Third-Party Burdens and Conscientious Objection to War

Third-Party Burdens and Conscientious Objection to War historical pedigree.The conscientious objector provision also offers the most dramatic example of the religious exemption/third-party burden dilemma."On the one side, there may be no greater intrusion on religious conscience than being required to kill.12On the other, there may be no greater burden imposed on a third party than that created by excusing the conscientious objector from combatant military service, because the burdens of military service then fall on a third party conscripted in the objector's place.' 3 The third party then becomes the person potentially compelled to take the life of another-and, not incidentally, the person forced to risk his or her own life as well.' 4 The conscientious-objector exemption example thus presents the religious exemption/third-party burden issue in a context where the stakes on both sides are at their highest.One might think, therefore, that it would provide a particularly clear vision into the intricacies of this issue.There is one other reason why issues surrounding conscientious-objector exemptions to war are potentially relevant to the contemporary debate over religious exemptions and third-party burdens.Conscientious-objector exemptions have been, and continue to be, deeply controversial.Whether conscientious-objector exemptions should (or must) be granted-and, if so, how broadly they should be drawn-have provoked intense political and legislative debate since their inception.5 Some of these disputes, moreover, have triggered legal challenges-including cases that have led to major Supreme Court decisions.'6 Conscientious objection to war thus provides a long and substantial track record for the arguments both for and against religious exemptions.One might expect therefore that there would be much to learn from this history regarding concerns for third-party burdens.This Article accordingly reviews the history and the debates surrounding conscientious objection to war in order to determine what insights, if any, these accounts offer in relation to the religious exemption/third-party burden question.Part I canvasses the relevant background.It traces the history of conscientious-objection exemptions and reviews the key Supreme Court L.Rev.