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The generosity of the United States Supreme Court to conscientious objectors whom Congress has declined to exempt from military service has apparently ended. In Gillette v. United States, decided with Negre v. Larsen, the Court decisively closed the door on claims that those conscientiously opposed to participation in particular wars are entitled by statute or constitutional right to an exemption from military service. Mr. Justice Marshall's majority opinion first disposes of the statutory claim. According to the opinion, the relevant language of § 6(j) of the Military Selective Service Act of 1967," conscientiously opposed to participation in war in any form," plainly requires an opposition to participation in all wars, and nothing in the legislative history indicates a contrary intent. Mr. Justice Marshall then rejects the two, more troublesome, constitutional arguments. Exempting objectors to participation in all wars, and not objectors to participation in some wars, does not, he indicates, constitute an impermissible classification under the religion clauses of the First Amendment or the Due Process Clause of the Fifth Amendment, because the distinction drawn is not on its face discriminatory between religions, and whatever differential impact it may have among various religions is acceptable because it is supported by neutral, secular reasons. Nor, the opinion concludes, do objectors to participation in par- ticular wars have an independent right to an exemption under the Free Exercise Clause, since the incidental burden on religion suffered as a consequence of denial of the exemption is "justified by substantial governmental interests."

The extent to which liberal intellectual opinion has come to support a right of "selective" conscientious objection is reflected in the response of the New York Times to Gillette. Four years earlier, it had, with respect to Cassius Clay, smugly asserted the then democratic orthodoxy that "Citizens cannot pick and choose which wars they wish to fight any more than they can pick and choose which laws they wish to obey."' But in 1971 the Supreme Court's acceptance of a congressional choice to that effect evoked dismay. "What is most disturbing about the Court's decision is the absolute ascendancy it assigns to the rights of the state over those of the individual in military matters. ... It is unfortunate that the Supreme Court failed to consider the subtle but vital constitutional distinctions that enlighten Judge Wyzanski's opinion [in United States v. Sisson sustaining a selective conscientious objection claim].


Constitutional Law | Law | Military, War, and Peace

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© 1971 by The University of Chicago.