The War and National Defense Selective Service Act and its accompanying regulations are the focus of a renewed debate concerning the validity of allowing active-duty service personnel to separate from the services on the grounds of conscientious objection to war. In the past, constitutional analysis of conscientious objection challenges focused on the Free Exercise Clause of the First Amendment. The underlying premise of this analysis was that the government lacked authority to compel a citizen to -act against his conscience by compelling military service. Central to the "analysis was the ability of the government to compel a citizen to "provide for the common defense," generally through the vehicle of military conscription or the draft.
Changes in the nature of military service, specifically the advent of an all-volunteer military, limited enlistment contracts, and the lack of a draft necessitate a re-evaluation of the constitutional status of the conscientious objection as it applies to active-duty service personnel. Particularly, both the basis for the constitutional analysis and its underlying premise require change. We should, in the future, premise constitutional analysis on the other religious provision in the First Amendment, the Establishment Clause. The underlying premise is that the government, through the elaborate military process established to evaluate and determine the "depth and sincerity" of a service person's religious belief, has in effect established a national religion or, alternatively, conveyed a message of endorsement of religion that violates the Establishment Clause. In an attempt to accommodate an individual's religious liberty, the military has created a process that has institutionalized a set of acceptable beliefs. These beliefs give deference to traditional religions and religious beliefs, which imposes religious norms upon members of the service.
This Comment asserts that the process established by the military to evaluate conscientious objection claims is inherently unconstitutional. By analyzing the military's process in light of recent Supreme Court decisions, this Comment will show that the process has created an impermissible establishment of a national religion. Because of this establishment, the lack of compulsory military service, and the limited nature of enlistment contracts, the military should abolish conscientious objection as a basis for separation from active military duty.
Sullivan, Mary P.
"Conscientious Objection in an All-Volunteer Military: An Impermissible Accommodation of Religious Freedom?,"
Mercer Law Review: Vol. 43:
2, Article 8.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol43/iss2/8