• U.S.

The Law: Who’s Sincere?

5 minute read
TIME

Americans have long respected those whose moral convictions forbid them to bear arms against their fellow men. When it comes to military conscription, though, the legal question is how to set a standard that exempts only sincere conscientious objectors—not mere draft dodgers.

In World War I, the draft law exempted from combat only members of “peace churches,” like Quakers. But since World War II, C.O.s have increasingly challenged the requirement of formal religious beliefs and practices. In the 1965 case of U.S. v. Seeger, the Supreme Court held that objectors need not believe in a “Supreme Being,” but left room for doubt about what constitutes religious belief. Last week the Supreme Court had another try at the problem. By a vote of 5 to 3, the court ruled that exemption can be based solely on moral and ethical grounds.

No Rest or Peace. At issue was the case of Elliott A. Welsh II, a 28-year-old Los Angeles commodities broker who applied for draft exemption in 1964. In filling out the C.O. form, Welsh carefully crossed out the words “religious training,” in part to show that he opposed war on broader historical, philosophical and sociological principles. When his application was denied, he refused induction and was sentenced to three years in prison.

Speaking for four of the five Justices in the court majority, Hugo Black reversed Welsh’s conviction as inconsistent with the Seeger decision. Black noted that the draft law bars exemption based on “essentially political, sociological or philosophical views, or a merely personal moral code.” Even so, Black suggested that such views can be held so firmly as to be “religious” in the eyes of the law. Because few registrants know how broadly the law defines that word, he said, their statements that their beliefs are nonreligious are “highly unreliable.” According to Black, the law actually exempts “all those whose consciences, spurred by deeply held moral, ethical or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.”

More Unfair? In sharp dissent, Justice Byron White (joined by Chief Justice Warren Burger and Justice Potter Stewart) argued that this interpretation of the law had twisted the intent of Congress in passing it. In fact, some observers think that Congress may override last week’s decision. As if aware of that possibility, Justice John M. Harlan concurred in the decision, but argued in a separate opinion that to deny Welsh an exemption would show favoritism to religion and thus violate the First Amendment ban against governmental “establishment of religion.”

The decision especially upset Selective Service Director Curtis Tarr, who predicted that the country’s 4,101 local draft boards will have great trouble deciding how to apply the ruling. Tarr quickly issued guidelines stating that every applicant for C.O. status must: — Be sincere in his beliefs. — Be opposed to war in all forms.

> Be possessed of beliefs that are more than a personal moral code; he must have taken into account the “thoughts of wise men” and consulted some system of belief beyond his own personal interest, desire or wishes on the question.

> Have arrived at his beliefs after “some kind of rigorous training.”

In Tarr’s view, an already unfair draft system has been made even more unfair. Unless an applicant can display a knowledge of ethics and philosophy, he may be dubbed lacking in “rigorous training.” Concluded Tarr: “The young man who has the best chance is a major in philosophy at a first-class college.”

To prevent any avalanche of applicants, Tarr insisted that the court’s decision was not retroactive. His position will almost certainly be challenged in court. Moreover, many rejected C.O.s are now likely to reapply for exemption. The decision may also help deposed Heavyweight Champion Muhammad Ali, who is fighting a five-year sentence for refusing induction on the ground that he is a Black Muslim minister. One of Ali’s lawyers claims that the boxer’s case has a better chance before the U.S. Court of Appeals for the Fifth Circuit “now that theology has been taken out of it.”

Even though college students stand to gain most from the Welsh decision, many students will not be all that happy. Reason: the ruling does not exempt those who object to the Viet Nam War specifically and not to wars in general. This seemingly illogical notion is, in fact, the point of another C.O. appeal before the Supreme Court, which was argued the same day as Welsh. That case involves John H. Sisson Jr., a recent Harvard graduate who refused induction on the ground, among others, that Congress cannot constitutionally force a man to fight in a war to which he is conscientiously opposed. How the court will handle that complex and intriguing argument cannot be predicted, but a ruling on Sisson is expected shortly.

More Must-Reads from TIME

Contact us at letters@time.com