I agree that, in principle, lack of sincerity rightly defeats a
RFRA etc. claim. But in practice, my sense is that many judges are
reluctant to find claimants to be insincere. Outside the prison
context, I've seen very few cases in which the judge made such a
finding. Even in Sherrod's case, the trial court said "Mr. Sherrod's
religious beliefs are deemed to be sincere," which sounds like a finding
and not just an arguendo assumption (though "deemed" is somewhat
ambiguous).
Part of this, I expect, is judges' recognition of just how hard
it is to come to a confident conclusion about a person's sincerity in
such situations, where some of our tools for determining sincerity don't
apply. Courts are rightly not supposed to look at whether the person's
claimed beliefs are shared by others; they're rightly not supposed to
look at whether the person's claimed beliefs are rational or logical;
they're rightly not supposed to look at whether the person's claimed
beliefs are consistent with the writings that the person is claiming to
rely on. What else are they supposed to do? Sure, they can look at
demeanor evidence, but that's notoriously unreliable; they can look at
self-interest, but some sincere religious beliefs are also
self-interested, and the self-interest is often hard to figure out in
certain cases (especially if the person has spent a lot of time, effort,
and money fighting something).
Another part might be procedural: I assume that at least in
some situations, sincerity -- as a factual question -- can't be
determined until trial, sometimes a jury trial. If the other side wants
a decision before trial, that can't happen on sincerity grounds.
And a third part has to do with concerns about future
litigation: If a claim is rejected on the grounds that this person is
insincere, the decision has no precedential value that can help the
government deal with similar objection in the future. In theory, even
the very same person might later raise a similar claim in front of a
different judge, and claim that his beliefs have changed to the point
that they are sincere now even if they weren't sincere then; certainly
plenty of others could make similar claims.
Am I missing something here? Can sincerity be dealt with in a
way that makes it a more helpful practical gatekeeper?
Eugene
Eric Rassbach writes:
It seems important in substantial burden cases, be it under RFRA, state
RFRAs, RLUIPA or Sherbert/Yoder, for courts to first look at what the
specific claimed religious exercise (negative or positive) is, whether
that exercise is sincere, and what the burden or penalty imposed for
engaging in the exercise is. A lot of the claimed problems with RLUIPA
and the RFRAs disappear if these standards are applied universally,
especially when the relative prevalence of different classes of cases is
factored in. For example, lack of sincerity is something that should
eliminate a significant number of prisoner RLUIPA claims, but prison
systems and courts have been reluctant to uniformly apply that standard
before reaching the SB analysis. If a sincerity filter were applied
regularly by prison systems and the courts, then a number of harder
RLUIPA prisoner cases would be eliminated without raising unnecessary SB
or constitutional questions. (Perhaps even Sherrod's case would have
been eliminated.) Also, in my view the occasional accommodation of a
sincere Sherrod-like plaintiff who could demonstrate a true burden would
seem to be worth the benefit of protecting the religious liberty of a
great number of people.
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