Objection Sustained

The draft law currently limits the combat-exempt status of a conscientious objector to one "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." Virtually all draft boards have interpreted those words to mean that 1) a draftee's opposition cannot be the product of a merely personal moral code, and 2) his opposition must be directed against all wars, not one specific conflict like Viet Nam. Last week both of those assumptions were declared unconstitutional by Charles Edward Wyzanski, chief judge of the U.S. District Court for Massachusetts.

The ruling set aside the conviction of John Sisson Jr., a Harvard graduate who had never even applied for a C.O. classification because he is "not formally religious," and his objection to being drafted was solely related to the Viet Nam war. Drawing from sources as varied as Learned Hand and Alfred North Whitehead, Judge Wyzanski began his legal analysis with the broad contention that the First Amendment right to free exercise of religion means "that no statute can require combat service of a conscientious objector whose principles are either religious or akin thereto."

Sincere and Insincere. But he made a point of adding that the right is not absolute. "The most sincere religious believer may be validly punished even if in strict pursuance of his creed or principles, he fanatically assassinates an opponent or practices polygamy." In other words, an individual's religious freedom must be balanced against the competing interest of the state. In the Sisson case, the judge found the balance tipped by "the magnitude of Sisson's interest in not killing in the Viet Nam conflict as against the want of magnitude in the country's present need for him to be so employed." Said Wyzanski: "When the state through its laws seeks to override reasonable moral commitments, it makes a dangerously uncharacteristic choice. The law grows from the deposits of morality."

A second, narrower issue was related to the First Amendment's ban on the establishment of religion. Wyzanski felt that the draft law is biased in favor of men who are religious. "Congress," he said, "unconstitutionally discriminated against atheists, agnostics and men like Sisson who, whether they be religious or not, are motivated by profound moral beliefs which constitute the central convictions of their beings." To critics who argue that the sincerity of such a personal code is too hard to ascertain, Wyzanski tartly replied, "Often it is harder to detect a fraudulent adherent to a religious creed than to recognize a sincere moral protestant. We can all discern Thoreau's integrity more quickly than we might detect some churchman's hypocrisy. The suggestion that courts cannot tell a sincere from an insincere conscientious objector underestimates what the judicial process performs every day."

Wyzanski was careful to state (in capital letters) that he was not suggesting the Government could never require C.O.s to fight; defense of the homeland, in his view, might overbalance claims of individual conscience. And the judge was not saying that the Government was barred from drafting C.O.s for noncombat service. His decision so far has binding effect only in his own court, but a Baltimore federal judge has also expanded C.O. status by granting it to an atheist (TIME, Dec. 20). The Supreme Court broadened the old C.O. definition slightly in a 1965 decision that held that a nonreligious objector's convictions must "occupy a place in the life of its possessor parallel to that filled by the orthodox belief in God." Wyzanski, however, has now forced the issue, and his decision was carefully worded so that it could be appealed directly to the high court. Government attorneys are expected to file such an appeal.

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