Of course, it is also possible I am wrong.
On Mon, Dec 2, 2013 at 2:00 PM, Douglas Laycock <dlayc...@virginia.edu>wrote: > Of course it’s possible I am wrong. > > > > When they went to the lottery in 1969, that was certainly understood to be > national – but I suppose the actual selections could have been by state. > Before that, they were supposed to be taking the oldest men first (up > through age 26, at which point you aged out), and I certainly thought at > the time that it was on a national basis, but maybe not. If the answer is > not in the *Imus* opinion or a source cited there, it might be deep in > regulations from the 60s, or perhaps in a statute from the 60s. > > > > Of course the number of student deferments dwarfed the number of > conscientious objectors and Mormon missionaries. Only the latter could be > attacked with Establishment Clause arguments. > > > > 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 3:46 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The Establishment Clause, burden on others, the employer > mandate, and the draft > > > > 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. > -- 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.
