Lack of sincerity

Wed Jan 7 13:16:13 PST 2009

This decision in the New York bushmeat case includes an example of the kind of sincerity analysis that I was suggesting in the email string below:  http://religionclause.blogspot.com/2009/01/court-rejects-rfra-defense-to-charges.html

Here is another case that indicates the importance of making the sincerity determination:

http://www.bjconline.org/cgi-bin/2009/01/sincerity_of_belief_in_love_mu.html

And since other obligations kept me from responding to Eugene and Alan in August, let me take the opportunity to do so now! 

I agree that a "weak inference from possibility of self-interest" shouldn't be enough to disprove sincerity claim.  But what about strong inferences based on obvious self-interest?  I think most judges, like Judge Dearie, can make the distinction between the validity of the belief system and the sincerity of the claims to be following it.  Judges make this sort of credibility determination all the time on issues no less weighty.  And because sincerity is a fact issue, there will always be a good body of evidence (or the opportunity to produce one) to serve as a basis for the sincerity determination.

I also agree that longstanding belief is not required to show sincerity.  But a demonstrated longstanding belief does indicate sincerity, as a kind of safe harbor.  The bushmeat case sincerity analysis would've come out the other way were there any evidence that Manneh, or anyone else, had expressed her claimed religious beliefs about eating bushmeat (and applying for permits for bushmeat) years before she got caught.

The situation in the Manneh case is also different from a baal teshuva who begins observing Shabbat, since no one can argue that Shabbat observance itself was invented after the fact. But there's still nothing wrong with a court looking to see if the claimed baal teshuva's repentance is genuine or an attempted fraud.  If Mr. Madoff suddenly claims at sentencing to have repented of his ways and become a baal teshuva, courts and everyone else will be entitled to doubt that claim, and to test it.

As for the state's interest in getting a consistent legal rule, I don't see why its administrative/cost interest in getting a clear rule early on should trump believers' interest in getting the right rule, something that is much less likely if the plaintiff is insincere.  Eugene's argument seems to depend on the insincere claimant being able to mimic a sincere believer's actions, litigation position and enthusiasm.  That seems doubtful to me.  And judges, smelling a rat, aren't going to want to decide in the claimant's favor, and may well twist the law in the process of denying the fake believer an accommodation.  

Underlying this discussion is I think the distinction between the goods protected by the First Amendment.  Freedom of belief/religious exercise/conscience claims are different from freedom of speech claims because they protect the forum internum of the believer _and_ the connection of that forum internum to the external forum of private and public discourse.  (This is clear in the ICCPR's language about manifesting a belief.)  Speech protections focus on the external forum.  Parody is protected speech, but it isn't protected religious exercise.  The reason sincerity is required is that the external action must be manifesting the internal belief.  Allowing insincere claimants to cry wolf both undermines the rationale for the protection and weakens protections for sincere believers by creating more conflicts between the protection and other interests.

Eric

-----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 7:27 PM
To: Law & Religion issues for Law Academics
Subject: RE: Lack of sincerity

        I'm inclined to agree with Alan here -- many of us genuinely believe that those things that are good and pleasant for us are also good for our souls.  There's nothing particularly inconsistent about someone's feeling a religious motivation to alter his mental state using marijuana; Rastafarians apparently sincerely believe in that, many Jews do as to Passover and (perhaps less strongly) Purim, Native Americans do as to peyote (though I understand peyote use is unpleasant in some ways as well as intriguing to many in other ways).  It's true that the common secular desire to do the same thing may put one on guard about the possibility of insincerity.  But it's hardly very telling evidence, and I would think many judges would be rightly reluctant to deny someone's exemption claim based on a weak inference from possibility of self-interest, coupled with difficult calls about demeanor.

        As to previous espousal of the belief, coupled with temporal connection with motive, that too seems dicey.  Frazee stresses that long-standing belief is not required as a matter of law, and people do change their beliefs; every day there are probably thousands of people who have sincerely believed but new religious beliefs.  Likewise, people sometimes only come to believe something (or come to believe it deeply) when some event prods them to really consider it for the first time.  A conscientious objector, for instance, may not have thought much about whether his God lets him shoot at people until he is first faced with the prospect.  (Many people often reflect on moral hypotheticals, and perhaps that's the better approach for one's moral or religious education; but many don't have that sort of hypothetical mindset.)  A Jew who never saw the spiritual benefits of observing Shabbat might sincerely come to this realization after seeing the toll on his family life (an important component of Jewish religious life) and on his spiritual peace that his Saturday work is having.

        Finally, I agree with Eric and Doug that judges who are reluctant to find absence of sincerity may therefore hold for the state on substantial burden or compelling interest grounds.  But I'm not sure that fully responds to the third point I raised, which is that the state has a distinct interest in having its denial of a religious exemption approved for all cases as a matter of law, rather than accepted in one particular case because a litigant is found to have been insincere.
Among other things, it is often state administrators who have to first decide whether to grant an exemption.  If a court says "no need for such exemptions," the administrators can quickly dispose of the requests.
But if there is no such decision, then administrators have to try to decide sincerity themselves in the first instance, and then expect appeals to judges or juries who will then determine sincerity anew.

        Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein, 
> Alan
> Sent: Friday, August 01, 2008 2:12 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Lack of sincerity
>
> I'm wary of any suggestion that self-interest should be considered one 
> of the important indicia for sincerity. It is all too common in free 
> exercise claims: avoiding conscription, having a weekend day off, 
> freedom from burdensome and costly land use regulations etc. I know 
> that lots of free exercise claims do not involve self interest -- but 
> enough legitimate claims do provide some secular benefit to the 
> claimant that I think we have to be careful about reading too much 
> into this factor.
>
> An alternative solution that works in some cases is to require the 
> religious individual who receives an exemption to disgorge the secular 
> benefit he receives from the accommodation -- something like requiring 
> a CO to perform alternative service.
>
> Alan Brownstein
>
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Friday, August 01, 2008 1:51 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Lack of sincerity
>
>
> 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 Circ!
>  uit 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.
>
>
>
>
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