Five protesters, including the Catholic Worker Tom Cornell, burn their draft cards at Union Square, New York City, November 1965.

As the nation reckons with life under its irascible, sometimes seemingly irrational president, prayers for peace have never seemed so important. For who knows what Donald Trump will and won’t do—first and foremost, to North Korea and Iran? Such basic uncertainty about the uses of U.S. power gives us reason to reinvigorate a Vietnam-era debate over a right that has the potential to bend swords into plowshares: selective conscientious objection.

To anyone enamored of the categorical imperative, selective conscientious objection may seem badly misguided. How can a political society function if its citizens are legally permitted to decide for themselves which wars are just or unjust and which laws they will and will not observe? As John Courtney Murray, SJ, noted in a 1967 college commencement address, “no political society can be founded on the principle that absolute rights are to be accorded to the individual conscience.” That is certainly true, but when it comes to the First Amendment’s free-exercise-of-religion clause, as recently refashioned by the Supreme Court in the Hobby Lobby case, it is quite possible that the cause of selective conscientious objection has been given new constitutional standing. Let me explain.

In a lawfully declared war, the nation’s leaders have presumably judged the war necessary and justified. The selective conscientious objector may disagree with this decision, but why should his or her disagreement be legally accommodated? Why should he or she, if drafted, be permitted not to fight? In a time of seemingly endless war, such questions have a particular urgency and significance. Readers of literature might recall Tim O’Brien’s short-story collection The Things They Carried, where a narrator struggles with whether “to fight a war I hated”—namely, the American war in Vietnam. Imagine the difference it would make for such a man if the prevailing belief in our society linked the question of whether a soldier fights honorably to the question of whether the war in which he fights is justified. How much more responsible and transparent would our political leaders have to be in making the case for war? Then go further: What difference would it make if such a man could legally refuse to serve by virtue of longstanding, deeply rooted convictions about the ethics of killing for an unjust cause?

The philosopher Jeff McMahan has argued that “we must stop reassuring soldiers that they act permissibly when they fight in an unjust war, provided that they conduct themselves honorably on the battlefield.” Once this belief is discredited, McMahan believes, we will possess “an important resource for the prevention of unjust wars”—one that, to date, has been quashed by the just-war tradition’s separation of jus ad bellum (justice in going to war) from jus in bello (just conduct in war). What is that resource? “The moral conscience of individuals.”

This revisionist account of just-war thinking gives support to positions staked out by the United States Conference of Catholic Bishops. In landmark letters in 1983 and 1993, the bishops affirmed both that “a citizen may not casually disregard his country’s conscientious decision to call its citizens to acts of ‘legitimate defense’” and that, “at the same time, no state may demand blind obedience.” The bishops’ insistence that “no state may demand blind obedience” led them to support both “conscientious objection in general and…selective conscientious objection to participation in a particular war, either because of the ends being pursued or the means being used,” such as nuclear weapons. The bishops called, accordingly, for the provision of legal protection for selective conscientious objectors.

The Supreme Court, in a 1971 decision, rejected arguments for selective conscientious objection. Gillette v. United States and Negre v. Larsen, two cases consolidated before the Court, presented different backgrounds and arguments: Guy Gillette appealed to humanistic principles for his refusal to serve in Vietnam, whereas Louis Negre, a Roman Catholic, sought a discharge after consulting with a Jesuit at the University of San Francisco, Fr. James Straukamp, who advised him that “under the beliefs and teaching of the Catholic Church he [was] obliged to examine and form his own conscience in respect to participating or refusing to participate in the war.”

The petitioners made two arguments: first, that limiting legal protection to universal objectors while excluding selective objectors amounts to the establishment of religion—for example, Quaker over Catholic—in violation of the First Amendment; and second, that making no provision for selective conscientious objectors is tantamount to prohibiting the free exercise of religion, again in violation of the First Amendment. Justice Thurgood Marshall’s majority opinion rejected these arguments. While acknowledging that even generally applicable, religion-neutral laws with secular aims may run afoul of the First Amendment when the laws in question burden religious practice, the Court judged that “the incidental burdens felt by persons in petitioners’ position are strictly justified by substantial government interests”—in particular, that of “procuring the manpower necessary for military purposes.”

Justice William Douglas dissented in both cases. In his dissent to Gillette, Douglas asserted his belief “that the welfare of the single human soul was the ultimate test of the vitality of the First Amendment.” In his dissent to Negre, he focused on “doctrines of the Catholic Church” and drew from a brief by the late John T. Noonan Jr., then a lawyer representing Negre, to find Negre’s free-exercise argument persuasive. Noonan later became a federal judge, and he remained on record as disagreeing with the Court’s ruling in the 1971 case. Writing in 1998, he blamed it for entrenching unequal treatment among churches and beliefs, in violation of the First Amendment.

Granting such autonomy to religious groups, Scalia wrote, “would be courting anarchy.”

Yet the law concerning religious liberty has changed since 1971, and particularly since the Supreme Court’s 1990 decision in Employment Division v. Smith, which took up the use of peyote in Native American ceremonies, and ruled that states were not required to accommodate illegal acts performed as part of a religious belief. Before Smith, the Court generally used a balancing test in its free-exercise cases, as it did in Gillette and Negre. This test “took into account,” Justice Samuel Alito explained in the recent Hobby Lobby decision, “whether the [government’s action] imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest.” By contrast, Justice Antonin Scalia’s 5-4 opinion in Smith concluded that “generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.” Granting such autonomy to religious groups, Scalia wrote, “would be courting anarchy.”

Three years after Smith, Congress made clear its disagreement. The Religious Freedom Restoration Act of 1993 (RFRA) prescribes that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”—that is, one not directed against this or that religious practice or interest. To allay Scalia’s fear that every citizen might become a law unto herself, Congress allowed for exceptions, stating that any burden imposed must be (1) “in furtherance of a compelling governmental interest” and (2) “the least restrictive means of furthering that compelling governmental interest.” A point of dispute in RFRA-related cases, including those over the Affordable Care Act’s so-called contraceptive mandate, is whether the law simply restores the pre-Smith compelling-interest test, or goes even further, through its least-restrictive-means test. Alito’s 2014 majority opinion in Burwell v. Hobby Lobby Stores, Inc. interprets RFRA as going beyond the Court’s pre-Smith jurisprudence.

This interpretation appears to clear the way for a renewed free-exercise argument on behalf of selective conscientious objection. In Gillette and Negre, the Court based its rejection of the free-exercise argument on the claim that the government’s interest in raising and supporting armies is sufficiently compelling to justify any incidental burden on religious liberty. (Noonan: “What was truly sacred was not the claim of conscience but the security of the nation.”) But pre-RFRA, the Court did not have to address the question of whether forcing objecting soldiers to fight qualifies as the least restrictive means of furthering the compelling governmental interest in question.

It is hard to believe that this could be so. In 2007, the Catholic Peace Fellowship, which according to its website “offers practical and pastoral support to military and veterans who are struggling with the contradiction between their personal participation in war and their consciences,” reported that, since the Iraq War began in 2003, it had heard from more than a thousand soldiers. Imagine that these thousand soldiers became selective conscientious objectors. Would finding alternative service for them have prevented the government from procuring the manpower necessary for military purposes? Probably not. Admittedly, if a hundred thousand soldiers refused to serve, the nation’s war plans might well be undermined; but if opposition to a war were that prevalent, one might well conclude that the government was going to war against its people’s wishes.

How can courts decide which grounds for objection warrant respect and which don’t?

It might also be argued that the government has a compelling interest to avoid the logistical problems of selective exemption, which is much more complicated than exempting only proven pacifists (that is, universal conscientious objectors). This objection leads us back to the Vietnam-era debate that exercised not only John Courtney Murray, but the Protestant ethicist Paul Ramsey, among others. As it happens, both opposed according absolute rights to individual conscience, and recognized the “conscience of the laws” enacted by public officials, yet both also supported selective conscientious objection. On what grounds?

Murray and Ramsey thought that the first question to be answered is whether such a system could be administered fairly. How can courts decide which grounds for objection warrant respect and which don’t? After all, the mere fact that a conscript or soldier is struggling in his conscience does not tell us if his conscience is well formed. Maybe he’s not only all wrong about the facts of the war, but morally ignorant as well. Or maybe his conscientious objection is morally idiosyncratic—for example, if he refuses to fight fellow Christians or fellow Muslims, whatever the justice of his nation’s cause. A right to selective conscientious objection might be well founded in theory, but trying to accommodate this right would entangle courts in an unholy mess.

Ramsey’s response is particularly instructive. He proposes limiting “the class of exemptible conscientious objections” to those based on the norms of conduct governing war: more precisely, the traditional norms of jus ad bellum (justice in going to war) and jus in bello (just conduct in war). In other words, in order to be exempt, the conscript or soldier would need to show that his or her objection is based on norms that the world’s nations already recognize. Limiting the class of objections in this way rules out not only those based on idiosyncratic moral codes, but those based on strictly political disagreements with the lawful decisions of a nation’s leaders. To qualify, conscientious objections must be based not merely on disagreements about the wisdom or likely consequences of going to war, but on the morality of going to war in the light of internationally recognized norms.

A worry persists—namely, that Ramsey’s proposal favors the educated, who would know that they needed to appeal to the traditional principles of just-war theory. Well-educated, articulate kids—most from well-to-do backgrounds—would get off, while poor kids would do the fighting. This is a worry expressed by both friends and critics of selective conscientious objection. The political philosopher Michael Walzer, for instance, holds that “democratic states suffer whenever conscience is coerced” and thus favors selective conscientious objection, but also recognizes that such a development “will almost certainly introduce…a pronounced class bias.”

Surely the government has a compelling interest in not fighting the nation’s wars on the backs of the poor and uneducated. But is ruling out selective conscientious objection the least restrictive means to further this interest? Surely not. To rule out selective conscientious objection on the grounds that it is biased toward the well-educated and well-off casts the poor and uneducated as incapable of developing well-founded objections. Better remedies exist. If the government really desires to avoid unfairness, then it should support organizations, like the Catholic Peace Fellowship, that offer support and counseling to soldiers and conscripts. It should provide relevant education to all soldiers, as well as see to it that the nation’s public education system is adequately funded across all school districts. To reject selective conscientious objection as unfair to the poor and uneducated is a cynical cop-out.

Peace-seekers today face a promising opportunity. Selective conscientious objection appears to have both philosophical and legal arguments in its support. Accordingly, should the Trump administration lead the nation into an unjust war, the time appears ripe to bring a new constitutional challenge to current law. And the U.S. Conference of Catholic Bishops should take a leading role. Not only do the bishops lead the nation’s largest religious group, and not only do they officially endorse selective conscientious objection; they also have been heavily invested in RFRA-related litigation over provisions of the Affordable Care Act. In line with Pope Francis’s re-orientation of Catholic social teaching to prioritize global poverty, the degradation of the earth, and the depredations of war, the bishops ought now to take action for peace. They should help revive the debate over selective conscientious objection in light of RFRA and in anticipation of our current president’s poor judgments. The sooner the better.

Bernard G. Prusak holds the Raymond and Eleanor Smiley Chair in Business Ethics at John Carroll University.

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Published in the December 1, 2017 issue: View Contents
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