Some at the time of Vietnam thought otherwise: In *Imus v. United States* 447 F.2d 1008 (10th Cir. 1971), drafted Utahns where LDS Missionaries got an exemption claimed "The appellees assert in effect that the classification of the missionaries as ministers during the period of their service served to reduce the number of men eligible for service and thus made appellees' induction more likely." The Court reversed an injunction, relying upon a Supreme Court summary affirmance in another case, *Boyd v.* *Clark *393 U.S. 316 (1969), where "The plaintiffs asserted that by reason of the number of men student deferments they were more likely to be inducted." *Imus*, 474 F.2d at 1009. The classification in Imus was "on behalf of all Selective Service Registrants in this State of Utah"-- so Imus thought Utahns were harmed more.
Were the Plaintiffs just wrong in Imus? It would seem odd for a case to be appealed if everyone knew it was over n+1 instead of b. (I realize this is a question of fact; If the Plaintiffs in Imus were wrong, I withdraw my line of reasoning here.) Michael On Mon, Dec 2, 2013 at 1:27 PM, Douglas Laycock <dlayc...@virginia.edu>wrote: > The draft pool was effectively local, as you envision it, through the > Civil War. Each county was given a quota to fill. I think it was > nationalized for World War I, but I don’t really know. > > > > It was certainly nationalized by the time of Vietnam. Local boards > administered the classification system, but all those classified I-A went > into a national pool from which draftees were selected. It was called the > Selective Service System, and your draft letter began, “Greetings! You have > been selected . . .” > > > > So for every person granted conscientious objector status, your odds of > being drafted went from n over however many million in the denominator to n > + 1 over that denominator. Considered at that stage, the increase was > infinitesimal. Somewhere there was a guy who got drafted who otherwise > would not have been, but it was impossible to identify that person. > > > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Michael Worley > *Sent:* Monday, December 02, 2013 12:48 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The Establishment Clause, burden on others, the employer > mandate, and the draft > > > > > 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. > -- 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.
