Perhaps there is a connection between the Supreme Court's adoption in Thomas of this principle of individual self-determination of religious belief, and the almost-immediate decline of free exercise protection in the Supreme Court (Thomas, 1981; Lee, 1982; Bob Jones, 1983; Goldman, 1986; Bowen, 1986; Lyng, 1988; Jimmy Swaggart, 1990; Smith, 1990). The only exceptions to the trend are Hobbie (1987) and Frazee (1989), both in the accepted and limited context of Sabbath observance and unemployment compensation.
Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ---- Original message ---- >Date: Tue, 26 Oct 2010 13:03:52 -0400 >From: religionlaw-boun...@lists.ucla.edu (on behalf of Eric Rassbach ><erassb...@becketfund.org>) >Subject: Principles of sincerity/credibility determination >To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > > > >I thought this paragraph from a post Eugene made on his blog would be a good >one to discuss on the list: > > > >*** > > > >A claimant may prevail only if his beliefs are sincerely held: If a court >concludes that the claimant is lying about his beliefs, then his claim will be >rejected. (Courts may often be especially likely to scrutinize a claimant’s >sincerity when his beliefs seem to coincide neatly with his secular interests, >especially secular financial interests.) And my sense is that courts are >indeed, rightly or wrongly, more likely to find a belief to be sincere if it >is familiar, probably because it is shared by many of the claimant’s >coreligionists. But in principle courts ought not focus on that, and should >treat beliefs that are minority beliefs even in the claimant’s own >denomination, or even beliefs that are highly idiosyncratic, as fully >protected at the same level as standard majority Muslim, Jewish, Baptist, >Methodist, etc. beliefs might be. > > > >*** > > > >What I don't understand about Eugene's statement here is what "principle" says >that a court ought not look at whether anyone else shares a claimed religious >belief in making a credibility determination about whether the belief is truly >*held*. Courts are more likely to find that a Jewish inmate asking for kosher >food is sincere than an "Orthodox Catholic" inmate asking for kosher food. >Cf. Guzzi v. Thompson, 470 F.Supp.2d 17 (D. Mass. 2007). That's because the >belief that Jews should keep kosher has been around for a long time--and has >been adhered to as a practice in many different contexts--indicating that the >belief is not contingent on the circumstances and interests of a particular >person in a particular situation. That lack of historical or personal >contingency is rightfully seen as an indicator of the credibility of the claim >that the plaintiff holds the belief. That doesn't mean that the lack of >evidence that others hold a plaintiff's "idiosyncratic" belief should be >treated as a strike against a plaintiff's credibility. But it is a positive >factor that is, and should be, available to "familiar" faiths. > > > >I don't think that this approach to credibility determinations is any >different than those in other contexts. If I am prosecuted/sued for fraud >based on my telling others that space aliens have abducted many people from >Roswell, NM, my sincerity defense will definitely be helped if many other >people hold the same belief, just as it will be harmed if I have a financial >interest in leading others to share my claimed belief. > > > >So I think Eugene's statement mixes up the credibility determination about >whether someone is truly holding a belief with a forbidden determination about >whether the content of the belief is true. Courts can legitimately look at >whether others hold the same belief in making the former determination, but >cannot engage in the latter determination at all. > > > >And as a practical matter, the two determinations really should be kept quite >separate for the practical reason that courts aren't going to want to help a >cheat. Adhering to a formal rule that courts determine sincerity/credibility >ensures that judges deal with that concern squarely, rather than by using >other parts of the law -- say the compelling government interest test -- to >ensure that plaintiffs they suspect are insincere lose in the end. The lack of >reliance on sincerity ends up deforming other parts of the law. > > > >It may be that Eugene has an underlying concern about whether this approach >undermines equal treatment among faiths, and if so, I would be interested to >hear him articulate that concern more fully than he was able to within the >confines of his post. > > > >Eric > > > > > > > > >_______________________________________________ >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. _______________________________________________ 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.
