The Forgotten Case of Louis Negre
by Dr. Charles Reid, Jr.
Jeremy Hinzman enlisted in the Army in 2001 and was a member of the 82d Airborne Division. A convert to Catholicism, he felt ill at ease in his early training and looked for spiritual solace in Catholic tradition, especially the life of St. Francis—as well as in Zen Buddhism and with the Quakers. Hinzman can, as a New York Times reporter noted, “sometimes sound so otherworldly it is far easier to imagine him as a monk than as a soldier.”1 He had been accepted for training as an Army Ranger when his misgivings about modern war became overwhelming. Even before deployment to Afghanistan, he petitioned for discharge from the Army as a conscientious objector, a petition that was rejected because Hinzman did not qualify as a pacifist. Upon his return from duty, and facing deployment to Iraq, Hinzman deserted from his unit and drove to Canada with his wife and their newborn son . He petitioned for refugee status; in late March his petition was rejected. He plans to appeal.
Catholics have had a particularly challenging time seeking conscientious objector status in the United States, at least since 1971. It was in that year that the United States Supreme Court, in the case of Negre v. Larsen,2 determined that Catholics who objected to service in war on just-war grounds could not qualify for conscientious objector status, although members of other religious groups, such as Mennonites and Quakers, with a traditional commitment to pacifist principles, did qualify.
Louis Auguste Negre, the petitioner in Negre v. Larsen, immigrated with his family from France to the United States in 1952 when he was five years old. Young Louie attended Catholic grade school and high school and practiced his faith seriously throughout his adolescence and young adulthood. When called upon to give an accounting of his religious faith in his application for conscientious objector status, the young Negre wrote: “I have always been taught and I firmly believe that [the] teaching of the Popes of the Church in matters of religious faith and morals is binding on all Catholics, clergy or laity, military or civilian.”3
Negre was drafted into the United States Army in 1967. He made clear during basic training his opposition to the Vietnam War. Indeed, he only showed up for induction in order to weigh the Army’s point of view and thus be certain of his beliefs. His family, he recalled, had been opposed to the French War in Indochina and had moved to the United States at least in part so that young Louis would not have to serve in the French army. In preparing his application for conscientious objector status, Negre turned for support to the Bible and to the just-war tradition of the Catholic Church. The Decalogue forbade killing, he noted. Jesus counseled his followers to love those who are our enemies and to turn the other cheek to those who strike us. Looking for support in recent statements of the magisterium, Negre called attention to the Second Vatican Council, which had declared that the morality of warfare must be “evaluated . . . with an entirely new attitude.”4 Alfredo Cardinal Ottaviani was also cited by young Negre for the proposition that technological developments had made it impossible to “fulfill [those] conditions which in theory make war lawful and just.”5 Pope John XXIII's assertion that the invention of nuclear armaments made it “irrational to believe that war is still an apt means of vindicating violated rights,”6 was also quoted by Negre in his application for conscientious objector status, as was Paul VI's plea at the United Nations: “If you wish to be brothers, let the weapons fall from your hands. . . . No more war. War never again.”7 Negre declared that he was bound in conscience to follow this teaching. Vietnam, he declared, was an unjust war because it was nothing more than an ideological struggle, an attempt to win over by force of arms another people to the American point of view.
The Supreme Court and Conscience
In applying for conscientious objector status, Negre sought the protection of a body of law that had been in a state of evolution since the early days of the American Republic. Especially important in the development of conscientious objector law was a little-noticed case of 1931, United States v. Macintosh.8 “Douglas Macintosh was a Canadian national who received a graduate degree from the University of Chicago and taught at Yale Divinity School until shortly after the outbreak of World War I when he enlisted as a chaplain in the Canadian Army and saw service at the Battle of the Somme.”9 Having resumed his teaching career at Yale following the War, he sought to be nationalized as an American citizen. Responding to a question whether he was prepared to defend the United States by force of arms, Macintosh answered: “Yes, but I should want to be free to judge of the necessity.”10 Macintosh had thus posed, in the context of a naturalization case, the problem of conscientious objection on just-war grounds: a veteran of World War I, Macintosh was no pacifist, but he was not in favor of abandoning his conscience to the decisions and demands of the state.
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If a certain group - like the Roman Catholic population of the United States - were allowed the right of SCO, the need for manpower would be severely compromised. |
In a five-four decision, Macintosh lost. He could not become a U.S. citizen. Of more enduring importance, however, was the dissent, authored by Chief Justice Charles Evans Hughes, who had previously served as American Secretary of State, and joined by Oliver Wendell Holmes, Louis Brandeis, and Harlan Fiske Stone. Distinguishing between the “domain of power”—which belonged to the nation—and a “forum of conscience”—which belonged to the private judgment of the individual—Hughes sought to find room under the naturalization laws for Macintosh's conscientious objections, premised as they were on just-war principles:
Nor is there ground, in my opinion, for the exclusion of Professor Macintosh because his conscientious scruples have particular reference to wars believed to be unjust. There is nothing new in such an attitude. Among the most eminent statesmen here and abroad have been those who condemned the action of their country in entering into wars they thought to be unjustified.11
In 1940, on the eve of entry into World War II, Congress enacted legislation enabling the creation of the Selective Service; this legislation was superseded in 1948 by a second Selective Service Act. The second Act paraphrased from passages of Chief Justice Hughes' dissent in Macintosh in allowing conscientious objection on the basis of “an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation.”12 In this way, Hughes' distinction between a domain of power and a forum of conscience was given practical effect.
Until Negre's case, the United States Supreme Court had not considered the question of selective conscientious objection. Traditionally, conscientious objector status had been limited statutorily to those who objected on pacifist grounds to any and all acts of violence and warfare. Lyndon Johnson's National Advisory Commission on Selective Service recommended in February 1967 the retention of this policy. A majority report of the Commission proposed that objection to all war was “moral,” but that selective objection was necessarily “political.”13 The Commission's majority simply failed to comprehend the nature of just-war argument within religious tradition.
Despite the difficulties, Louis Negre continued to press his case. Under orders to go to Vietnam, Negre unsuccessfully sought release from the Army. When the Supreme Court rejected his application for a writ of habeas corpus, he was physically put on an airplane and shipped against his will to Vietnam. According to Richard Harrington, one of his attorneys, “the Army 'assigned four enlisted personnel to seize his arms and legs and carry him on board the aircraft which carried him to Vietnam.'”14 Negre, however, did not abandon his efforts even then and his challenge was eventually heard by the United States Supreme Court in December, 1970. His claim was that by protecting religiously-grounded pacifism while at the same time rejecting Catholics who used Catholic just-war principles to ground their objection to war, Congress had effectively discriminated among religions and had created an establishment of religion by preferring one religious viewpoint over another.
Representing Negre in the Supreme Court were Harrington, who argued the case before
the justices, and the prominent Catholic scholar, John T. Noonan, Jr. At the time the case came before the Court, John Noonan was famous chiefly for his books on usury and contraception, both of which considered carefully the development Catholic moral thought had undergone over the course of the Church's long history. Noonan wrote a brief on Negre’s behalf which took up the history of the Church's teaching on conscientious objection.15 He elucidated several key points.
The Noonan Brief
Most critical among Noonan’s points in the brief was that Catholic moral theology has taught that conscientious objection on just-war grounds is permissible. Indeed, the position of the Selective Service—that only a total objection to war was somehow moral—was unknown to the Catholic moralists.
Historically, Noonan asserted, “[t]he Catholic's religious duty to obey conscience is scarcely a new doctrine of the Church.” Noonan quoted from St. Jerome's admonition to Roman soldiers to obey “[i]f what the emperor and presiding officers command is good . . . . But if it is evil and against God, answer him with those words from the Acts of the Apostles, ‘It is necessary to obey God rather than men.”’16
He then turned to Catholic just-war thought to demonstrate the unanimity of the tradition's opposition to killing in unjust wars. As far back as the twelfth century, moral theologians like Peter the Chanter made it plain that Catholic knights were under no obligation to participate in their overlord's unjust wars. In the sixteenth century, the Spanish Jesuit Francis de Vitoria, in his treatise On the Civil Power, considered the conscientious obligations of those who objected on just-war grounds to a prince's military adventurism. Not only the prince, but his subjects too were obliged to consider carefully the moral implications of their conduct. Vitoria asserted that all those admitted to the prince's council—nobility, the lords of the land, legal advisors and others—were expected independently to scrutinize a proposed war. Where the war was morally objectionable, one not only had the right but was under an affirmative duty to object.17 Vitoria went even further with this proposition in his treatise On War. “Subjects who are aware of the injustice of a war are obliged to refrain from fighting, even if their prince attempts to coerce them, since one must place loyalty to God ahead of loyalty to the prince. Elites are further obliged to inform themselves independently of the justice of the war and to advise the prince of the impropriety of his proposed course of conduct, although commoners are not under such an obligation.”18
Alphonsus de Liguori (1696-1787), whose works would become the standard starting-point for Catholic moral theology from the end of the eighteenth century to the middle of the twentieth, treated the obligation to object to unjust war under his treatment of the Fifth Commandment—“Thou Shalt Not Kill.” Whether a lord, an advisor to a prince, or a common footsoldier, one might participate in war, Liguori cautioned, only where one had not concluded that the war was unjust. Where the moral analysis was equivocal and it was possible the prince was correct in his decision to go war, one could still licitly fight. But “where a soldier understands a war to be unjust, he may not receive absolution for his sin unless he seeks, as quickly as possible, dismissal from the military and in the interim refrains from hostile acts.”19
In the middle of the twentieth century, in the context of the Vietnam War, John Courtney Murray expanded on these views. Murray had been a member of President Johnson's Advisory Commission and had dissented from the final report because of its rejection of the possibility of selective conscientious objection. Speaking at a college commencement just months before his death in 1967, Murray stressed that any use of armed force by the state had to be constrained within moral limits. The distinction between moral pacifism and political objection to particular unjust wars was improper. Murray emphasized: “[S]trictly on grounds of moral argument, the right conscientiously to object to participation in a particular war is incontestable.”20 Murray made clear that the issue was larger than the Vietnam War. One could simultaneously maintain that the Vietnam War was just—he acknowledged that he held this view himself—but still insist on recognition for selective conscientious objection. This much, Murray observed, was the settled expectation of the Catholic moral tradition.
John Noonan drew deeply from this tradition in his brief on behalf of Negre. Vitoria and Alphonsus Liguori featured prominently in Noonan's account to the Court. Noonan stressed also the significance of Charles Evans Hughes' endorsement of selective conscientious objection. Hughes had appreciated the importance of freedom of conscience to the American story. “The essence of religion,” Hughes wrote and Noonan quoted, “is belief in a relation to God involving duties superior to those arising from any human relation.”21
There also were other briefs filed on Negre’s behalf. The Executive Board of the National Federation of Priests' Councils wrote:
In counseling draft-aged youth, the priest is often caught in a painful dilemma when confronted with a situation in which the young Catholic feels that his direct or indirect participation in a particular war would be immoral. In guiding the young man to a personal decision on the matter, the priest is placed in the dubious position of having to counsel his sub- ject to disregard the law in order to follow a belief which results from religious training, or to disregard that belief in order to follow the law.22
Among all the briefs, though, it was Noonan’s that brought perhaps the clearest focus on the religious and legal questions at hand. “The teaching of the Catholic church has been consistent for nearly two thousand years in affirming the primary duty of man to follow conscience as the voice of God, and to refuse to kill where taking life violates conscience,” Noonan concluded. “If in the heat of defense of a much-criticized war the government can prevail with its contention that these teachings of the Catholic church are ‘political’ rather than ‘religious,’ one can only wonder what life is left in the freedom of religion guaranteed by the First Amendment which has been the pride of the American commonwealth for nearly two centuries.”23 Noonan had framed for the Justices a clear choice.
The Court had joined Negre's case to that of Guy Gillette. Gillette had based his conscientious objector claim on a “non-religious ‘Humanism’ which stressed love and respect for one's fellow creatures and a confidence in human perfectibility.”24 In making his claim, Gillette proceeded on the basis of a 1965 Supreme Court decision, United States v. Seeger,25 which extended the right of conscientious objection to those holding non-theistic pacifist views. The joining of the Gillette and Negre cases lightened the burden of government lawyers: they could point to Gillette's case and more credibly claim that a decision in favor of selective objection might open the door to all those with “political” objections to a given war.
In oral argument, Harrington stressed the religious dimensions of Negre's claim and the discrimination he suffered because of his religious beliefs:
Now, I assert . . . our position is quite simple; it's an equal protection position that if the Quaker on my right hand says, ‘I'm not going to fight in the Vietnam War.’ You say, ‘Why not?’ ‘Because of my religion.’ If you compel the man, the Quaker[, that] would be violating the statute, certainly. Now, my Catholic on my left hand is not going to go. You say, ‘Why not?’ He says, ‘Because of my religion,’ but they are both acting under the command in the Bible: ‘It's better to obey God than man.’ They're both acting as taught by their religion. But you say, ‘Well, you're a felon and you have to go because you are Catholic’ and to the Quaker they say, 'Well, you may stay home.'26
Negre Loses, Douglas Dissents
The Supreme Court rejected the claims of Louis Negre in an eight-to-one decision announced on March 8, 1971. Justice Thurgood Marshall, who had himself avoided military service during World War II in order to continue his civil rights work, authored the majority opinion. In it, he failed to address the religious arguments made as well the constitutional issues at stake. Instead, he merely offered a defense of policy, along with a trivialization of the harmful effects of that policy:
The conscription laws, applied to such persons as to others, are not designed to interfere with any religious ritual or practice, and do not work a penalty against any theological position. The incidental burdens felt by persons in petitioners' position are strictly justified by substantial governmental interests that relate directly to the very impacts questioned.27
Marshall concludes by clarifying these interests, and offering what many see as the real reason for the Court’s decision: “the Government’s interest in procuring the manpower necessary for military purposes.”28 If a certain group—like the Roman Catholic population of the United States—were allowed the right of selective conscientious objection, the need for manpower would be severely compromised.
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"The obligation to follow conscience has been a part of the Church's teaching since the Acts of the Apostels, and the duty has not changed."
-William O. Douglas |
It should be noted that the decision did not preclude a legislative remedy. Marshall, in concluding that “it is supportable for Congress to have decided that the objector to all war—to all killing in war—has a claim that is distinct enough and intense enough to justify special status, while the objector to a particular war does not,” added an observation: “Of course, we do not suggest that Congress would have acted irrationally or unreasonably had it decided to exempt those who object to particular wars.”29
Only William O. Douglas, himself the son of a Presbyterian minister, grasped the religious significance of the case. Relying on Noonan's brief and Negre's application for conscientious objector status, Douglas acknowledged that obedience to conscience was a cornerstone of Catholic teaching, as articulated by Pope Paul VI and the Second Vatican Council.
The obligation to follow conscience has been a part of the Church's teaching since the Acts of the Apostles, Douglas stated, and the “duty has not changed.”30 On the matter of participation in warfare, Douglas referenced many of the ecclesial guides Noonan had presented. Francisco de Vitoria forbade the killing of innocents, and Alfredo Cardinal Ottaviani, in the aftermath of World War II, questioned whether war could ever again fulfill the conditions required to be just. The Second Vatican Council was especially emphatic in its condemnation of indiscriminate warfare against populations. These were the principal guides Louis Negre followed in forming his conscience, Douglas noted, thus placing him in the long tradition of selective conscientious objection within the Catholic Church.
Under the present state of the law, any Catholic considering enlistment in the United States military must ask himself or herself in advance whether it is possible that the armed forces will be called upon to wage war unjustly. If that Catholic answers in the affirmative, he or she is then confronted with a hard choice: “Do I enlist, knowing that if service becomes morally problematic I must object and face the risks of dishonor and imprisonment? Or do I simply refuse to enlist because of the refusal of the government to make accommodation for Catholic conscientious objection?” These are the moral questions raised by the Negre case—and the current experience of objectors such as Jeremy Hinzman. As noted, Jeremy’s escape to Canada has proven difficult. If his appeals for refugee status there continue to fail, he would face deportation and a multi-year prison sentence. For Jeremy, and even for those who refused to deploy but stayed in the U.S., the road has not been easy. It presents the dilemma that well-formed and moral American Catholics must consider in deciding whether to join their nation's armed forces.
See also related articles...
An Interview with Louis Negre
An Interview with Judge Noonan
Selective Conscientious Objection, by the CPF Staff
Dr. Charles J. Reid, Jr., is Associate Professor of Law at the University of St. Thomas School of Law in Minneaposis, MN. This article is based on a longer version in the April 2001 edition of the Notre Dame Law Review. Contact CPF for copies. The author can be reached at CJREID@stthomas.edu
Endnotes
1 Clifford Kraus, “In Canada, an exile Pleads a Tangled Case for Refuge,” The New York Times, October 9, 2004, p. A4.
2 Negre v. Larsen, 401 U.S. 437 (1971).
3 Louis Negre, “Application for Request for Discharge as a Conscientious Objector Under AR 635-20, reprinted in Appendix to Petition for Writ of Certiorari, Negre v. Larsen.
4 Gaudium et spes, paragraph 80.
5 Alfredo Cardinal Ottaviani, “The Future of Offensive War,” Blackfriars 30 (1949), 415, 419.
6Pope John XXIII, Pacem in Terris, paragraph 127 (19630.
7 Quoted in Negre's Application for Request for Discharge, p. 7. Negre's application is discussed more extensively in Reid, “Catholic Conscience and War,” pp. 889-890.
8 United States v. Macintosh, 283 U.S. 605 (1931).
9 Reid, “Catholic Conscience,” p. 897.
10 Brief for the Respondent, United States v. Macintosh, at 5.
11 United States v. Macintosh, 283 U.S. at 635 (Hughes, C.J., dissenting).
12 Selective Service Act of 1948, ch. 625, 6(j), 62 Stat. 604, 612. Congress excluded from protection those whose objections arose from “essentially political, sociological, or philosophical views or a merely personal moral code.” Id.
13 Reid, “Catholic Conscience,” p. 919.
14 Quoted in Reid, “Catholic Conscience,” supra, pp. 925-926.
15 For analysis of Noonan's arguments, see Reid, “Catholic Conscience,” pp. 939-946.
16 See Reid, “Catholic Conscience”, p. 944. Noonan here was quoting St. Jerome, On Titus, 3:1, in 26 Patrologia Latina 626 (J.P. Migne ed.
17 Id., pp. 906-909. 18 Id., pp. 909-910. 19 Id., p. 910.
20 Id., p. 921. 21 Id. p. 942. 22 Id., p. 931.
23 Id., p. 944-945. 24Id., p. 935.
25United States v. Seeger, 380 U.S. 163 (1965).
26Quoted in Reid, “Catholic Conscience,” p. 949.
27Gillette v. United States, 401 U.S. 437 (1971), at 462.
28Id.
28Id., at 460.
30Id., (Douglas, J., dissenting) at 472.
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