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16 N. Ky. L. Rev. 79 (1988-1989)
Secure the Blessings of Liberty: A Free Exercise Analysis Inspired by Selective Service Nonregistrants

handle is hein.journals/nkenlr16 and id is 91 raw text is: SECURE THE BLESSINGS OF LIBERTY: A FREE EXERCISE ANALYSIS INSPIRED BY SELECTIVE SERVICE NONREGISTRANTS* Elizabeth Reilly** I. INTRODUCTION Mark Schmucker taught me about freedom. United States v. Schmucker IP taught me about institutional power. The security we derive from liberty depends upon its exercise. Freedom is like a social muscle. It atrophies with disuse. First amendment liberties have been described as hazardous freedoms.' Are the freedoms hazardous to entrenched and insecure govern- ments, hazardous to the very idea of government, or hazardous to those few who take them seriously enough to rely upon them to act? Good government depends upon the hazard of open dis- sent.' Well-developed theories behind freedom of expression sup- port a thesis that free expression is good precisely because it challenges the government to reassess its policies and to adapt to dissent as a positive influence.4 If so, it is peculiarly inappropriate to penalize those whose strength of idea and character permits the effective utilization of this liberty. Mark Schmucker was nineteen years old when his government forced him to choose between registering for military service or obeying his conscientious religious belief that peace is right and war-making, in any form, is wrong. As a person of principle, Mark carefully evaluated his conflicting duties and chose what he believed * The author thanks attorneys William Whitaker, John Lawson, Dale Baich, and James Feldman, professors Richard Aynes and Wilson Huhn, and assistants Deborah Mahusky, Brenda Mosteller and Deborah Brown for their aid, research, and comments. But most of all-thank you, Mark. * Associate Professor of Law, University of Akron School of Law; J.D. University of Akron; A.B. Princeton University. 1. United States v. Schmucker II, 815 F.2d 413 (6th Cir. 1987). 2. Tinker v. Des Moines Independent Comm. School Dist., 393 U.S. 503, 508-09 (1969). 3. See, e.g., id. at 507, 509, 512. 4. Tinker, 393 U.S. at 508-09. Garvey, Free Exercise and the Values of Religious Liberty, 18 CONN. L. REV. 779, 780, esp. nn.4-7 (1986); Lupu, Keeping the Faith: Religion, Equality and Speech in the U.S. Constitution, 18 CONN. L. REv. 739, 776 (1986); Marshall, Solving the Free Exercise Dilemma: Free Exercise as Expression, 67 MINN. L. REv. 545, 579 (1983).

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