RFRA, the Establishment Clause, and saving constructions

[Volokh, Eugene]

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

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Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Michael Masinter]

The adjective  must do some work. For one state case so  
holding, see Warner v. City of Boca Raton, 807 So. 2d 1023, 1033-1034  
(Fla. 2004):


Accordingly, we conclude that the narrow definition of substantial  
burden adopted by the Fourth, Ninth, and Eleventh Circuits is most  
consistent with the language and intent of the FRFRA. Thus, we hold  
that a substantial burden on the free exercise of religion is one that  
either compels the religious adherent to engage in conduct that his  
religion forbids or forbids him to engage in conduct that his religion  
requires. See Mack, 80 F.3d at 1178. We acknowledge that our adoption  
of this definition may occasionally place courts in the position of  
having to determine whether a particular religious practice is  
obligatory or forbidden. However, we conclude that this inquiry is  
preferable to one that requires the Court to question the centrality  
of a particular religious belief or negates the legislative  
requirement that only conduct that is substantially burdened be  
protected by strict scrutiny.


By analogy, consider the word  in the phrase accommodation> as construed by U.S. Airways v. Barnett, 535 U.S. 391,  
400-401 (2002):


These arguments [equating reasonable with effective] do not persuade  
us that Barnett's legal interpretation of "reasonable" is correct. For  
one thing, in ordinary English the word "reasonable" does not mean  
"effective." It is the word "accommodation," not the word  
"reasonable," that conveys the need for effectiveness. An ineffective  
"modification" or "adjustment" will not accommodate a disabled  
individual's limitations. Nor does an ordinary English meaning of the  
term "reasonable accommodation" make of it a simple, redundant mirror  
image of the term "undue hardship." The statute refers to an "undue  
hardship on the operation of the business." 42 U. S. C. §  
12112(b)(5)(A). Yet a demand for an effective accommodation could  
prove unreasonable because of its impact, not on business operations,  
but on fellow employees—say, because it will lead to dismissals,  
relocations, or modification of employee benefits to which an  
employer, looking at the matter from the perspective of the business  
itself, may be relatively indifferent.


Perhaps the Court will defer to the believer's subjective assessment  
of what is substantial, but if it does, won't it have equated  
substantial with sincere, effectively rewriting RFRA?


Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Christopher Lund :

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  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"   
 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 su

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

[Douglas Laycock]

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] 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

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RE: The Establishment Clause, burden on others, the employer mandate, and the draft

[Scarberry, Mark]

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
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RE: The Establishment Clause, burden on others, the employer mandate, and the draft

[Alan Brownstein]

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


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Re: The Establishment Clause, burden on others, the employer mandate, and the draft

[Ira Lupu]

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 wrote:

>  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"  wrote:
>
>   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 
> 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 

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

[Marc Stern]

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" 
mailto:ste...@ajc.org>> wrote:
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 
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

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 Hobb

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

[Saperstein, David]

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" 
mailto:ste...@ajc.org>> wrote:

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 
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

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, 

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

[Michael Worley]

Of course, it is also possible I am wrong.


On Mon, Dec 2, 2013 at 2:00 PM, Douglas Laycock wrote:

> 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 
> 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 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 
> 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).
>
>
>
> Gedi

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

[Marc Stern]

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 
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

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 
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 Manda

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

[Douglas Laycock]

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 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  

 

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 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

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

[Michael Worley]

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  wrote:

> oops, that should read over n+1 instead of n.
>
>
> On Mon, Dec 2, 2013 at 1:45 PM, Michael Worley  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 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 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 
>>> 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 

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

[Michael Worley]

oops, that should read over n+1 instead of n.


On Mon, Dec 2, 2013 at 1:45 PM, Michael Worley  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 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 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 
>> 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 

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

[Michael Worley]

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 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 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 
> 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 passw

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Paul Horwitz]

Fair enough. 

> On Dec 2, 2013, at 2:10 PM, "Marci Hamilton"  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  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=2&pagewanted=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"  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.
> ___
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> 
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> people can read the Web archives; and list members can (rightly or wrongly) 
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Re: The Establishment Clause, burden on others, the employer mandate, and the draft

[Micah Schwartzman]

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.

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RE: The Establishment Clause, burden on others, the employer mandate, and the draft

[Douglas Laycock]

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 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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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

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Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Marci Hamilton]

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  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=2&pagewanted=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"  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.
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RE: The Establishment Clause, burden on others, the employer mandate, and the draft

[Alan Brownstein]

Micah, if the issue is diffusing the burden so that it doesn't fall on a 
limited class of identifiable individuals, why isn't that problem solved by the 
government taking over the task of providing insurance coverage for the 
employees of exempt organizations. Isn't the government a sufficiently 
effective cost-spreader to resolve this concern?



Alan


Eugene's suggestion that the religious exemption from the contraception mandate 
be analogized to the draft protester cases is anticipated by Gedicks and Van 
Tassell in their article, RFRA Exemptions from the Contraception Mandate:  An 
Unconstitutional Accommodation of Religion 
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328516).

Gedicks and Van Tassel argue that the burden of the exemption is not material 
because it would not affect the decision-making of non-pacificists in 
considering whether to participate in the draft. That is because the burden is 
minor and remote -- for any individual, a small number of exemptions amounts to 
a minor increase in the probability of being selected for the draft.

Whethers Gedicks and Van Tassel are right, there is at least the difference 
that the burden of the religious exemption from the contraception mandate, like 
the burden in Caldor, falls clearly and specifically on identifiable 
individuals.




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Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Marci Hamilton]

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  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  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"  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 
>>> To: Law & Religion issues for Law Academics ; 
>>> hamilton02 
>>> 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
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Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Marci Hamilton]

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  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  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  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
 "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
> ___
> 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
> 
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Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Paul Horwitz]

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=2&pagewanted=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"  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 
> 
> 
> 
>> 
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Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Christopher Lund]

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  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"  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 
>> To: Law & Religion issues for Law Academics ; 
>> hamilton02 
>> 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 op

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Marci Hamilton]

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"  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 
> To: Law & Religion issues for Law Academics ; 
> hamilton02 
> 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.
___
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Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Christopher Lund]

> 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  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  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
>>> "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 
>>> 
___
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Re: The Establishment Clause, burden on others, the employer mandate, and the draft

[Michael Worley]

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 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
>
> 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
___
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RE: Response to Tom Berg (and others)

[mallamud]

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: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Marci Hamilton]

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  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
> "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 
> To: Law & Religion issues for Law Academics 
> Cc: religionlaw 
> 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"  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 
> To: Law & Religion issues for Law Academics ; 
> hamilton02 
> 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: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Douglas Laycock]

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  
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
"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 mailto:dsaperst...@rac.org> >
To: Law & Religion issues for Law Academics mailto:religionlaw@lists.ucla.edu> >
Cc: religionlaw 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> > 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 mailto:dlayc...@virginia.edu> >
To: Law & Religion issues for Law Academics mailto:religionlaw@lists.ucla.edu> >; hamilton02 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 11:00:33 -0500 (EST)
 hamilto...@aol.com   wrote:
>Thanks Marty!  

RE: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Douglas Laycock]

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 mailto:dlayc...@virginia.edu>
>
To: Law & Religion issues for Law Academics mailto:religionlaw@lists.ucla.edu> >; hamilton02 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   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
> 
>
> 
> 
> 
___
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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.

The Establishment Clause, burden on others, the employer mandate, and the draft

[Micah Schwartzman]

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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To subscribe, unsubscribe, change options, or get password, see 
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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

[Ira Lupu]

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  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 
http://l

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Christopher Lund]

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
"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  
To: Law & Religion issues for Law Academics  
Cc: religionlaw  
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 typ

RE: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Douglas Laycock]

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  

 
  

 

-Original Message-
From: Douglas Laycock mailto:dlayc...@virginia.edu>
>
To: Law & Religion issues for Law Academics mailto:religionlaw@lists.ucla.edu> >; hamilton02 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   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 mailto:lederman.ma...@gmail.com> >
>To: Law & Religion issues for Law Academics 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,  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
 
>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

Contraceptives objected to by claimants in contraception mandate claims

[hamilton02]

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


___
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Re: The Establishment Clause, burden on others, the employer mandate, and the draft

[James Oleske]

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  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.
>
___
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Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[hamilton02]

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 
To: Law & Religion issues for Law Academics 
Cc: religionlaw 
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"  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 
To: Law & Religion issues for Law Academics ; 
hamilton02 
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 
>To: Law & Religion issues for Law Academics 
>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,   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

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[Saperstein, David]

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>> 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/fb.png]
   [http://www.sol-reform.com/tw.png] 


-Original Message-
From: Douglas Laycock mailto:dlayc...@virginia.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>; hamilton02 
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 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 
>mailto:lederman.ma...@gmail.com>>
>To: Law & Religion issues for Law Academics 
>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-Religious-Freedom-Amedment-Senate-version.pdf
>
>
>
>
>On Sun, Dec 1, 2013 at 9:03 AM,  
>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
>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 Profess

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[hamilton02]

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 
To: Law & Religion issues for Law Academics ; 
hamilton02 
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 
>To: Law & Religion issues for Law Academics 
>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,   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

 
___
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Anyone can subscribe to the list and read messages that are posted; people can 
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