Within the First Amendment to the
United States Constitution lies the Free Exercise Clause and the Establishment
Clause. The amendment states, “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof…”, The
first two clauses of the First Amendment are the clauses that I wish to
investigate. These two clauses have been of much debate since their inception.
Throughout the history of the United States, the courts and congress have put a
special eye on these two clauses, due to the diverse range of religious beliefs
that US citizens have.
These beliefs and
the two clauses have historically resulted in granting those with religious
beliefs, exemptions to certain laws of the United States. Examples of Supreme Court
cases in which exemptions are being sought include: West Virginia Board of Education v. Barnette (319 U.S. 624, 1943), Sherbert
v. Verner (374 U.S. 398, 1963), and Cantwell v. Connecticut (310 U.S. 296, 1940); each case deals with
how a religious conviction can collide with societal norms. The West Virginia case involves a free
exercise claim that children who practice faith under the denomination of
Jehovah’s Witnesses should not have to recite the Pledge of Allegiance, at
first the claim was rejected, but the Supreme Court eventually ruled in favor
of the Jehovah’s Witnesses. The West
Virginia case seems quite simple from a modern prospective, no one is being
injured by a few Jehovah’s Witnesses not participating in the Pledge of
Allegiance. Cases such as Sherbert
that involve more substantive implications to society are more confusing; the
intersection between the Free Exercise Clause, Establishment Clause, and Free
Speech Clause also creates more confusion.
The confusion is
further exacerbated by Thomas Jefferson’s idea of “a wall of separation between
church and State”, yet we see evidence of the other side, Accommodationists, such
as government grants given to church run prison programs (Eisgruber and Sager
16). The Accommodationists vs. Separationists ideologies create inconsistencies
within US court systems that lead to arbitrary decisions based on
Accomodationist or Separationist ideologies. Jefferson's words are taken as constitutional law instead of his own private view on the First Amendment. Eisgruber and Sager point out
inconsistencies “that require government to both grant religion privileges and
to impose upon it special restrictions—so that, for example, the government
must provide wealthy property-owning churches with exemptions not enjoyed by
other landholders, but the government cannot allow poor churches to share in
nondiscriminatory subsidy programs that benefit other charitable or (secular)
providers” (Eisgruber and Sager 18).
The special
privilege that is sometimes granted to religious groups because the group
thinks that its Free Exercise of its religion is being infringed can highlight
the dichotomy between exemptions granted to religious and nonreligious groups.
One such case that highlighted this dichotomy, yet sought to disestablish the
dichotomy, was the United States v. Seeger
case (324 F.2d 173, 1963). The defendants (Seeger)
sought conscientious objector status, which had been granted to specific
religious groups, such as the Quakers, but had not yet been extended to those
who don’t necessarily have a strong religious conviction. The defendants didn’t
not believe in God, but instead used reason to justify their stance on not
participating in the military. The US government no longer uses conscription as
method to enlist individuals into military service; it is currently a voluntary
service. Although the courts finally ruled in favor of Seeger, most agree that the statutory language used to come to the
decision was strained, mainly the substitution of “Supreme Being” with “God”
(Greenawalt 61). With the Supreme Court cases mentioned above as the
background, I will argue that exemptions to the constitution should be granted
not on the basis of religious convictions, but on the basis of equality and
societal limitations. Conscientious objection to military service is one of the
most popular of exemptions to the constitution, specifically related to the
Vietnam War era draft policy. I will use conscientious objection as an example
for explaining the logical framework of granting exemptions based on equality
and societal limitations.
The example I will
use is granting conscientious objector status to an individual that is
currently serving in the military, but does not hold a religious conviction or
a nonreligious conviction that amounts to a deeply held belief. Conscientious objector
status can be granted to individuals currently serving in the military, but it
is a long and arduous process to obtain said status, mainly due to lack of
experience today’s military personal have with the process. For example, if an
individual is enlisted in the military during peacetime, but after individual
has served half the enlisted time, a war is started between the US and x
country. The individual in question disagrees with the war, so the individual
decides to seek conscientious objector status. This case is seen as a selective
objector to war, rather than a full out objector to war. This case differs from
the Seeger case because the
individual in question does not have a belief that is parallel to the belief in
“Supreme Being”, yet the belief is based on reason and humanist ideals. Should
the individual be granted conscientious objector status based on nonreligious
convictions? I think the answer is yes, but Gillette
v. United States case stated that selective objection to war was not an exemption
the court could make (401 U.S. 437, 1971).
Military personal
are required to sign a contract upon entering the military, while most other
job sectors do not require contracts. Why is that so? The contract is the
current device used to prevent would-be objectors from “quitting” the military
like most other jobs in the civilian world. Another question to ask is if the
military is voluntary, then why is it also not voluntary to quit? Of course,
there is questions related to treason, espionage, and leaking of classified
information. If a former military service member was found to be involved with
the above activity, then they would be prosecuted, so shouldn’t the “quitter”
be treated the same? The amount of societal damage would need to be addressed,
but I think the damage would not cause unmanageable side effects.
Does one need to
articulate or hold their beliefs at a level akin to say believing in Jesus
Christ in order to be granted conscientious objector status? Couldn’t a person
disagree with drone warfare tactics of the current military, yet agree with
pre-drone warfare tactics? The person would be committed to protecting the
country, but not by means of drone use. This belief doesn’t seem to be held at
the same level as a conscientious object to all war would hold. A more
clarifying question would be, can an individual seek resignation from a
military position based on self-interest rather than a moral claim? This level
of personal autonomy is granted in other parts of our society, but has not yet
been granted to those wishing to resign from military service. Greenawalt suggests
that understanding how high an individual’s opposition to act and if it the
unwillingness to act qualifies as “conscientious” is impossible (Greenawalt
67).
Articulating a person’s
level of conscientiousness objection to military is difficult to define, and
therefore difficult for congress or judges set a boundary at which exemptions
can be granted or not granted. Instead, exemptions should be granted by looking
at the societal damage said exemption would cause, along with looking at the
equality of the exemption. If the military is to be treated as a civilian job,
then exemptions are not even necessary. Would treating military jobs as
civilian jobs create unmanageable societal damage? Citizens are forced to pay
war taxes by threat of jail time, i.e., all citizens that make income above the
established poverty line are required to pay (war) taxes. If citizens refuse to
pay taxes based on war, this could cause massive amounts of societal damage,
and citizens are currently doing this, legally (by not making above the minimum
taxable income) and illegally. If an exemption was granted to citizens
unwilling to pay war taxes; this would cause societal damage. I mention this as
an example of an exemption that could presumable cause extreme societal damage.
Military service
is voluntary, objections to military service are already granted to religious
and nonreligious persons (albeit only for all war objectors), draft policy no
longer exists, and classification of who is a conscientious objector is
impossible; these are four reasons I explained above that provide evidence to
grant exemption to selective conscientious objectors. I believe equating
civilian and military operations equally will cause little societal damage and
effectively create a more equitable situation for members of society. Questions
might still arise about security of operating in this manner, but I believe the
existing system could handle the effects of this change.
References:
Eisgruber, C.L. and Sager, L.G. Religious Freedom and the Constitution.
Harvard University Press: 2007.
Greenawalt, K. Religion and the Constitution: Volume 1 Free Exercise and Fairness.
Princeton University Press: 2006.
