July 24, 2008

Rudy Sanchez, Esquire
General Counsel
Selective Service System
Arlington, VA 22209-2425

Re: Tobin Dana Jacobrown

Dear Mr. Sanchez:

Thank you for your letter of June 11, replying to my letter of May 30 regarding Mr. Tobin Dana Jacobrown and his religious inability to register with the Selective Service System unless he can officially assert his claim of conscientious objection in conjunction with his registration.

Respectfully, I believe your letter failed to appreciate the controlling effect of the Religious Freedom Restoration Act in this context, and misunderstood the suggestions in my letter regarding means by which Mr. Jacobrown’s religious beliefs could be accommodated. I respond below to the points made in your letter.

1. You note that the Military Selective Service Act does not “give Selective Service the authority to create an exemption from the registration requirement.” That may be true, but the Religious Freedom Restoration Act (RFRA) does give the Selective Service System the authority, and the obligation, to create exemptions when necessary to comply with that law, because RFRA “applies to all Federal law, and the implementation of that law, whether statutory or otherwise.” 42 U.S.C. § 2000bb-3. Thus, for example, the controlled substances laws may not authorize the Drug Enforcement Administration to create religious exemptions from the statutory prohibitions on the importation or possession of dangerous drugs, but RFRA authorizes and requires DEA to do so, when its standards are met.

See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006). An agency’s failure to create such an exception, when warranted, is a “violation” of RFRA. 42 U.S.C. § 2000bb-1(c).

2. RFRA applies when a governmental requirement “substantially burden a person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a). Your position appears to be that RFRA does not apply here, because:

In view of statutory provisions to protect conscientious objectors, and an unbroken line of federal court decisions upholding the requirement that they register, it is reasonable to conclude that the federal law requiring conscientious objectors to register does not impose a substantial burden on their free exercise of religion.

That is not a reasonable conclusion. The court decisions you cite did not deny that the defendants in those cases had sincere, conscientious objections to the registration requirement. For example, in United States v. Crocker, 435 F.2d 601 (8th Cir. 1971), the court noted that Mr. Crocker’s “sincerity is not questioned.” Id. at 602. Mr. Crocker was sent to prison for three years, id. at 601; it would be insupportable to say that being incarcerated for adhering to his religious beliefs did not impose a substantial burden on his exercise of religion.

In O Centro Espirita, the United States conceded that applying the Controlled Substances Act to the plaintiffs’ use of prohibited drugs – thereby exposing them to criminal punishment if they acted in accordance with their religious beliefs – would substantially burden their exercise of religion. 546 U.S. at 426. Application of the existing registration requirement to Mr. Jacobrown likewise exposes him to criminal punishment for acting in accordance with his religious beliefs, and therefore substantially burdens his exercise of religion.

The cases you cite did hold (as you say) that “religious beliefs are not a legal defense for failing to register.” But those cases were not decided under the standards of RFRA, which was not yet in existence; they therefore did not consider the government’s obligations under that statute. Moreover, I believe that at the time those cases were decided, the Selective Service registration form did allow a person formally to assert his C.O. status when registering; thus the question presented here was not before those courts, and was neither addressed nor decided.

3. Your letter states that “[p]roviding for the national defense via the registration requirement is a compelling interest which strikes a sensible balance between religious liberty and competing government interests.” That statement conflates the ends and the means. Providing for the national defense is a compelling interest. The registration requirement is a means that Congress has chosen to further the compelling interest in providing for the national defense.

RFRA speaks precisely to the question of what means the government may use to further its compelling interests:

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.

42 U.S.C. § 2000bb-1(b) (Emphasis added.) Therefore, if the current configuration of the registration system is not the least restrictive means of furthering the interest in national defense, it may not lawfully be applied to a person – such as Mr. Jacobrown – upon whose religious exercise it places a substantial burden.

It may be true that for many conscientious objectors, the current registration system “strikes a sensible balance,” because their particular religious beliefs do not conflict with the current system. But that is irrelevant under RFRA. That statute does not restrict the government’s ability to impose substantial burdens on “most people’s exercise of religion,” or on the “average person’s exercise of religion”; it restricts the government’s ability to impose substantial burdens on “a person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a) (emphasis added).

The question whether a government action imposes a substantial burden on a particular person’s exercise of religion is not a question of law but of fact. As O Centro Espirita demonstrates, a law that imposes no burden  at all on most people (a prohibition on the use of hoasca) may impose a substantial burden on a particular person, and that person is entitled to the protection of RFRA. In Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 714 (1981), the Supreme Court explained that a person’s sincerely-held religious beliefs must be accepted for what they are, even if they are not shared by others. O Centro Espirita likewise finds legal protection required for the unique religious beliefs of a tiny group of people.

4. Your letter goes on to assume, for the sake of argument, that the existing registration requirement imposes a substantial burden on Mr. Jacobrown’s exercise of his religion. On that assumption, you nevertheless reject the suggestion that he be allowed to register while checking a box on the registration form to claim conscientious objector status, on the ground that “he wouldn’t be registering for the draft; he’d be registering not to be drafted.” You assert that such a system: “would allow anyone who wanted to avoid being drafted to just check a box on a registration form that he is a conscientious objector. This would not only undermine any future draft, it would conflict with federal law mandating that only Selective Service local boards can classify a person as a conscientious objector.’

I’m afraid that you misunderstood the suggestion. My letter suggested only that a registrant be able “to assert his conscientious objector status in conjunction with his registration” (emphasis added) – not that he would automatically obtain that status simply by checking a box. Checking such a box would not undermine the classification function of local draft boards (in the event of a draft), and would not guarantee that a registrant would be found eligible for C.O. status. As I understand it, this is how the registration system worked prior to 1973, so it is difficult to understand why it could not work that way today.

My May 30 letter also stated that there are other ways in which an accommodation could be achieved: “For example, if Mr. Jacobrown knew that if he sent in a registration form with a cover letter claiming C.O. status, he would receive in return a letter acknowledging both his registration and his claim, and stating that his C.O. claim had been noted in the Selective Service System’s files, that would be sufficient to confirm that he was not being counted as a potential combatant, and thus enable him to register.”

If you thought that when I said “acknowledging . . . his claim” I meant that the Selective Service System would be agreeing that Mr. Jacobrown is entitled to conscientious objector status, I hasten to correct that misunder­standing. My point was that a letter acknowledging his assertion of C.O. status, and stating that his assertion had been duly recorded in the Selective Service System’s files, would be sufficient. Your letter does not suggest any reason why such an accommodation would not be a less restrictive means of furthering the Selective Service System’s goal of obtaining universal male draft registration, or why it would be impracticable.

5. Finally, you suggest that Mr. Jacobrown “write on [his] registration form that [he is] a conscientious objector,” and you kindly attach materials published by several peace groups discussing such a course of action. While that course of action may be satisfactory to many conscientious objectors, it does not meet the religious needs of Mr. Jacobrown and a significant number of others. The problem is succinctly explained in the very material you provided:

Some conscientious objectors have a problem complying with the legal requirement to register with the Selective Service System because it will not recognize their registration as a conscientious objector.

Center on Conscience & War, Conscientious Objectors and the Draft 4 (2001). Thus, it is clear that Mr. Jacobrown is not alone in finding that his religious convictions preclude him from registering as the registration system is currently configured.

It may be convenient for the Selective Service System to conduct draft registration at this time without providing any opportunity for a registrant to assert his claim to conscientious objection status and to have that claim recorded, but administrative convenience is not the touchstone of the Religious Freedom Restoration Act. Your June 11 letter does not provide any persuasive reason why the Selective Service System could not afford Mr. Jacobrown (and others who share his religious scruples) a less restrictive means of complying with the registration requirement, and does not provide any persuasive reason why RFRA does not require this to be done.

I hope you will reconsider, and advise your client to accommodate Mr. Jacobrown’s religious need to have his assertion of conscientious objector status officially recorded, so that he can register without violating his conscience.

Very truly yours,

/s/

Arthur B. Spitzer