CONSCIENTIOUS OBJECTION

A conscientious objector is a person who is opposed in conscience to engaging in socially required behavior. Since the genuine objector will not be easily forced into acts he abhors and since compelling people to violate their own moral scruples is usually undesirable in a liberal society, those who formulate legal rules face the question whether conscientious objectors should be excused from legal requirements imposed on others. The issue is most striking in relation to compulsory military service: should those whose consciences forbid killing be conscripted for combat? Historically, conscientious objection has been considered mainly in that context, and the clash has been understood as between secular obligation and the sense of religious duty felt by members of pacifist sects. The Constitution says nothing directly about conscientious objection, and for most of the country's existence Congress was thought to have a free hand in deciding whether to afford any exemption and how to define the class of persons who would benefit. By now, it is evident that the religion clauses of the first amendment impose significant constraints on how Congress may draw lines between those who receive an exemption from military service and those who do not. The Supreme Court has never accepted the argument that Congress is constitutionally required to establish an exemption from military service, but it has indicated that the Constitution does entitle some individuals to exemption from certain other sorts of compulsory laws.

The principle that society should excuse conscientious objectors from military service was widely recognized in the colonies and states prior to adoption of the Constitution. james madison's original proposal for the bill of rights included a clause that "no person religiously scrupulous of bearing arms shall be compelled to render military service in person," but that clause was dropped, partly because conscription was considered a state function. The 1864 Draft Act and the selective service act of 1917 both contained exemptions limited to members of religious denominations whose creeds forbade participation in war. The 1917 act excused objectors only from combatant service, but the War Department permitted some of those also opposed to noncombatant military service to be released for civilian service.

The 1940 Selective Service Act set the basic terms of exemption from the system of compulsory military service that operated during world war ii, the korean war, and the vietnam war, and during the intervening periods of uneasy peace. A person was eligible "who, by reason of religious training and belief, [was] conscientiously opposed to participation in war in any form." Someone opposed even to noncombatant service could perform alternate civilian service. In response to a court of appeals decision interpreting "religious training and belief" very broadly, Congress in 1948 said that religious belief meant belief "in relation to a Supreme Being involving duties superior to those arising from any human relation.…" What Congress had attempted to do was relatively clear. It wanted to excuse only persons opposed to participation in all wars, not those opposed to particular wars, and it wanted to excuse only those whose opposition derived from religious belief in a rather traditional sense. The important Supreme Court cases have dealt with these lines of distinction.

By dint of strained interpretation of the statute, the Court has avoided a clear decision whether Congress could limit the exemption to traditional religious believers. First, in united states v. seeger (1965), a large majority said that an applicant who spoke of a "religious faith in a purely ethical creed" was entitled to the exemption because his belief occupied a place in his life parallel to that of a belief in God for the more orthodox. Then, in Welsh v. United States (1970), four Justices held that someone who laid no claim to being religious at all qualified because his ethical beliefs occupied a place in his life parallel to that of religious beliefs for others. Four other Justices acknowledged that Congress had explicitly meant to exclude such applicants. Justice john marshall harlan urged that an attempt to distinguish religious objectors from equally sincere nonreligious ones constituted a forbidden establishment of religion; the three other Justices thought that Congress could favor religious objectors in order to promote the free exercise of religion. Because the plurality's view of the statute was so implausible, most observers have supposed that its members probably agreed with Justice Harlan about the ultimate constitutional issue, but this particular tension between "no establishment" and "free exercise" concepts has not yet been decisively resolved.

In Gillette v. United States (1971), a decision covering both religious and nonreligious objectors to the Vietnam War, the Court upheld Congress's determination not to exempt those opposed to participation in particular wars. Against the claim that the distinction between "general" and "selective" objectors was impermissible, the Court responded that the distinction was supported by the public interest in a fairly administered system, given the difficulty officials would have dealing consistently with the variety of objections to particular wars. The Court also rejected the claim that the selective objector's entitlement to free exercise of his religion created a constitutionally grounded right to avoid military service.

In other limited areas, the Court has taken the step of acknowledging a free exercise right to be exempt from a generally imposed obligation. Those religiously opposed to jury duty cannot be compelled to serve, and adherents of traditional religious groups that provide an alternative way of life for members cannot be required to send children to school beyond the eighth grade. (See wisconsin v. yoder.) Nor can a person be deprived of unemployment benefits when an unwillingness to work on Saturday is religiously based, though receptivity to jobs including Saturday work is a usual condition of eligibility. (See sherbert v. verner.) What these cases suggest is that if no powerful secular reason can be advanced for demanding uniform compliance, the Constitution may require that persons with substantial religious objections be excused. To this degree the Constitution itself requires special treatment for conscientious objectors. Beyond that, its recognition of religious liberty and of governmental impartiality toward religions provides a source of values for legislative choice and constrains the classifications legislatures may make.

Kent Greenawalt
(1986)

Bibliography

Finn, James, ed. 1968 A Conflict of Loyalties. New York: Pegasus.

Greenawalt, Kent 1972 All or Nothing At All. Supreme Court Review 1971: 31–94.

Sibley, Mulford Quickert and Jacob, Philip E. 1952 Conscription of Conscience: The American State and the Conscientious Objector, 1940–1947. Ithaca, N.Y.: Cornell University Press.