Conscientious Objection, the Free Exercise Clause

The first amendment to the U.S. Constitution provides ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.’’ The restraint on prohibitions of the free exercise of religion has significant implications for conscientious objectors to government regulation including military conscription.

Conscientious objectors are those who are unable to comply with a regulation because of a sincerely held conviction. The objector may seek to be exempt from an affirmative regulation requiring behavior, such as a military draft, or a prohibitory regulation preventing certain behavior such as the wearing of religious garb.

The free exercise clause protects some religiously motivated objections, although other law may accommodate additional types of objections. In military conscription cases, for example, current law recognizes objections based on religious belief, as well as on dictates of conscience equivalent to a sincerely held religious belief. Although a statute regulates the exemption of conscientious objectors from military conscription, the free exercise clause apparently motivated the legislature to enact the series of statutes, and it continues to guide the Court in its interpretation of the statute. The statute, 50 USC 456(j), states that ‘‘Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to war in any form.’’ It continues to distinguish ‘‘religious training and belief’’ from a ‘‘merely personal moral code.’’ This statute expanded earlier exemption statutes that required membership in religious institutions. The current statute allows those unaffiliated with a religious institution to claim conscientious objector status. It recognizes objection to all wars but not to specific wars. This provision of the statute has been upheld but not extended by the U.S. Supreme Court. See Gillette v United States, 401 U.S. 437, 1971.

Conscientious objector cases often turn on an objection to regulations supporting war, but they may also be about the right to an exemption from regulation to permit an exercise of religion such as the wearing of religious clothing, the ritual use of regulated drugs, marriage practices such as polygamy, or the taking of oaths. The clause also has implications for a wide range of military-related issues from forced conscription to mandatory participation in other programs such as high school ROTC programs and even unemployment law.

Early cases involving the free exercise clause distinguished between belief and conduct, so that while belief was unfettered, conduct could be regulated. See Reynolds v U.S., 98 U.S. 145 (1879). A long line of Mormon and Seventh Day Adventist cases expanded and contracted the scope of the protection before Sherbert v Verner 374 US 398 (1963) adopted the requirement of a ‘‘compelling state interest’’ to justify burdening the free exercise of religion. Gillette (401 U.S. 437) used this compelling interest test to deny CO status to a draft registrant who objected to the Vietnam War but not to wars of national defense. Justice Douglas dissented that ‘‘conscience and belief were the main ingredients of First Amendment rights of free speech and religion’’ and ‘‘that the statute as written was constitutionally infirm under the First Amendment.’’ Douglas’s view that ‘‘if exemption was afforded to persons holding religious or conscientious scruples against all wars, so must it be afforded to those with religious or conscientious objection to participation in particular wars.’’ The majority rejected this argument, deciding that the government interest in a fair exemption system outweighed the right of conscience.

Conscientious objection cases require statutory construction of 50 USC 456 to measure it against Constitutional requirements of the establishment, free exercise, and even due process clauses. Exemptions for conscientious objectors have been used since early colonial days. In U.S. v Macintosh, 283 U.S. 605,633 (1931), Chief Justice Hughes noted that such exemptions are ‘‘indicative of the actual operation of the principles of the Constitution.’’ Modern cases extended the religious belief requirement to beliefs that fill the same function as religious beliefs, although the Justices often split on the rationale for such an exemption. In United States v. Seeger, 380 U.S. 163 (1965), the Court extended the statutory exemption to a nontheist whose conscience did not permit participation in war but who did not identify his belief as religious in nature (the 1948 statute, Provision 6(j) of the Universal Military Training and Service Act of 1948, required that the objection be based on a belief in a Supreme Being). The Court held that a belief occupying the place of religion would suffice. The Seeger analysis centered on the Establishment Clause’s prohibition on establishing a particular religion, but Justice Douglas noted in a concurrence that the free exercise and equal protection clauses prohibit preferring one religion over another.

Welsh v. United States, 398 U.S. 333 (1970), followed Seeger, and the plurality opinion revealed the complexity of the Court’s analysis of exemption cases. Welsh reversed the conviction of Elliott Welsh II who had a deeply held conviction to war as unethical and immoral, although he did not identify this as religious nor profess belief in a Supreme Being. The majority evaluated the intensity and sincerity of the belief. Justice Harlan’s concurrence rejected the majority’s reliance on intensity as a valid test of compliance with the statute. He noted that the statute violated the establishment clause and that the language of the statute ‘‘cannot be construed . . . to exempt from military service all individuals who in good faith oppose all war . . .’’ (See Welsh at 348–354). Rather, the exemption should be reconciled with the establishment clause by specifically including ‘‘those like the petitioner who have been unconstitutionally excluded from its coverage’’ (Welsh at 367).

The Welsh dissent, however, noted the close relationship of the establishment and free exercise clauses. While Congress intended to exclude purely moral objections, ‘‘Congress may have granted the exemption because otherwise religious objectors would be forced into conduct that their religions forbid and because in the view of Congress to deny the exemption would violate the free exercise clause or at least raise grave problems in this respect’’ (Welsh at 369).

The free exercise clause has been applied to conscientious objection to a spectrum of military involvement. From cases requiring saluting the flag, the training to or bearing of arms, taking of an oath to bear arms, or a range of other activities linked to military service and goals, government regulations have been challenged by those who argue that their religious beliefs require accommodation. These cases evidence the same shift as in free exercise cases generally from the Reynolds standard to the Sherbert ‘‘compelling interest’’ test. See, for example, Gillette v U.S., 401 US 437 (1971), upholding the ‘‘substantial’’ government interest in conscription over the individual’s free exercise of religion; and Spence v Bailey, 465 F 2d 797 (6th cir. 1972), stating that religious objections to mandatory participation in a high school ROTC program would not unduly burden officials. In cases involving military regulation of noncivilians, review has generally been more deferential than for regulation of civilians. See, for example, Goldman v Weinberger, 475 US 503 (1986) allowing the military to prohibit wearing of a yarmulke, although Congress later legislated to allow religious apparel while in uniform (Pub. L. 100-180, Sec 508(a)(2), 101 Stat. 1086 (1987); 10 USC Sec 774.

Modern cases involving religious objection to military conscription continue to follow the requirements summarized in Clay v. United States, 403 U.S. 698, 705(1971) for the implementation of the Military Selective Service Act Section 6(j): that the objection be to war in any form, that the objection be based on religious training or belief or the equivalent, and that the belief be sincere. Clay involved Cassius Clay, aka Muhammed Ali, who objected to war not declared by Allah. Because the Justice Department did not clearly state which of the three tests formed the basis for its decision, the Supreme Court reversed the conviction without reaching the selective opposition to war issue.



The common law definition of conspiracy is an agreement between two or more individuals to commit an unlawful act, such as murder, or to commit a lawful act by unlawful means, such as artificially increasing the price of goods through collusion. In jurisdictions that follow the common-law definition, the term ‘‘unlawful’’ includes, but is not limited to, acts and means that are criminal; acts and means that are ‘‘prejudicial to the public, oppressive of individuals, or done for a malicious purpose’’ also suffice. Some jurisdictions, however, statutorily limit conspiracy to agreements to commit a criminal offense.

Conspiracy has been a crime since the reign of Edward I in the late thirteenth century. The early common law defined conspiracy narrowly; the crime encompassed only conspiracies to obstruct justice, normally through false accusation of criminal conduct, and required the wrongly accused individual be indicted and then acquitted of the crime. The first major expansion of conspiracy came in the 1611 decision Poulterer’s Case, where the Court of Star Chamber held that a conspiracy was punishable even if it was unsuccessful. Not surprisingly, the decision led to a dramatic increase in conspiracy prosecutions, and by the end of the seventeenth century conspiring to commit any criminal offense was punishable. Finally, by the mid-nineteenth century, conspiracy had adopted its current common-law form, punishing conspiracies to commit lawful acts by legal means, as well as conspiracies to commit unlawful acts.

As with all crimes, conspiracy is defined by the combination of a certain act and a certain mental state. The act requirement of conspiracy is unique, in that the requirement is satisfied by the defendant’s decision to enter into the conspiracy. The testimony of one of the conspirators is the ideal method for proving the agreement but is not required given the secretive nature of conspiracies. Indeed, the prosecution does not have to show that the conspirators actually exchanged words explicitly communicating agreement. A ‘‘tacit understanding’’ is sufficient, and that understanding can be inferred circumstantially from the coordinated actions of the conspirators themselves.

The mental requirement is more complex, because the crime of conspiracy actually requires two mental states: an intent to enter into the conspiratorial agreement and an intent to commit the unlawful act that is the object of the agreement. The intent to enter into the agreement is rarely contested, because the prosecution will not charge a defendant with conspiracy without evidence of the agreement. Whether the defendant intended to commit the unlawful act is thus the critical issue in most conspiracy prosecutions.

At common law, a conspiracy was punishable even if the conspirators had done nothing in furtherance of the conspiracy beyond the agreement itself. In the absence of a statute providing otherwise, this is still the rule. The federal conspiracy statute and many state conspiracy statutes, however, require proof that one of the conspirators committed an ‘‘overt act’’ in furtherance of the conspiracy. The purpose of the overtact requirement is to ensure that the conspiracy was underway, not ‘‘a project still resting solely in the minds of the conspirators.’’ Virtually any act will satisfy the overt-act requirement, legal as well as illegal.

A conspiracy and its unlawful object, where criminal, are separate and distinct offenses. As a result, a defendant can be convicted of both conspiracy and the underlying crime and can be convicted of conspiracy even when the underlying crime is not prosecuted or results in an acquittal. When convicted of both, the sentences can be added on to each other, and there is no requirement that the sentence for the conspiracy be shorter than the sentence for the underlying crime.

There are two basic rationales for the crime of conspiracy. First, by criminalizing the conspiratorial agreement itself, conspiracy permits law enforcement to authorities to intervene against criminally minded individuals before they carry out the more harmful underlying crime. Second, conspiracy as a freestanding crime protects the public from the heightened dangers of concerted criminal activity. A criminal plan carried out by a group is far more likely to succeed than one carried out by an individual and is capable of causing far greater harm. Moreover, the existence of a conspiratorial group always has the potential to branch out into new and different kinds of crimes.

The crime of conspiracy has always been controversial. To begin with, the crime gives the prosecution substantive and procedural advantages unparalleled elsewhere in the criminal law—advantages that led Judge Learned Hand to famously describe conspiracy as ‘‘the darling of the modern prosecutor’s nursery.’’ One such advantage is simply the crime’s inherent vagueness, both in terms of its applicability to noncriminal objectives and its definition of the required mental state. Such vagueness makes a conspiracy charge particularly difficult to defend.

A critical procedural advantage for the prosecution is what’s known as the ‘‘co-conspirator hearsay exception,’’ which permits any incriminating statement made by a conspirator during and in furtherance of the conspiracy to be used against all of his co-conspirators. In fact, a conspirator’s incriminating statement can even be used against a co-conspirator who joined the conspiracy after the statement was made.

The most problematic advantage, however, is the prosecution’s ability to try all of the members of a conspiracy jointly. Such joint trials dramatically increase the possibility of guilt by association, where an innocent defendant is convicted either because jurors are unable to keep the evidence against the different defendants separate or simply because they assume that if one defendant is guilty, all of them must be.

These advantages help explain why prosecutors have often misused the crime of conspiracy for political purposes. Efforts to organize labor unions were consistently prosecuted as criminal conspiracies in the nineteenth century. And conspiracy prosecutions were effective tools for silencing the protected speech of peace and anti-war activists during World War I and of communists and alleged communists during the McCarthy Era.


References and Further Reading

  • LaFave, Wayne R. Substantive Criminal Law 2. Ch. 12. St. Paul: West Publishing, 1986.
  • Sayre, Francis B., Criminal Conspiracy, Harvard Law Review 35 (1922): 2:393–427.

Cases and Statutes Cited

  • Harrison v. United States, 7 F.2d 259 (2d Cir. 1925)
  • Poulterer’s Case, 77 Eng. Rep. 813 (1611)

See also Dennis v. United States, 341 U.S. 494 (1951); Schenck v. United States, 249 U.S. 47 (1919)


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Given the various definitions, is it fair to say that Skype would be a platform for social media? I didn’t see it ever in a list of examples.