401 U.S. 437 (1971), 85, Gillette v. United States

Docket Nº:No. 85
Citation:401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168
Party Name:Gillette v. United States
Case Date:March 08, 1971
Court:United States Supreme Court

Page 437

401 U.S. 437 (1971)

91 S.Ct. 828, 28 L.Ed.2d 168



United States

No. 85

United States Supreme Court

March 8, 1971

Argued December 9, 1970




Petitioner in No. 85, who was convicted for failure to report for induction, and petitioner in No. 325, who sought discharge from the armed forces upon receipt of orders for Vietnam duty, claim exemption from military service because of their conscientious objection to participation in the Vietnam conflict, as an "unjust" war, pursuant to § 6(j) of the Military Selective Service Act of 1967. That section provides that no person shall be subject to

service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.

Petitioners also challenge the constitutionality of § 6(j) as construed to cover only objectors to all war, as violative of the Free Exercise and Establishment of Religion Clauses of the First Amendment.


1. The exemption for those who oppose "participation in war in any form" applies to those who oppose participating in all war and not to those who object to participation in a particular war only, even if the latter objection is religious in character. Pp. 441-448.

2. Section 6(j) does not violate the Establishment Clause of the First Amendment. Pp. 448-460.

(a) The section on its face does not discriminate on the basis of religious affiliation or belief, and petitioners have not shown the absence of neutral, secular bases for the exemption. Pp. 450-453.

(b) The exemption provision focuses on individual conscientious belief and not on sectarian affiliations. P. 454.

(c) There are valid neutral reasons, with the central emphasis on the maintenance of fairness in the administration of military conscription, for the congressional limitation of the exemption to "war in any form," and therefore § 6(j) cannot be said to reflect a religious preference. Pp. 454-460.

Page 438

3. Section 6(j) does not violate the Free Exercise Clause. It is not designed to interfere with any religious practice and does not penalize any theological position. Any incidental burdens felt by petitioners are justified by the substantial governmental interests relating to military conscription. Pp. 461-462.

No. 85, 420 F.2d 298, and No. 325, 418 F.2d 908, affirmed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and HARLAN, BRENNAN, STEWART, WHITE, and BLACKMUN, JJ., joined. BLACK, J., concurred in the judgment and in Part I of the Court's opinion. DOUGLAS, J., filed dissenting opinions, post, p. 463 and p. 470.

Page 439

MARSHALL, J., lead opinion

MR. JUSTICE MARSHALL delivered the opinion of the Court.

These cases present the question whether conscientious objection to a particular war, rather than objection to war as such, relieves the objector from responsibilities of military training and service. Specifically, we are called upon to decide whether conscientious scruples relating to a particular conflict are within the purview of established provisions1 relieving conscientious objectors to war from military service. Both petitioners also invoke constitutional principles barring government interference with the exercise of religion and requiring governmental neutrality in matters of religion.

In No. 85, petitioner Gillette was convicted of willful failure to report for induction into the armed forces. Gillette defended on the [91 S.Ct. 831] ground that he should have been ruled exempt from induction as a conscientious objector to war. In support of his unsuccessful request for classification as a conscientious objector, this petitioner had stated his willingness to participate in a war of national defense or a war sponsored by the United Nations as a peace-keeping measure, but declared his opposition to American military operations in Vietnam, which he characterized as "unjust." Petitioner concluded that he could not, in conscience, enter and serve in the armed forces during the period of the Vietnam conflict. Gillette's view of his duty to abstain from any involvement in a war seen as unjust is, in his words, "based on a humanist approach to religion," and his personal decision concerning military service was guided by fundamental principles of conscience and deeply held views about the purpose and obligation of human existence.

Page 440

The District Court determined that there was a basis in fact, to support administrative denial of exemption in Gillette's case. The denial of exemption was upheld, and Gillette's defense to the criminal charge rejected, not because of doubt about the sincerity or the religious character of petitioner's objection to military service, but because his objection ran to a particular war. In affirming the conviction, the Court of Appeals concluded that Gillette's conscientious beliefs "were specifically directed against the war in Vietnam," while the relevant exemption provision of the Military Selective Service Act of 1967, 50 U.S.C.App. § 456(j) (1964 ed., Supp. V), "requires opposition `to participation in war in any form.'" 420 F.2d 298, 299-300 (CA2 1970).

In No. 325, petitioner Negre, after induction into the Army, completion of basic training, and receipt of orders for Vietnam duty, commenced proceedings looking to his discharge as a conscientious objector to war. Application for discharge was denied, and Negre sought judicial relief by habeas corpus. The District Court found a basis in fact, for the Army's rejection of petitioner's application for discharge. Habeas relief was denied, and the denial was affirmed on appeal, because, in the language of the Court of Appeals, Negre "objects to the war in Vietnam, not to all wars," and therefore does "not qualify for separation [from the Army], as a conscientious objector."2 418 F.2d 908, 909-910 (CA9 1969). Again, no question is raised as to the sincerity or the religious quality of this petitioner's views. In line with religious counseling and numerous religious texts, Negre,

Page 441

a devout Catholic, believes that it is his duty as a faithful Catholic to discriminate between "just" and "unjust" wars, and to forswear participation in the latter. His assessment of the Vietnam conflict as an unjust war became clear in his mind after completion of infantry training, and Negre is now firmly of the view that any personal involvement in that war would contravene his conscience and "all that I had been taught in my religious training."

We granted certiorari in these cases, 399 U.S. 925 (1970), in order to resolve vital issues concerning the exercise of congressional power to raise and support armies, as affected by the religious guarantees of the First Amendment. We affirm the judgments below in both cases.


Each petitioner claims a nonconstitutional right to be relieved of the duty of military service in virtue of his conscientious scruples.3 Both claims turn on the proper construction of § 6(j) [91 S.Ct. 832] of the Military Selective Service Act of 1967, 50 U.S.C.App. § 456(j) (1964 ed., Supp. V), which provides:

Nothing contained in this title . . . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.4

Page 442

This language controls Gillette's claim to exemption, which was asserted administratively prior to the point of induction. Department of Defense Directive No. 1300.6 (May 10, 1968), prescribes that post-induction claims to conscientious objector status shall be honored, if valid, by the various branches of the armed forces.5 Section 6(j) of the Act, as construed by the courts, is incorporated by the various service regulations issued pursuant to the Directive,6 and thus the standards for measuring claims of in service objectors, such as Negre, are the same as the statutory tests applicable in a preinduction situation.

Page 443

For purposes of determining the statutory status of conscientious objection to a particular war, the focal language of § 6(j) is the phrase, "conscientiously opposed to participation in war in any form." This language, on a straightforward reading, can bear but one meaning; that conscientious scruples relating to war and military service must amount to conscientious opposition to participating personally in any war and all war. See Welsh v. United States, 398 U.S. 333, 340, 342 (1970); id. at 347, 357 (concurring in result). See also United States v. Kauten, 133 F.2d 703, 707 (CA2 1943). It matters little for present purposes whether the words, "in any form," are read to modify "war" or "participation." On the first reading, conscientious scruples must implicate "war in any form," and an objection involving a particular war, rather than all war, would plainly not be covered by § 6(j). On the other reading, an objector must oppose "participation in war." It would strain good sense to read this phrase otherwise than to mean "participation [91 S.Ct. 833] in all war." For the word "war" would still be used in an unqualified, generic sense, meaning war as such. Thus, however the statutory clause be parsed, it remains that conscientious objection must run to war in any form.7

A different result cannot be supported by reliance on the materials of legislative history.8 Petitioners and

Page 444

amici point to no episode or pronouncement in the legislative history of § 6(j), or of predecessor provisions, that tends to overthrow the obvious interpretation of the words themselves.9

Page 445

It is true that the legislative materials reveal a deep concern for the situation of [91 S.Ct. 834] conscientious objectors to war, who, absent special status, would be put to a hard choice between...

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