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: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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.
