Lack of sincerity

[Rick Duncan]

Doug makes a great point--the cost of overprotecting questionably "sincere" claims to free exercise is a general watering down of the liberty for valid claims. Sounds like a good law review topic to me--perhaps for a seminar paper or law review comment for a student.

Cheers, Rick

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902     
"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)     "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.

--- On Fri, 8/1/08, Douglas Laycock <laycockd at umich.edu> wrote:
From: Douglas Laycock <laycockd at umich.edu>
Subject: Re: Lack of sincerity
To: religionlaw at lists.ucla.edu
Date: Friday, August 1, 2008, 1:16 PM

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.



      
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