Third-Party Burdens and Conscientious Objection to War

46 Pages Posted: 9 Dec 2018

See all articles by William P. Marshall

William P. Marshall

University of North Carolina School of Law

Date Written: 2018


The oldest religious exemption from neutral laws is the excusal of religious conscientious objectors from combatant military service. As the oldest religious exemption, the exclusion of conscientious objectors from combatant military service has obvious implications for the contemporary debate regarding whether religious exemptions that impose third party burdens violate the establishment clause. Its relevance and importance, moreover, stand not only on its historical pedigree. The conscientious objector provision also offers the most dramatic example of the religious exemption/third-party burden dilemma. On the one side, there may be no greater intrusion on religious conscience than being required to kill. On the other, there may be no greater burden imposed on a third party than that created by excusing the conscientious objector from combatant military service because the burdens of military service then fall on the third party conscripted in the objector’s place. The third party then becomes the person potentially compelled to take the life of another—and, not incidentally, the person forced to risk his or her own life as well. The conscientious objector exemption example thus presents the religious exemption/third-party burden issue in a context where the stakes on both sides are at their highest. This Article accordingly reviews the history and the debates surrounding conscientious objection to war in order to determine what insights, if any, this account offers in relation to the religious exemption/third-party burden question.

Keywords: religion, consienctious objectors, military, constitutional law

Suggested Citation

Marshall, William P., Third-Party Burdens and Conscientious Objection to War (2018). Kentucky Law Journal, Vol. 106, 2019, UNC Legal Studies Research Paper, Available at SSRN:

William P. Marshall (Contact Author)

University of North Carolina School of Law ( email )

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