All or Nothing for C.O.s

According to the draft law enacted by Congress in 1967, no person shall be "subject to combatant training and service in the armed forces of the U.S. who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form."

Behind this language lies a steady expansion of the scope of conscientious objection. In World War 1, the draft law exempted from combat only members of "peace churches" like the Quakers. By 1940, conscientious objectors no longer had to belong to a church or other religious organization. In 1965, the Supreme Court held that objectors need not believe in a "Supreme Being." Last June, the court ruled that the 1967 law exempts "all those whose consciences, spurred by deeply held moral, ethical or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war."

But what of those young men who feel that way only about the war in Viet Nam, rather than all wars in general? Last week, in a long-awaited decision, the Supreme Court held 8 to 1 that conscientious objection is an all-or-nothing proposition. It does not exempt those, however sincere, who object to some wars but not others.

Just and Unjust. The two losers in the case came to the court from opposite ends of the country and different ethical viewpoints. Guy P. Gillette, a rock musician from Yonkers, N.Y., was ready to fight for the U.S. in the event of an attack or help in any United Nations peace-keeping mission. But Gillette, now 25, refused induction because, he said, his humanist views forbade him to take part in the "unjust" Viet Nam conflict.

Louis Negre, a gardener in Bakersfield, Calif., is a French immigrant whose family came to the U.S. partly because of their opposition to French involvement in Viet Nam. Negre, 23, said no to the military only after completing basic training and receiving orders to Viet Nam, by which time he was sure that he could not in good conscience fight there. A devout Roman Catholic, he sought a court-ordered discharge from the Army on the ground that Catholic theology permits a distinction between just and unjust wars. "Each Catholic," he argued, "must form his own conscience in respect to military service."

Gillette and Negre claimed, among other things, that the draft law violates the First Amendment ban against governmental "establishment of religion." It does so, they said, by favoring denominations that preach total pacifism while penalizing others that oppose only unjust wars. Speaking for the court majority, Justice Thurgood Marshall noted that the establishment clause requires that "when government activities touch on the religious sphere, they must be secular in purpose, evenhanded in operation and neutral in primary impact." By exempting objectors to all wars, Marshall held, Congress properly focused on individual consciences, not sectarian affiliations. It also avoided administrative chaos, which would have deepened "bitterness and cynicism" among draftees. How, for example, could a draft board fairly decide whether a man's objections to a particular war were matters of conscience or politics? Soon boards would be mired in theological and political debates far beyond their depth.

Worse Danger. As Marshall saw it, only the objector to all wars has "a claim that is distinct enough and intense enough to justify special status, while the objector to a particular war does not." Balancing competing interests, as the Supreme Court must, Marshall concluded that the national interest in respecting the conscientious claims of single war objectors is outweighed by the nation's need to raise armies and assure those who do serve that the Selective Service is impartial.

Only Justice William O. Douglas disagreed. Said Douglas: "I had assumed that the welfare of the single human soul was the ultimate test of the vitality of the First Amendment." But a high-ranking Justice Department official, "much relieved" by the decision, offered a different perspective. Said he: "I just don't think the U.S. could operate now or in the future if it had allowed a draftee to fight only in the war of his choice." If the ruling had been otherwise, he added, "Congress might have felt that it had no choice but to disallow all conscientious objections to war."

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