John Marshall Harlan II

“ Justice Hughes in his dissent * * * said: 'The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." The unmistakable and inescapable thrust of the Berman opinion, that religion is to be conceived in theistic terms, is rendered no less straightforward by the court's elaboration on the difference between beliefs held as a matter of moral or philosophical conviction and those inspired by religious upbringing and adherence to faith. ”

“ It further reflects, I would suppose, the assumption that beliefs emanating from a religious source are probably held with great intensity.
When a policy has roots so deeply embedded in history, there is a compelling reason for a court to hazard the necessary statutory repairs if they can be made within the administrative framework of the statute and without impairing other legislative goals, even though they entail, not simply eliminating an offending section, but rather building upon it. ”

“ The 'radius' of this legislation is the conscientiousness with which an individual opposes war in general, yet the statute, as I think it must be construed, excludes from its 'scope' individuals motivated by teachings of nontheistic religions, [8] and individuals guided by an inner ethical voice that bespeaks secular and not 'religious' reflection. It not only accords a preference to the 'religious' but also disadvantages adherents of religions that do not worship a Supreme Being. ”

“ While, as the Court's opinion in Seeger points out, these definitions do not exhaust the almost infinite and sophisticated possibilities for defining 'religion,' there is strong evidence that Congress restricted, in this instance, the word to its conventional sense. That it is difficult to plot the semantic penumbra of the word 'religion' does not render this term so plastic in meaning that the Court is entitled, as matter of statutory construction, to conclude that any asserted and strongly held belief satisfies its requirements. ”

“ Today the prevailing opinion makes explicit its total elimination of the statutorily required religious content for a conscientious objector exemption. The prevailing opinion now says: 'If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time' (emphasis added) , he qualifies for a § 6 (j) exemption. ”

“ The Court has held that universal conscription creates no free exercise problem, see cases cited supra, at 356, and Congress can constitutionally draft individuals not-withstanding their religious beliefs. Congress, whether in response to political considerations or simply out of sensitivity for men of religious conscience, can of course decline to exercise its power to conscript to the fullest extent, but it cannot do so without equal regard for men of nonreligious conscience. ”

“ The experience during World War II, when draft boards were operating under the broad definition of religion in United States v. Kauten, 133 F.2d 703 (C.A.2d Cir. 1943) , also demonstrates the administrative viability of today's test. Not only would the test announced today seem manageable but it would appear easier than the arcane inquiry required to determine whether beliefs are religious or secular in nature. ”

“ It goes without saying that the First Amendment is perforce a guarantee that the conscience of religion may not be preferred simply because organized religious groups in general are more visible than the individual who practices morals and ethics on his own. Any view of the Free Exercise Clause that does not insist on this neutrality would engulf the Establishment Clause and render it vestigial.↑ That the 'released-time' program in Zorach did not utilize classroom facilities for religious instruction, unlike People of State of Ill. ”

“ The Draft Act of 1917 conditioned conscientious objector status on membership in or affiliation with a 'well-recognized religious sect or organization (then) organized and existing and whose existing creed or principles forb (ade) its members to participate in war in any form * * *.' § 4, 40 Stat. 78. That § 5 (g) of the 1940 Act eliminated the affiliation and membership requirement does not, in my view, mean as the Court, in effect, concluded in Seeger that Congress was embracing a secular definition of religion. ”

“ The constitutional question that must be faced in this case is whether a statute that defers to the individual's conscience only when his views emanate from adherence to theistic religious beliefs is within the power of Congress. Congress, of course, could, entirely consistently with the requirements of the Constitution, eliminate all exemptions for conscientious objectors. ”

“ At the very least the Constitution requires that the State not excuse students early for the purpose of receiving religious instruction when it does not offer to nonreligious students the opportunity to use school hours for spiritual or ethical instruction of a nonreligious nature. ”

“ It is Congress' will that must here be divined. In that endeavor it is one thing to give words a meaning not necessarily envisioned by Congress so as to adapt them to circumstances also uncontemplated by the legislature in order to achieve the legislative policy, Rector, etc., of Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892) ; it is a wholly different matter to define words so as to change policy. ”

“ But the reasoning in Seeger totally ignores the fact that Congress without other apparent reason added the 'Supreme Being' language of the Berman majority in the face of the Berman dissent which espoused Judge Hand's view in Kauten. The argument in Seeger is not, moreover, strengthened by the fact that Congress in drafting the 1948 Selective Service laws placed great weight on the views of the Selective Service System which the Court suggested, did not view Berman and Kauten as being in conflict. ”

“ The issue is then whether Welsh's opposition to war is founded on 'religious training and belief' and hence 'belief in a relation to a Supreme Being' as Congress used those words. It is of course true that certain words are more plastic in meaning than others. 'Supreme Being' is a concept of theology and philosophy, not a technical term, and consequently may be, in some circumstances, capable of bearing a contemporary construction as notions of theology and philosophy evolve. Cf. United States v. ”

“ If the exemption is to be given application, it must encompass the class of individuals it purports to exclude, those whose beliefs emanate from a purely moral, ethical, or philosophical source. [9] The common denominator must be the intensity of moral conviction with which a belief is held. ”

“ While the necessary remedial operation, extension, is more analogous to a graft than amputation, I think the boundaries of permissible choice may properly be considered fixed by the legislative pronouncement on severability. ”

“ Exemption extends to anyone who, because of religious training and belief in his relationship to a Supreme Being, is conscientiously opposed to combatant military service or to both combatant and non-combatant military service. (See United States v. Berman (sic) 156 F. (2d) 377, certiorari denied, 329 U.S. 795 (67 S.Ct. 480, 91 L.Ed. 680) .) ' S.Rep. No. 1268, 80th Cong., 2d Sess., 14. [4]
Against his legislative history it is a remarkable feat of judicial surgery to remove, as did Seeger, the theistic requirement of § 6 (j) . ”