Lack of sincerity

[Douglas Laycock]

I think Eugene is dead on about why judges concede sincerity.  What's missing from his analysis is the frequent insincerity of the finding of sincerity -- and the costs of that practice. 

Nat Lewin, who often represents Orthodox Jewish groups in religious liberty cases, said this years ago, and he persuaded me.  Judges often say that a plaintiff is sincere, or that the judge assumes he is sincere, without actually believing that he's sincere.  Then, since an insincere plaintiff should lose, they make sure he loses on some other ground, usually burden or compelling interest -- even if they have to interpret those issues in ways that undermine the whole purpose of the statute or constitutional provision they claim to be enforcing.  And so we get bad precedents on burden and compelling interest, created for the insincere plaintiff but applicable to all plaintiffs, sincere and insincere alilke. 

Of course this is easy to suspect and hard to prove.  But I think it goes on. 

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

>         I agree that, in principle, lack of sincerity rightly defeats a
> RFRA etc. claim.  But in practice, my sense is that many judges are
> reluctant to find claimants to be insincere.  Outside the prison
> context, I've seen very few cases in which the judge made such a
> finding.  Even in Sherrod's case, the trial court said "Mr. Sherrod's
> religious beliefs are deemed to be sincere," which sounds like a finding
> and not just an arguendo assumption (though "deemed" is somewhat
> ambiguous).
>
>         Part of this, I expect, is judges' recognition of just how hard
> it is to come to a confident conclusion about a person's sincerity in
> such situations, where some of our tools for determining sincerity don't
> apply.  Courts are rightly not supposed to look at whether the person's
> claimed beliefs are shared by others; they're rightly not supposed to
> look at whether the person's claimed beliefs are rational or logical;
> they're rightly not supposed to look at whether the person's claimed
> beliefs are consistent with the writings that the person is claiming to
> rely on.  What else are they supposed to do?  Sure, they can look at
> demeanor evidence, but that's notoriously unreliable; they can look at
> self-interest, but some sincere religious beliefs are also
> self-interested, and the self-interest is often hard to figure out in
> certain cases (especially if the person has spent a lot of time, effort,
> and money fighting something).
>
>         Another part might be procedural:  I assume that at least in
> some situations, sincerity -- as a factual question -- can't be
> determined until trial, sometimes a jury trial.  If the other side wants
> a decision before trial, that can't happen on sincerity grounds.
>
>         And a third part has to do with concerns about future
> litigation:  If a claim is rejected on the grounds that this person is
> insincere, the decision has no precedential value that can help the
> government deal with similar objection in the future.  In theory, even
> the very same person might later raise a similar claim in front of a
> different judge, and claim that his beliefs have changed to the point
> that they are sincere now even if they weren't sincere then; certainly
> plenty of others could make similar claims.
>
>         Am I missing something here?  Can sincerity be dealt with in a
> way that makes it a more helpful practical gatekeeper?
>
>         Eugene
>
>
> Eric Rassbach writes:
>
> It seems important in substantial burden cases, be it under RFRA, state
> RFRAs, RLUIPA or Sherbert/Yoder, for courts to first look at what the
> specific claimed religious exercise (negative or positive) is, whether
> that exercise is sincere, and what the burden or penalty imposed for
> engaging in the exercise is.  A lot of the claimed problems with RLUIPA
> and the RFRAs disappear if these standards are applied universally,
> especially when the relative prevalence of different classes of cases is
> factored in.  For example, lack of sincerity is something that should
> eliminate a significant number of prisoner RLUIPA claims, but prison
> systems and courts have been reluctant to uniformly apply that standard
> before reaching the SB analysis.  If a sincerity filter were applied
> regularly by prison systems and the courts, then a number of harder
> RLUIPA prisoner cases would be eliminated without raising unnecessary SB
> or constitutional questions.  (Perhaps even Sherrod's case would have
> been eliminated.)  Also, in my view the occasional accommodation of a
> sincere Sherrod-like plaintiff who could demonstrate a true burden would
> seem to be worth the benefit of protecting the religious liberty of a
> great number of people.
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[1]
>
> 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
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
------
[1] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20080801/8bb3bc3e/attachment.htm