Dr. Nathan S. French
Think about a time you’ve had to say, “No.” Why did you do it? Perhaps it was in relation to refusing a certain food. Or, perhaps, it was to express a particular preference for a film, television show, or sport relative to another. There are times, however, when saying, “No,” might bring particular constitutional consequences related to religion and freedom of conscience.
Take the example of Muhammad Ali, the Louisville, Kentucky native and heavyweight boxing champion of the world. In 1971, amid the Vietnam War, Muhammad Ali received notice of his eligibility for his induction – his drafting – into the United States armed forces. When he arrived to the draft board, he petitioned his status, claiming for himself conscientious objection. In a sense, when presented with the legal obligation to be eligible for military service, Ali said, “No.” He claimed on the basis of his sincerely held religious beliefs as a practicing Muslim and member of the Nation of Islam, that he would not serve. For some Americans, his claim of conscientious was welcomed. Others, however, strongly rejected Ali’s claim of such a status.
The draft board denied his petition. Typically, there is a “three-prong” test that is applied to conscientious objection. First, one must be conscientiously opposed to war in any form. Second, you must demonstrate that your objection is established upon prior spiritual or religious training or belief. And, third, you must demonstrate the sincerity of your objection. The draft board argued that Ali had not met the required categories of conscientious objection. Upon appeal before the U.S. Supreme Court, however, the Court found that the legal procedure used to deny Ali’s appeal was incorrect. While the Court never weighed in on the sincerity of Ali’s petition, it found that the procedure used to deny Ali his appeal was incorrect. Ali was dismissed from service.
Cases involving claims of conscientious objection have a long history in the United States. Each case and each law open to us the ability to consider how Americans have understood the U.S. Constitution, the Bill of Rights, federal law, and state law in relationship to freedoms – such as the observance of a free exercise of religion and freedom of conscience – sought and demanded by various generations of Americans in varying forms.
Our deliberations over conscientious objection trace their legal support within a series of ongoing legal conversations and debates that extend through the foundation of the United States. Scholars of the U.S. Constitution and religion John Witte and Joel A. Nichols argue that liberty of conscience remained among the foremost concepts underlying the authorship of the U.S. Constitution, the Bill of Rights, and the earliest laws shaping religious freedom in the young U.S. republic. The 1776 Pennsylvania Constitution included protections against religious discrimination – singling out the protection of individual civil rights to religious liberty – and carved out specific exemptions for conscientious objection from military service. As George Washington argued in a letter to a group of Quakers written four months after becoming President in 1789, “In my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.” Notes from the earliest debates on versions of the First Amendment of the U.S. Constitution’s Bill of Rights even include discussion of religious exemptions from military service or training in combat arms. In the estimation of Witte and Nichols, who offer extensive commentary on such examples, note, throughout the Revolutionary War and after, the Continental and, later, U.S. Congress continued to return to provisions to ensure the conscientious objection of Americans from activities that they considered in violation of their religious liberty.
Throughout World War I, World War II, the Korean War, and the Vietnam War, which included the example of Muhammad Ali at the open of this discussion, the question of conscientious objection was handled by the U.S. Supreme Court not as a matter of natural or constitutional right but rather, in the argument of Witte and Nichols, as a matter of legislative privilege. In other words, the justices of the Supreme Court parsed claims of conscientious objection relative to federal law as opposed to constitutional provisions for free exercise. This carried across cases such as United States v. Schwimmer (1929), Girouard v. United States (1946), and United States v. Seeger (1965). In the case of the latter, David Andrew Seeger, who practiced agnosticism,, was one of several individuals who claimed exemption from service and the military draft during the Vietnam War even though their affirmation of belief in a “Supreme Being” did not match with such beliefs as found in other religious traditions. In a unanimous decision, the U.S. Supreme Court upheld this argument, arguing that conscientious objection must cover all types of faith.
Affirmations of a freedom of conscience extend beyond the U.S. Constitution. The Universal Declaration of Human Rights, a draft of which was supported by the United States and accepted by the United Nations General Assembly in 1948 after the labors of a committee chaired by Eleanor Roosevelt, includes within its Article 18 specific protections of “freedom of thought, conscience, and religion.” This was further reinforced by the 1966 International Covenant on Civil and Political Rights, also supported by the United States, which noted that no person “shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.” Conscientious objection to military service – particularly if given the order by a superior to kill – is noted as reasonable grounds for exemption under General Comment 22 of the United Nations Human Rights Committee.
Today, matters of conscientious objection continued to be raised on case-by-case and legislative bases. While claiming conscientious objection does not pardon eligible Americans from their registration with the U.S. Selective Service System, there are policies in place to adjudicate their claims. Those who claim exemptions from service are must oppose war “in any form.” Those claiming conscientious objection may hold moral, ethical, or religious beliefs, but the claim must not be based on politics, expediency, or self-interest. Those who are opposed to serving in the armed forces may be in placed into an alternate service program such as conservation, providing communal care, working in education, or healthcare.
Equally, questions of conscientious objection extend beyond mandated military service. Healthcare providers, such as doctors and nurses, might claim conscientious objection from administering particular techniques, practices, or healthcare interventions that they consider to be in violation of their moral or religious principles. With the passage of the Affordable Care Act during the Obama administration, several U.S. companies – most notably Hobby Lobby corporation – sued the federal government seeking relief from mandates requiring particular forms of healthcare. During the COVID-19 pandemic, many Americans claimed conscientious objection under Title VII of the Civil Rights Act of 1964 from any vaccination mandates presented by their employers, school districts, and universities.
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Material for Class Discussion
Think about a time that you’ve said, “No.” Why did you do it? Was it a matter of taste (e.g., not liking a certain food)? Did it involve your own values or beliefs? What are the values, ethics, or beliefs that you have that might lead you to say, “No?” What constitutional and legal protections secure your right to such objection?
As Witte and Nichols observed, the Supreme Court tends to view conscientious objection as a legislative matter. What does this mean? As is noted here, the U.S. Constitution almost had conscientious objection included within it. How might the Supreme Court’s understanding of conscientious objection change if it was to consider conscientious objection a constitutional right?
Review the guidelines for conscientious objection. How might difficulties or complications arise from these rules? Are you able to locate any court cases that might reveal how the courts weighed in on those questions?
This essay discussed conscientious objection regarding military service and healthcare. Brainstorm a list of other possible reasons for conscientious objection. See if you can find news stories, legal debates, or other materials that show you how these were determined in U.S. or international contexts.
Additional Sources
Films & Documentaries
Hacksaw Ridge, 2016 (Rated R, link)
Muhammad Ali’s Greatest Fight, 2013 (link)
Objector, 2019 (link)
The Conscientious Objector, 2004 (TV-MA, link)
Film Clips
“How the Supreme Court Changed its Mind on Muhammad Ali’s Draft Conviction,” PBS (link)
“Muhammad Ali Gives His Stance on the Vietnam War,” The Dick Cavett Show (link).
“Muhammad Ali Refuses the Vietnam War Draft,” PBS (link)
Books
Peter Brock, ed. Liberty and Conscience: A Documentary History of Conscientious Objectors in America Through the Civil War. New York: Oxford University Press, 2002.
Steven J. Taylor. Acts of Conscience: World War II, Mental Institutions, and Religious Objectors. Syracuse: Syracuse University Press, 2009.
Lillian Schlissel, Conscience in America: A Documentary History of Conscientious Objection in America, 1757-1967. New York: E.P. Dutton and Company, 1968.
Mulford Q. Sibley and Jacob E. Philip. Conscription of Conscience: The American State and the Conscientious Objector, 1940-1947. Cornell: Cornell University Press, 1952.
Joel Witte, Joel A. Nichols, and Richard W. Garnett. Religion and the American Constitutional Experiment. Fifth Edition. New York: Oxford University Press, 2022.
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