Reconsidering Selective Conscientious Objection

The United States last had a military draft in 1973, and recent wars in Iraq and Afghanistan have relied on an all-volunteer military. But with the military stretched thin after more than 15 years of continuous conflict and with the realistic potential for war on the Korean peninsula, the threat of a future draft looms. This Article traces the statutory and judicial evolution of the conscientious objection exemption to the draft. Dating as far back as the colonial era, governing authorities recognized that conscientious scruples may prevent some individuals from serving in combat. Over time, the conscientious objection exemption expanded from members of denominations with recognized pacifist beliefs to individuals of any religion whose religious training and belief prevented them from engaging in combat. During the Vietnam War era, the exemption was further expanded by judicial interpretation to apply not just to those with traditional religious beliefs, but also to humanists who opposed war on purely moral or ethical grounds. The expansion of the conscientious objection exemption ceased, however, with respect to “selective conscientious objectors” – individuals who opposed a particular war, but not all wars. The Supreme Court held in 1971 that selective conscientious objectors did not come within the scope of the draft exemption statute. This Article contends that, if a draft is once again implemented, the 1993 enactment of the Religious Freedom Restoration Act will prevent selective conscientious objectors from having to serve in a war that violates their genuinely-held religious beliefs.