Petitioner in No. 85, who was convicted for failure to report
for induction, and petitioner in No. 325, who sought discharge from
the armed forces upon receipt of orders for Vietnam duty, claim
exemption from military service because of their conscientious
objection to participation in the Vietnam conflict, as an "unjust"
war, pursuant to § 6(j) of the Military Selective Service Act of
1967. That section provides that no person shall be subject to
"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."
Petitioners also challenge the constitutionality of § 6(j) as
construed to cover only objectors to all war, as violative of the
Free Exercise and Establishment of Religion Clauses of the First
Amendment.
Held:
1. The exemption for those who oppose "participation in war in
any form" applies to those who oppose participating in all war and
not to those who object to participation in a particular war only,
even if the latter objection is religious in character. Pp.
401 U. S.
441-448.
2. Section 6(j) does not violate the Establishment Clause of the
First Amendment. Pp.
401 U. S.
448-460.
(a) The section on its face does not discriminate on the basis
of religious affiliation or belief, and petitioners have not shown
the absence of neutral, secular bases for the exemption. Pp.
401 U. S.
450-453.
(b) The exemption provision focuses on individual conscientious
belief and not on sectarian affiliations. P.
401 U. S.
454.
(c) There are valid neutral reasons, with the central emphasis
on the maintenance of fairness in the administration of military
conscription, for the congressional limitation of the exemption to
"war in any form," and therefore § 6(j) cannot be said to reflect a
religious preference. Pp.
401 U. S.
454-460.
Page 401 U. S. 438
3. Section 6(j) does not violate the Free Exercise Clause. It is
not designed to interfere with any religious practice and does not
penalize any theological position. Any incidental burdens felt by
petitioners are justified by the substantial governmental interests
relating to military conscription. Pp.
401 U. S.
461-462.
No. 85, 420 F.2d 298, and No. 325, 418 F.2d 908, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and HARLAN, BRENNAN, STEWART, WHITE, and BLACKMUN,
JJ., joined. BLACK, J., concurred in the judgment and in Part I of
the Court's opinion. DOUGLAS, J., filed dissenting opinions,
post, p.
401 U. S. 463
and p.
401 U. S.
470.
Page 401 U. S. 439
MR. JUSTICE MARSHALL delivered the opinion of the Court.
These cases present the question whether conscientious objection
to a particular war, rather than objection to war as such, relieves
the objector from responsibilities of military training and
service. Specifically, we are called upon to decide whether
conscientious scruples relating to a particular conflict are within
the purview of established provisions [
Footnote 1] relieving conscientious objectors to war from
military service. Both petitioners also invoke constitutional
principles barring government interference with the exercise of
religion and requiring governmental neutrality in matters of
religion.
In No. 85, petitioner Gillette was convicted of willful failure
to report for induction into the armed forces. Gillette defended on
the ground that he should have been ruled exempt from induction as
a conscientious objector to war. In support of his unsuccessful
request for classification as a conscientious objector, this
petitioner had stated his willingness to participate in a war of
national defense or a war sponsored by the United Nations as a
peace-keeping measure, but declared his opposition to American
military operations in Vietnam, which he characterized as "unjust."
Petitioner concluded that he could not, in conscience, enter and
serve in the armed forces during the period of the Vietnam
conflict. Gillette's view of his duty to abstain from any
involvement in a war seen as unjust is, in his words, "based on a
humanist approach to religion," and his personal decision
concerning military service was guided by fundamental principles of
conscience and deeply held views about the purpose and obligation
of human existence.
Page 401 U. S. 440
The District Court determined that there was a basis in fact, to
support administrative denial of exemption in Gillette's case. The
denial of exemption was upheld, and Gillette's defense to the
criminal charge rejected, not because of doubt about the sincerity
or the religious character of petitioner's objection to military
service, but because his objection ran to a particular war. In
affirming the conviction, the Court of Appeals concluded that
Gillette's conscientious beliefs "were specifically directed
against the war in Vietnam," while the relevant exemption provision
of the Military Selective Service Act of 1967, 50 U.S.C.App. §
456(j) (1964 ed., Supp. V), "requires opposition
to
participation in war in any form.'" 420 F.2d 298, 299-300 (CA2
1970).
In No. 325, petitioner Negre, after induction into the Army,
completion of basic training, and receipt of orders for Vietnam
duty, commenced proceedings looking to his discharge as a
conscientious objector to war. Application for discharge was
denied, and Negre sought judicial relief by habeas corpus. The
District Court found a basis in fact, for the Army's rejection of
petitioner's application for discharge. Habeas relief was denied,
and the denial was affirmed on appeal, because, in the language of
the Court of Appeals, Negre "objects to the war in Vietnam, not to
all wars," and therefore does "not qualify for separation [from the
Army], as a conscientious objector." [
Footnote 2] 418 F.2d 908, 909-910 (CA9 1969). Again, no
question is raised as to the sincerity or the religious quality of
this petitioner's views. In line with religious counseling and
numerous religious texts, Negre,
Page 401 U. S. 441
a devout Catholic, believes that it is his duty as a faithful
Catholic to discriminate between "just" and "unjust" wars, and to
forswear participation in the latter. His assessment of the Vietnam
conflict as an unjust war became clear in his mind after completion
of infantry training, and Negre is now firmly of the view that any
personal involvement in that war would contravene his conscience
and "all that I had been taught in my religious training."
We granted certiorari in these cases, 399 U.S. 925 (1970), in
order to resolve vital issues concerning the exercise of
congressional power to raise and support armies, as affected by the
religious guarantees of the First Amendment. We affirm the
judgments below in both cases.
I
Each petitioner claims a nonconstitutional right to be relieved
of the duty of military service in virtue of his conscientious
scruples. [
Footnote 3] Both
claims turn on the proper construction of § 6(j) of the Military
Selective Service Act of 1967, 50 U.S.C.App. § 456(j) (1964 ed.,
Supp. V), which provides:
"Nothing contained in this title . . . shall be construed to
require any person to be subject to combatant training and 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. [
Footnote 4] "
Page 401 U. S. 442
This language controls Gillette's claim to exemption, which was
asserted administratively prior to the point of induction.
Department of Defense Directive No. 1300.6 (May 10, 1968),
prescribes that post-induction claims to conscientious objector
status shall be honored, if valid, by the various branches of the
armed forces. [
Footnote 5]
Section 6(j) of the Act, as construed by the courts, is
incorporated by the various service regulations issued pursuant to
the Directive, [
Footnote 6] and
thus the standards for measuring claims of in service objectors,
such as Negre, are the same as the statutory tests applicable in a
preinduction situation.
Page 401 U. S. 443
For purposes of determining the statutory status of
conscientious objection to a particular war, the focal language of
§ 6(j) is the phrase, "conscientiously opposed to participation in
war in any form." This language, on a straightforward reading, can
bear but one meaning; that conscientious scruples relating to war
and military service must amount to conscientious opposition to
participating personally in any war and all war.
See Welsh v.
United States, 398 U. S. 333,
398 U. S. 340,
398 U. S. 342
(1970);
id. at
398 U. S. 347,
398 U. S. 357
(concurring in result).
See also United States v. Kauten,
133 F.2d 703, 707 (CA2 1943). It matters little for present
purposes whether the words, "in any form," are read to modify "war"
or "participation." On the first reading, conscientious scruples
must implicate "war in any form," and an objection involving a
particular war, rather than all war, would plainly not be covered
by § 6(j). On the other reading, an objector must oppose
"participation in war." It would strain good sense to read this
phrase otherwise than to mean "participation in all war." For the
word "war" would still be used in an unqualified, generic sense,
meaning war as such. Thus, however the statutory clause be parsed,
it remains that conscientious objection must run to war in any
form. [
Footnote 7]
A different result cannot be supported by reliance on the
materials of legislative history. [
Footnote 8] Petitioners and
Page 401 U. S. 444
amici point to no episode or pronouncement in the
legislative history of § 6(j), or of predecessor provisions, that
tends to overthrow the obvious interpretation of the words
themselves. [
Footnote 9]
Page 401 U. S. 445
It is true that the legislative materials reveal a deep concern
for the situation of conscientious objectors to war, who, absent
special status, would be put to a hard choice between contravening
imperatives of religion and conscience or suffering penalties.
Moreover, there are clear indications that congressional reluctance
to impose such a choice stems from a recognition of the value of
conscientious action to the democratic community at large, and from
respect for the general proposition that fundamental principles of
conscience and religious duty may sometimes override the demands of
the secular state.
See United States v. Seeger,
380 U. S. 163,
380 U. S.
170-172 (1965);
United States v. Macintosh,
283 U. S. 605,
283 U. S.
631-634 (1931) (dissenting opinion).
See
generally Selective Service System Monograph No. 11,
Conscientious Objection (1950). But there are countervailing
considerations, which are also the concern of Congress, [
Footnote 10] and the legislative
materials simply do not support the view that Congress intended to
recognize any conscientious claim whatever as a basis for relieving
the claimant from the general responsibility or the various
incidents of military service. The claim that is recognized by §
6(j) is a
Page 401 U. S. 446
claim of conscience running against war as such. This claim, not
one involving opposition to a particular war only, was plainly the
focus of congressional concern.
Finding little comfort in the wording or the legislative history
of § 6(j), petitioners rely heavily on dicta in the decisional law
dealing with objectors whose conscientious scruples ran against war
as such, but who indicated certain reservations of an abstract
nature. It is instructive that none of the cases relied upon
embraces an interpretation of § 6(j) at variance with the
construction we adopt today. [
Footnote 11]
Sicurella v. United States, 348 U.
S. 385 (1955), presented the only previous occasion for
this Court to focus on the "participation in war in any form"
language of § 6(j). In
Sicurella, a Jehovah's Witness who
opposed participation in secular wars was held to possess the
requisite conscientious scruples concerning war, although he was
not opposed to participation in a "theocratic war" commanded by
Jehovah. The Court noted that the "theocratic war" reservation was
highly abstract -- no such war had occurred since biblical times,
and none was contemplated. Congress, on the other hand, had in mind
"real shooting wars,"
id. at
348 U. S. 391,
and Sicurella's abstract reservations did not undercut his
conscientious opposition to participating in such wars. Plainly,
Sicurella cannot be read to support the claims of those,
like petitioners,
Page 401 U. S. 447
who, for a variety of reasons, consider one particular "real
shooting war" to be unjust, and therefore oppose participation in
that war. [
Footnote 12]
It should be emphasized that our cases explicating the
"religious training and belief" clause of § 6(j), or cognate
clauses of predecessor provisions, are not relevant to the present
issue. The question here is not whether these petitioners' beliefs
concerning war are "religious" in nature. Thus, petitioners'
reliance on
United States v. Seeger, 380 U.
S. 163, and
Welsh v. United States,
398 U. S. 333, is
misplaced. Nor do we decide that conscientious objection to a
particular war necessarily falls within § 6(j)'s expressly excluded
class [
Footnote 13] of
"essentially political, sociological, or philosophical views, or a
merely personal moral code." Rather, we hold that Congress intended
to exempt persons who oppose participating in all war --
"participation in war in any form" -- and that persons who object
solely to participation in a particular war are not within the
purview of the exempting section, even though the latter objection
may have such roots in a claimant's conscience and personality that
it is "religious" in character.
A further word may be said to clarify our statutory holding.
Apart from abstract theological reservations, two other sorts of
reservations concerning use of force have been thought by lower
courts not to defeat a conscientious
Page 401 U. S. 448
objector claim. Willingness to use force in self-defense, in
defense of home and family, or in defense against immediate acts of
aggressive violence toward other persons in the community, has not
been regarded as inconsistent with a claim of conscientious
objection to war as such.
See, e.g., United States v.
Haughton, 413 F.2d 736, 740-742 (CA9 1969);
United States
v. Carroll, 398 F.2d 651, 655 (CA3 1968). But surely
willingness to use force defensively in the personal situations
mentioned is quite different from willingness to fight in some
wars, but not in others.
Cf. Sicurella v. United
States, 348 U.S. at
348 U. S. 389.
Somewhat more apposite to the instant situation are cases dealing
with persons who oppose participating in all wars, but cannot say
with complete certainty that their present convictions and existing
state of mind are unalterable.
See, e.g., United States v.
Owen, 415 F.2d 383, 390 (CA8 1969). Unwillingness to deny the
possibility of a change of mind, in some hypothetical future
circumstances, may be no more than humble good sense, casting no
doubt on the claimant's present sincerity of belief. At any rate,
there is an obvious difference between present sincere objection to
all war and present opposition to participation in a particular
conflict only.
II
Both petitioners argue that § 6(j), construed to cover only
objectors to all war, violates the religious clauses of the First
Amendment. The First Amendment provides that "Congress shall make
no law respecting an establishment of religion, or prohibiting the
free exercise thereof. . . ." Petitioners contend that Congress
interferes with free exercise of religion by failing to relieve
objectors to a particular war from military service when the
objection is religious or conscientious in nature. While the two
religious clauses -- pertaining to "free exercise" and
Page 401 U. S. 449
"establishment" of religion -- overlap and interact in many
ways,
see Abington School District v. Schempp,
374 U. S. 203,
374 U. S.
222-223 (1963); Freund, Public Aid To Parochial Schools,
82 Harv.L.Rev. 1680, 1684 (1969), it is best to focus first on
petitioners' other contention, that § 6(j) is a law respecting the
establishment of religion. For, despite free exercise overtones,
the gist of the constitutional complaint is that § 6(j)
impermissibly discriminates among types of religious belief and
affiliation. [
Footnote
14]
On the assumption that these petitioners' beliefs concerning war
have roots that are "religious" in nature, within the meaning of
the Amendment as well as this Court's decisions construing § 6(j),
petitioners ask how their claims to relief from military service
can be permitted to fail, while other "religious" claims are upheld
by the Act. It is a fact that § 6(j), properly construed, has this
effect. Yet we cannot conclude in mechanical fashion, or at all,
that the section works an establishment of religion.
An attack founded on disparate treatment of "religious" claims
invokes what is perhaps the central purpose of the Establishment
Clause -- the purpose of ensuring governmental neutrality in
matters of religion.
See Epperson v. Arkansas,
393 U. S. 97,
393 U. S.
103-104 (1968);
Everson v. Board of Education,
330 U. S. 1,
330 U. S. 116
(1947). Here
Page 401 U. S. 450
there is no claim that exempting conscientious objectors to war
amounts to an overreaching of secular purposes and an undue
involvement of government in affairs of religion.
Cf. Walz v.
Tax Commission, 397 U. S. 664,
397 U. S. 675
(1970);
id. at
397 U. S. 695
(opinion of HARLAN, J.). To the contrary, petitioners ask for
greater "entanglement" by judicial expansion of the exemption to
cover objectors to particular wars. Necessarily, the constitutional
value at issue is "neutrality." And, as a general matter, it is
surely true that the Establishment Clause prohibits government from
abandoning secular purposes in order to put an imprimatur on one
religion, or on religion as such, or to favor the adherents of any
sect or religious organization.
See Engel v. Vitale,
370 U. S. 421,
370 U. S.
430-431 (1962);
Torcaso v. Watkins,
367 U. S. 488,
367 U. S. 495
(1961). The metaphor of a "wall" or impassable barrier between
Church and State, taken too literally, may mislead constitutional
analysis,
see Walz v. Tax Commission, supra, at
397 U. S.
668-669;
Zorach v. Clauson, 343 U.
S. 306,
343 U. S.
312-313 (1952), but the Establishment Clause stands at
least for the proposition that, when government activities touch on
the religious sphere, they must be secular in purpose, evenhanded
in operation, and neutral in primary impact.
Abington School
District v. Schempp, 374 U.S. at
374 U. S. 222;
id. at
374 U. S. 231
(BRENNAN, J., concurring);
id. at
374 U. S. 305
(Goldberg, J., concurring).
A
The critical weakness of petitioners' establishment claim arises
from the fact that § 6(j), on its face, simply does not
discriminate on the basis of religious affiliation or religious
belief, apart, of course, from beliefs concerning war. The section
says that anyone who is conscientiously opposed to all war shall be
relieved of military service. The specified objection must have a
grounding in "religious training and belief," but no particular
Page 401 U. S. 451
sectarian affiliation or theological position is required. The
Draft Act of 1917, § 4, 40 Stat. 78, extended relief only to those
conscientious objectors affiliated with some "well-recognized
religious sect or organization" whose principles forbade members'
participation in war, but the attempt to focus on particular sects
apparently broke down in administrative practice,
Welsh v.
United States, 398 U.S. at
398 U. S. 367
n.19 (concurring in result), and the 1940 Selective Training and
Service Act, § 5(g), 54 Stat. 889, discarded all sectarian
restriction. [
Footnote 15]
Thereafter, Congress has framed the conscientious objector
exemption in broad terms compatible with "its long-established
policy of not picking and choosing among religious beliefs."
United States v. Seeger, 380 U.S. at
380 U. S.
175.
Thus, there is no occasion to consider the claim that, when
Congress grants a benefit expressly to adherents of one religion,
courts must either nullify the grant or somehow extend the benefit
to cover all religions. For § 6(j) does not single out any
religious organization or religious creed for special treatment.
Rather, petitioners' contention is that, since Congress has
recognized one sort of conscientious objection concerning war,
whatever its religious basis, the Establishment Clause commands
that another, different objection be carved out and protected by
the courts. [
Footnote
16]
Properly phrased, petitioners' contention is that the special
statutory status accorded conscientious objection to all war, but
not objection to a particular war, works
Page 401 U. S. 452
a
de facto discrimination among religions. This
happens, say petitioners, because some religious faiths themselves
distinguish between personal participation in "just" and in
"unjust" wars, commending the former and forbidding the latter, and
therefore adherents of some religious faiths -- and individuals
whose personal beliefs of a religious nature include the
distinction -- cannot object to all wars consistently with what is
regarded as the true imperative of conscience. Of course, this
contention of
de facto religious discrimination, rendering
§ 6(j) fatally underinclusive, cannot simply be brushed aside. The
question of governmental neutrality is not concluded by the
observation that § 6(j), on its face, makes no discrimination
between religions, for the Establishment Clause forbids subtle
departures from neutrality, "religious gerrymanders," as well as
obvious abuses.
Walz v. Tax Commission, 397 U.S. at
397 U. S. 696
(opinion of HARLAN, J.).
See also Braunfeld v. Brown,
366 U. S. 599,
366 U. S. 607
(1961) (opinion of Warren, C.J.);
Illinois ex rel. McCollum v.
Board of Education, 333 U. S. 203,
333 U. S. 213,
232 (1948) (opinion of Frankfurter, J.). Still a claimant alleging
"gerrymander" must be able to show the absence of a neutral,
secular basis for the lines government has drawn.
See Epperson
v. Arkansas, 393 U.S. at
393 U. S.
107-109;
Board of Education v. Allen,
392 U. S. 236,
392 U. S. 248
(1968);
McGowan v. Maryland, 366 U.
S. 420,
366 U. S.
442-444 (1961);
id. at
366 U. S. 468
(separate opinion of Frankfurter, J.). For the reasons that follow,
we believe that petitioners have failed to make the requisite
showing with respect to § 6(j).
Section 6(j) serves a number of valid purposes having nothing to
do with a design to foster or favor any sect, religion, or cluster
of religions. [
Footnote 17]
There are considerations
Page 401 U. S. 453
of a pragmatic nature, such as the hopelessness of converting a
sincere conscientious objector into an effective fighting man,
Welsh v. United States, 398 U.S. at
398 U. S. 369
(WHITE, J., dissenting), but no doubt the section reflects as well
the view that, "in the forum of conscience, duty to a moral power
higher than the State has always been maintained."
United
States v. Macintosh, 283 U. S. 605,
283 U. S. 633
(1931) (Hughes, C.J., dissenting).
See United States v.
Seeger, 380 U.S. at
380 U. S.
170-172. We have noted that the legislative materials
show congressional concern for the hard choice that conscription
would impose on conscientious objectors to war, as well as respect
for the value of conscientious action and for the principle of
supremacy of conscience. [
Footnote 18]
Naturally the considerations just mentioned are affirmative in
character, going to support the existence of an exemption, rather
than its restriction specifically to persons who object to all war.
The point is that these affirmative purposes are neutral in the
sense of the Establishment Clause. Quite apart from the question
whether the Free Exercise Clause might require some sort of
exemption, [
Footnote 19] it
is hardly impermissible for Congress to attempt to accommodate free
exercise values, in line with "our happy tradition" of "avoiding
unnecessary clashes with the dictates of conscience."
United
States v. Macintosh, supra, at
283 U. S. 634
(Hughes, C.J., dissenting).
See Abington School District v.
Schempp, 374 U.S. at
374 U. S.
294-299 (BRENNAN, J., concurring);
id. at
374 U. S. 306
(Goldberg, J., concurring);
id. at
374 U. S. 309
(STEWART, J., dissenting).
Page 401 U. S. 454
See also Welsh v. United States, 398 U.S. at
398 U. S.
370-373 (WHITE, J., dissenting). "Neutrality" in matters
of religion is not inconsistent with "benevolence" by way of
exemptions from onerous duties,
Walz v. Tax Commission,
397 U.S. at
397 U. S. 669,
so long as an exemption is tailored broadly enough that it reflects
valid secular purposes. In the draft area, for 30 years the
exempting provision has focused on individual conscientious belief,
not on sectarian affiliation. The relevant individual belief is
simply objection to all war, not adherence to any extraneous
theological viewpoint. And while the objection must have roots in
conscience and personality that are "religious" in nature, this
requirement has never been construed to elevate conventional piety
or religiosity of any kind above the imperatives of a personal
faith.
In this state of affairs, it is impossible to say that § 6(j)
intrudes upon "voluntarism" in religious life,
see id. at
397 U. S.
694-696 (opinion of HARLAN, J.), or that the
congressional purpose in enacting § 6(j) is to promote or foster
those religious organizations that traditionally have taught the
duty to abstain from participation in any war. A claimant, seeking
judicial protection for his own conscientious beliefs, would be
hard put to argue that § 6(j) encourages membership in putatively
"favored" religious organizations, for the painful dilemma of the
sincere conscientious objector arises precisely because he feels
himself bound in conscience not to compromise his beliefs or
affiliations.
B
We conclude not only that the affirmative purposes underlying §
6(j) are neutral and secular, but also that valid neutral reasons
exist for limiting the exemption to objectors to all war, and that
the section therefore cannot be said to reflect a religious
preference.
Page 401 U. S. 455
Apart from the Government's need for manpower, perhaps the
central interest involved in the administration of conscription
laws is the interest in maintaining a fair system for determining
"who serves when not all serve." [
Footnote 20] When the Government exacts so much, the
importance of fair, evenhanded, and uniform decisionmaking is
obviously intensified. The Government argues that the interest in
fairness would be jeopardized by expansion of § 6(j) to include
conscientious objection to a particular war. The contention is that
the claim to relief on account of such objection is intrinsically a
claim of uncertain dimensions, and that granting the claim in
theory would involve a real danger of erratic or even
discriminatory decisionmaking in administrative practice.
A virtually limitless variety of beliefs are subsumable under
the rubric, "objection to a particular war." [
Footnote 21] All the factors that might go into
nonconscientious dissent from policy also might appear as the
concrete basis of an objection that has roots as well in conscience
and religion. Indeed, over the realm of possible situations,
opposition to a particular war may more likely be political and
nonconscientious than otherwise.
See United States v.
Kauten, 133 F.2d at 708. The difficulties of sorting
Page 401 U. S. 456
the two with a sure hand are considerable. Moreover, the belief
that a particular war at a particular time is unjust is, by its
nature, changeable and subject to nullification by changing events.
Since objection may fasten on any of an enormous number of
variables, the claim is ultimately subjective, depending on the
claimant's view of the facts in relation to his judgment that a
given factor or congeries of factors colors the character of the
war as a whole. In short, it is not at all obvious in theory what
sorts of objections should be deemed sufficient to excuse an
objector, and there is considerable force in the Government's
contention that a program of excusing objectors to particular wars
may be "impossible to conduct with any hope of reaching fair and
consistent results. . . ." Brief 28.
For their part, petitioners make no attempt to provide a careful
definition of the claim to exemption that they ask the courts to
carve out and protect. They do not explain why objection to a
particular conflict -- much less an objection that focuses on a
particular facet of a conflict -- should excuse the objector from
all military service whatever, even from military operations that
are connected with the conflict at hand in remote or tenuous ways.
[
Footnote 22] They suggest
no solution to the problems arising from the fact that altered
circumstances may quickly render the objection to military service
moot.
To view the problem of fairness and evenhanded decisionmaking,
in the present context, as merely a commonplace chore of weeding
out "spurious claims" is to minimize substantial difficulties of
real concern to a responsible legislative body. For example, under
the petitioners' unarticulated scheme for exemption, an objector's
claim to exemption might be based on some feature of a current
conflict that most would regard as incidental,
Page 401 U. S. 457
or might be predicated on a view of the facts that most would
regard as mistaken. The particular complaint about the war may
itself be "sincere," but it is difficult to know how to judge the
"sincerity" of the objector's conclusion that the war
in
toto is unjust, and that any personal involvement would
contravene conscience and religion. To be sure, we have ruled, in
connection with § 6(j), that "the
truth' of a belief is not
open to question"; rather, the question is whether the objector's
beliefs are "truly held." United States v. Seeger, 380
U.S. at 380 U. S. 185.
See also United States v. Ballard, 322 U. S.
78 (1944). But we must also recognize that "sincerity"
is a concept that can bear only so much adjudicative
weight.
Ours is a Nation of enormous heterogeneity in respect of
political views, moral codes, and religious persuasions. It does
not bespeak an establishing of religion for Congress to forgo the
enterprise of distinguishing those whose dissent has some
conscientious basis from those who simply dissent. There is a
danger that, as between two would-be objectors, both having the
same complaint against a war, that objector would succeed who is
more articulate, better educated, or better counseled. There is
even a danger of unintended religious discrimination -- a danger
that a claim's chances of success would be greater the more
familiar or salient the claim's connection with conventional
religiosity could be made to appear. At any rate, it is true that
"the more discriminating and complicated the basis of
classification for an exemption -- even a neutral one -- the
greater the potential for state involvement" in determining the
character of persons' beliefs and affiliations, thus "entangl[ing]
government in difficult classifications of what is or is not
religious," or what is or is not conscientious.
Walz v. Tax
Commission, 397 U.S. at
397 U. S.
698-699 (opinion of
Page 401 U. S. 458
HARLAN, J.).
Cf. Presbyterian Church v. Mary Elizabeth Blue
Hull Church, 393 U. S. 440
(1969). While the danger of erratic decisionmaking unfortunately
exists in any system of conscription that takes individual
differences into account, no doubt the dangers would be enhanced if
a conscientious objection of indeterminate scope were honored in
theory.
In addition to the interest in fairness, the Government contends
that neutral, secular reasons for the line drawn by § 6(j) --
between objection to all war and objection to a particular war --
may be found in the nature of the conscientious claim that these
petitioners assert. Opposition to a particular war, states the
Government's brief, necessarily involves a judgment "that is
political and particular," one "based on the same political,
sociological and economic factors that the government necessarily
considered" in deciding to engage in a particular conflict. Brief
226. Taken in a narrow sense, these considerations do not justify
the distinction at issue, for however "political and particular"
the judgment underlying objection to a particular war, the
objection still might be rooted in religion and conscience, and
although the factors underlying that objection were considered and
rejected in the process of democratic decisionmaking, likewise the
viewpoint of an objector to all war was no doubt considered, and
"necessarily" rejected as well. Nonetheless, it can be seen on a
closer view that this line of analysis, conjoined with concern for
fairness, does support the statutory distinction.
Tacit at least in the Government's view of the instant cases is
the contention that the limits of § 6(j) serve an overriding
interest in protecting the integrity of democratic decisionmaking
against claims to individual noncompliance. Despite emphasis on
claims that have a "political and particular" component, the logic
of the
Page 401 U. S. 459
contention is sweeping. Thus, the "interest" invoked is highly
problematical, for it would seem to justify governmental refusal to
accord any breathing space whatever to noncompliant conduct
inspired by imperatives of religion and conscience.
On the other hand, some have perceived a danger that exempting
persons who dissent from a particular war, albeit on grounds of
conscience and religion in part, would "open the doors to a general
theory of selective disobedience to law" and jeopardize the binding
quality of democratic decisions. Report of the National Advisory
Commission on Selective Service, In Pursuit of Equity: Who Serves
When Not All Serve? 50 (1967).
See also Hamilton v.
Regents, 293 U. S. 245,
293 U. S. 268
(1934) (Cardozo, J., concurring). Other fields of legal obligation
aside, it is undoubted that the nature of conscription, much less
war itself, requires the personal desires and perhaps the
dissenting views of those who must serve to be subordinated in some
degree to the pursuit of public purposes. It is also true that
opposition to a particular war does depend,
inter alia,
upon particularistic factual beliefs and policy assessments,
beliefs and assessments that presumably were overridden by the
government that decides to commit lives and resources to a trial of
arms. Further, it is not unreasonable to suppose that some persons
who are
not prepared to assert a conscientious objection,
and instead accept the hardships and risks of military service, may
well agree at all points with the objector, yet conclude, as a
matter of conscience, that they are personally bound by the
decision of the democratic process. The fear of the National
Advisory Commission on Selective Service, apparently, is that
exemption of objectors to particular wars would weaken the resolve
of those who otherwise would feel themselves bound to serve despite
personal cost, uneasiness at the
Page 401 U. S. 460
prospect of violence, or even serious moral reservations or
policy objections concerning the particular conflict.
We need not and do not adopt the view that a categorical, global
"interest" in stifling individualistic claims to noncompliance, in
respect of duties generally exacted, is the neutral and secular
basis of § 6(j). As is shown by the long history of the very
provision under discussion, it is not inconsistent with orderly
democratic government for individuals to be exempted by law, on
account of special characteristics, from general duties of a
burdensome nature. But real dangers -- dangers of the kind feared
by the Commission -- might arise if an exemption were made
available that, in its nature could not be administered fairly and
uniformly over the run of relevant fact situations. Should it be
thought that those who go to war are chosen unfairly or
capriciously, then a mood of bitterness and cynicism might corrode
the spirit of public service and the values of willing performance
of a citizen's duties that are the very heart of free government.
In short, the considerations mentioned in the previous paragraph,
when seen in conjunction with the central problem of fairness, are
without question properly cognizable by Congress. In light of these
valid concerns, we conclude that it is supportable for Congress to
have decided that the objector to all war -- to all killing in war
-- has a claim that is distinct enough and intense enough to
justify special status, while the objector to a particular war does
not.
Of course, we do not suggest that Congress would have acted
irrationally or unreasonably had it decided to exempt those who
object to particular wars. Our analysis of the policies of § 6(j)
is undertaken in order to determine the existence
vel non
of a neutral, secular justification for the lines Congress has
drawn. We find that justifying reasons exist, and therefore hold
that the Establishment Clause is not violated.
Page 401 U. S. 461
III
Petitioners' remaining contention is that Congress interferes
with the free exercise of religion by conscripting persons who
oppose a particular war on grounds of conscience and religion.
Strictly viewed, this complaint does not implicate problems of
comparative treatment of different sorts of objectors, but rather
may be examined in some isolation from the circumstance that
Congress has chosen to exempt those who conscientiously object to
all war. [
Footnote 23] And
our holding that § 6(j) comports with the Establishment Clause does
not automatically settle the present issue. For despite a general
harmony of purpose between the two religious clauses of the First
Amendment, the Free Exercise Clause no doubt has a reach of its
own.
Abington School District v. Schempp, 374 U.S. at
374 U. S.
222-223.
Nonetheless, our analysis of § 6(j) for Establishment Clause
purposes has revealed governmental interests of a kind and weight
sufficient to justify under the Free Exercise Clause the impact of
the conscription laws on those who object to particular wars.
Our cases do not, at their farthest reach, support the
proposition that a stance of conscientious opposition relieves an
objector from any colliding duty fixed by a democratic government.
See Cantwell v.
Connecticut,
Page 401 U. S. 462
310 U. S. 296,
310 U. S.
303-304 (1940);
Jacobson v. Massachusetts,
197 U. S. 11,
197 U. S. 29
(1905);
cf. Cleveland v. United States, 329 U. S.
14,
329 U. S. 20
(1946). To be sure, the Free Exercise Clause bars "governmental
regulation of religious beliefs as such,"
Sherbert v.
Verner, 374 U. S. 398,
374 U. S. 402
(1963), or interference with the dissemination of religious ideas.
See Fowler v. Rhode Island, 345 U. S.
67 (1953);
Follett v. McCormick, 321 U.
S. 573 (1944);
Murdock v. Pennsylvania,
319 U. S. 105
(1943). It prohibits misuse of secular governmental programs
"to impede the observance of one or all religions or . . . to
discriminate invidiously between religions, . . . even though the
burden may be characterized as being only indirect."
Braunfeld v. Brown, 366 U.S. at
366 U. S. 607
(opinion of Warren, C.J.). And even as to neutral prohibitory or
regulatory laws having secular aims, the Free Exercise Clause may
condemn certain applications clashing with imperatives of religion
and conscience, when the burden on First Amendment values is not
justifiable in terms of the Government's valid aims.
See id.;
Sherbert v. Verner, supra. See generally Clark,
Guidelines for the Free Exercise Clause, 83 Harv.L.Rev. 327 (1969).
However, the impact of conscription on objectors to particular wars
is far from unjustified. The conscription laws, applied to such
persons as to others, are not designed to interfere with any
religious ritual or practice, and do not work a penalty against any
theological position. The incidental burdens felt by persons in
petitioners' position are strictly justified by substantial
governmental interests that relate directly to the very impacts
questioned. And, more broadly, of course, there is the Government's
interest in procuring the manpower necessary for military purposes,
pursuant to the constitutional grant of power to Congress to raise
and support armies. Art. I, § 8.
Page 401 U. S. 463
Since petitioners' statutory and constitutional claims to relief
from military service are without merit, it follows that, in
Gillette's case (No. 85), there was a basis in fact to support
administrative denial of exemption, and that, in Negre's case (No.
325), there was a basis in fact to support the Army's denial of a
discharge. Accordingly, the judgments below are
Affirmed.
MR. JUSTICE BLACK concurs in the Court's judgment and in Part I
of the opinion of the Court.
* Together with No. 325,
Negre v. Larsen et al., on
certiorari to the United States Court of Appeals for the Ninth
Circuit.
[
Footnote 1]
The relevant provisions are set down
infra at nn.
4 401 U. S. 5, and
401 U. S. 6, and
at accompanying text.
[
Footnote 2]
Since petitioner Negre is no longer on active duty in the Army,
the dispute in No. 325 lacks the same intensity that was present at
the time that Negre commenced his habeas action. However, some
possibility of Vietnam duty apparently remains, and the Government
seems to concede that the case has not been mooted. We therefore
pursue the matter no further.
[
Footnote 3]
Both petitioners asked to be spared all military
responsibilities because of their objections to the Vietnam
conflict -- Gillette sought exemption from the draft; Negre sought
discharge from the Army.
[
Footnote 4]
Section 6(j) provides further:
"As used in this subsection, the term 'religious training and
belief' does not include essentially political, sociological, or
philosophical views, or a merely personal moral code. Any person
claiming exemption from combatant training and service because of
such conscientious objections whose claim is sustained by the local
board shall, if he is inducted into the armed forces . . . be
assigned to noncombatant service as defined by the President, or
shall, if he is found to be conscientiously opposed to
participation in such noncombatant service, in lieu of such
induction, be ordered . . . to perform . . . civilian work
contributing to the maintenance of the national health, safety, or
interest. . . ."
[
Footnote 5]
The Directive states:
"IV. A.
National Policy. [T]he Congress . . . has
deemed it more essential to respect a man's religious beliefs than
to force him to serve in the Armed Forces and accordingly has
provided that a person having
bona fide religious
objection to participation in war in any form . . . shall not be
inducted into the Armed Forces. . . ."
"IV. B.
DoD Policy. Consistent with this national
policy, bona fide conscientious objection . . . by persons who are
members of the Armed Forces will be recognized to the extent
practicable and equitable. Objection to a particular war will not
be recognized."
[
Footnote 6]
DOD Directive No. 1300.6 itself states:
"Since it is in the national interest to judge all claims of
conscientious objection by the same standards, whether made before
or after entering military service, Selective Service System
standards used in determining [conscientious objector status] of
draft registrants prior to induction shall apply to servicemen who
claim conscientious objection after entering military service."
See also, e.g., Army Regulations AR 635-20 (July 31,
1970), and AR 135-25 (Sept. 2, 1970).
[
Footnote 7]
Moreover, a reading that attaches the words "in any form" to
"participation," rather than to "war," would render § 6(j) somewhat
incoherent. For that section itself allows a person having the
specified conscientious scruples to be assigned to noncombatant
service in the armed forces, if he is not "found to be
conscientiously opposed to participation in such noncombatant
service."
See n 4,
supra. In short, Congress had in mind that conscientious
scruples should be honored if they implicate opposition to "war in
any form," even though the objector may not be averse to a
noncombatant form of "participation."
[
Footnote 8]
The roots of § 6(j) may be found in the earliest period of
American history.
See generally Selective Service System
Monograph No. 11, Conscientious Objection 29-38 (1950). In 1775 the
Continental Congress announced its resolve to respect the beliefs
of "people who from Religious Principles cannot bear Arms in any
case. . . ."
Id. at 33-34. Against a background of state
constitutional and statutory law exempting conscientious objectors
from militia service,
see United States v. Seeger,
380 U. S. 163,
380 U. S.
170-171 (1965), Congress in 1864 explicitly exempted
from the federal draft persons who
"are conscientiously opposed to the bearing of arms, and who are
prohibited from doing so by the rules and articles of faith [of
their] religious denominations."
13 Stat. 9. The Draft Act of 1917 relieved from military service
any person who belonged to
"any well recognized religious sect or organization . . . whose
existing creed or principles forbid its members to participate in
war in any form and whose religious convictions are against war or
participation therein. . . ."
40 Stat. 78. The Senate rejected an amendment to the 1917
legislation that would have granted exemptions "[o]n the ground of
a conscientious objection to the undertaking of combatant service
in the present war." 55 Cong.Rec. 1478. Subsequent exemption
clauses have eliminated any restriction in terms of sectarian
affiliation, and have made the exemption broadly available to any
conscientious objector whose scruples concerning participation in
war are grounded in "religious training and belief." Selective
Training and Service Act of 1940, § 5(g), 54 Stat. 889. But the
phrase "participation in war in any form," used in the 1917
enactment, has, of course, survived the various revisions of the
exempting provision.
[
Footnote 9]
Petitioners' sole argument having specific reference to the
legislative materials is utterly flawed. It runs as follows: the
1948 revision of the exempting provision was inspired in part by
the dissent of Chief Justice Hughes in
United States v.
Macintosh, 283 U. S. 605
(1931);
Macintosh involved a claimant whose conscientious
scruples implicated only "unjust" wars, and the dissent remarked
that "eminent statesmen here and abroad" have held such views,
id. at
283 U. S. 635;
thus, Congress cannot fairly be deemed to have excluded objectors
to particular wars from the 1948 exempting provision, predecessor
to the present § 6(j). However, the very most that can be said
about congressional reliance on the
Macintosh dissent is
that Congress used it in fashioning a definition of the words
"religious training and belief."
See United States v.
Seeger, 380 U.S. at
380 U. S.
172-179. The language of the exempting provision that is
relevant to the present dispute -- "participation in war in any
form" -- was not altered in 1948 or thereafter. Moreover, the
Macintosh dissent does not itself suggest that
conscientious objection to a particular war is or has ever been a
basis for relief from military service. The claimant in
Macintosh did not seek relief from military service -- his
contention, and that of the dissent, was that conscientious
unwillingness to bear arms is not a disqualifying factor, under the
language of the applicable loyalty oath, in a naturalization
proceeding. (The argument of the dissent was later adopted by the
Court in
Girouard v. United States, 328 U. S.
61,
328 U. S. 64
(1946).)
[
Footnote 10]
See infra at
401 U. S.
454-460.
See generally Report of the National
Advisory Commission on Selective Service, In Pursuit of Equity: Who
Serves When Not All Serve? 50-51 (1967).
[
Footnote 11]
Perhaps more significant is the fact that even lower courts that
have granted relief to claimants who object to particular wars have
done so on constitutional, not statutory, grounds, and have found §
6(j) defective because it does not admit of such relief.
See,
e.g., United States v. McFadden, 309 F.
Supp. 502 (ND Cal.1970),
app. docketed, No. 422, O.T.
1970;
United States v. Sisson, 297 F.
Supp. 902 (Mass.1969),
appeal dismissed for want of
jurisdiction, 399 U. S. 267
(1970). Since we conclude that § 6(j), interpreted in the obvious
way, suffers no constitutional infirmity, there is no temptation to
expand its intended scope by constructional fiat in order to "save"
it.
[
Footnote 12]
After noting that Sicurella's faith involved willingness to
engage in theocratic conflict, though "without carnal weapons," the
Court stated: "The test is not whether the registrant is opposed to
all war, but whether he is opposed . . . to
participation
in war." 348 U.S. at
348 U. S. 390.
The plain purport of this statement is that opposition to
theocratic war is not exacted, since Congress quite reasonably
considered participation in "real shooting wars" to be the only
sort of participation at stake.
See also Taffs v. United
States, 208 F.2d 329, 331 (CA8 1953),
cert. denied,
347 U.S. 928 (1954).
[
Footnote 13]
See n 4,
supra.
[
Footnote 14]
Petitioners also assert that the Fifth Amendment's Due Process
Clause is violated because the distinction embodied in § 6(j) --
between objectors to all war and objectors to particular wars -- is
arbitrary and capricious and works an invidious discrimination in
contravention of the "equal protection" principles encompassed by
the Fifth Amendment.
Cf. Bolling v. Sharpe, 347 U.
S. 497,
347 U. S. 499
(1954). This is not an independent argument in the context of these
cases.
Cf. Walz v. Tax Commission, 397 U.
S. 664,
397 U. S. 696
(1970) (opinion of HARLAN, J.). We hold that the section survives
the Establishment Clause because there are neutral, secular reasons
to justify the line that Congress has drawn, and it follows as a
more general matter that the line is neither arbitrary nor
invidious.
[
Footnote 15]
See n 8,
supra.
[
Footnote 16]
Since we hold that the "participation in war in any form" clause
of § 6(j) does not violate the First Amendment, there is little
point in dealing with the problems that would be involved in
deciding whether invalidity of the restrictive clause should lead
to judicial nullification of the exemption
in toto or
judicial expansion to cure "underinclusiveness."
[
Footnote 17]
The exemption provision of the Draft Act of 1917, § 4, 40 Stat.
78, was upheld in the
Selective Draft Law Cases,
245 U. S. 366,
245 U. S.
389-390 (1918), at an early stage in the development of
First Amendment doctrine, against a constitutional attack
apparently founded on both the Establishment and Free Exercise
Clauses. A single sentence was devoted to the complainants' First
Amendment argument, "because we think its unsoundness is too
apparent to require us to do more."
Id. at
245 U. S. 390.
[
Footnote 18]
See supra at
401 U. S.
445-446
[
Footnote 19]
See n 23,
infra.
[
Footnote 20]
The Report of the National Advisory Commission on Selective
Service (1967) is aptly entitled In Pursuit of Equity: Who Serves
When Not All Serve?
[
Footnote 21]
Matters relevant to such an objection, as the papers in these
cases show, are whether the purposes of the war are thought
ultimately defensive and pacific, or otherwise; whether the
conflict is legal, or its prosecution decided upon by legal means;
whether the implements of war are used humanely, or whether certain
weapons should be used at all. A war may be thought "just" or not
depending on one's assessment of these factors and many more: the
character of the foe, or of allies; the place the war is fought;
the likelihood that a military clash will issue in benefits, of
various kinds, enough to override the inevitable costs of the
conflict. And so on.
[
Footnote 22]
See n3,
supra.
[
Footnote 23]
We are not faced with the question whether the Free Exercise
Clause itself would require exemption of any class other than
objectors to particular wars. A free exercise claim on behalf of
such objectors collides with the distinct governmental interests
already discussed, and, at any rate, no other claim is presented.
We note that the Court has previously suggested that relief for
conscientious objectors is not mandated by the Constitution.
See Hamilton v. Regents, 293 U. S. 245,
293 U. S. 264
(1934);
United States v. Macintosh, 283 U.S. at
283 U. S.
623-624;
cf. In re Summers, 325 U.
S. 561,
325 U. S.
572-573 (1945).
MR. JUSTICE DOUGLAS, dissenting in No. 85.*
Gillette's objection is to combat service in the Vietnam war,
not to wars in general, and the basis of his objection is his
conscience. His objection does not put him into the statutory
exemption which extends to one "who, by reason of religious
training and belief, is conscientiously opposed to participation in
war in any form." [
Footnote
2/1]
He stated his views as follows:
"I object to any assignment in the United States Armed Forces
while this unnecessary and unjust war is being waged, on the
grounds of religious belief specifically 'Humanism.' This
essentially means 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."
This position is substantially the same as that of Sisson in
United States v. Sisson, 297 F.
Supp. 902,
appeal
Page 401 U. S. 464
dismissed, 399 U. S. 267,
where the District Court summarized the draftee's position as
follows:
"Sisson's table of ultimate values is moral and ethical. It
reflects quite as real, pervasive, durable, and commendable a
marshalling of priorities as a formal religion. It is just as much
a residue of culture, early training, and beliefs shared by
companions and family. What another derives from the discipline of
a church, Sisson derives from the discipline of conscience."
297 F. Supp. at 905.
There is no doubt that the views of Gillette are sincere,
genuine, and profound. The District Court in the present case faced
squarely the issue presented in
Sisson, and, being unable
to distinguish the case on the facts, refused to follow
Sisson.
The question, can a conscientious objector, whether his
objection be rooted in "religion" or in moral values, be required
to kill? has never been answered by the Court. [
Footnote 2/2]
Hamilton v. Regents,
293 U. S. 245, did
no more than hold that the Fourteenth Amendment did not require a
State to make its university available to one who would not take
military training.
United States v. Macintosh,
283 U. S. 605,
denied naturalization to a person who "would not promise in advance
to bear arms in defense of the United States unless he believed the
war to be morally justified."
Id. at
283 U. S. 613.
The question of compelling a man to kill against his conscience was
not squarely involved. Most of the talk in the majority opinion
concerned "serving in the armed forces of the
Page 401 U. S. 465
Nation in time of war."
Id. at
283 U. S. 623.
Such service can, of course, take place in noncombatant roles. The
ruling was that such service is "dependent upon the will of
Congress, and not upon the scruples of the individual, except as
Congress provides."
Ibid. The dicta of the Court in the
Macintosh case squint towards the denial of Gillette's
claim, though, as I have said, the issue was not squarely
presented.
Yet if dicta are to be our guide, my choice is the dicta of
Chief Justice Hughes, who, dissenting in
Macintosh, spoke
as well for Justices Holmes, Brandeis, and Stone:
"Nor is there ground, in my opinion, for the exclusion of
Professor Macintosh because his conscientious scruples have
particular reference to wars believed to be unjust. There is
nothing new in such an attitude. Among the most eminent statesmen
here and abroad have been those who condemned the action of their
country in entering into wars they thought to be unjustified.
Agreements for the renunciation of war presuppose a preponderant
public sentiment against wars of aggression. If, while recognizing
the power of Congress, the mere holding of religious or
conscientious scruples against all wars should not disqualify a
citizen from holding office in this country, or an applicant
otherwise qualified from being admitted to citizenship, there would
seem to be no reason why a reservation of religious or
conscientious objection to participation in wars believed to be
unjust should constitute such a disqualification."
Id. at
283 U. S.
635.
I think the Hughes view is the constitutional view. It is true
that the First Amendment speaks of the free exercise of religion,
not of the free exercise of conscience or belief. Yet conscience
and belief are the main ingredients of First Amendment rights. They
are the
Page 401 U. S. 466
bedrock of free speech, as well as religion. The implied First
Amendment right of "conscience" is certainly as high as the "right
of association" which we recognized in
Shelton v. Tucker,
364 U. S. 479, and
NAACP v. Alabama, 357 U. S. 449.
Some, indeed, have thought it higher. [
Footnote 2/3]
Conscience is often the echo of religious faith. But, as this
case illustrates, it may also be the product of travail,
meditation, or sudden revelation related to a moral comprehension
of the dimensions of a problem, not to a religion in the ordinary
sense.
Tolstoy [
Footnote 2/4] wrote of
a man, one Van der Veer,
"who, as he himself says, is not a Christian, and who refuses
military service not from religious motives, but from motives of
the simplest kind, motives intelligible and common to all men, of
whatever religion or nation, whether Catholic, Mohammedan,
Buddhist, Confucian, whether Spaniards or Japanese."
"Van der Veer refuses military service not because he follows
the commandment, 'Thou shalt do no murder,' not because he is a
Christian, but because he holds murder to be opposed to human
nature. "
Page 401 U. S. 467
Tolstoy [
Footnote 2/5] goes on
to say:
"Van der Veer says he is not a Christian. But the motives of his
refusal and action are Christian. He refuses because he does not
wish to kill a brother man; he does not obey, because the commands
of his conscience are more binding upon him than the commands of
men. . . . Thereby he shows that Christianity is not a sect or
creed which some may profess and others reject, but that it is
naught else than a life's following of that light of reason which
illumines all men. . . ."
"Those men who now behave rightly and reasonably do so not
because they follow prescriptions of Christ, but because that line
of action which was pointed out eighteen hundred years ago has now
become identified with human conscience."
The "sphere of intellect and spirit," as we described the domain
of the First Amendment in
West Virginia Board of Education v.
Barnette, 319 U. S. 624,
319 U. S. 642,
was recognized in
United States v. Seeger, 380 U.
S. 163, where we gave a broad construction to the
statutory exemption of those who, by their religious training or
belief, are conscientiously opposed to participation in war in any
form. We said:
"A sincere and meaningful belief which occupies in the life of
its possessor a place parallel to that filled by
Page 401 U. S. 468
the God of those admittedly qualifying for the exemption comes
within the statutory definition."
Id. at
380 U. S. 176.
[
Footnote 2/6]
Seeger does not answer the present question, as
Gillette is not "opposed to participation in war in any form."
But the constitutional infirmity in the present Act seems
obvious once "conscience" is the guide. As Chief Justice Hughes
said in the
Macintosh case:
"But, in the forum of conscience, duty to a moral power higher
than the State has always been maintained. The reservation of that
supreme obligation, as a matter of principle, would unquestionably
be made by many of our conscientious and law-abiding citizens. The
essence of religion is belief in a relation to God involving duties
superior to those arising from any human relation."
283 U.S. at
283 U. S.
633-634.
The law as written is a species of those which show an invidious
discrimination in favor of religious persons and against others
with like scruples. MR. JUSTICE BLACK once said:
"The First Amendment has lost much if the religious follower and
the atheist [
Footnote 2/7] are no
longer to be
Page 401 U. S. 469
judicially regarded as entitled to equal justice under law."
Zorach v. Clauson, 343 U. S. 306,
343 U. S. 320
(dissenting). We said as much in our recent decision in
Epperson v. Arkansas, 393 U. S. 97, where
we struck down as unconstitutional a state law prohibiting the
teaching of the doctrine of evolution in the public schools:
"Government in our democracy, state and national, must be
neutral in matters of religious theory, doctrine, and practice. It
may not be hostile to any religion or to the advocacy of 'no
religion;' and it may not aid, foster, or promote one religion or
religious theory against another or even against the militant
opposite. The First Amendment mandates governmental neutrality
between religion and religion, and between religion and
nonreligion."
Id. at
393 U. S.
103-104.
While there is no Equal Protection Clause in the Fifth
Amendment, our decisions are clear that invidious classifications
violate due process.
Bolling v. Sharpe, 347 U.
S. 497,
347 U. S. 500,
held that segregation by race in the public schools was an
invidious discrimination, and
Schneider v. Rusk,
377 U. S. 163,
377 U. S.
168-169, reached the same result based on penalties
imposed on naturalized, not native-born, citizens. A classification
of "conscience" based on a "religion" and a "conscience" based on
more generalized, philosophical grounds is equally invidious by
reason of our First Amendment standards.
I had assumed that the welfare of the single human soul was the
ultimate test of the vitality of the First Amendment.
This is an appropriate occasion to give content to our dictum in
Board of Education v. Barnette, supra, at
319 U. S.
642:
"[F]reedom to differ is not limited to things that do not matter
much. . . . The test of its substance
Page 401 U. S. 470
is the right to differ as to things that touch the heart of the
existing order."
I would reverse this judgment.
* [For dissenting opinion of MR. JUSTICE DOUGLAS in No. 325,
Negre v. Larsen, see post, p.
401 U. S.
470.]
[
Footnote 2/1]
Section 6(j), Military Selective Service Act of 1967, 50
U.S.C.App. § 456(j) (1964 ed., Supp. V).
[
Footnote 2/2]
See T. Powell, Conscience and the Constitution, in
Democracy and National Unity (W. Hutchison ed.1941).
It is probably a universal truth that "the one thing which
authority, whether political, social, religious or economic, tends
instinctively to fear is the insistence of conscience." Mehta, The
Conscience of a Nation or Studies in Gandhism p. ii (Calcutta,
1933).
[
Footnote 2/3]
See M. Konvitz, Religious Liberty and Conscience 106
(1968); Redlich & Feinberg, Individual Conscience and the
Selective Service Objector: The Right Not to Kill, 44 N.Y.U.L.Rev.
875, 891 (1969):
"Free expression and the right of personal conscientious belief
are closely intertwined. At the core of the first amendment's
protection of individual expression is the recognition that such
expression represents the oral or written manifestation of
conscience. The performance of certain acts, under certain
circumstances involves such a crisis of conscience as to invoke the
protection which the first amendment provides for similar
manifestations of conscience when expressed in verbal or written
expressions of thought. The most awesome act which any society can
demand of a citizen's conscience is the taking of a human
life."
[
Footnote 2/4]
L. Tolstoy, Writings On Civil Disobedience and Non-Violence 12
(1967).
[
Footnote 2/5]
Id. at 15-16.
And see Clark, Guidelines for
the Free Exercise Clause, 83 Harv.L.Rev. 327, 337 (1969):
"The argument is not merely that avoiding compulsion of a man's
conscience produces the greatest good for the greatest number, but
that such compulsion is itself unfair to the individual concerned.
The moral condemnation implicit in the threat of criminal sanctions
is likely to be very painful to one motivated by belief.
Furthermore, the cost to a principled individual of failing to do
his moral duty is generally severe, in terms of supernatural
sanction or the loss of moral self-respect."
[
Footnote 2/6]
In
Welsh v. United States, 398 U.
S. 333, four Justices elaborated on
Seeger,
stating:
"The Court [in
Seeger] made it clear that these sincere
and meaningful beliefs that prompt the registrant's objection to
all wars need not be confined in either source or content to
traditional or parochial concepts of religion. . . . What is
necessary under
Seeger for a registrant's conscientious
objection to all war to be 'religious' within the meaning of § 6(j)
is that this opposition to war stem from the registrant's moral,
ethical, or religious beliefs about what is right and wrong, and
that these beliefs be held with the strength of traditional
religious convictions."
Id. at
398 U. S.
339-340.
[
Footnote 2/7]
Article VI of the Constitution provides that "no religious Test
shall ever be required as a Qualification to any Office or public
Trust under the United States."
Torcaso v. Watkins,
367 U. S. 488,
upheld the right of a nonbeliever to hold public office.
MR. JUSTICE DOUGLAS, dissenting in No. 325,
Negre v.
Larsen.
I approach the facts of this case with some diffidence, as they
involve doctrines of the Catholic Church, in which I was not
raised. But we have on one of petitioner's briefs an authoritative
lay Catholic scholar, Dr. John T. Noonan, Jr., and, from that
brief, I deduce the following:
Under the doctrines of the Catholic Church, a person has a moral
duty to take part in wars declared by his government so long as
they comply with the tests of his church for just wars. [
Footnote 3/1] Conversely, a Catholic has a
moral duty not to participate in unjust wars. [
Footnote 3/2]
Page 401 U. S. 471
The Fifth Commandment, "Thou shall not kill," provides a basis
for the distinction between just and unjust wars. In the 16th
century, Francisco Victoria, Dominican master of the University of
Salamanca and pioneer in international law, elaborated on the
distinction.
"If a subject is convinced of the injustice of a war, he ought
not to serve in it, even on the command of his prince. This is
clear, for no one can authorize the killing of an innocent
person."
He realized not all men had the information of the prince and
his counselors on the causes of a war, but where "the proofs and
tokens of the injustice of the war may be such that ignorance would
be no excuse even to the subjects" who are not normally informed,
that ignorance will not be an excuse if they participate. [
Footnote 3/3] Well over 400 years later,
today, the Baltimore Catechism makes an exception to the Fifth
Commandment for a "soldier fighting a just war." [
Footnote 3/4]
No one can tell a Catholic that this or that war is either just
or unjust. This is a personal decision that an individual must make
on the basis of his own conscience after studying the facts.
[
Footnote 3/5]
Page 401 U. S. 472
Like the distinction between just and unjust wars, the duty to
obey conscience is not a new doctrine in the Catholic Church. When
told to stop preaching by the Sanhedrin, to which they were
subordinate by law, "Peter and the apostles answered and said,
We must obey God rather than men.'" [Footnote 3/6] That duty has not changed. Pope Paul VI
has expressed it as follows:
"On his part, man perceives and acknowledges the imperatives of
the divine law through the mediation of conscience. In all his
activity, a man is bound to follow his conscience in order that he
may come to God, the end and purpose of life. [
Footnote 3/7]"
While the fact that the ultimate determination of whether a war
is unjust rests on individual conscience, the Church has provided
guides. Francisco Victoria referred to "killing of an innocent
person." World War II had its impact on the doctrine. Writing
shortly after the war, Cardinal Ottaviani stated:
"[M]odern wars can
Page 401 U. S. 473
never fulfil those conditions which (as we stated earlier on in
this essay) govern -- theoretically -- a just and lawful war.
Moreover, no conceivable cause could ever be sufficient
justification for the evils, the slaughter, the destruction, the
moral and religious upheavals which war today entails.
In
practice, then, a declaration of war will never be
justifiable. [
Footnote
3/8]"
The full impact of the horrors of modern war were emphasized in
the Pastoral Constitution announced by Vatican II:
"The development of armaments by modern science has immeasurably
magnified the horrors and wickedness of war. Warfare conducted with
these weapons can inflict immense and indiscriminate havoc which
goes far beyond the bounds of legitimate defense. Indeed, if the
kind of weapons now stocked in the arsenals of the great powers
were to be employed to the fullest, the result would be the almost
complete reciprocal slaughter of one side by the other, not to
speak of the widespread devastation that would follow in the world
and the deadly after-effects resulting from the use of such
arms."
"All these factors force us to undertake a completely fresh
reappraisal of war. . . ."
"[I]t is one thing to wage a war of self-defense; it is quite
another to seek to impose domination on another nation. . . ."
The Pastoral Constitution announced that
"[e]very act of war directed to the indiscriminate destruction
of whole cities or vast areas with their inhabitants is a crime
against God and man which merits firm and unequivocal condemnation.
[
Footnote 3/9]"
Louis Negre is a devout Catholic. In 1951, when he was four, his
family immigrated to this country from
Page 401 U. S. 474
France. [
Footnote 3/10] He
attended Catholic schools in Bakersfield, California, until
graduation from high school. Then he attended Bakersfield Junior
College for two years. Following that, he was inducted into the
Army.
At the time of his induction, he had his own convictions about
the Vietnam war and the Army's goals in the war. He wanted,
however, to be sure of his convictions.
"I agreed to myself that, before making any decision or taking
any type of stand on the issue, I would permit myself to see and
understand the Army's explanation of its reasons for violence in
Vietnam. For, without getting an insight on the subject, it would
be unfair for me to say anything, without really knowing the
answer. [
Footnote 3/11]"
On completion of his advanced infantry training,
"I knew that, if I would permit myself to go to Vietnam, I would
be violating my own concepts of natural law, and would be going
against all that I had been taught in my religious training."
Negre applied for a discharge as a conscientious objector. His
application was denied. He then refused to comply with an order to
proceed for shipment to Vietnam. A general court-martial followed,
but he was acquitted. After that he filed this application for
discharge as a conscientious objector.
Page 401 U. S. 475
Negre is opposed under his religious training and beliefs to
participation in any form in the war in Vietnam. His sincerity is
not questioned. His application for a discharge, however, was
denied because his religious training and beliefs led him to oppose
only a particular war [
Footnote
3/12] which, according to his conscience, was unjust.
For the reasons I have stated in my dissent in the
Gillette case decided this day, I would reverse the
judgment.
[
Footnote 3/1]
The theological basis for this was explained by Pope John XXIII
in Part II of Pacem in Terris � 46 (Paulist Press 1963):
"Human society can be neither well ordered nor prosperous unless
it has some people invested with legitimate authority to preserve
its institutions. . . . These, however, derive their authority from
God, as St. Paul teaches in the words,
There exists no
authority except from God. These words of St. Paul are
explained thus by St. John Chrysostom:"
". . . What I say is that it is the divine wisdom, and not mere
chance, that has ordained that there should be government, that
some should command and others obey."
� 50 adds:
"When, in fact, men obey their rulers, it is not at all as men
that they obey them, but through their obedience it is God . . . ,
since He has decreed that men's dealings with one another should be
regulated by an order which He Himself has established."
[
Footnote 3/2]
"Since the right to command is required by the moral order and
has its source in God, it follows that, if civil authorities
legislate for or allow anything that is contrary to that order, and
therefore contrary to the will of God, neither the laws made nor
the authorizations granted can be binding on the consciences of the
citizens, since we must obey God, rather than men."
Id. at � 51.
[
Footnote 3/3]
De Indis Relectio Posterior, sive De Iure Belli Eispanorum in
Barbaros, translated in Classics of International Law 173-174 (E.
Nys ed.1917).
[
Footnote 3/4]
P. 205 (official rev. ed.1949).
[
Footnote 3/5]
Pope Paul VI in § 16 of the Pastoral Constitution on the Church
in the Modern World states:
"Deep within his conscience, man discovers a law which he has
not laid upon himself but which he must obey. Its voice, ever
calling him to love and to do what is good and avoid evil, tells
him inwardly at the right moment to do this or to shun that. For
man has in his heart a law inscribed by God. His dignity lies in
observing this law, and by it he will be judged."
A. Fagothey, Right and Reason: Ethics in Theory and Practice 38
(4th ed.1967) states:
"Hence, a certain conscience must be obeyed not only when it is
correct, but even when it is invincibly erroneous [unrealized
error]. Conscience is the only guide a man has for the performance
of concrete actions here and now. But an invincibly erroneous
conscience cannot be distinguished from a correct conscience.
Therefore, if one were not obliged to follow a certain but
invincibly erroneous conscience, we should be forced to the absurd
conclusions that one would not be obliged to follow a certain and
correct conscience."
On this matter, § 16 of the Pastoral Constitution adds:
"Yet it often happens that conscience goes astray through
ignorance which it is unable to avoid, but, under such
circumstances, it does not lose its dignity. This cannot be said of
the man who takes little trouble to find out what is true and
good."
[
Footnote 3/6]
Acts 5:29 (Standard ed.1900).
[
Footnote 3/7]
Declaration on Religious Freedom I:3 in Documents of Vatican
Council II, p. 369 (Newman Press 1966).
See also "Human
Life in Our Day" issued by the National Conference of Catholic
Bishops (Nov. 15, 1968):
"Whether or not such modifications in our laws are, in fact,
made, we continue to hope that, in the all-important issue of war
and peace, all men will follow their consciences. We can do no
better than to recall, as did the Vatican Council, 'the permanent
binding force of universal natural law and its all embracing
principles,' to which 'man's conscience itself gives ever more
emphatic voice.'"
[
Footnote 3/8]
The Future of Offensive War, 30 Blackfriars 415, 419 (1949).
[
Footnote 3/9]
Pastoral Constitution 79, 80.
[
Footnote 3/10]
Petitioner suggests that one of the reasons his parents left
France was their opposition to France's participation in the
Indo-China war.
[
Footnote 3/11]
See 401
U.S. 437fn3/5|>n. 5,
supra. Fagothey,
supra, 401
U.S. 437fn3/5|>n. 5, at 37 states:
"What degree of certitude is required? It is sufficient that the
conscience be prudentially certain. Prudential certitude is not
absolute, but relative. It excludes all prudent fear that the
opposite may be true, but it does not rule out imprudent fears
based on bare possibilities. The reasons are strong enough to
satisfy a normally prudent man in an important matter, so that he
feels safe in practice, though there is a theoretical chance of his
being wrong. He has taken every reasonable precaution, but cannot
guarantee against rare contingencies and freaks of nature."
[
Footnote 3/12]
"For those middle-aged people who find themselves baffled by the
current widespread resistance to the draft, a Stanford University
student has provided a useful parallel."
"Addressing a hearing of the Senate Armed Service Committee . .
Peter Knutson said that"
" If, during the course of the Second World War, America had
entered on the side of Hitler's Germany, would you have allowed
yourself to be drafted? Would you have blindly said my country
right or wrong?'"
"That is about as well as the anti-draft cause has ever been
stated. . . ."
"It may seem far-fetched to suppose that America ever would have
fought on the side of Hitler, but that too is beside the point. If
today's World War II veteran will try to imagine what he might have
done had he been drafted under those circumstances, he will be able
to understand some part of the dilemma that the Vietnam war has
imposed on this generation of draftees. It has been a real dilemma
breeding powerful frustrations, and its residues will long outlast
the war"
-- L. H. -- Lewiston (Ida.) Tribune.