Conscientious Objection

Conscientious Objection.—Historically, Congress has provided for alternative service for men who had religious scruples against participating in either combat activities or in all forms of military activities; the fact that Congress chose to draw the line of exemption on the basis of religious belief confronted the Court with a difficult constitutional question, which, however, the Court chose to avoid by a somewhat disingenuous interpretation of the statute.198 In Gillette v. United States,199 a further constitutional problem arose in which the Court did squarely confront and validate the congressional choice. Congress had restricted conscientious objection status to those who objected to “war in any form” and the Court conceded that there were religious or conscientious objectors who were not opposed to all wars but only to particular wars based upon evaluation of a number of factors by which the “justness” of any particular war could be judged; “properly construed,” the Court said, the statute did draw a line relieving from military service some religious objectors while not relieving others.200 Purporting to apply the secular purpose and effect test, the Court looked almost exclusively to purpose and hardly at all to effect. Although it is not clear, the Court seemed to require that a classification must be religiously based “on its face”201 or lack any “neutral, secular basis for the lines government has drawn”202 in order that it be held to violate the Establishment Clause. The classification here was not religiously based “on its face,” and served “a number of valid purposes having nothing to do with a design to foster or favor any sect, religion, or cluster of religions.”203 These purposes, related to the difficulty in separating sincere conscientious objectors to particular wars from others with fraudulent claims, included the maintenance of a fair and efficient selective service system and protection of the integrity of democratic decision-making.204

198 In United States v. Seeger, 380 U.S. 163 (1965), a unanimous Court construed the language of the exemption limiting the status to those who by “religious training and belief” (that is, those who believed in a “Supreme Being”), to mean that a person must have some belief which occupies in his life the place or role which the traditional concept of God occupies in the orthodox believer. After the “Supreme Being” clause was deleted, a plurality in Welsh v. United States, 398 U.S. 333 (1970), construed the religion requirement as inclusive of moral, ethical, or religious grounds. Justice Harlan concurred on constitutional grounds, believing that the statute was clear that Congress had intended to restrict conscientious objection status to those persons who could demonstrate a traditional religious foundation for their beliefs and that this was impermissible under the Establishment Clause. Id. at 344. The dissent by Justices White and Stewart and Chief Justice Burger rejected both the constitutional and the statutory basis. 398 U.S. at 367.

199 401 U.S. 437 (1971).

200 401 U.S. at 449.

201 401 U.S. at 450.

202 401 U.S. at 452.

203 401 U.S. at 452.

204 401 U.S. at 452-60.

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