Amdt1.1.2.1.1.2.7 Conscientious Objection

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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.¹ In Gillette v. United States,² 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.³ 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 face⁴ or lack any neutral, secular basis for the lines government has drawn⁵ 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.⁶ 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.⁷