I read the Gedicks & Van Tassell article, which I found
interesting but ultimately not quite persuasive as to the draft.
According to
http://www.swarthmore.edu/library/peace/conscientiousobjection/co%20website/pages/HistoryNew.htm,
there were 170,000 conscientious objector deferments awarded during the
Vietnam War. That means that likely about 170,000 people who otherwise
wouldn't have been called up were indeed eligible to be called up instead, and
presumably (I don't quite know how the numbers worked) at least tens of
thousands of those were indeed called up. That surely was a burden on third
parties created as a result of accommodating objectors' "religious" beliefs.
To be sure, at the time the conscientious objector deferment was given, the
particular person who had to serve in the objectors' place couldn't be easily
identified. And I agree that the law does sometimes treat burdens on easily
identifiable third parties differently from burdens on harder-to-identify third
parties.
But is such a distinction really mandated by the Establishment
Clause? Is it really the case that the government is free to impose such a
massive burden -- conscription for years, the possibility of having to kill,
and the possibility of dying -- on hard-to-identify but indubitably real third
parties (tens of thousands of them), but the Establishment Clause blocks the
government from imposing a several-hundred-dollar-per-year burden on more
readily identifiable employees? That seems quite odd.
Nor does the distinction urged by Gedicks & Van Tassell -- that
the draft exemption wouldn't "be a factor in the decision of nonpacifists to
comply with or evade the draft," while the employer mandate exemption might be
a factor in a person's decision whether to work for Hobby Lobby -- strike me as
constitutionally significant, especially when the question is substantiality of
burden. Perhaps nonpacifists had to comply with the draft in any event,
because they'd go to prison otherwise. But if the essence of the harm is
"burdening non-beneficiar[ies]," that legal compulsion doesn't at all diminish
the burden on the tens of thousands of nonpacifists who had to serve in the
conscientious objectors' stead.
I realize that there's a separate argument that the
conscientious objector exemption was only upheld because it was interpreted to
cover philosophical objectors, and that such an interpretation is unavailable
for the employer mandate (though I'm still not persuaded by that interpretation
argument). But my point here is simply that the burden on the hard-to-identify
vs. burden on the easy-to-identify distinction, as well as the Gedicks & Van
Tassell distinction, seem unsound.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman
Sent: Monday, December 02, 2013 12:38 PM
To: Law & Religion issues for Law Academics
Subject: Re: The Establishment Clause, burden on others, the employer mandate,
and the draft
Alan,
I think you're right that the problem of burdening non-beneficiary employees
could be resolved by the government providing them with full coverage (as I
think Nelson Tebbe said in an earlier post). But until that happens, those
employees have a claim in this litigation that hasn't yet been fully presented
-- and one that, as Gedicks argues, constrains permissive accommodations
(including RFRA).
I should add that government coverage for non-beneficiaries might not solve all
the possible Establishment Clause problems with a religious exemption. If there
are non-religious employers who object to covering, e.g., abortifacients, they
might claim that a religious exemption treats them unfairly. And depending on
how the costs sort out, I suppose it's possible that there might be complaints
from non-exempted employers (as in Texas Monthly).
Micah
On Dec 2, 2013, at 2:49 PM, Alan Brownstein wrote:
Micah, if the issue is diffusing the burden so that it doesn't fall on a
limited class of identifiable individuals, why isn't that problem solved by the
government taking over the task of providing insurance coverage for the
employees of exempt organizations. Isn't the government a sufficiently
effective cost-spreader to resolve this concern?
Alan
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.
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