Lack of sincerity

[Douglas Laycock]

It works like this.  There is a substantial burden on plaintiff's claimed religious interest, and a quite modest government justification -- less than a compelling interest.  Judge thinks plaintiff is a phony but is unwilling to say so, or doesn't want to conduct a trial on that issue.  So he says, as a matter of law, no substantial burden.  Or as a matter of law, the government's interest is compelling.  That holding is then a precedent on the burden or compelling interest issue that applies to sincere plaintiffs as well as insincere plaintiffs.   

Of course some judges just don't like these claims, sincere or not, and would have found no substantial burden or a compelling interest anyway.  But other judges are quite sympathetic to these claims, and still other judges are in the middle.  What Rick is saying, and me and Eric Rassbach and Nat Lewin and no doubt other experienced litigators, is that the unwillingess to find insincerity biases holdings on burden and compelling interest in a pro-government direction, and builds up a worse body of precedents than we would have if insincere claims were rejected on grounds of insincerity.  Can't prove it, but lots of litigators think they have experienced it. 

Quoting Susan Freiman <susan.freiman.law.65 at aya.yale.edu>:

> 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.
>
> Susan
>
> 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.
>>
>>
>>
>> ------------------------------------------------------------------------
>>
>> _______________________________________________
>> 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.
>
> _______________________________________________
> 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[2]
>
> 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
[2] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20080802/4672c7ba/attachment.htm