"Mormon Student, Justice, ACLU Join Up"

[Douglas Laycock]

  Judges are reluctant to decide sincerity, but they are not
reluctant to get rid of marginal claims. He may say the belief is not
sincere. More likely, he may say the belief is not religious. He may
find that a fairly weak interest is compelling. He may dismiss the
claim on some procedural or jurisdictional technicality. He may do
something really stupid, like interpret a state RFRA to mean the same
thing as Smith.

  If he were more theoretically sophisticated, he might say of the
religious motivation to make money that the claim is too closely
aligned with secular self interest, thus raising insuperable
difficulties in determining sincerity, the threat of unmanageable
numbers of claims, and pressuring people to convert to this religion
so that their secular self interest would have a religious wrapper.

  Judges write these opinions all sorts of ways. But they are
suspicious of claims that are too idiosyncratic, suspicious of claims
that pose a risk of being self-interested, and they find ways to get
rid of these cases.  It is hard enough to win a claim for a core
religious practice of a large and well-understood religion.  These
marginal claims that law professors so readily imagine are a tiny
percentage of all claims and almost impossible to win.  

  Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>         Hmm -- why is this so?  First, I've seen very few cases in
which
> a judge finds a religious claimant to be insincere.  My sense is
that
> judges tend to try to avoid doing this, partly because reading
people's
> minds on such issues seems even more unreliable, bias-prone, and
> subjective than reading people's minds on other issues.
>
>         Second, why is it so odd to imagine a religious motivation
--
> does it really have to be "primary," by the way? -- for an
18-year-old's
> desire to spend a couple of years helping support his disabled
parents
> (perhaps a way of "honor[ing his] father and mother"), or his new
wife
> and child?  I would think that many a religious person would indeed
feel
> such a religious duty or at least religious motivation, no?
>
>         Eugene
>
>
> Doug Laycock writes:
>
>          Yes in theory, but in the real world, Eugene's assumed
facts
> will be very difficult to prove and judges will almost never find
them
> to be true.  Certainly the judge is not going to believe a
primarily
> religious motivation for a desire to make more money.  Meditation
and
> finding the meaning of life might have a slight chance in this
case,
> because the state's interest in cancelling a four-year scholarship
if
> the years are not consecutive looks trivial, but judges are going
to be
> skeptical of such claims. The less conventional the religious
claim, the
> harder it is to prove.
>
>         In one sense this is discriminatory and unfair. It is also
> inevitable. And it is better that success rates gradually fall away
for
> lack of proof than that we have arbitrary rules that eliminate
whole
> classes of serious claims.  Better to have some problems at the
margins
> of an area of law (an almost inevitable circumstance no matter the
> rules) than to have incoherence at the core.
>
>         Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
>
>         >    A quick question:  Say the Mormon student wins, on a
> Sherbert-like
>         > rationale.  Another student wants a similar exemption on
the
> grounds
>         > that he feels a religious motivation to take two years
off to
> meditate,
>         > or to make money to help support his family, or to
fulfill
> what he sees
>         > as God's command to step back from formal education and
take
> time to
>         > find the meaning of life.  Assume that the student's
religious
>         > motivation for this is found to be sincere.
>         >
>         >    I take it that he'd have to be treated the same as the
> Mormon,
>         > right?  I'm not saying that this is a particularly
horrible
> result, but
>         > I just wanted to explore what the result would end up
being.
>         >
>         >    Eugene
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>
>         Douglas Laycock
>         Yale Kamisar Collegiate Professor of Law
>         University of Michigan Law School
>         625 S. State St.
>         Ann Arbor, MI  48109-1215
>           734-647-9713
>
> _______________________________________________
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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