughes's analysis and provided a conscientious objector exemption that included anyone who was conscientiously opposed to “war in any form” by reason of “religious training and belief,” regardless of whether that belief was part of the dogma of an established church. The draft statutes from 1948 through 1967 further defined religious training and belief as limited to belief “in relation to a Supreme Being.”

Despite statutory changes, the Supreme Court's views on conscientious objection have remained consistent since World War II in draft cases and those arising in the military. The Court has never qualified its view that there is no constitutional right to exemption from draft registration or military service and has upheld the requirement that those who obtain conscientious objector status may be compelled to do alternative civilian service. It has, however, continued to construe statutory exemptions broadly.

The Court in Clay v. United States (1971) evaluated conscientious objector claims under a three‐part test: is the belief “religious,” is the claimant opposed to “war in any form,” and is he or she sincere (p. 700). A religion‐based claim may include even views that are not theistic, as in Seeger, where the registrant had “a belief in and devotion to goodness and virtue for their own sakes” and renounced “belief in God, except in the remotest sense” (p. 166).

In Gillette v. United States (1971), the Court held that opposition to war in any form excluded those who object only to particular wars, even if the objection is religious in character. However, an objector need not be a complete pacifist. Willingness to fight in self‐defense is not disqualifying, nor is a belief in theocratic war directed by a supernatural being, the justices concluded in Sicurella v. United States (1955).

The issue of sincerity has proved troublesome, because officials charged with administering conscientious objector provisions have often been hostile to claimants and have masked their political disagreements behind vague assertions that the claimant seemed insincere. The Court took pains in Witmer v. United States (1955) to require that denial of a claim as insincere be supported by objective, nonspeculative evidence.

See also Religion.

Bibliography

Michael E. Tigar , The Rights of Selective Service Registrants, in The Rights of Americans, edited by Norman Dorsen (1971), pp. 499–517.

Michael E. Tigar