CONSCIENTIOUS OBJECTION TO MILITARY SERVICE:

SECULARISM EVOLVES FROM RELIGIOUS FREEDOM IN THE SEEGER CASE

Institute for the Study of Secularism in Society and Culture

Karl Fleischmann

Congress has long seen fit to recognize a right to exemption from active service for those
who hold a conscientious objection. This was recognized by the Supreme Court in
United States v. Macintosh, 283 U.S. 605, 623 (1931)

This is a case which arose from the denial of citizenship to an applicant who
stated “that he will not assist in the defense of the country by force of arms or
give any war his moral support unless he believes it to be morally justified,
however necessary the war might seem to the government of the day; that he will
hold himself free to judge of the morality and necessity of the war....” The
Supreme Court affirmed the District Court’s denial of the application for
citizenship in an opinion by Justice Sutherland who wrote the following:

“Congress ... thus far, has seen fit, by express enactment, to relieve from the
obligation of armed service those persons who belong to the class known as
conscientious objectors, and this policy is of such long standing that it is thought
by some to be beyond the possibility of alteration. ... The conscientious objector is
relieved from the obligation to bear arms in obedience to no constitutional
provision, express or implied, but because, and only because, it has accorded with
the policy of Congress thus to relieve him.” [This statement is dictum and would
not bind a later court. KF]

While there has been no compulsory military service since 1973 the following statute
remains on the books and has with some important modifications existed since before the
time of Macintosh. It continues to apply to the occasional situation in which someone
develops a conscientious objection during voluntary military service.

50 USC Appendix § 456 (j) Deferments and exemptions from training and service

“Nothing contained in this title [sections 451 to 471a of this Appendix] shall be
construed to require any person to be subject to combatant training and service in
the armed forces of the United States who, by reason of religious training and
belief, is conscientiously opposed to participation in war in any form. As used in
this subsection, the term "religious training and belief" [means an individual's
belief in a relation to a Supreme Being involving duties superior to those arising
from any human relation, but]1 does not include essentially political, sociological,
or philosophical views, or a merely personal moral code. Any person claiming
exemption from combatant training and service because of such conscientious
objections whose claim is sustained by the local board shall, if he is inducted into
the armed forces under this title [said sections], be assigned to noncombatant
1
The circumstances under which the bracketed phrase was removed from the statute are
discussed below.
1
 service as defined by the President, or shall, if he is found to be conscientiously
opposed to participation in such noncombatant service, in lieu of such induction,
be ordered by his local board, subject to such regulations as the President may
prescribe, to perform for a period equal to the period prescribed in section 4 (b)
[section 454 (b) of this Appendix] such civilian work contributing to the
maintenance of the national health, safety, or interest as the Director may deem
appropriate and any such person who knowingly fails or neglects to obey any
such order from his local board shall be deemed, for the purposes of section 12 of
this title [section 462 of this Appendix], to have knowingly failed or neglected to
perform a duty required of him under this title [said sections]. The Director shall
be responsible for finding civilian work for persons exempted from training and
service under this subsection and for the placement of such persons in appropriate
civilian work contributing to the maintenance of the national health, safety, or
interest.

In 1965 the Supreme Court decided the case of United States v. Seeger, 380 U.S. 163,
164 (1965)

“These cases involve claims of conscientious objectors under § 6(j) of the

Universal Military Training and Service Act, 50 U.S.C. App. § 456(j) (1958 ed.),
which exempts from combatant training and service in the armed forces of the
United States those persons who, by reason of their religious training and belief,
are conscientiously opposed to participation in war in any form. The parties raise
the basic question of the constitutionality of the section which defines the term
"religious training and belief," as used in the Act, as “an individual's belief in a
relation to a Supreme Being involving duties superior to those arising from any
human relation, but [not including] essentially political, sociological, or
philosophical views or a merely personal moral code....

The constitutional attack is launched under the First Amendment's

Establishment and Free Exercise Clauses and is twofold: (1) the section does not
exempt nonreligious conscientious objectors; and (2) it discriminates between
different forms of religious expression in violation of the Due Process Clause of
the Fifth Amendment.

We have concluded that Congress, in using the expression "Supreme Being,"

rather than the designation "God," was merely clarifying the meaning of religious
training and belief so as to embrace all religions and to exclude essentially
political, sociological, or philosophical views. We believe that, under this
construction, the test of belief "in a relation to a Supreme Being" is whether a
given belief that is sincere and meaningful occupies a place in the life of its
possessor parallel to that filled by the orthodox belief in God of one who clearly
qualifies for the exemption.2 Where such beliefs have parallel positions in the
lives of their respective holders, we cannot say that one is "in a relation to a
Supreme Being" and the other is not. We have concluded that the beliefs of the
objectors in these cases meet these criteria, and, accordingly, we affirm the
judgments in Nos. 50 and 51 and reverse the judgment in No. 29.
2
Italics added.
2
Following the Seeger decision Congress in 1967 deleted the reference to a Supreme
Being, referred to at note 1 above.

The Viet Nam War generated opposition among many young men who could not state
they were opposed to all wars but only specifically to the one then being fought. The
case of Welsh v. United States, 398 U.S. 333, 339 (1970) disqualified “only this war”
objectors.

“In his exemption application, petitioner stated that he could not affirm or deny
belief in a ‘Supreme Being,’ and struck the words ‘my religious training and’
from the form. He affirmed that he held deep conscientious scruples against
participating in wars where people were killed. The Court of Appeals, while
noting that petitioner's ‘beliefs are held with the strength of more traditional
religious convictions,’ concluded that those beliefs were not sufficiently
‘religious’ to meet the terms of § 6(j), and affirmed the conviction.” The Supreme
Court reversed the conviction, saying:

“What is necessary under Seeger for a registrant's conscientious objection to all

war3 to be "religious" within the meaning of § 6(j) is that this opposition to war
stem from the registrant's moral, ethical, or religious beliefs about what is right
and wrong and that these beliefs be held with the strength of traditional religious
convictions. Most of the great religions of today and of the past have embodied
the idea of a Supreme Being or a Supreme Reality -- a God -- who communicates
to man in some way a consciousness of what is right and should be done, of what
is wrong and therefore should be shunned. If an individual deeply and sincerely
holds beliefs that are purely ethical or moral in source and content, but that
nevertheless impose upon him a duty of conscience to refrain from participating
in any war at any time4, those beliefs certainly occupy in the life of that individual
"a place parallel to that filled by . . . God" in traditionally religious persons.
Because his beliefs function as a religion in his life, such an individual is as much
entitled to a "religious" conscientious objector exemption under § 6(j) as is
someone who derives his conscientious opposition to war from traditional
religious convictions.

One may sum up these developments as follows: The Supreme Court faced a
dilemma in the Seeger case. The statute established what appeared to be a
religious qualification for conscientious objector status, i.e., it required that the
individual have a “belief in a relation to a Supreme Being”, which would be, on
the face of it, an establishment of religion. In order to avoid declaring the statute
unconstitutional, the Court defined the Supreme Being requirement out of
existence. (It is one thing to believe in a Supreme Being and a very different
thing to have a sincere and meaningful belief of a non-religious sort which
occupies a position in one’s life parallel to that which a belief in a Supreme Being
occupies in someone else.) In thus redefining the statutory phrase, the Court
3
Italics added.
4
Italics added.
3
expanded the concept of freedom of religion by granting to atheists the same
opportunity to qualify for conscientious objector status as Congress granted to
religious believers. Recognizing that the Supreme Being test had been effectively
abolished by the Court, in 1967 Congress deleted the definition of a qualifying
belief, leaving only the undefined standard of “religious training and belief”. Yet
religious training must after Seeger also include training comparable to religious
training deriving from non-religious sources. However broad the exemption
became, it did not after Welsh include selective objection, one war at a time. It is
a fair summation of these developments to state that conscientious objection has
been secularized in the United States.

Karl Fleischmann is a graduate of Columbia College A.B.

degree, Phi Beta Kappa and Harvard Law School J.D.
Captain (ret.) in U.S. Army, Judge Advocate General Corps.,
Mr. Fleischmann practiced law in Hartford, and was an adjunct
faculty member at the University of Connecticut Law School
teaching military and selective service law, legal ethics,
education law and legal writing. Connecticut Bar Association,
former Chair of the Professional Ethics Committee and a
Cooper Fellow.

During the Vietnam War Mr. Fleischmann represented

numerous registrants in defense of refusal of induction
prosecutions in federal court. He has appeared in all the
Connecticut State trial courts and in probate court, the
Connecticut Supreme Court, the United States District Court
for the District of Connecticut and the United States Court of
Appeals for the Second Circuit.