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.
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--
Michael Worley
BYU Law School, Class of 2014
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