Claim of exemption from compulsory military service, or at least from combat, based on ethical, moral, or religious grounds. Only claims based on religious principles raise constitutional issues.
Conscription to raise an armed force dates to the American Revolution, when some states imposed requirements of military service on their male citizens. Both North and South resorted to a military draft during the Civil War. In the twentieth century, conscription is well established as an efficient means for Congress to carry out its Article I authority “to raise and support armies.” Thus far, the requirement to answer the call to arms has been confined to men, and the decision to exempt from obligatory military service on religious grounds has been left to the political discretion of Congress. However, when Congress adopts a policy respecting conscientious objection, the constitutional problems that result are many and complex.
Controversies over conscientious objection arise from the unprecedented religious diversity of the American population, including a number of pacifist sects whose adherents avoid all participation in warfare and others permitting their adherents to participate only in “just wars.” Quite apart from the practical observation that pacifists make ineffectual soldiers, it might be thought that the First Amendment’s free exercise of religion clause would require Congress to exempt religious pacifists from military service, rather than force citizens to act contrary to religious conscience. However, the Supreme Court, in the Selective Draft Law Cases
This deference to religious principle generates its own constitutional problems, however. When membership in a pacifist sect becomes the basis for granting exemption from the draft, Congress would seem to violate the establishment of religion clause. Although the precise meaning of this clause is uncertain, all agree that it requires Congress to avoid discriminating among sects. Identifying Quakers, or any other specific sects, as recipients of conscientious objector status might be viewed as creating a privilege on the basis of religious belief. Even without naming specific sects, Congress faces a dilemma in finding a religiously neutral way of limiting the exemption, lest it become universal. Thus, the crux of the problem is to define a category of persons who might claim exemption from conscription in a way that violates neither the free exercise nor the establishment of religion clauses of the First Amendment. Any attempt to do so exposes the potential conflict between these two clauses.
Perhaps in recognition of this dilemma, the Court usually avoided constitutional rulings in conscientious objector cases, purporting to resolve them by statutory interpretation. However, despite its ruling in the 1918 draft law cases, in the twentieth century, the Court clearly attempted to interpret draft statutes in a way that makes them conform to the complex demands of the First Amendment. It is equally clear that Congress struggled with this issue but was less sensitive to the requirements of the establishment of religion clause than the Court.
The Draft Act of 1917, for example, extended conscription to all able-bodied men, exempting members of any “well-recognized religious sect or organization” that forbade its “members to participate in war in any form.” This formulation privileged adherents of well-recognized religions, compared with religions lacking such organization or doctrinal clarity, thereby conferring conscientious objector status on Quakers but denying it to equally sincere objectors who did not belong to any such organization. It also denied conscientious objector status to those whose religious principles included distinctions between just and unjust wars, such as Roman Catholics.
The Selective Training and Service Act of 1940 sought to avoid the problem of sectarian discrimination by dropping the requirement that the conscientious objector be a member of a well-recognized sect. An individual had only to object to war in any form based on “religious training and belief.” This standard was refined in 1948, when Congress defined religious training and belief to include “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [excluding] essentially political, sociological, or philosophical views or a merely personal moral code.” Even with these enhancements, however, the definition of conscientious objection failed to achieve religious neutrality because it excluded religions that did not include a supreme being (such as Buddhism) and religions that were not monotheistic (such as Hinduism). In United States v. Seeger
In Clay v. United States
Choper, Jesse H. Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses. Chicago: University of Chicago Press, 1995. Morgan, Richard E. The Supreme Court and Religion. New York: Free Press, 1972. Moskos, Charles C., and Whiteslay, eds. The New Conscientious Objection: From Sacred to Secular Resistance. New York: Oxford University Press, 1993. Pfeffer, Leo. Church, State, and Freedom. Boston: Beacon Press, 1967. Tribe, Lawrence. American Constitutional Law. 2d ed. Westbury, N.Y.: The Foundation Press, 1990.
Religion, establishment of
Religion, freedom of
Selective Draft Law Cases