Gillette v. United States

Court Documents
Dissenting Opinions

United States Supreme Court

401 U.S. 437

Gillette  v.  United States

 Argued: Dec. 9, 1970. --- Decided: March 8, 1971

Rehearing Denied in No. 325, April 26, 1971.

See 402 U.S. 934, 91 S.Ct. 1521.


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. Held:

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.

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.

Conrad J. Lynn, New York City, for Guy Porter Gillette.

Richard Harrington, San Francisco, Cal., for Louis A. Negre.

Sol. Gen. Erwin N. Griswold, for respondents.

Mr. Justice MARSHALL delivered the opinion of the Court.


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).