Lack of sincerity

[Volokh, Eugene]

	I appreciate Eric's argument, and I agree that a factfinder is
supposed to determine the claimant's sincerity, despite the obvious
difficulty in doing so.  But let me ask a procedural question that might
shed a different light on the matter:  How is this supposed to play out
in the context of a criminal prosecution, where the ultimate facts will
be presumably decided by a jury?

	In particular, I take it that Manneh would still be entitled to
have the jury consider the RFRA defense, and to determine whether she
was sincere.  If it's found as a matter of law that even if the facts of
this particular case were in Manneh's favor she wouldn't have a legal
argument (e.g., because applying the law to her was necessary to serve a
compelling government interest, or because the licensing requirement
isn't a substantial burden on the claimed religious beliefs), then
there'd be nothing for the jury to decide on that.  But if it's found
that Manneh's claim turns on her sincerity, wouldn't she have a Jury
Trial Clause right to have the facts underlying her defense be decided
by a jury?

	Conversely, say that a district court found that she was indeed
sincere, and that her sincerity required the dismissal of the indictment
on RFRA grounds.  Would it really be empowered to do that, given that
the prosecution has a statutory right to have the facts be tried by a
jury (unless the judge finds that no reasonable jury could have found
her to be insincere under whatever quantum of proof was required)?  I'm
not sure about the answer, but I'd think that it's necessary to know the
answer before we can determine the merits of judicial determinations of
sincerity in such cases.

	Relatedly, the court didn't seem to establish what the quantum
of proof was.  For Manneh's claim to prevail (whether on a motion to
dismiss the indictment or at trial), would she have to bear the burden
of proving sincerity by a preponderance of the evidence?  Would it be
enough to raise a reasonable doubt about the government's claim of
insincerity?  To be sure, the Constitution doesn't bar requiring
defendants to prove their affirmative defenses by a preponderance of the
evidence, but I'm not sure it's clear what actual rule is indeed present
in such criminal cases.

	Perhaps there are already answers to all this that I just don't
know.  But I think it might be helpful to know them before we can
determine how good a gatekeeper the sincerity inquiry would be in such
cases.  And of course knowing the answers would also help us know how
effective various proxies, such as self-interest or longstanding belief,
would be.  Self-interest might, for instance, sometimes raise a
substantial inference that a claimant is insincere, but might be less
effective to prove insincerity beyond a reasonable doubt.

	Finally, note that if I'm right that Manneh is still entitled to
have the jury decide sincerity, then the court would have to decide the
purely legal questions -- substantial burden and necessity to serve a
compelling interest -- before trial regardless of any tentative decision
it might be entitled to make on the sincerity grounds, just so it would
know whether the jury should be instructed about the RFRA defense.

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Wednesday, January 07, 2009 1:16 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Lack of sincerity
> 
> 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_i
> n_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.