Doug makes a great point--the cost of overprotecting questionably "sincere"
claims to free exercise is a general watering down of the liberty for valid
claims. Sounds like a good law review topic to me--perhaps for a seminar paper
or law review comment for a student.
Cheers, Rick
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"It's a funny thing about us human beings: not many of us doubt God's existence
and then start sinning. Most of us sin and then start doubting His existence."
--J. Budziszewski (The Revenge of Conscience) "Once again the ancient maxim
is vindicated, that the perversion of the best is the worst." -- Id.
--- On Fri, 8/1/08, Douglas Laycock <[EMAIL PROTECTED]> wrote:
From: Douglas Laycock <[EMAIL PROTECTED]>
Subject: Re: Lack of sincerity
To: religionlaw@lists.ucla.edu
Date: Friday, August 1, 2008, 1:16 PM
I think Eugene is dead on about why judges concede sincerity. What's missing
from his analysis is the frequent insincerity of the finding of sincerity --
and the costs of that practice.
Nat Lewin, who often represents Orthodox Jewish groups in religious liberty
cases, said this years ago, and he persuaded me. Judges often say that a
plaintiff is sincere, or that the judge assumes he is sincere, without actually
believing that he's sincere. Then, since an insincere plaintiff should lose,
they make sure he loses on some other ground, usually burden or compelling
interest -- even if they have to interpret those issues in ways that undermine
the whole purpose of the statute or constitutional provision they claim to be
enforcing. And so we get bad precedents on burden and compelling interest,
created for the insincere plaintiff but applicable to all plaintiffs, sincere
and insincere alilke.
Of course this is easy to suspect and hard to prove. But I think it goes on.
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