Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

1987

Abstract

The focus of this article is on the role of the legal system in resolving disputes regarding the accommodation of religious beliefs in the armed forces. Generally, these disputes arise when an individual's religious sensibilities make claims upon his conscience that cannot be reconciled with the demands imposed by military discipline. Although the believer may simply refuse to serve, a more difficult problem arises when the military believer does not or cannot claim the status of a conscientious objector, but seeks legal protection for his religiously motivated behavior while remaining in the service. Such a claim of protection may be asserted in either the military or civilian legal system.

Basically, the legal principles upon which these systems rely in adjudicating such claims can be envisaged as forming a double helix. Although both strands of principles are derived from the Constitution, the United States Supreme Court has been unable to formulate a doctrine which links the two by simultaneously accommodating the individual rights of the service member with society's collective need for an armed force whose response to authority must be immediate and unreserved. This dilemma is inherent in any constitutional polity which refuses to abjure civilian judicial control over the military This paper will examine the military and civilian strands separately, comparing their synchronic development and observing that certain trends in military jurisprudence could ameliorate the kind of problems raised by a case similar to McCord's. Research suggests that although instances of conflict between religious sensibility and military discipline are not uncommon, such conflicts are raised and resolved in the military without reference to the constitutional dimensions of the conflict.

In conclusion, the paper demonstrates that neither strand of legal principles is responsive to the needs of either the individual or society, and suggests that the federal courts are the least preferred fora for adjudicating such disputes.

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