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51 Geo. L. J. 252 (1962-1963)
Conscientious Objector Provisions: A View in the Light of Torcaso v. Watkins

handle is hein.journals/glj51 and id is 286 raw text is: CONSCIENTIOUS OBJECTOR PROVISIONS: A VIEW IN THE LIGHT OF TORCASO v. WATKINS FA.Ncxs J. CONLN, S.J.* Reviewing and evaluating the legislative and constitutional background of -the conscientious objector exemptions, the author suggests that recent Su- preme Court decisions not only create grave doubts as to the constitutionality of the present exemption provisions, but have placed obstructions in the path of future congressional attempts to devise a workable exemption pro- vision. Father Conklin feels that the Supreme Court has removed the vital flexibility of the first amendment and urges that the objector provisions be reexamined, discounting this untoward rigidity. INTRODUCTION The Congress and the American people have historically been deeply concerned with protecting the free exercise of religion and respecting the scruples of those who for religious reasons claim they cannot con- scientiously bear arms. Mirroring this attitude, any legislation based upon this recognition has almost exclusively limited relief to those whose claim is based upon a duty to a higher being, rather than a personal or political philosophy. In attempting to obtain a workable formula which will protect the religious liberty of the sincere conscientious objector, the major con- cern of Congress has been to enact a law liberal enough to achieve this objective, but strict enough to discourage the coward and the shirker. There have been many formally distinguishable variations of this formula, but with few exceptions they have had as their basis the adjective, or some form of the adjective, religious. An examination of the historical materials relevant to this word, as it has been used in the various state and federal militia, draft, and selective service acts, clearly demonstrates that it was historically used in reference to a belief in a Supreme Being. With these historical precedents in mind it does not seem unusual that the Congress adopted the phrase belief in a Supreme Being in the conscientious objector provisions of the 1948 Selective Service Act.' In this act the long-sought workable formula seemed to have been achieved. However, what appeared to be the final solution has been returned to the realm of doubt by the recent Supreme Court decision in Torcaso v. Watkins.2 The sweeping language utilized in Torcaso all but explicitly * LL.B., Georgetown University Law Center; LLM., Yale University; Professor of Law, Gonzaga University. 1 62 Stat. 604 (1948), as amended, 50 U.S.C. App. § 453 (Supp. III, 1959-1961). 2 367 U.S. 488 (1961).

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