Gillette v. United States/Dissent Douglas

by William O. Douglas

United States Supreme Court

401 U.S. 437

Gillette  v.  United States

 Argued: Dec. 9, 1970. --- Decided: March 8, 1971

Mr. Justice DOUGLAS, dissenting in No. 85.

Gillette's objection is to combat service in the Vietnam war, not to wars in general, and the basis of his objection is his conscience. His objection does not put him into the statutory exemption which extends to one 'who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.' ^[1]

'I object to any assignment in the United States Armed Forces while this unnecessary and unjust war is being waged, on the grounds of religious belief specifically 'Humanism.' This essentially means respect and love for man, faith in his inherent goodness and perfectability, and confidence in his capability to improve some of the pains of the human condition.'

This position is substantially the same as that of Sisson in United States v. Sisson, D.C., 297 F.Supp. 902, appeal dismissed, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608, where the District Court summarized the draftee's position as follows:

'Sisson's table of ultimate values is moral and ethical. It reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion. It is just as much a residue of culture, early training, and beliefs shared by companions and family. What another derives from the discipline of a church, Sisson derives from the discipline of conscience.' 297 F.Supp., at 905.

There is no doubt that the views of Gillette are sincere, genuine, and profound. The District Court in the present case faced squarely the issue presented in Sisson and being unable to distinguish the case on the facts, refused to follow Sisson.

The question, Can a conscientious objector, whether his objection be rooted in 'religion' or in moral values, be required to kill? has never been answered by the Court. ^[2] Hamilton v. Regents of University of California, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343, did no more than hold that the Fourteenth Amendment did not require a State to make its university available to one who would not take military training. United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302, denied naturalization to a person who 'would not promise in advance to bear arms in defense of the United States unless he believed the war to be morally justified.' Id., at 613, 51 S.Ct., at 571. The question of compelling a man to kill against his conscience was not squarely involved. Most of the talk in the majority opinion concerned 'serving in the armed forces of the nation in time of war.' Id., at 623, 51 S.Ct., at 574. Such service can, of course, take place in noncombatant roles. The ruling was that such service is 'dependent upon the will of Congress and not upon the scruples of the individual, except as Congress provides.' Ibid. The dicta of the Court in the Macintosh case squint towards the denial of Gillette's claim, though as I have said, the issue was not squarely presented.

Yet if dicta are to be our guide, my choice is the dicta of Chief Justice Hughes who, dissenting in Macintosh, spoke as well for Justices Holmes, Brandeis, and Stone:

'Nor is there ground, in my opinion, for the exclusion of Professor Macintosh because his conscientious scruples have particular reference to wars believed to be unjust. There is nothing new in such an attitude. Among the most eminent statesmen here and abroad have been those who condemned the action of their country in entering into wars they thought to be unjustified. Agreements for the renunciation of war presuppose a preponderant public sentiment against wars of aggression. If, while recognizing the power of Congress, the mere holding of religious or conscientious scruples against all wars should not disqualify a citizen from holding office in this country, or an applicant otherwise qualified from being admitted to citizenship, there would seem to be no reason why a reservation of religious or conscientious objection to participation in wars believed to be unjust should constitute such a disqualification.' Id., at 635, 51 S.Ct. at 579.

I think the Hughes view is the constitutional view. It is true that the First Amendment speaks of the free exercise of religion, not of the free exercise of conscience or belief. Yet conscience and belief are the main ingredients of First Amendment rights. They are the bedrock of free speech as well as religion. The implied First Amendment right of 'conscience' is certainly as high as the 'right of association' which we recognized in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, and NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. Some indeed have thought it higher. ^[3]

Conscience is often the echo of religious faith. But, as this case illustrates, it may also be the product of travail, meditation, or sudden revelation related to a moral comprehension of the dimensions of a problem, not to a religion in the ordinary sense.

Tolstoy ^[4] wrote of a man, one Van der Veer, 'who, as he himself says, is not a Christian, and who refuses military service, not from religious motives, but from motives of the simplest kind, motives intelligible and common to all men, of whatever religion or nation, whether Catholic, Mohammedan, Buddhist, Confucian, whether Spaniards or Japanese.

'Van der Veer refuses military service, not because he follows the commandment. 'Thou shalt do no murder,' not because he is a Christian, but because he holds murder to be opposed to human nature.' Tolstoy ^[5] goes on to say:

'Van der Veer says he is not a Christian. But the motives of his refusal and action are Christian. He refuses because he does not wish to kill a brother man; he does not obey, because the commands of his conscience are more binding upon him than the commands of men. * * * Thereby he shows that Christianity is not a sect or creed which some may profess and others reject; but that it is naught else than a life's following of that light of reason which illumines all men. * * *

'Those men who now behave rightly and reasonably do so, not because they follow prescriptions of Christ, but because that line of action which was pointed out eighteen hundred years ago has now become identified with human conscience.'

The 'sphere of intellect and spirit,' as we described the domain of the First Amendment in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, was recognized in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, where we gave a broad construction to the statutory exemption of those who by their religious training or belief are conscientiously opposed to participation in war in any form. We said: '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 comes within the statutory definition.' Id., at 176, 85 S.Ct., at 859. ^[6]

Seeger does not answer the present question as Gillette is not 'opposed to participation in war in any form.'

But the constitutional infirmity in the present Act seems obvious once 'conscience' is the guide. As Chief Justice Hughes said in the Macintosh case:

'But, in the forum of conscience, duty to a moral power higher than the state has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and lawabiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.' 283 U.S., at 633-634, 51 S.Ct., at 578.

The law as written is a species of those which show an invidious discrimination in favor of religious persons and against others with like scruples. Mr. Justice Black once said: 'The First Amendment has lost much if the religious follower and the atheist ^[7] are no longer to be judicially regarded as entitled to equal justice under law.' Zorach v. Clauson, 343 U.S. 306, 320, 72 S.Ct. 679, 687, 96 L.Ed. 954 (dissenting). We said as much in our recent decision in Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228, where we struck down as unconstitutional a state law prohibiting the teaching of the doctrine of evolution in the public schools:

'Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.' Id., at 103 104, 89 S.Ct., at 270.

While there is no Equal Protection Clause in the Fifth Amendment, our decisions are clear that invidious classifications violate due process. Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694, 98 L.Ed. 884, held that segregation by race in the public schools was an invidious discrimination, and Schneider v. Rusk, 377 U.S. 163, 168-169, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218, reached the same result based on penalties imposed on naturalized, not native-born citizens. A classification of 'conscience' based on a 'religion' and a 'conscience' based on more generalized, philosophical grounds is equally invidious by reason of our First Amendment standards.

I had assumed that the welfare of the single human soul was the ultimate test of the vitality of the First Amendment.

This is an appropriate occasion to give content to our dictum in West Virginia State Board of Education v. Barnette, supra, 319 U.S., at 642, 63 S.Ct., at 1187:

'(F)reedom to differ is not limited to things that do not matter much. * * * The test of its substance is the right to differ as to things that touch the heart of the existing order.'

I would reverse this judgment.

Notes

1. Section 6(j), Military Selective Service Act of 1967, 50 U.S.C.App. § 456(j) (1964 ed., Supp. V).
2. See T. Powell, Conscience and the Constitution, in Democracy and National Unity (W. Hutchinson ed. 1941).
3. See M. Konvitz, Religious Liberty and Conscience 106 (1968); Redlich & Feinberg, Individual Conscience and the Selective Service Objector: The Right Not to Kill, 44 N.Y.U.L.Rev. 875, 891 (1969): 'Free expression and the right of personal conscientious belief are closely intertwined. At the core of the first amendment's protection of individual expression, is the recognition that such expression represents the oral or written manifestation of conscience. The performance of certain acts, under certain circumstances, involves such a crisis of conscience as to invoke the protection which the first amendment provides for similar manifestations of conscience when expressed in verbal or written expressions of thought. The most awesome act which any society can demand of a citizen's conscience is the taking of a human life.'
4. L. Tolstoy, Writings On Civil Disobedience and Non-Violence 12 (1967).
5. Id., at 15-16. And see Clark, Guidelines for the Free Exercise Clause, 83 Harv.L.Rev. 327, 337 (1969):
6. In Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308, four Justices elaborated on Seeger, stating:
7. Article VI of the Constitution provides that 'no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.' Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982, upheld the right of a nonbeliever to hold public office.