U.S. v. O'Brien Thoughts

Given my predilections, I listened to some of the draft card burning case in honor of Veterans Day (sic).  This was a troubling case where the Supreme Court decided 8-1* that a separate punishment for burning a draft card, one that resulted here a penalty of years in prison, was not a violation of the First Amendment while the possible Eighth Amendment argument left open below was ignored (the sentence was merely upheld).  The fact that the likes of Brennan signed on to this travesty underlines that the Warren Court's liberal tendencies had its limits. 

Lucas Powe Jr. in his book on the Warren Court flagged the problem. There was already a law on the books regarding possession of a draft card and the one dissenting vote in the House against the law in question here  pointed out the excessive nature of the penalty for burning a card. The lower court addressed this fact and made the fairly obvious point (made by the few legislators who talked about the proposal if in a supportive way) that the point here was to penalize dissent.  In fact, in later days, this would seem to be a clear case of "animus" against unpopular groups.  But, this requires a certain consistency not always shown.

As noted in the footnote, the dissent went on a tangent involving the legitimacy of a peace time draft.  The draft is one of those things that a few people flag as potential 13A fodder, one person challenging me for not seeing how obvious it all is.  I'm somewhat open to the idea (though I think abortion more clearly covered) but some amount of required service here is one of those general public service requirements not traditionally deemed to fall within the amendment's terms.  The language of the amendment particularly goes back to a Northwest Ordinance limitation, one that was not applied, e.g., to the mandatory militia service. 

Following the discussion and links, which certain of us have a tendency to do, one thing that arose is the definition of "religion" and the limits of free exercise thereof.  An earlier concurring opinion, in particular, noted that a requirement to take classes in military service while going to a state university did not violate free exercise. To narrow the question, it was assumed that "no occasion at this time to mark the limits of governmental power in the exaction of military service when the nation is at peace" though a note cited possible requirements (militia in nature?) "to aid in suppressing crime." But, it is noted that conscientious objection statutes were traditionally a matter of grace.  Thus:

Instruction in military science, unaccompanied here by any pledge of military service, is not an interference by the state with the free exercise of religion when the liberties of the Constitution are read in the light of a century and a half of history during days of peace and war.

So, though voluntary state university attendance is a particularly easy case in the concurring justices eyes, such requirement for let's say teenagers in mandatory public school education would seem to appropriate too.  Something like that might be a tricky case, especially with more strict state laws, today -- for instance, recent challenges involving teaching of certain materials that clash with the religious beliefs of some such as reading certain texts or sex education.  The instruction does clash with certain religious beliefs, but ultimately public reasons are available to justify it. The concurrence cites Davis v. Beason, which as noted by Romer v. Evans, is no longer good law in full breadth (merely promoting certain views, e.g.), but there is a useful rule set forth:

With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.

Thus, even acts are protected to some extent (e.g., hiring only women priests in the face of antidiscrimination laws) if they do not clash with "laws of society" of a certain basic level. It isn't merely that general application saves the day.  Also, the first part is sometimes cited to define "religion," and it seems to be somewhat narrow in that it has a theistic character.  But, I think it doesn't take too much to interpret that broadly, such as using "maker" to mean impersonal natural processes.

Let peace reign.

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* Justice Douglas used his dissent to continue his efforts to promote the idea that the Vietnam War was constitutionally tainted, including use of the draft in an undeclared war. That is, the Gulf of Tonkin Resolution didn't count. The dissent here was pretty open-ended however, since it would call in question the Cold War draft in general, plus even cited an opinion calling into question a draft during the Civil War.

Anyway, Douglas in another case the next year came around to flagging the 1A problem. Listening to the oral arguments in that case, btw, might not be safe for work -- volume up, hearing repeated reference to "niggers" etc.