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.