Gillette v. United States , 91 S. Ct. 828 ( 1971 )

Mr. Justice Douglas,

dissenting in No. 325, Negre v. Larsen.

I approach the facts of this case with some diffidence, as they involve doctrines of the Catholic Church in which I was not raised. But we have on one of petitioner's briefs an authoritative lay Catholic scholar, Dr. John T. Noonan, Jr., and from that brief I deduce the following:

Under the doctrines of the Catholic Church a person has a moral duty to take part in wars declared by his government so long as they comply with the tests of his church for just wars.¹ Conversely, a Catholic has a moral duty not to participate in unjust wars.²

The Fifth Commandment, “Thou shall not kill,” provides a basis for the distinction between just and unjust wars. In the 16th century Francisco Victoria, Dominican master of the University of Salamanca and pioneer in international law, elaborated on the distinction. “If a subject is convinced of the injustice of a war, he ought not to serve in it, even on the command of his prince. This is clear, for no one can authorize the killing of an innocent person.” He realized not all men had the information of the prince and his counsellors on the causes of a war, but where “the proofs and tokens of the injustice of the war may be such that ignorance would be no excuse even to the subjects” who are not normally informed, that ignorance will not be an excuse if they participate.³ Well over 400 years later, today, the Baltimore Catechism makes an exception to the Fifth Commandment for a “soldier fighting a just war.” ⁴

No one can tell a Catholic that this or that war is either just or unjust. This is a personal decision that an individual must make on the basis of his own conscience after studying the facts.⁵

Like the distinction between just and unjust wars, the duty to obey conscience is not a new doctrine in the Catholic Church. When told to stop preaching by the Sanhedrin, to which they were subordinate by law, “Peter and the apostles answered and said, We must obey God rather than mend ” ⁶ That duty has not changed. Pope Paul VI has expressed it as follows: “On his part, man perceives and acknowledges the imperatives of the divine law through the mediation of conscience. In all his activity a man is bound to follow his conscience, in order that he may come to God, the end and purpose of life.” ⁷

While the fact that the ultimate determination of whether a war is unjust rests on individual conscience, the Church has provided guides. Francisco Victoria referred to “killing of an innocent person.” World War II had its impact on the doctrine. Writing shortly after the war Cardinal Ottaviani stated: “[Mjodern wars can never fulfil those conditions which (as we stated earlier on in this essay) govern — theoretically—a just and lawful war. Moreover, no conceivable cause could ever be sufficient justification for the evils, the slaughter, the destruction, the moral and religious upheavals which war today entails. In ■practice, then, a declaration of war will never be justifiable⁸ The full impact of the horrors of modern war were emphasized in the Pastoral Constitution announced by Vatican II:

“The development of armaments by modern science has immeasurably magnified the horrors and wickedness of war. Warfare conducted with these weapons can inflict immense and indiscriminate havoc which goes far beyond the bounds of legitimate defense. Indeed, if the kind of weapons now stocked in the arsenals of the great powers were to be employed to the fullest, the result would be the almost complete reciprocal slaughter of one side by the other, not to speak of the widespread devastation that would follow in the world and the deadly aftereffects resulting from the use of such arms.

“All these factors force us to undertake a completely fresh reappraisal of war. . . .”

“[I]t is one thing to wage a war of self-defense; it is quite another to seek to impose domination on another nation. . . .”

The Pastoral Constitution announced that “[e]very act of war directed to the indiscriminate destruction of whole cities or vast areas with their inhabitants is a crime against God and man which merits firm and unequivocal condemnation.” ⁹

Louis Negre is a devout Catholic. In 1951 when he was four, his family immigrated to this country from France.¹⁰ He attended Catholic schools in Bakersfield, California, until graduation from high school. Then he attended Bakersfield Junior College for two years. Following that, he was inducted into the Army.

At the time of his induction he had his own convictions about the Vietnam war and the Army’s goals in the war. He wanted, however, to be sure of his convictions. “I agreed to myself that before making any decision or taking any type of stand on the issue, I would permit myself to see and understand the Army’s explanation of its reasons for violence in Vietnam. For, without getting an insight on the subject, it would be unfair for me to say anything, without really knowing the answer.”¹¹

On completion of his advanced infantry training, “I knew that if I would permit myself to go to Vietnam I would be violating my own concepts of natural law and would be going against all that I had been taught in my religious training.” Negre applied for a discharge as a conscientious objector. His application was denied. He then refused to comply with an order to proceed for shipment to Vietnam. A general court-martial followed, but he was acquitted. After that he filed this application for discharge as a conscientious objector.

Negre is opposed under his religious training and beliefs to participation in any form in the war in Vietnam. His sincerity is not questioned. His application for a discharge, however, was denied because his religious training and beliefs led him to oppose only a particular war¹² which according to his conscience was unjust.

For the reasons I have stated in my dissent in the Gillette case decided this day, I would reverse the judgment.

1 The theological basis for this was explained by Pope John XXIII in Part II of Pacem in Terris ¶46 (Paulist Press 1963): “Human society can be neither well-ordered nor prosperous unless it has some people invested with legitimate authority to preserve its institutions .... These however derive their authority from God, as St. Paul teaches in the words, There exists no authority except from God. These words of St. Paul are explained thus by St. John Chrysostom: . . . What I say is, that it is the divine wisdom and not mere chance, that has ordained that there should he government, that some should command and others obey.” ¶50 adds: “When, in fact, men obey their rulers, it is not at all as men that they obey them, but through their obedience it is God . . . since He has decreed that men’s dealings with one another should be regulated by an order which He Himself has established.”

2 “Since the right to command is required by the moral order and has its source in God, it follows that, if civil authorities legislate for or allow anything that is contrary to that order and therefore contrary to the will of God, neither the laws made nor the authorizations granted can be binding on the consciences of the citizens, since we must obey God rather than men.” Id., at ¶ 51.

3 De Indis Relectio Posterior, sive De lure Belli Hispanorum in Barbaros, translated in Classics of International Law 173-174 (E. Nys ed. 1917).

4 P. 205 (official rev. ed. 1949).

5 Pope Paul VI in § 16 of the Pastoral Constitution on the Church in the Modern World states:

“Deep within his conscience man discovers a law which he has not laid upon himself but which he must obey. Its voice, ever calling him to love and to do what is good and avoid evil, tells him inwardly at the right moment to do this or to shun that. For man has in his heart a law inscribed by God. His dignity lies in observing this law, and by it he will be judged.”

A. Fagothey, Right and Reason: Ethics in Theory and Practice 38 (4th ed. 1967) states: “Hence a certain conscience must be obeyed, not only when it is correct, but even when it is invincibly erroneous [unrealized error]. Conscience is the only guide a man has for the performance of concrete actions here and now. But an invincibly erroneous conscience cannot be distinguished from a correct conscience. Therefore if one were not obliged to follow a certain but invincibly erroneous conscience, we should be forced to the absurd conclusions that one would not be obliged to follow a certain and correct conscience.” On this matter § 16 of the Pastoral Constitution adds: “Yet it often happens that conscience goes astray through ignorance which it is unable to avoid, but under such circumstances it does not lose its dignity. This cannot be said of the man who takes little trouble to find out what is true and good.”

6 Acts 5:29 (Standard ed. 1900).

7 Declaration on Religious Freedom 1:3 in Documents of Vatican Council II, p. 369 (Newman Press 1966). See also “Human Life in Our Day” issued by the National Conference of Catholic Bishops (Nov. 15, 1968): “Whether or not such modifications in our laws are in fact made, we continue to hope that, in the all-important issue of war and peace, all men will follow their consciences. We can do no better than to recall, as did the Vatican Council, 'the permanent binding force of universal natural law and its all embracing principles,’ to which 'man’s conscience itself gives ever more emphatic voice.’ ”

8 The Future of Offensive War, 30 Blackfriars 415, 419 (1949).

9 Pastoral Constitution ¶¶ 79, 80.

10 Petitioner suggests that one of the reasons his parents left France was their opposition to France’s participation in the Indo-China war.

11 See n. 5, supra. Fagothey, supra, n. 5, at 37 states: “What degree of certitude is required? It is sufficient that the conscience be prudentially certain. Prudential certitude is not absolute but relative. It excludes all prudent fear that the opposite may be true, but it does not rule out imprudent fears based on bare possibilities. The reasons are strong enough to satisfy a normally prudent man in an important matter, so that he feels safe in practice though there is a theoretical chance of his being wrong. He has taken every reasonable precaution, but cannot guarantee against rare contingencies and freaks of nature.”

12 “For those middle-aged people who find themselves baffled by the current widespread resistance to the draft, a Stanford University student has provided a useful parallel.

“Addressing a hearing of the Senate Armed Service Committee ... , Peter Knutson said that ‘If, during the course of the Second World War, America had entered on the side of Hitler’s Germany, would you have allowed yourself to be drafted? Would you have blindly said my country right or wrong?’

“That is about as well as the anti-draft cause has ever been stated. . . .

“It may seem far-fetched to suppose that America ever would have fought on the side of Hitler, but that too is beside the point. If today’s World War II veteran will try to imagine what he might have done had he been drafted under those circumstances, he will be able to understand some part of the dilemma that the Vietnam war has imposed on this generation of draftees. It has been a real dilemma breeding powerful frustrations, and its residues will long outlast the war.” — L. H. — Lewiston (Ida.) Tribune.