by Michael Dorf
My latest Verdict column discusses the recent decision of the Israel Supreme Court giving the government a year to develop a plan to substantially boost participation by Haredi (ultra-Orthodox) men in the military or face a default solution of making all such draft-age men serve. The column is mostly about the relation between judicial review and legislation in comparative perspective. I claim that the difference between so-called "soft" judicial review in Canada and the UK versus "hard" judicial review in the US is not nearly so sharp as commonly assumed. In all of these countries (and Israel), there exist formal mechanisms by which legislatures may resist unpopular court rulings, but informal norms and political pressure make the formal mechanisms very difficult to use.
Here I want to say a word about the seeming strangeness of the underlying claim in the case:. The Haredim claim exemption from military service on the ground that they serve the state by studying holy scripture, thus bringing Divine protection. To be sure, in last week's ruling and a similar one in 2012, the Israel Supreme Court rejected this claim as a basis for a blanket exemption. Nonetheless, the fact that it was made at all--and the fact that the court credited it at all in allowing for some sort of accommodation rather than simply subjecting Haredim to the same service obligations as other Israelis--is on its face peculiar. It underscores that while Israel protects free exercise of religion, it is not a secular state. And yet, the claim of the Haredim is not so different from the logic that underwrote a US policy that eventually was changed during the Vietnam War: draft deferments for college students.
A military draft will often include at least four sorts of exemptions: (1) conscientious objection; (2) unfitness; (3) hardship; and (4) importance of alternative pursuits.
(1) Many countries, including the US when it had a draft, permit conscientious objectors--people who have religious reasons or other reasons of conscience for believing that participating in war is immoral--to perform some alternative form of service. Governments that exempt conscientious objectors from military service typically police the objection rather carefully to prevent its opportunistic assertion by people who do not really object to killing but merely feign conscientious objection to avoid dying. It can be assumed that almost everyone would prefer to live than to die, and so a conscientious objector exception--even more so than other forms of exemption from broad legal obligations--gives rise to difficulties in detecting sincere belief.
(2) Militaries routinely screen out potential recruits (whether volunteers or conscripts) based on various qualifications. Criminal record, physical or mental disability, and other characteristics might make someone unfit to serve. Some of these judgments are highly problematic. President Trump's announcement that he wants to exclude transgender service members is the obvious example of the current moment, but even some exclusions that are taken for granted may be problematic. For instance, although people who are injured while in the armed forces can continue to serve, the US military excludes people with a wide variety of pre-existing disabilities from joining in the first place. This is problematic in both directions. It results in people who don't want to serve being excused from conscription based on trifling or perhaps even nonexistent disabilities--such as Donald Trump's supposed bone spurs. And it excludes people who want to serve from doing so on grounds that there are some military tasks that their disability precludes, even though there are many tasks they could perform.
(3) Hardship exemptions from conscription can be individualized or categorical, although some of the latter may also serve other purposes. Consider the fact that women in the US have never been subject to the draft and are not now subject to draft registration. At one time it might have been based on a (dubious) fitness judgment, but now that the combat exclusion has been lifted, that is hard to justify. Hardship seems like the best, but still not very good, account: Women of child-bearing age--which roughly corresponds to military service age--are more likely to have child-care responsibilities than men of the same age. That's not a very good justification, however, because it would be a simple matter to provide individual exemptions for new mothers (and fathers).
(4) From the perspective of the Haredim, exclusion from the obligation to perform military service is based on the notion that by studying the Torah and Talmud, they are doing work that is vital to the spiritual survival of the state and people of Israel. That is not a judgment that can be subject to rational secular evaluation, so I'll simply set it aside. I will note, however, that it is similar in form to the student deferment that was available in the US until 1971. What could have possibly justified that policy?
One could rationally think that some students in some courses of study should be exempted from active military service requirements because they are studying subject matter that will be vital to the war effort. However, if so, it would be accompanied by a service obligation following the completion of their studies. Such a policy would be better characterized as a form of training for specialized military service than as an exemption. It would look very different from the policy that the US formerly had, under which a full-time student in any subject was eligible for a deferment.
Now, one might say that even if a particular course of study--economics, say--provides no immediate payoff, it is important to the nation to have people well-trained in economics, because a country without a robust economy will be less able to fight wars than one with a robust economy. Even setting aside objections to the connection between studying economics and economic productivity, the argument proves too much. Just about everyone who would not otherwise be unemployed could make a useful contribution to civilian life if not subject to military conscription. The premise of a draft is that citizenship imposes a duty to set aside even quite productive pursuits of civilian life for the greater good. Unless tied to the military itself (or to other forms of service for conscientious objectors), a deferment based on the importance of what one would otherwise be doing as a civilian amounts to a repugnant status hierarchy.
Such a status hierarchy was part of American military policy for a long time. The Civil War draft permitted a draftee to avoid service by furnishing a substitute or paying a substantial fee. The unmistakable lesson was that service was not so much a duty of all citizens but of those who could not afford to buy their way out. Student deferments were based on a similar logic.
My aim here has been simply to note that despite its seeming strangeness, the Haredi argument for exemption from military service has much in common with US policy until 1971. I'll close by noting that, insofar as our all-volunteer armed forces tend to be more attractive to young men and women with fewer other options than to those with many other options, it continues to partake of the sort of elitism that underwrote both the Civil War draft and the pre-1971 student deferment policy. That is not to say that there are no men and women serving purely out of a sense of patriotic duty regardless of their alternatives; there are a great many such people. But economic pressure surely plays at least some role for many others.