Re: The Establishment Clause, burden on others, the employer mandate, and the draft
Alan, Thanks for this response, and sorry for not replying sooner. I have been thinking about it since yesterday. If I understand correctly (and I'm not sure about this), you're saying that the government would violate RFRA if it did not act to avoid an as-applied Establishment Clause challenge by providing coverage to non-beneficiaries. But it is hard for me to see the Establishment Clause violation as stemming from anything other than RFRA. Providing a contraception mandate without government coverage for employees does not lead to a constitutional violation. Only if RFRA is construed to require a religious exemption do we reach the constitutional problem. As Marty suggested earlier today, one way to avoid that problem is by incorporating Establishment Clause concerns into the compelling interest analysis. But even if we don't do that, I don't think that government actions that fail to avoid potential Establishment Clause harms are themselves violations of RFRA. In Hobby Lobby, RFRA does not require the government to respond to a constitutional defect by compensating the non-beneficiaries. Consider an example: Suppose that the religious employers win their suit in Hobby Lobby. They get a religious exemption under RFRA from the contraception mandate. Suppose further (following Eugene's recent argument) that some non-religious employers seek a comparable exemption -- say, because they have moral objections to facilitating the use of abortifacients. These non-religious employers claim that RFRA violates the Establishment Clause because it provides exemptions to religious employers but not to them. Suppose for the sake of argument that a court agrees (perhaps following Justice Harlan's view in Welsh). Now the government has a choice: either eliminate the exemption or broaden it to include non-religious objectors. If I understand your view correctly, the government would have to expand the exemption. If it eliminated the exemption, it would burden religious believers in violation of RFRA. The upshot is that it would be a violation of RFRA to read RFRA in a way that excludes non-religious claims. And that seems like a strange outcome. I don't think we have to read RFRA to demand this kind of recursivity -- either in my example or in other cases (say, in Caldor). As Cutter recognizes, the Establishment Clause imposes limits, and those limits can be incorporated into RFRA through compelling interest analysis. But even if they are not (as apparently is the case in the Hobby Lobby litigation), the government can respect those limits as independent grounds for rejecting harms to non-beneficiaries. Micah On Dec 2, 2013, at 4:48 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: Micah, I guess the question for me is whether the fact that the government has not offered to provide coverage to the employees of exempt organizations constrains permissive accommodations under a statute like RFRA. If the provision of coverage to the employees of exempt organizations is a less restrictive alternative that adequately furthers the government’s asserted compelling interests, why doesn’t that lead to the conclusion that the government has violated RFRA. Or to put it another way, why should the government’s failure to adopt a less restrictive alternative be the basis for denying the religious objector’s claim under RFRA? If we apply strict scrutiny in a free speech case and the government’s compelling state interest is to avoid unruly behavior by the audience if an unpopular speaker is permitted to speak, the government can’t fortify its argument by refusing to provide adequate police to preserve order during the event. Government providing police to preserve order is a less burdensome alternative than silencing the speaker whether the government actually provides police services or not. I assume one response to this argument would be that the Establishment Clause prohibits the burdening of third parties – but that leads to the question of which government action violates the Establishment Clause. Should we view the government’s compliance with RFRA as the Establishment Clause violation or the government’s imposition of the mandate (which created a duty to exempt religious objectors under existing law – e.g. RFRA) without providing for coverage of employees working for exempt organizations as the problem. (This last argument is very tentative. I just thought of it and will withdraw it if it makes no sense.) Alan 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
Re: The Establishment Clause, burden on others, the employer mandate, and the draft
Eugene -- One question about this passage from your message: I take it that RFRA could likewise be interpreted to apply to philosophical conscientious beliefs. Could such an interpretation of RFRA be squared with its stated purpose of restoring the protection of free exercise as set forth in Yoder, which said that philosophic beliefs were not protected under the Free Exercise Clause? [I]if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses. - Yoder at 216. Of course, as you note, the Court had to twist the language of the conscientious objector exemption to apply it to philosophic conscientious beliefs, but it's hard to imagine today's Court engaging in the same type of (non) textual analysis. - Jim On Sun, Dec 1, 2013 at 11:14 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I’ve been thinking some more about the argument that the Establishment Clause forbids any RFRA-based religious exemptions from the employer mandate, on the grounds that such exemptions would impose an unacceptable burden on employees who would thus have to (say) pay for contraceptives themselves. It seems to me that the conscientious objector exemption offers an interesting (though necessarily imperfect) analogy. The draft exemption for conscientious objectors imposes a burden on third parties -- for every person who is exempted from the draft as a conscientious objector, there will be one other person who would therefore have to go to kill and to risk death. Of course, that exemption might have been upheld only because it has been interpreted to apply to philosophical conscientious objectors as well as to religious objectors. But I take it that RFRA could likewise be interpreted to apply to philosophical conscientious beliefs. It would involve less twisting of the statute, I think, than what was done for the draft exemption. And indeed the other main body of federal religious exemption law -- the Title VII religious accommodation provision -- has been interpreted by the EEOC and many courts as applying to philosophical conscientious beliefs. Does it follow that, if the conscientious objector exemption is consistent with the Establishment Clause, despite the burdens it imposes on nonbelieving third parties, the RFRA-based employer mandate exemption being urged in *Hobby Lobby *would be consistent with the Establishment Clause, too? Or is there some reason why the former is constitutional and the latter is not? Note that this is *not* a response to the argument that there’s some other compelling government interest supporting denial of a RFRA-based exemption in *Hobby Lobby*. I mean this to focus solely on the argument that any such RFRA-based exemption would violate the Establishment Clause. Eugene ___ 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. ___ 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.
Re: The Establishment Clause, burden on others, the employer mandate, and the draft
Eugene: 1. I strongly suggest that you read the Gedicks and Van Tassell article, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328516, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, for a fully developed answer to your questions. 2. Your post conflates two different objections to religion-specific, permissive accommodations -- the religion-favoring objection (Texas Monthly), which asks whether there is adequate justification to single out religion for an accommodation (or, as the Court says in Cutter, is religion exceptionally burdened by the rule); and the third party costs objection (Caldor; statutory construction in Hardison). 3. Re: conscription -- the best answer to the 3rd party cost objection is that the 3rd party burdens are diffuse (or, as Gedicks and Van Tassell put it, immaterial), because they are spread among so many potential draftees. The third party costs of a contraceptive mandate exception are anything but diffuse; we know exactly who bears them. This is why Caldor/Hardison are the more important precedents. 4. Re: solving both problems by equalizing up, and offering exemptions to moral/philiosophical objections. This solves the third party cost problem by making the cost-bearers into subsidizers of many different kinds of objectors, not just religious ones. (Cf. Walz -- others pay more property taxes, but costs are diffuse and subsidy goes to many different causes.) But so extending RFRA would a) do violence to its history and purpose, as Jim Oleske has pointed out; and b) open the door to libertarian employers, operating for profit business, to object to every regulation of the employment relation, as well as every other business regulation, as substantially burdening the employer/owner's exercise of libertarianist economic freedom. Does that seem like a jurisprudentially sound move? Chip On Mon, Dec 2, 2013 at 2:14 AM, Volokh, Eugene vol...@law.ucla.edu wrote: I’ve been thinking some more about the argument that the Establishment Clause forbids any RFRA-based religious exemptions from the employer mandate, on the grounds that such exemptions would impose an unacceptable burden on employees who would thus have to (say) pay for contraceptives themselves. It seems to me that the conscientious objector exemption offers an interesting (though necessarily imperfect) analogy. The draft exemption for conscientious objectors imposes a burden on third parties -- for every person who is exempted from the draft as a conscientious objector, there will be one other person who would therefore have to go to kill and to risk death. Of course, that exemption might have been upheld only because it has been interpreted to apply to philosophical conscientious objectors as well as to religious objectors. But I take it that RFRA could likewise be interpreted to apply to philosophical conscientious beliefs. It would involve less twisting of the statute, I think, than what was done for the draft exemption. And indeed the other main body of federal religious exemption law -- the Title VII religious accommodation provision -- has been interpreted by the EEOC and many courts as applying to philosophical conscientious beliefs. Does it follow that, if the conscientious objector exemption is consistent with the Establishment Clause, despite the burdens it imposes on nonbelieving third parties, the RFRA-based employer mandate exemption being urged in *Hobby Lobby *would be consistent with the Establishment Clause, too? Or is there some reason why the former is constitutional and the latter is not? Note that this is *not* a response to the argument that there’s some other compelling government interest supporting denial of a RFRA-based exemption in *Hobby Lobby*. I mean this to focus solely on the argument that any such RFRA-based exemption would violate the Establishment Clause. Eugene ___ 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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
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.eduwrote: 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.
RE: The Establishment Clause, burden on others, the employer mandate, and the draft
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 mailto: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 mailto: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.
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. ___ 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. ___ 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.
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.eduwrote: 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
Re: The Establishment Clause, burden on others, the employer mandate, and the draft
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.eduwrote: 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
Re: The Establishment Clause, burden on others, the employer mandate, and the draft
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.eduwrote: 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
RE: The Establishment Clause, burden on others, the employer mandate, and the draft
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 mailto: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 tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto: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 mailto: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
RE: The Establishment Clause, burden on others, the employer mandate, and the draft
There was also an exemption for divinity students. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, December 02, 2013 4:01 PM To: 'Law Religion issues for Law Academics' Subject: RE: The Establishment Clause, burden on others, the employer mandate, and the draft 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.edumailto: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 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto: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.edumailto: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
Re: The Establishment Clause, burden on others, the employer mandate, and the draft
And you'll be relieved to know that it was only a coincidence that seminary applications sky-rocketed beginning around 67. Sent from my iPhone On Dec 2, 2013, at 4:04 PM, Marc Stern ste...@ajc.orgmailto:ste...@ajc.org wrote: There was also an exemption for divinity students. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, December 02, 2013 4:01 PM To: 'Law Religion issues for Law Academics' Subject: RE: The Establishment Clause, burden on others, the employer mandate, and the draft 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.edumailto: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.edumailto: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 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto: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,
RE: The Establishment Clause, burden on others, the employer mandate, and the draft
I know from personal experience. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Saperstein, David Sent: Monday, December 02, 2013 4:19 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The Establishment Clause, burden on others, the employer mandate, and the draft And you'll be relieved to know that it was only a coincidence that seminary applications sky-rocketed beginning around 67. Sent from my iPhone On Dec 2, 2013, at 4:04 PM, Marc Stern ste...@ajc.orgmailto:ste...@ajc.org wrote: There was also an exemption for divinity students. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, December 02, 2013 4:01 PM To: 'Law Religion issues for Law Academics' Subject: RE: The Establishment Clause, burden on others, the employer mandate, and the draft 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.edumailto: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.edumailto: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 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto: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
Re: The Establishment Clause, burden on others, the employer mandate, and the draft
But there were also exemptions for graduate students in all fields of health sciences (medicine, dentistry, optometry, etc.). So the divinity student exemption is more like the property tax exemption upheld in Walz -- it is part of a larger set of exemptions in which many/most are secular (and therefore do not raise the cross-subsidy problem in the same way as the CO exemption, which was uniquely grounded in religious opposition to participation in war.) On Mon, Dec 2, 2013 at 4:18 PM, Saperstein, David dsaperst...@rac.orgwrote: And you'll be relieved to know that it was only a coincidence that seminary applications sky-rocketed beginning around 67. Sent from my iPhone On Dec 2, 2013, at 4:04 PM, Marc Stern ste...@ajc.org wrote: There was also an exemption for divinity students. *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Douglas Laycock *Sent:* Monday, December 02, 2013 4:01 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: The Establishment Clause, burden on others, the employer mandate, and the draft 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.edureligionlaw-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
RE: The Establishment Clause, burden on others, the employer mandate, and the draft
Micah, I guess the question for me is whether the fact that the government has not offered to provide coverage to the employees of exempt organizations constrains permissive accommodations under a statute like RFRA. If the provision of coverage to the employees of exempt organizations is a less restrictive alternative that adequately furthers the government's asserted compelling interests, why doesn't that lead to the conclusion that the government has violated RFRA. Or to put it another way, why should the government's failure to adopt a less restrictive alternative be the basis for denying the religious objector's claim under RFRA? If we apply strict scrutiny in a free speech case and the government's compelling state interest is to avoid unruly behavior by the audience if an unpopular speaker is permitted to speak, the government can't fortify its argument by refusing to provide adequate police to preserve order during the event. Government providing police to preserve order is a less burdensome alternative than silencing the speaker whether the government actually provides police services or not. I assume one response to this argument would be that the Establishment Clause prohibits the burdening of third parties - but that leads to the question of which government action violates the Establishment Clause. Should we view the government's compliance with RFRA as the Establishment Clause violation or the government's imposition of the mandate (which created a duty to exempt religious objectors under existing law - e.g. RFRA) without providing for coverage of employees working for exempt organizations as the problem. (This last argument is very tentative. I just thought of it and will withdraw it if it makes no sense.) Alan 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 ___ 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.
RE: The Establishment Clause, burden on others, the employer mandate, and the draft
I think it's actually the denominator that changes. If there is a need to draft 20 men, and there are 100 eligible to draft, then the chance of being drafted is 20% (20 divided by 100). If one of the 100 is granted conscientious objection status, then there are only 99 eligible men. The chances of one of them being drafted goes up to 20.2% (20 divided by 99). The actual system (at least at the time I was eligible) was a bit more complex; it was based on 365 birthdays randomly drawn. My draft number was 49. (If you know the year I was born and have access to the lottery results, you could determine my birthday!) Men were drafted starting with number 1 and going as high as necessary. I would have been unaffected if a man with a draft number higher than mine had been granted conscientious objector status, but more affected than the simple calculation above would indicate if a man with a draft number equal to or lower than mine was granted that status. (I suppose that the complex effect would average out.) Few men (perhaps none) were drafted that year, and even with my low number I was not drafted. Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, December 02, 2013 12:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: The Establishment Clause, burden on others, the employer mandate, and the draft 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 ___ 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.
RE: The Establishment Clause, burden on others, the employer mandate, and the draft
Doh! Mark is right of course, about subtracting one from the denominator instead of adding one to the numerator. Conscientious objectors presumably had the same distribution of birthdays as the population, so the number of COs ahead of Mark and behind Mark (or anyone else in the pool) should be in the same proportion as the number of all the other classes ahead of Mark and behind Mark. 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 Scarberry, Mark Sent: Monday, December 02, 2013 5:08 PM To: Law Religion issues for Law Academics Subject: RE: The Establishment Clause, burden on others, the employer mandate, and the draft I think it's actually the denominator that changes. If there is a need to draft 20 men, and there are 100 eligible to draft, then the chance of being drafted is 20% (20 divided by 100). If one of the 100 is granted conscientious objection status, then there are only 99 eligible men. The chances of one of them being drafted goes up to 20.2% (20 divided by 99). The actual system (at least at the time I was eligible) was a bit more complex; it was based on 365 birthdays randomly drawn. My draft number was 49. (If you know the year I was born and have access to the lottery results, you could determine my birthday!) Men were drafted starting with number 1 and going as high as necessary. I would have been unaffected if a man with a draft number higher than mine had been granted conscientious objector status, but more affected than the simple calculation above would indicate if a man with a draft number equal to or lower than mine was granted that status. (I suppose that the complex effect would average out.) Few men (perhaps none) were drafted that year, and even with my low number I was not drafted. Mark From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, December 02, 2013 12:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: The Establishment Clause, burden on others, the employer mandate, and the draft 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 ___ 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.
