|Johnson v. Robison
[ Brennan ]
[ Douglas ]
Johnson v. Robison
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
MR. JUSTICE DOUGLAS, dissenting.
In my dissent applicable to Braunfield v. Brown, 366 U.S. 599, I expressed the view that Pennsylvania's Sunday closing law was unconstitutional as applied to Sabbatarians, see 366 U.S. at 561, 575, 577. The State imposed a penalty on a Sabbatarian for keeping his shop open on the day which was the Sabbath of the Christian majority; and that seemed to me to exact an impermissible price for the free exercise of the Sabbatarian's religion. Indeed, in that case, the Sabbatarian would be unable to continue in business if he could not stay open on Sunday, and would lose his capital investment. See id. at 611.
In Girouard v. United States, 328 U.S. 61, we held, in overruling United States v. Schwimmer, 279 U.S. 644, that the words of the oath prescribed by Congress for naturalization -- "will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic" -- should not be read as requiring the bearing of arms, as there is room under our Constitution for the support and defense of the Nation in times of great peril by those whose religious scruples bar them from shouldering arms. We said:
The effort of war is indivisible, and those whose religious scruples prevent them from killing are no less patriots than those whose special traits or handicaps result in their assignment to duties far behind the fighting front. Each is making the utmost contribution according to his capacity. The fact that his role may be limited by religious convictions, rather than by physical characteristics, has [p387] no necessary bearing on his attachment to his country or on his willingness to support and defend it to his utmost.
328 U.S. at 64-65.
Closer in point to the present problem is Sherbert v. Verner, 374 U.S. 398, where a Seventh Day Adventist was denied unemployment benefits by the State because she would not work on Saturday, the Sabbath day of her faith. We held that that disqualification for unemployment benefits imposed an impermissible burden on the free exercise of her religion, saying:
Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to [forgo] that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.
Id. at 404.
And we found no "compelling" state interest to justify the State's infringement of one's religious liberty in that manner. Id. at 406-408.
In Wisconsin v. Yoder, 406 U.S. 205, we held that Wisconsin's compulsory school attendance law as applied to Amish children would gravely impair the free exercise of their religious beliefs.
The District Court in the present case said that the penalty which the present Act places on conscientious objectors is of a lesser "order or magnitude" [n1] than that [p388] which has been upheld in past cases. 352 F.Supp. 848, 860.
That is true; yet the discrimination against a man with religious scruples seems apparent. The present Act derives from a House bill that had as its purpose solely an education program to "help a veteran to follow the educational plan that he might have adopted had he never entered the Armed Forces." H.R.Rep. No. 1258, 89th Cong., 2d Sess., 5. Full benefits are available to occupants of safe desk jobs and the thousands of veterans who performed civilian type duties at home and for whom the rigors of the "war" were far from "totally disruptive," to use the Government's phrase. The benefits are provided, though the draftee did not serve overseas, but lived with his family in a civilian community and worked from nine until five as a file clerk on a military base or attended college courses in his off-duty hours. No condition of hazardous duty was attached to the educational assistance program. As Senator Yarborough said, [n2] the benefits would accrue even to those who never served overseas, because their "educational progress and opportunity"
[have] been impaired in just as serious and damaging a fashion as if they had served on distant shores. Their educational needs are no less than those of their comrades who served abroad.
But the line drawn in the Act is between Class I-O conscientious objectors who performed alternative civilian [p389] service and all other draftees. Such conscientious objectors get no educational benefits whatsoever. It is, indeed, demeaning to those who have religious scruples against shouldering arms to suggest, as the Government does, that those religious scruples must be susceptible of compromise before they will be protected. The urge to forgo religious scruples to gain a monetary advantage would certainly be a burden on the Free Exercise Clause in cases of those who were spiritually weak. But that was not the test in Sherbert or Girouard. We deal with people whose religious scruples are unwavering. Those who would die at the stake for their religious scruples may not constitutionally be penalized by the Government by the exaction of penalties because of their free exercise of religion. Where Government places a price on the free exercise of one's religious scruples it crosses the forbidden line. [n3] The issue of "coercive effects," to use another [p390] Government phrase, is irrelevant. Government, as I read the Constitution and the Bill of Rights, may not place a penalty on anyone for asserting his religious scruples. That is the nub of the present case, and the reason why the judgment below should be affirmed.
First, the denial is felt, not immediately, as in Sherbert, but at a point in time substantially removed from that, when a prospective conscientious objector must consider whether to apply for an exemption from military service. Secondly, the denial does not produce a positive economic injury of the sort effected by a Sunday closing law or ineligibility for unemployment payments. Considering these factors, the court doubts that the denial tends to make a prospective alternate service performer choose between following and not following the dictates of his conscience.
352 F.Supp. 848, 860.
2. Hearings on Legislation to Provide GI Benefits for Post-Korean Veterans before the House Committee on Veterans' Affairs, 89th Cong., 1st Sess., 2899.
3. Gillette v. United States, 401 U.S. 437, is irrelevant to the present case. There, we were concerned with whether the petitioners were validly excluded from classification as conscientious objectors. Here, the question is whether the Government can penalize the exercise of conscience it concedes is valid and which exempts these draftees from military service. Moreover, in Gillette, we relied upon the fact that the Government's classification was religiously neutral, id. at 451, imposed only "incidental burdens" on the exercise of conscience, and was "strictly justified by substantial governmental interests that relate directly to the very impacts questioned," id. at 462. Here, the classification is not neutral, but excludes only those conceded by the Government to have religious-based objections to war, and thus the burden it imposes on religious beliefs is not "incidental." And here we have no governmental interest even approaching that found in Gillette -- the danger that, because selective objection to war could not be administered fairly, our citizens would conclude that
those who go to war are chosen unfairly or capriciously [resulting in] a mood of bitterness and cynicism [that] might corrode the . . . values of willing performance of a citizen's duties that are the very heart of free government.