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21 New Eng. L. Rev. 545 (1985-1986)
Conscientious Objection: A Constitutional Right

handle is hein.journals/newlr21 and id is 557 raw text is: Conscientious Objection: A Constitutional Right
Fredrick L. Brown*, Stephen M. Kohn** & Michael D. Kohn***
Thousands of conscientious objectors (C.O.s) to military service have
been indicted, fined and imprisoned for following their consciences instead of
the draft laws. Although many C.O.s still face this same dilemma, the Su-
preme Court has consistently avoided directly addressing the issue of a consti-
tutional right to conscientious objection.'
* Associate Justice of the Appeals Court of the Commonwealth of Massachusetts; A.B.,
Harvard University, 1954; L.L.B., Harvard University, 1967.
** B.S. Boston University, 1979; M.A. Brown University, 1981; J.D. Northeastern Univer-
sity School of Law, 1984; Clinical Director, Government Accountability Project; Adjunct Profes-
sor of Law, Antioch School of Law.
*** B.S. Rutgers University, 1979; J.D. Antioch School of Law, 1985; Staff Attorney, Gov-
ernment Accountability Project; Adjunct Professor of Law, Antioch School of Law.
I. Although some Justices have urged the Supreme Court to consider this issue, see, e.g.,
Ehlert v. United States, 402 U.S. 99, 113-15 (1971) (Douglas, J., dissenting), the Court has
consistently refused, see, e.g., United States v. Sisson, 399 U.S. 267, 288 (1970); Gillette v.
United States, 401 U.S. 437, 461 n.23 (1971), and Johnson v. Robinson, 415 U.S. 361, 375 n.14
(1974). Thus, in Gillette, the Court, addressing the issue of selective C.O. (i.e., whether a C.O.
had to oppose all wars or could gain exemption from fighting in a particular war he felt was
unjust) chose explicitly to reject considering an independent constitutional right to C.O. See 401
U.S. at 461 n.23. The Court's conclusion that section 6() of the Selective Service Act exempted
only persons opposed to participation in war of any form and not those who objected to fighting
in a particularly unjust war was based solely on statutory construction. Id. at 441-50. In terms
of a free exercise clause argument, Gillette simply held that a political decision based on the
merits of a particular war did not rise to the level of a religious or moral decision based against all
war. The Court held that disallowing selective C.O. did not work a penalty against any theologi-
cal position, because selective objectors were not morally opposed to killing or warfare. Id. at
462. Likewise, Johnson also refused to address the issue of a consitutional right to conscientious
objection. 415 U.S. at 375 n.14. Johnson considered the issue of whether a C.O. who performed
alternative service was entitled to veteran's benefits. Id. at 374. The Court held that veteran's
benefits are neither designed to nor in fact do interfere with the free exercise of religion. Veteran's
benefits, the Court reasoned, are designed to promote manpower recruitment into the armed ser-

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