Exemption from Military Duty

By Richard R. Hammar, J.D., LL.M., CPA

© Copyright 1991, 1998 by Church Law & Tax Report.  All rights reserved.  This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service.  If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m28

This section will review the registration requirement of the Selective Service Act, and discuss the exemption of clergy and the deferral of ministerial students from military training and service. The subjects of military chaplains and conscientious objectors also are reviewed.

it shall be the duty of every male citizen of the United States . . . who, on the day or days fixed for the first or any subsequent registration, is between the ages of 18 and 26, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President.¹

Several Presidential proclamations have been issued over the years, specifying the times and places for military registration. The current proclamation was announced in 1980 by President Jimmy Carter. This proclamation specifies that “persons born on or after January 1, 1963, shall present themselves for registration on the day they attain the 18th anniversary of their birth or on any day within the period of 60 days beginning 30 days before such date.” Persons register by reporting to a designated United States Post Office facility. Registration is a simple procedure requiring only verification of the registrant's identity (e.g., with a birth certificate) and mailing address.

Clergy and theology students (of the specified age) are not exempt from the registration requirement. Of course, this rule has very little significance since the current registration requirement applies to male citizens upon attaining the age of 18, and relatively few persons are either clergy or ministerial students on their 18th birthday. In the past, a number of clergy and ministerial students have claimed that the registration procedure violates their constitutional right to freely exercise their religion. This claim has been rejected by the federal courts in every case. In the most recent case, a federal appeals court ruled in 1986 that if “an individual's religious training and belief are so strong as to preclude even registration, his only alternative is to violate the law and accept the consequences come what may.”²

The Selective Service regulations specify that it is the duty of every registrant who registered after July 1, 1980, to notify the Selective Service within 10 days of any change in a mailing address or permanent residence.³ And, clergy or ministerial students who have been deferred or exempted from military training or service must notify the Service immediately of any changes in facts or circumstances relating to their exemption or deferral.

The Military Selective Service Act exempts “regular or duly ordained ministers of religion” from military training and service.⁴ However, as noted above, ministers are not exempted from the Act's registration requirements. The Act defines the term duly ordained minister of religion as

a person who has been ordained, in accordance with the ceremonial [sic], ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization.⁵

The Act defines the term regular minister of religion as

one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained as a minister of a religion, and who is recognized by such church, sect, or organization as a regular minister.⁶

The Selective Service regulations further specify that the term regular or duly ordained minister of religion does not include

(i) A person who irregularly or incidentally preaches and teaches the principles of a religion of a church, religious sect, or organization; or (ii) an person who has been duly ordained a minister in accordance with the ceremonial rite or discipline of a church, religious sect or organization, but who does not regularly, as a bona fide vocation, teach and preach the principles of a religion and administer the ordinances of public worship, as embodied in the creed or principles of his church, sect, or organization.⁷

Ministers satisfying the definition of “regular or duly ordained ministers of religion” are not automatically exempt from military training and service. They must apply for exemption. This is done by filing a written application with the Selective Service System requesting “4--D” classification. This is the classification that pertains to exempt clergy. The Selective Service regulations provide guidelines for evaluating ministers' exemption applications. These guidelines specify that the government cannot consider the “training or abilities” of an applicant or the applicant's “motive or sincerity” in becoming a minister. However, the regulations require the government to “be careful to ascertain the actual duties and functions” of each applicant. They further provide that

preaching and teaching the principles of one's sect, if performed part--time or half--time, occasionally or irregularly, are insufficient to establish eligibility for class 4--D. These activities must be regularly performed and must comprise the [applicant's] regular calling or full--time profession. The mere fact of some secular employment on the part of an [applicant] requesting classification in class 4--D does not  in itself make him ineligible for that class.⁸

The regulations further specify that a minister's application for exemption will be denied if the evidence “clearly shows” that: (1) he is not a regular minister or a duly ordained minister; or (2) he is a duly ordained minister “but does not regularly as his bona fide vocation teach and preach the principles of religion and administer the ordinances of public worship;” or (3) he is a regular minister of religion “but does not regularly, as his bona fide vocation, teach and preach the principles of religion;” or (4) he is not recognized by a church, sect or organization as a regular minister of religion; or (5) “he is a duly ordained minister of religion but does not administer the ordinances of public worship.”⁹

Why are clergy exempt from military training and service? A federal appeals court explained the exemption as follows: “[M]inisters of religion are relieved of the duty of service not so much for their personal religious training and beliefs, but for the disruption of public worship and religious solace to the people at large which would be caused by their induction.”¹⁰

The most important element in the definition of both ordained and regular ministers is the requirement that a minister's “customary vocation” be preaching and teaching the principles of his or her church or sect. The regulations (quoted above) recognize that ordained and regular ministers may have some secular employment. However, they also state that preaching or teaching that is “part--time or half--time, occasionally or irregularly, are insufficient” to establish exemption. The United States Supreme Court has ruled that the Act's definitions do “not preclude all secular employment,” since many ministers who are employed by small churches must seek part--time secular employment in order to adequately support themselves.¹¹ The Court has held that a minister's vocation could be preaching and teaching the principles of his church although he supported himself by working five hours a week as a radio repairman.¹² Other cases make it plain that ministers may pursue minimal amounts of secular employment without jeopardizing their exemption from military service. Such cases suggest that full--time clergy who also work 5--10 hours per week in a secular job are eligible for the exemption.

On the other hand, ministers who spend substantial amounts of time in secular employment may not be entitled to the exemption. To illustrate, the following ministers were denied an exemption from military service on the ground that their customary vocation was not the ministry: a minister who worked 28 hours a week as a busboy and 30 hours a month as a minister;¹³ a minister who worked 45 hours a week as a carpenter and 15 hours a month as a minister;¹⁴ a minister employed full--time in secular employment and 14 hours a week in the ministry;¹⁵ a minister employed full--time in secular employment and 10 hours a week in the ministry;¹⁶ a minister who regularly performed ministerial work, but for only one--third of his total working hours;¹⁷ and, a minister who worked a 40--hour per week secular job and who devoted only 12 or 13 hours per month to ministerial duties.¹⁸ One federal appeals court ruled that at least 160 hours per month should be devoted to ministry in order to qualify for the ministerial exemption.¹⁹

In summary, the cases and regulations make one thing very clear—clergy who work a full--time secular job will rarely if ever qualify for the ministerial exemption from military training and service, no matter how much time they devote to ministerial services. On the other hand, clergy who are employed on a full--time basis to perform ministerial services will not become ineligible for the exemption merely because they work a minimal number of hours (5--10) each week in a secular job.

It is clear that a minister need not be the sole or principal religious leader of a congregation in order to be eligible for an exemption. Assistant or associate ministers also are entitled to the exemption if they are either ordained or regular ministers.²⁰ The motivation of an individual in becoming a minister is irrelevant.  Thus, a minister cannot be denied an exemption on the ground that his sole purpose in becoming a minister was to evade military service.²¹ Further, the regulations prohibit the government from considering an applicant's lack of formal theological training in evaluating his or her application for exemption.²² The definitions of ordained and regular ministers contained in the Selective Service Act will take precedence over the definitions adopted by a church or religious organization.²³ Further, ministers are entitled to the exemption if they meet the definition of either an ordained or regular minister, even if they have no college or seminary training.

The exemption of ministers from military training and service does not violate the “nonestablishment of religion” clause of the first amendment to the United States Constitution.²⁴ As one federal appeals court noted, the purpose of the exemption is not to benefit ministers, but rather “to assure religious leadership to members of [their] faith.”²⁵

[s]tudents preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full--time courses of instruction in recognized theological or divinity schools, or who are satisfactorily  pursuing full--time courses of instruction leading to their entrance into recognized theological or divinity schools in which they have been preenrolled, shall be deferred from training and service, but not from registration . . . .²⁶

The Selective Service regulations further explain the deferral of ministerial students by noting that

In class 2--D shall be placed any [applicant] who is preparing for the ministry under the direction of a recognized church or religious organization; and (1) Who is satisfactorily pursuing a full--time course of instruction required for entrance into a recognized theological or divinity school in which he has been pre--enrolled or accepted for admission; or (2) Who is satisfactorily pursuing a full--time course of instruction in a recognized theological or divinity school; or (3) Who, having completed a theological or divinity school, is a student in a full--time graduate program or is a full--time intern, and whose studies are related to and lead toward entry into service as a regular or duly ordained minister of religion. Satisfactory progress in these studies as determined by the school in which the registrant is enrolled, must be maintained for qualification for the deferment.²⁷

The regulations define a “recognized theological or divinity school” as a “theological or divinity school whose graduates are acceptable for ministerial duties either as an ordained or regular minister by the church or religious organization sponsoring a registrant as a ministerial student.”²⁸

The “deferral” of ministerial students is not automatic. Eligible students must request the deferral by submitting a written application for “2--D” status to their local Selective Service board. The regulations state that an application for deferral must be accompanied by “a statement from a church or religious organization that the [applicant] is preparing for ministry under its direction.” The application for deferral also must contain a “certification” that the applicant (1) is satisfactorily pursuing a full--time course of study required for entrance into a recognized theological or divinity school, or (2) is satisfactorily pursuing a full--time course of study at a recognized theological or divinity school, or (3) is satisfactorily pursuing a full--time graduate program (following the completion of theological or divinity school) that “leads toward entry into service as a regular or duly ordained minister of religion,” or (4) is a full--time intern “whose studies are related to and lead toward entry into service as  a regular or duly ordained minister of religion.”²⁹

Part--time theology students are not entitled to deferral. Thus, one student who worked full--time in a secular job and who attended only two hours of classes each week was found to be subject to military training and service.³⁰

A federal appeals court ruled that a Mennonite seminarian's constitutional right to religious freedom was not violated by a federal prosecution for his failure to register with the Selective Service System. The court observed that any burden on religious freedom was minimal since the religious objections could be raised after registration but before induction.

Does the military chaplaincy program constitute a violation of the religious neutrality required by the first amendment's “nonestablishment of religion” clause? In 1985, a federal appeals court said no.³¹ The court rejected the claim that the religious needs of military personnel could be accomplished at no expense to the government either through the use of civilian clergy or by using chaplains paid by religious denominations themselves. The court noted that 37% of Army personnel are stationed overseas and ordinarily do not have access to Christian clergy. With respect to military personnel stationed in the United States, the court observed that “local civilian clergy in the rural areas where most military camps are centered are inadequate to satisfy the soldiers' religious needs because they are too few in number for the task and are usually of different religious denominations from those of most of the nearby troops.” In rejecting the claim that the military could operate with chaplains financed through denominational contributions, the court noted simply that there was no evidence that the various denominations would “be willing to pay their respective share of the $85 million required to operate a civilian chaplaincy.”

The court emphasized that the purpose the military chaplaincy program

is to make religion, religious education, counseling and religious facilities available to military personnel and their families under circumstances where the practice of religion would otherwise be denied as a practical matter to all or a substantial number. As a result, the morale of our soldiers, their willingness to serve, and the efficiency of the Army as an instrument for our national defense rests in substantial part on the military chaplaincy, which is vital to our Army's functioning.³²

In further support of its decision upholding the constitutionality of the military chaplaincy program, the court also mentioned that civil courts ordinarily must defer to congressional determinations in military affairs, and that the same Congress that drafted the first amendment nonestablishment of religion clause authorized a paid chaplain for the Army. The court also noted that the first amendment guarantees the free exercise of religion, and it quoted with approval from an earlier opinion of a Supreme Court justice: “Spending federal funds to employ chaplains for the armed forces might be said to violate the establishment clause. Yet a lonely soldier stationed at some faraway outpost could surely complain that a government which did not provide him the opportunity for pastoral guidance was affirmatively prohibiting the free exercise of his religion.”³³

In conclusion, the military chaplaincy program does not violate the first amendment's nonestablishment of religion clause, and accordingly chaplains will continue to play a significant role in the armed forces.

5. CONSCIENTIOUS OBJECTORS

The Military Selective Service Act provides that no person who “by  reason of religious training and belief is conscientiously opposed to participation in war in any form” shall be subject to combatant training and service in the armed forces.³⁴ One need not be a minister to qualify for conscientious objector status, and a person is not automatically entitled to such status because he or she is a minister.³⁵ The courts have greatly liberalized the meaning of “religious training and belief.” The United States Supreme Court has held that conscientious objector status is properly available to any individual who is conscientiously opposed to war on the basis of “moral, ethical, or religious beliefs about what is right and wrong and [which are] held with the strength of traditional religious convictions.”³⁶ Conscientious objector status is thus available to agnostics and even atheists, since belief in God is not a prerequisite to conscientious objector status.³⁷ Avowed humanists have been granted conscientious objector status.³⁸

Conscientious objector status is available to an individual on the basis of religious conviction even though he is not a member of a religious society or organization.³⁹ And it is available even though an individual's opposition to war is based only partly on “religious training and belief.” To receive conscientious objector status, one must be opposed to participation in war in any form. It is not enough that an individual is opposed merely to a particular war.⁴⁰ One may be entitled to conscientious objector status even though he is willing to use force in defense of self, home, or family.⁴¹

The Military Selective Service Act does provide that conscientious objectors may be compelled to perform noncombatant military service or civilian work contributing to the maintenance of the national health, safety, or interest.

Those sections of the Military Selective Service Act pertaining to conscientious objectors have been upheld against claims that they constitute a violation of the religious neutrality required by the first amendment's nonestablishment of religion clause;⁴² and that  they condone “involuntary servitude.”⁴³

General Scope of a Minister's Authority

Officer of the Church Corporation

Clergy Authority in Property Matters

Performance of Marriage Ceremonies

Exemption From Jury Duty

The Clergy—Penitent Privilege

Visiting Privileges at Penal Institutions

Immigration of Alien Ministers

Miscellaneous Benefits for Clergy