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.
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