The Court did not, of course, reach the merits in *Imus*, but people thought there was a disparate impact.
On Mon, Dec 2, 2013 at 1:50 PM, Michael Worley <mwor...@byulaw.net> wrote: > oops, that should read over n+1 instead of n. > > > On Mon, Dec 2, 2013 at 1:45 PM, Michael Worley <mwor...@byulaw.net> wrote: > >> 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 >> > > > > -- > Michael Worley > BYU Law School, Class of 2014 > -- 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.
