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The Confederate Lawyer
January 22, 2013

Conscientious Objection, Part I
by Charles G. Mills
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  For the most part, our society does not try to force people to do things they are determined not to do. Three hundred years ago, we tortured people to make them sign papers or plead guilty or not guilty. Today, we simply sign their names by court order or enter a "not guilty" plea on their behalf.     GLEN COVE, NY — For the most part, our society does not try to force people to do things they are determined not to do. Three hundred years ago, we tortured people to make them sign papers or plead guilty or not guilty. Today, we simply sign their names by court order or enter a "not guilty" plea on their behalf.

Even when we have jailed people — such as reporters to force them to reveal their sources, or deadbeat fathers to force them to support their children — we have found this approach did not work well. The classic debtors' prison of centuries past is no more.

It is not hard to see why coercion in some matters is simply a bad idea. Are we going to twist the arm of a Jehovah's Witness schoolgirl to make her recite the daily pledge of allegiance? Are we going to handcuff a Moslem or an Orthodox Jew to a chair and shave them every day? Are we going to hold down a pacifist every morning while we put his uniform on him? We can always put people in jail indefinitely, but this does not produce compliance from the determined.

Our laws have been particularly careful to protect conscientious objectors on religious grounds, such as Quakers with religious objections to war. The Supreme Court has extended the protection of these laws to conscientious objectors whose objection is not religious but is the equivalent of religion for them. As a practical matter, however, the religious nature of conscientious objection remains important. Rewards and punishments simply do not work well when trying to induce someone to commit a major offense against God.

The Constitution may offer greater protection to conscientious objectors than most law school professors believe. The Constitution expressly protects the free exercise of religion. This protection clearly does not extend to those who want to do something prohibited by general law, such as using drugs or marrying lots of wives, even if such practices are encouraged by a particular religious teaching. (Religious speech is protected so widely by the Constitutional protection of free speech that it has no special Constitutional protection of its own.) The free exercise clause does protect expressly religious practices, such as sacrificing chickens or bowing down to golden calves. The great majority of the law review articles written when the Supreme Court upheld the prohibition of peyote use by government employees predicted the death of religious freedom. It did not take long for them to look foolish when the Supreme Court overturned a prohibition against sacrificing birds.

The initial inability of law school professors to grasp the distinction between religious acts and criminal acts was not their worst shortcoming, however. They still have trouble understanding the different implications of a law requiring someone to do something prohibited by his religion and a law prohibiting something allowed by his religion. The common belief that both are governed by exactly the same legal rules is clearly wrong.

The standard view of conscientious objection as a Constitutional question is incompatible with the 1972 Supreme Court case of Wisconsin v. Yoder. Most law school professors, accordingly, treat the ruling as an aberration or "outlier." The truth is that the Yoder case should be a guide to all conscientious objection cases. Wisconsin tried to enforce its mandatory high school laws on Yoder and other members of religious denominations that prohibit education beyond the eighth grade. The Supreme Court gave greater weight to these objections than it would to an individual scruple of one person. It found that the religious freedom involved was of greater importance than any harm from these very law-abiding youths leaving school after eight years. The Court ruled against Wisconsin. If Yoder had been decided the other way, we can only imagine the ugly spectacle of children being dragged to school every day against their religious convictions or being separated from their parents.

A recent illustration of the futility of trying to coerce conduct against one's religious convictions is the case of Major Nidal M. Hasan. He is facing a court martial for mass murder and stands an excellent chance of being sentenced to death and executed. He apparently has persuaded himself that his religion does not allow him to shave. The military judge at his court martial tried to force him to shave. The Court of Appeals for the Armed Forces avoided the constitutional issue by ruling that his commanding officer, not the judge of his court martial, had the power to force him to shave. The Court went further and held that the court martial judge should be replaced because the judge had engaged in a test of wills with Hasan over his beard. Hasan will be tried wearing his beard. The ruling on the matter of his beard goes beyond a single case. It is not decorous for judges to become contestants with religion for people's obedience, especially over matters that do not threaten public safety.

In Part II of this series, I will examine the role of conscientious objection in the Obama Administration's war against the Catholic Church.

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The Confederate Lawyer column is copyright © 2013 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

This column may be forwarded, posted, or published if credit is given to Charles Mills and fgfBooks.com.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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