Conscientious objection: more complicated than you may think

The media recently reported that a few U.S. military members are “requesting to become conscientious objectors over the United States support of Israel, a decision they said was emboldened by the ongoing war in Gaza.”  The purpose of this post is to provide some general information (not legal advice) as to how conscientious objection works in the U.S. military.

Legal context

Surprising to some, there is no Constitutional right to be a conscientious objector  As I said in an earlier post, it’s well-settled that in the U.S. military service can be compelled of everyone.  In fact, the Supreme Court has never held that conscientious objection is a Constitutional entitlement.

Consider: In Jacobson v. Massachusetts, the Court said (in dicta) that someone “may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense.”

Interestingly, the Founding Fathers considered having a ‘conscientious objector’ provision in the Second Amendment, but it was deleted from the final version. 

However, conscientious objector status has a long history in the U.S. and does exist today as a matter of legislative grace. The Military Selective Service Act provides an exemption for persons who are “conscientiously opposed to participation in war in any form.” 

Conscientious objection has been subject to litigation, mostly in the context of the draft.  (Although draft registration is required by U.S. law for all men, an actual draft would require further legislation).

For example, the Military Selective Service Act says the objection must be “by reason of religious training and belief.”  It further states that “the term ‘religious training and belief’ does not include essentially political, sociological, or philosophical views, or a merely personal moral code.”

However, employing what is sometimes called the “Constitutional-Doubt Canon” the Supreme Court creatively interpreted the statute in United States v. Seeger in such a way as to find beliefs as qualifying so long as they amount to a “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.”  In Welsh v. United States the Court further developed its view.  As the Congressional Research Service put it:

Welsh, however, characterized his beliefs as not religious. Revisiting Section 6(j), the Court now construed it to cover an individual, like Welsh, who “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 time,” notwithstanding Section 6(j)’s express language that “essentially political, sociological, or philosophical views or a merely personal moral code” did not qualify for conscientious-objector status. In short, the Seeger and Welsh Courts interpreted Section 6(j)’s definition of religious belief to encompass theistic and non-theistic worldviews depending on “whether the beliefs professed by a registrant are sincerely held and whether they are, in [the conscientious objector applicant’s] own scheme of things, religious.”

An important case, particularly for those serving in the armed forces, is Gillette v. United States.  In Gillette the Court “decided that opposition against “unjust” wars was not sufficient; a person had to oppose all wars for a claim of conscientious objection to stand.” Thus, someone seeking conscientious objector status cannot pick and chose among wars.

Some insist “[y]ou do not have to be a pacifist to be a conscientious objector!” though others seem to suggest otherwise, (see here).  In my view it is not necessary for a conscientious objector to be opposed, for example, to police forces. 

Those granted conscientious objector status may be required to perform alternative service. The movie Hacksaw Ridge tells the true story of Corporal Desmond T. Doss, a conscientious objector during World War II, who was awarded the Congressional Medal of Honor for heroism while serving as a medic in intense combat.

Active duty conscientious objector status

Those on active duty may apply for conscientious objector status, and that process is governed by Department of Defense (DoD) Instruction 1300.06 Conscientious Objection.  Among other things, it says that a “Service member who possessed conscientious objection beliefs before entering military service is not eligible for such classification” unless “[s]uch beliefs crystallized after receipt of an induction notice.” 

In that regard, the applicant will have to provide a description as to “[h]ow the applicant’s beliefs changed or developed to include an explanation as to what factors (how, when, and from whom or from what source training was received or belief acquired) caused the change in or development of conscientious objector beliefs.”  In addition, the applicant must explain “[w]hen these beliefs became incompatible with military service or combatant duties, and why.”

The DoDI places the burden on the applicant to prove by clear and convincing evidence that their belief is “is firm, fixed, sincere, and deeply held.”  Further, the DoDI says (highlights mine):

The DoDI says the “term ‘religious, moral, or ethical belief’ does not include a belief that rests solely upon considerations of policy, pragmatism, expediency, or political views.”

Regarding the need to prove opposition to war in any form the DoDI provides (highlights mine):

Concluding thoughts

Given the requirement for opposition to “all wars” it may be challenging for active duty servicemembers to obtain conscientious objector status based on moral qualms about the Israel-Hamas conflict, even if sincerely and deeply held. 

Absent an approved conscientious objector status, a religious or philosophical belief is not a legal basis to refuse a lawful order. The Manual for Courts-Martial unequivocally states that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of any otherwise lawful order.”  

Obviously, this requirement illustrates that military personnel must sometimes sacrifice constitutional rights that civilians take for granted.  In Burns v, Wilson, the Supreme Court pointed out that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty.”

Of course, it is possible that the Department of Defense might allow service separation when requested by those morally troubled by a particular conflict, but who do not meet the requirements of conscientious objector status.  However, the military would need to be very cautious about doing so because of the precedent it could set (compare here).

As evidenced by the current law and policy, obtaining conscientious objector status is more complicated than most people – even those serving in the military – may think.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!