Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ 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. 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, hamilto...@aol.commailto:hamilto...@aol.com hamilto...@aol.commailto:hamilto...@aol.com wrote: Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.commailto:hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.commailto:hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.commailto:hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edumailto: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.edumailto: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. Douglas Laycock Robert E. Scott
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Saperstein, David dsaperst...@rac.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: religionlaw religionlaw@lists.ucla.edu Sent: Mon, Dec 2, 2013 10:39 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, hamilto...@aol.com hamilto...@aol.com wrote: Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ 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
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.
Contraceptives objected to by claimants in contraception mandate claims
For those interested, the following is what I have been able to figure out with respect to what medications each of the challengers to the contraception mandate object to. Korte's objections are the broadest. Hobby Lobby and Conestoga Woods' objections are medications solely for females. Hobby Lobby (10th Cir), cert granted Plan B Ella IUDs Conestoga Wood (3d Cir), cert granted Plan B Ella Korte (7th Cir) Plan B Ella All FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling related to such procedures.” Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
What I said is in the second letter (link below) and summarized in the e-mail to which you responded. We supported the bill as drafted, without substantial; I also suggested that the committee restore substantial if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don't know that, because they were not asked to sign the second letter. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu; religionlaw@lists.ucla.edu Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu ; hamilton02 hamilto...@aol.com mailto:hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senat e2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com mailto:hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com mailto:lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Reli gious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com mailto:hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ 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
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states —Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268 . It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. - Original Message - From: hamilto...@aol.com To: religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas modifier of burden in state RFRAs The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Saperstein, David dsaperst...@rac.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: religionlaw religionlaw@lists.ucla.edu Sent: Mon, Dec 2, 2013 10:39 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, hamilto...@aol.com hamilto...@aol.com wrote: Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu ; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis.
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
The Establishment Clause, burden on others, the employer mandate, and the draft
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.
RE: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without substantial; I also suggested that the committee restore substantial if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don't know that, because they were not asked to sign the second letter. I said it didn't matter much because the substantiality of the burden would affect the inevitable balancing of burden against government interest; Chris Lund's recent post better documents that explanation. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com mailto:hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu mailto:dlayc...@virginia.edu ; religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu ; hamilton02 hamilto...@aol.com mailto:hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senat e2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com mailto:hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Thanks. A more informed version of what I said in the second letter to the TX legislature. 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 Christopher Lund Sent: Monday, December 02, 2013 12:02 PM To: Law Religion issues for Law Academics Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states—Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268. It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. _ From: hamilto...@aol.com mailto:hamilto...@aol.com To: religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas modifier of burden in state RFRAs The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Saperstein, David dsaperst...@rac.org mailto:dsaperst...@rac.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Cc: religionlaw religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Mon, Dec 2, 2013 10:39 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, hamilto...@aol.com mailto:hamilto...@aol.com hamilto...@aol.com mailto:hamilto...@aol.com wrote: Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu ; hamilton02 hamilto...@aol.com mailto:hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Chris-- As I mentioned, CT's has been amended through interpretation You are right about Alabama. I actually think these terms matter and removal of substantial violates the Establishment Clause but it also shows the endless push by religious entities to overcome all laws. I assume the next wave will be a push to interpret compelling to mean absolutely necessary. That is not intended to be snide. Just an observation. The Framers expected all those w power to push it as far as they could. They were right. I look forward to reading your article. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:01 PM, Christopher Lund l...@wayne.edu wrote: Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states—Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268. It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. From: hamilto...@aol.com To: religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas modifier of burden in state RFRAs The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Saperstein, David dsaperst...@rac.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: religionlaw religionlaw@lists.ucla.edu Sent: Mon, Dec 2, 2013 10:39 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, hamilto...@aol.com hamilto...@aol.com wrote: Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message-
RE: Response to Tom Berg (and others)
Taking a broader view, I believe that the first amendment religion clauses, first and foremost, are there to minimize disharmony in the society that results form government supported religion and the denial of one's ability to practice one's religion. To that end, I think that Employment Division v. Smith as modified by the Santeria case provides the best baseline from which to proceed. Once we get beyond the actual practice of religion at home or in a house of worship, or the violation of important laws in a house of worship or at home (home is protected to some extent by the 4th Amendment, etc.) we get to some difficult cases. At this point we need to keep in mind that exemption from laws could, if widespread, cause jealous and possible hostile reactions from those who do not get the privilege of those exemptions. Consider the exemption from military service for certain Jewish sects in Israel. When I was college there were meals at which most of us ate casserole dishes, but kosher students got steak. Not a big deal, but annoying. Since the contraceptive the cost of ordinary contraception is not great, one might argue exemption is no big deal (I know there are arguments on the other side). Annoying perhaps. I just noticed that the Supreme Court declined to hear a case contesting the health care mandate on employers. If a business were exempt from providing contraceptive coverage for employees, I imagine that Christian Scientists operating a business would be exempt from providing health care insurance. At that point a Christian Scientist would have a competitive advantage. That would be a big deal. So it seems to me that providing exemptions from laws of general application on religious grounds should violate the first amendment. In minor situations it may present little cause to fear disharmony, but extended to health care and requirements the exemption from which would provide a competitive advantage, serious concerns about the major purpose of freedom of religion arise. With health care mandates, I would argue that participation in business (the competitive market place) people need to conform to the general laws (Employment Division) as long as the laws do not have the purpose of going against a particular religion. I have long believed that the RFRA formulation authorizes polygamy because all of the evils of polygamy can be handled by less restrictive means. In short, given my view of the purpose of the religion clauses in the first amendment, I would hold that exemptions from general laws violate the Establishment Clause. Of course, to fulfill the goals of the value of harmony, one cannot follow a doctrinal dictate in all cases (I doubt that there can be definitive legal doctrine in these cases). Conscientious objection can be allowed to withstand a first amendment challenge so long as alternative service is required. While that, on its face would be a violation, practical considerations of promoting harmony by allowing a safety-valve where failure to do so might generate extreme hostility justify exceptions. But those exceptions can not be brought within the doctrine any more could the prohibition of polygamy be brought within the RFRA doctrine if it was found necessary to continue that prohibition for various practical reasons. Legislative prayer, if upheld, clearly forms an exception to the general doctrine as does Trust in God on the money. Since the need to profess a belief in God often forms a requirement to run for public office in this country, it results from decisions of many individual voters, arguably the first amendment is not implemented. But I do not think anyone can claim that in general there is a not religious test for public office in this country in an overwhelming number of cases. Jon On 2013-12-01 13:37, Alan Brownstein wrote: Thanks for the kind comment, Nelson. While the contraceptive coverage in this case may not cost the employer anything, and the Court could limit its holding in this case to those particular facts, I think there is a somewhat broader, but still fairly limited, way to conceptualize this case. Here the government is requiring employers to provide intangible, fungible goods (insurance coverage and/or the money needed to purchase it) to third parties (their employees). Whenever this is the burden imposed on a religious objector, it is relatively easy for the government to take over the responsibility for providing such goods to their intended beneficiaries -- except the government would bear the cost of doing so. Their are two problems with assigning this burden to the government, however. The first, as noted, is the financial cost of providing these goods to their intended beneficiairies. Requiring the objector to contribute the cost of the goods to some other public cause (ther! eby relieving the
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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Again I have not seen any evidence that differences in phrasing--burden, substantial burden, restriction on religious liberty,--have caused any differences in result (or even reasoning). If you have examples, I'd love to know about them. If not, it suggests the differences in phrasing don't matter. That's my intuition from the cases I've read. But it may be wrong, and I'd like to know if it is. On Dec 2, 2013, at 12:44 PM, Marci Hamilton hamilto...@aol.com wrote: Chris-- As I mentioned, CT's has been amended through interpretation You are right about Alabama. I actually think these terms matter and removal of substantial violates the Establishment Clause but it also shows the endless push by religious entities to overcome all laws. I assume the next wave will be a push to interpret compelling to mean absolutely necessary. That is not intended to be snide. Just an observation. The Framers expected all those w power to push it as far as they could. They were right. I look forward to reading your article. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:01 PM, Christopher Lund l...@wayne.edu wrote: Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states—Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268. It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. From: hamilto...@aol.com To: religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas modifier of burden in state RFRAs The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 ___ 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:28 PM, Douglas Laycock dlayc...@virginia.edu wrote: Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without “substantial;” I also suggested that the committee restore “substantial” if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don’t know that, because they were not asked to sign the second letter. I said it didn’t matter much because the substantiality of the burden would affect the inevitable balancing of burden against government interest; Chris Lund’s recent post better documents that explanation. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu; religionlaw@lists.ucla.edu Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Sure, but what evidence did they have? That is, what evidence did they have that any of the differences in phrasing--burden, substantial burden, or restriction on religious liberty,--would matter in deciding cases? Again I may be wrong about this and I really would like to be corrected if I am. But I have seen no evidence that these differences have practical payoff. On Dec 2, 2013, at 1:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:28 PM, Douglas Laycock dlayc...@virginia.edu wrote: Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without “substantial;” I also suggested that the committee restore “substantial” if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don’t know that, because they were not asked to sign the second letter. I said it didn’t matter much because the substantiality of the burden would affect the inevitable balancing of burden against government interest; Chris Lund’s recent post better documents that explanation. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu; religionlaw@lists.ucla.edu Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ 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.
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
I'm curious about how this response relates to your response to Chris Lund, in which you cited the Madisonian assumption that every group will seek the maximum amount of power. It reminded me of this profile of Valerie Jarrett: http://www.nytimes.com/2012/09/02/us/politics/valerie-jarrett-is-the-other-power-in-the-west-wing.html?_r=2pagewanted=all;. If Madison was right, then doesn't every group try to maximize its own power and agenda? And doesn't every politically savvy group use lobbyists and other means, such as inside power players, to that end? Does anything turn on describing religious groups as having lobbyists and an agenda, and implying that other groups are wholly selfless and decent? Or is that just semantic advocacy? On Dec 2, 2013, at 12:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
It has certainly made a difference in RLUIPA cases. I have to say I find it a little hard to believe these cases can be generalized across states given how few there are and how different each state operates procedurally, but I look forward to reading your article and will keep an open mind. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 1:18 PM, Christopher Lund ed9...@wayne.edu wrote: Again I have not seen any evidence that differences in phrasing--burden, substantial burden, restriction on religious liberty,--have caused any differences in result (or even reasoning). If you have examples, I'd love to know about them. If not, it suggests the differences in phrasing don't matter. That's my intuition from the cases I've read. But it may be wrong, and I'd like to know if it is. On Dec 2, 2013, at 12:44 PM, Marci Hamilton hamilto...@aol.com wrote: Chris-- As I mentioned, CT's has been amended through interpretation You are right about Alabama. I actually think these terms matter and removal of substantial violates the Establishment Clause but it also shows the endless push by religious entities to overcome all laws. I assume the next wave will be a push to interpret compelling to mean absolutely necessary. That is not intended to be snide. Just an observation. The Framers expected all those w power to push it as far as they could. They were right. I look forward to reading your article. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:01 PM, Christopher Lund l...@wayne.edu wrote: Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states—Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268. It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. From: hamilto...@aol.com To: religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas modifier of burden in state RFRAs The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 ___ 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
What they had was the reality of politics and the forces arrayed against them. As one said to me, if it doesn't make a difference why try for a constitutional amendment to delete it and fix it permanently? In federal court, substantial burden has been a difficult hurdle for claimants. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 2:09 PM, Christopher Lund ed9...@wayne.edu wrote: Sure, but what evidence did they have? That is, what evidence did they have that any of the differences in phrasing--burden, substantial burden, or restriction on religious liberty,--would matter in deciding cases? Again I may be wrong about this and I really would like to be corrected if I am. But I have seen no evidence that these differences have practical payoff. On Dec 2, 2013, at 1:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:28 PM, Douglas Laycock dlayc...@virginia.edu wrote: Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without “substantial;” I also suggested that the committee restore “substantial” if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don’t know that, because they were not asked to sign the second letter. I said it didn’t matter much because the substantiality of the burden would affect the inevitable balancing of burden against government interest; Chris Lund’s recent post better documents that explanation. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu; religionlaw@lists.ucla.edu Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senat ___ 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
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Absolutely. They all have lobbyists. I don't view the term as necessarily perjorative. Just descriptive. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 2:10 PM, Paul Horwitz phorw...@hotmail.com wrote: I'm curious about how this response relates to your response to Chris Lund, in which you cited the Madisonian assumption that every group will seek the maximum amount of power. It reminded me of this profile of Valerie Jarrett: http://www.nytimes.com/2012/09/02/us/politics/valerie-jarrett-is-the-other-power-in-the-west-wing.html?_r=2pagewanted=all;. If Madison was right, then doesn't every group try to maximize its own power and agenda? And doesn't every politically savvy group use lobbyists and other means, such as inside power players, to that end? Does anything turn on describing religious groups as having lobbyists and an agenda, and implying that other groups are wholly selfless and decent? Or is that just semantic advocacy? On Dec 2, 2013, at 12:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ 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
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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Fair enough. On Dec 2, 2013, at 2:10 PM, Marci Hamilton hamilto...@aol.com wrote: Absolutely. They all have lobbyists. I don't view the term as necessarily perjorative. Just descriptive. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 2:10 PM, Paul Horwitz phorw...@hotmail.com wrote: I'm curious about how this response relates to your response to Chris Lund, in which you cited the Madisonian assumption that every group will seek the maximum amount of power. It reminded me of this profile of Valerie Jarrett: http://www.nytimes.com/2012/09/02/us/politics/valerie-jarrett-is-the-other-power-in-the-west-wing.html?_r=2pagewanted=all;. If Madison was right, then doesn't every group try to maximize its own power and agenda? And doesn't every politically savvy group use lobbyists and other means, such as inside power players, to that end? Does anything turn on describing religious groups as having lobbyists and an agenda, and implying that other groups are wholly selfless and decent? Or is that just semantic advocacy? On Dec 2, 2013, at 12:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ 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. ___ 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.
RFRA, the Establishment Clause, and saving constructions
I appreciate Jim's argument, and also the arguments that the problem with the exemption isn't discrimination in favor of religion, but rather the burden on third parties, regardless of whether the exemption is only for the religious. (I hope to respond to those arguments soon.) But as to the point below -- and assuming that a RFRA employer mandate exemption that covers secular conscientious objectors is as constitutional as the conscientious objector draft exemption -- wouldn't the canon of interpreting statutes to avoid unconstitutionality (even setting aside constitutional doubt) be relevant here? It's true that RFRA generally endorses Sherbert and Yoder and other federal cases, and in the absence of an Establishment Clause objection it might well be interpreted to apply only to religious objectors. But if indeed such an interpretation would lead to a finding that RFRA is unconstitutional, wouldn't that cut pretty strongly in favor of avoiding that interpretation, and including secular philosophical objectors? The language isn't as clearly hostile to such an interpretation as the language in the draft law was in Welsh. And, as I noted, the other broad federal religious accommodation regime -- the Title VII religious accommodation provision -- has largely been read by lower courts as covering secular philosophical objectors as well as religious ones. Why wouldn't that, coupled with the avoidance of unconstitutionality canon, counsel in favor of a constitutionally permissible interpretation rather than a constitutionally impermissible one? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Monday, December 02, 2013 8:11 AM To: Law Religion issues for Law Academics Subject: 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 ___ 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.