Lack of sincerity

[Eric Rassbach]

I agree that judges (and government agencies) are reluctant to make sincerity findings, even in the prisoner context where sincerity is an acknowledged problem.  But I think it would be useful for these judges to apply a sincerity test where they can, since it is a predicate factual question to almost every religious liberty claim.

And although I take on board Eugene's points below, I think there are some indicia that can properly be used to evaluate sincerity.  Self-interest or ulterior motive is often a very good indicator in the prison context, cf. Church of the New Song, but also elsewhere.  We here are contacted fairly frequently by folks who want to start a Church of Marijuana or start an otherwise banned Church of Universal Love and Music outdoor concert series.  Courts should not be bashful about deciding, based on the emphasis on the ulterior motive and demeanor, that these potential plaintiffs are insincere.  I think a court can also look at the history of the belief, for example whether the person has previously espoused the belief, or if it is closely connected in time with the ulterior motive.

Eugene's procedural point is the strongest - sincerity is a factual question and does have to come after summary judgment etc., if it is disputed.  However, sometimes the case will proceed in a way that sincerity comes up earlier (e.g. injunctive relief).  And courts could hold mini-trials on sincerity if they believed it would dispatch the case quickly.

I think Eugene's third point actually cuts the other way.  Insincere plaintiffs generally make bad law for sincere plaintiffs.  Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007) is an example I'm familiar with that demonstrates this point.  In that case, the plaintiff came in to prison declaring himself to be Catholic, later changed his designation to Jewish and subsequently requested kosher food.  When that was denied, he sued pro se and then appealed when he lost in district court.  During the pendency of the appeal, he stopped participating in Jewish activities in prison, stopped responding to the court in the case, and then changed his religious designation within prison from Jewish to "None".  Given this narrative, I think the 5th Circuit could have decided that, or at least convened a hearing on whether, Mr. Baranowoski had been sincere in his claim to be Jewish.  (Disclosure: we asked the Fifth Circuit to do that, but it did not grant our request.)  The Fifth Circuit dropped a footnote in its opinion saying that neither side had raised the issue of sincerity.  But of course Mr. Baranowski had no interest in raising the sincerity issue.  And Texas would have no interest in raising the issue where it seemed clear that it would obtain favorable precedent from the Court.  Thus someone who no longer considered himself Jewish (and may well never have) made it much more difficult for sincere, observant Jewish prisoners to obtain kosher dietary accommodation in prison.  Had the Court looked into the sincerity question, it never would have reached the substantial burden question or the CGI/LRM analysis.  Since the Constitution (and RLUIPA) are designed to protect only sincere plaintiffs, my feeling is that this is a bad result and should be avoided where possible.




-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 01, 2008 3:37 PM
To: Law & Religion issues for Law Academics
Subject: Lack of sincerity

        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.
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