I assume that the use of quotes around "constitutional fact" is meant to highlight that the phrase is used as an analogy in this situation, which is governed by a statute and not the Constitution. But partly for that reason, I think the danger of a jury's refusal to follow a proper instruction on the irrelevance of a belief's rationality to its sincerity is not likely to be very significant (since firstly, juries don't usually ignore a judge's instructions, and secondly, a court can also enter a JNOV if the jury has obviously gotten it wrong). If the determination of sincerity is left to courts as some kind of "über-fact" then I think we really do tread dangerous ground, since that determination will too often be made on hidden policy agendas, for administrative convenience, or other factors that we really don't want to impinge on religious liberty, to say nothing of investing the courts in determining issues of religion that the Constitution forbids them to do.
On Tue, Jul 1, 2014 at 12:11 PM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > Maybe this is a "constitutional fact," like NY Times actual malice. We > need to be careful that a trier of fact does not conclude that a party > isn't sincere just because the trier of fact thinks the belief is so > obviously wrong that a reasonable person couldn't believe it. > > Mark > > Mark S. Scarberry > Pepperdine University School of Law > > > Sent from my iPad > > On Jul 1, 2014, at 8:30 AM, "Vance R. Koven" <vrko...@gmail.com> wrote: > > I have (perhaps incorrectly) assumed that when the Court says *it* should > not get involved in judging the sincerity of a religious belief, it is > expressing the proper division of labor between a court and the finder of > fact. It should be up to the jury (or the court wearing a fact-finder hat) > to decide whether the belief is sincerely held or not. A trial court can > easily enough instruct a jury to disregard whether they think the religious > belief is kooky; but it's perfectly acceptable based on the credibility of > the witnesses and direct and circumstantial evidence for a jury to > ascertain whether the claimed religious belief is real or bogus. > > I have often suspected that doctrine in religious liberty cases has become > quite twisted over time by courts' reluctance to let juries do what they're > supposed to do. > > > On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer <artspit...@gmail.com> > wrote: > >> I appreciate Steve's response, which I think demonstrates that he is >> precisely rejecting the legitimacy (or perhaps the religiosity) of the >> plaintiffs' beliefs. The plaintiffs say that their religious beliefs >> prohibit complicity with evil, and that signing a contract that makes >> available certain chemicals or devices to others amounts to complicity with >> evil, because of the use to which such chemicals or devices are most likely >> to be put (terminating what plaintiffs believe is a human life). >> >> If a court should not accept that assertion "without inquiry," then what >> inquiry is it supposed to make? >> >> Can a court evaluate and reject the religious belief that "complicity >> with evil is sinful"? >> >> Can a court evaluate and reject the religious belief that "terminating a >> human life is evil"? >> >> Can a court evaluate and reject the religious belief that "morning-after >> pills terminate a human life"? >> >> Can a court evaluate and reject the religious belief that "providing the >> means for a person to obtain a chemical or device whose principal purpose >> is to terminate a human life, and that is likely to be used for that >> purpose, counts as complicity in terminating a human life"? >> >> Is there some other inquiry the court should be making that I'm missing? >> >> Art Spitzer >> PS - My questions should not be taken to imply that I necessarily agree >> with the majority opinion (not that anyone cares), and they certainly do >> not represent the views of my employer. >> >> >> >> *Warning* >> *: this message is subject to monitoring by the NSA.* >> >> >> >> > > -- > Vance R. Koven > Boston, MA USA > vrko...@world.std.com > > _______________________________________________ > 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. > -- Vance R. Koven Boston, MA USA vrko...@world.std.com
_______________________________________________ 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.
