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: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] 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: [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.
>
>
>
>
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