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Elon Law scholar: 'Selective' conscientious objection might now be legal

An article by Associate Professor Andy Haile in a forthcoming issue of the University of Richmond Law Review points to the 1993 Religious Freedom Restoration Act as a possible defense for conscientious objectors who refuse to serve in some, but not all, wars.

Associate Professor Andy Haile

When the U.S. Supreme Court ruled three years ago that for-profit companies should not be required to offer health insurance policies that violate their owners’ religious beliefs – in this case, coverage of contraceptive care mandated under the Affordable Care Act – the court cited the Religious Freedom Restoration Act.

RFRA had been enacted during the first year of the Clinton Administration and affords broad protections for citizens’ religious activities from the “substantial burden” of a government regulation or “neutral” law.

In its 2014 decision in Burwell v. Hobby Lobby Stores, Inc., the U.S. Supreme Court made clear that it takes more than just a broad goal like “public health” or “gender equity” for the government to justify a substantial burden on a citizen’s exercise of his religious beliefs.

Criticized at the time for its potential breadth, the Hobby Lobby decision may now change the way people are able to object to a future military draft.

In “Reconsidering Selective Conscientious Objection,” a forthcoming article for the University of Richmond Law Review, Associate Professor Andy Haile argues that it’s long been wrong for the law to treat conscientious objectors differently based on whether they oppose all wars – or just the particular war for which they are drafted.   

The last military draft took place during the Vietnam War, but as Haile notes in the introduction to his article, the military today remains “stretched thin” from continuous conflict in the War on Terror. The potential for war on the Korean peninsula poses another possibility for a future military draft.

The law has long exempted followers of pacifist religions from mandatory combat service. Previous statutes and case law have not, however, permitted an individual to receive conscientious objector status if he objects to a particular war, rather than objecting to war in general.

With RFRA and the Hobby Lobby ruling taking effect since the last draft, Haile writes, so called “selective conscientious objectors” should be treated the same as those who object war in all instances. 

“The different treatment of selective conscientious objectors and general conscientious objectors has rested on faulty premises for over 40 years,” Haile writes. “There is no evidence that allowing a combat exemption for selective conscientious objectors will result in a flood of false CO claims.” 

In his article, Haile cites data indicating that past extensions of the conscientious objector exemption have had no statistical impact on the military’s ability to field an effective fighting force. “Through RFRA, Congress has reasserted the primacy of religious liberty, and it appears that selective conscientious objectors may finally receive protection from being forced into combat service in violation of their religious beliefs,” Haile writes in the article’s conclusion.

“Reconsidering Selective Conscientious Objection” is scheduled for publication this spring. 

About the professor:

Andy Haile joined the Elon Law faculty in June 2008, prior to which he was a partner with the law firm of Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P, in the firm’s Greensboro office. Haile teaches business and tax law classes. His primary areas of research include tax policy and state and local tax issues.

While in practice, Haile represented clients in mergers and acquisitions as well as matters involving complex tax planning and tax litigation. He served as judicial clerk to Judge Frank W. Bullock, Jr., former chief judge of the United States District Court for the Middle District of North Carolina from 2000-2001.

Haile received his law degree from Stanford Law School in 2000, where he was a member of the Stanford Law Review and was awarded the Order of the Coif. He received his undergraduate degree in mathematics from Davidson College in 1994, where finished second in his class and was named to the college’s chapter of Phi Beta Kappa.

Eric Townsend,
Staff
2/15/2018 9:50 AM