Maybe I misunderstand how the draft worked (I am quite young), but it would seem to me that a local draft board would not be much bigger than an insurance plan in size (indeed, for Hobby Lobby, the draft board would seem smaller), and thus, Gedicks' and Van Tassel's claim that "a person’s decision making calculus," would not be affected seems incorrect in the sense that identifiability of who is burdened (and thus, the ability of a person to make such changes in response to a objector)is just as strong in the draft case, if not stronger.
On Mon, Dec 2, 2013 at 10:18 AM, Micah Schwartzman <mj...@virginia.edu>wrote: > Eugene's suggestion that the religious exemption from the contraception > mandate be analogized to the draft protester cases is anticipated by > Gedicks and Van Tassell in their article, RFRA Exemptions from the > Contraception Mandate: An Unconstitutional Accommodation of Religion ( > http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328516). > > Gedicks and Van Tassel argue that the burden of the exemption is not > material because it would not affect the decision-making of non-pacificists > in considering whether to participate in the draft. That is because the > burden is minor and remote -- for any individual, a small number of > exemptions amounts to a minor increase in the probability of being selected > for the draft. > > Whethers Gedicks and Van Tassel are right, there is at least the > difference that the burden of the religious exemption from the > contraception mandate, like the burden in Caldor, falls clearly and > specifically on identifiable individuals. > > It is a separate question whether broadening the exemption to include > non-religious objectors would cure a possible constitutional defect under > the Establishment Clause. If the reason for broadening the exemption is a > based on a sham purpose -- that is, if it is broadened only for the purpose > of saving an otherwise unconstitutional exemption, rather than to > accommodate non-religious objectors (as in *Seeger*) -- I wonder whether > that is (or should be?) permissible. It could be framed as a form of > constitutional avoidance, but, given the history, it might also look like > an impermissible purpose. > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Michael Worley BYU Law School, Class of 2014
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
