Lack of sincerity
susan.freiman.law.65 at aya.yale.edu
Sat Aug 2 09:03:51 PDT 2008
Why "watered down" ? More liberty for the insincere doesn't mean less
liberty for the committed. It's not as though there's only a finite
quantity of liberty to go around.
Or am I missing your point? Does loss of respect for a religious claim
affect one's liberty? Although I can see how one might make a
speculative argument that it might make it more difficult for society to
accept the next claim coming down the pike.
Rick Duncan wrote:
> 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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