Conscientious Objection

by Karl Nelson

The practice of conscientious objection, the refusal to fight in the military on moral and religious grounds, has existed since the time of the Christ. Throughout much of history, however, conscientious objectors (COs) have not been a part of the religious mainstream. Two key Vietnam War-era Supreme Court cases changed forever the nature of conscientious objection by expanding the definition of religion and moving conscientious objection into mainstream religious life.

Prior to the twentieth century, conscientious objection was the sole domain of the historic peace churches: the Anabaptists (Mennonites, Amish, and Hutterites), the Brethren, and the Quakers. Their objection to military service and war was occasionally tolerated in ante-bellum America. The Civil War brought not only the first national draft, but also the first national recognition of conscientious objection. But the law was written in such a way that only members of the historic peace churches were eligible for conscientious objection.

The World War I draft law provided exemptions for members of “any well recognized religious sect or organization...whose existing creed or principles forbid its members to participate in war in any form.” Of course, mainstream religious organizations had no specific creed, and thus the law limited objection again to the historic peace churches.

In 1940, as war raged in Europe and dark clouds hung over the Pacific, Congress passed the Selective Service Act, which created the draft policy that remained much the same through the Vietnam War. The law provided for those objectors who, “by reason of religious training and belief, [were] conscientiously opposed to participation in war in any form.” Under this law, conscientious objection was, for the first time, recognized to be a matter of individual conscience, not group affiliation or creed. Despite the legal change, World War II conscientious objectors were still predominately members of the historic peace churches.

During the Vietnam War, the Supreme Court dealt with three significant conscientious objector cases. The 1965 United States v. Seeger ruling enlarged the definition of religion to include objection outside of the religious orthodoxy.

The law defined religious training and belief as an “individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation.” Seeger and his co-defendants were denied their objection because their beliefs did not fit in the traditional definition of a Supreme Being. So the Court re-wrote the definition, having concluded that Congress used the term “Supreme Being” (rather than “God”) “so as to embrace all religions and to exclude essentially political, sociological, or philosophical views.” To qualify for a religious exemption, the petitioner needed to hold beliefs that occupied a place “parallel to that filled by the orthodox belief in God.”

The Court again changed the definition of religion with Welsh v. United States (1970). As a result of this ruling, even political beliefs were considered religious if they were held deeply and sincerely enough by the registrant. The Court stated that it now wished to include as religious objectors “those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy.” Nearly any sincere objector, regardless of the nature of his beliefs, now legally qualified as a CO.

In both cases under consideration, the Court wrestled with the definition of religion. From 1965 to 1970, the specific legal definition of religion used by the courts and the Selective Service when dealing with conscientious objection changed from an orthodox view of religion to one where nearly any beliefs, no matter how political or philosophical, qualified as “religious.” By the end of this period, the Court had expanded the definition of “religion” to the point that, in this context, the term nearly lost all meaning.

As a result of these legal changes, the Vietnam War period saw conscientious objection move away from the periphery of American life and into the mainstream. COs received support (although not overwhelmingly so) from many mainstream religious organizations (Protestant, Catholic, and Jewish). As a result, in 1970, 30% of objectors came from large, mainstream churches. The historic peace churches made up 40% of the COs, down from 80% in the pre-war period. Objectors who did not report a religious affiliation accounted for 20% of COs, in large part due to the relaxed definition of religion. (The other 10% of COs came from smaller denominations.) The Seeger and Welsh cases, with the expanded definition of religion, clearly opened the door for mainstream religious (and non-religious) objectors to war.