In Fall 2011, the Undergraduate Fellows enrolled in the Law, Religion, and Liberty of Conscience Seminar interviewed experts about the role of conscience in American life, law and politics. Below are some of their responses to the students' fifth question:
Is there a practical way to legitimately differentiate between sincere and insincere claims to religious basis of conscience exemptions? Who should make this determination (E.g., Courts? Regulators?)
Richard W. Garnett:
This differentiation has to happen, but there is no neat-and-tidy way to do it, and no one right answer to the ‘who decides?’ question. In this matter, we just have to do the best we can.
Richard S. Meyers
There is a sincerity requirement when persons make free exercise arguments, but the courts typically assume that the claim is sincere, I think, because they recognize that examining sincerity is a perilous enterprise. The courts, and I am assuming that courts would be making these judgments, should probably only reserve this inquiry for extreme/obvious cases.
Marc O. DeGirolami
My own view is that courts are in the best position to do this, but there is no question that it is a difficult issue. Courts are dealing with specific, particular cases, and are therefore focused on the sincerity of a single claimant. That’s at least a more plausible way to understand a sincerity inquiry than for a regulator or a legislator simply to declare an entire class of conscience claimants insincere. As for practicalities, one could inquire about the nature of the beliefs by comparison with the body of beliefs held by the religious organization of which the claimant says he is part. One could inquire about the centrality of the belief to the tradition, and so on. Of course, there are entanglement concerns here, but i do not see a good alternative. A court faced with a conscience claim must do a certain amount of asking; otherwise the whole thing collapses.
Ira “Chip” Lupu
Context and administrative convenience matter here as well. The decision-maker must be unbiased and impartial. But, no matter what the process, the best test of sincerity is consistency of behavior with professed belief. People with a long criminal record of violent crime are not credible when they claim to be pacifists.
Steven D. Smith
It can be a hard question, but not necessarily any harder than comparable questions that courts and regulators address all the time.
Douglas Laycock
Sincerity is difficult to adjudicate, and probably insincerity can be found only in relatively clear cases. The decision has to be made by courts in individual adjudications. In contexts where the risk of insincere claims is high (typically because claims of conscience align with secular self-interest), this can become a compelling reason for refusing exemptions to sincere and insincere alike.
Robert Vischer
I think it’s very difficult (see, e.g., the courts trying to navigate these lines in the military draft cases). That’s another reason to avoid legislating on these issues in the first place whenever possible. In some cases, of course, we have to legislate on a contested moral issue (e.g., the military draft), in which case I believe that legislators have the responsibility to establish criteria for determining the sincerity of the belief, and courts/agencies have the responsibility to apply those criteria.
Mark R. Wicclair Tests of sincerity are subject to bias. Hence, generally, I do not favor such tests. Due to the enormous risks and burdens associated with wartime military service, a sincerity test may be appropriate in this special case. However, such tests generally are not appropriate when determining whether to accommodate members of professions with who claim to have conscience-based objections to providing a good or service.
M. Cathleen Kaveny
I think there are practical ways to do so, but they are very expensive and require resources in litigation.
Richard W. Garnett:
This differentiation has to happen, but there is no neat-and-tidy way to do it, and no one right answer to the ‘who decides?’ question. In this matter, we just have to do the best we can.
Richard S. Meyers
There is a sincerity requirement when persons make free exercise arguments, but the courts typically assume that the claim is sincere, I think, because they recognize that examining sincerity is a perilous enterprise. The courts, and I am assuming that courts would be making these judgments, should probably only reserve this inquiry for extreme/obvious cases.
Marc O. DeGirolami
My own view is that courts are in the best position to do this, but there is no question that it is a difficult issue. Courts are dealing with specific, particular cases, and are therefore focused on the sincerity of a single claimant. That’s at least a more plausible way to understand a sincerity inquiry than for a regulator or a legislator simply to declare an entire class of conscience claimants insincere. As for practicalities, one could inquire about the nature of the beliefs by comparison with the body of beliefs held by the religious organization of which the claimant says he is part. One could inquire about the centrality of the belief to the tradition, and so on. Of course, there are entanglement concerns here, but i do not see a good alternative. A court faced with a conscience claim must do a certain amount of asking; otherwise the whole thing collapses.
Ira “Chip” Lupu
Context and administrative convenience matter here as well. The decision-maker must be unbiased and impartial. But, no matter what the process, the best test of sincerity is consistency of behavior with professed belief. People with a long criminal record of violent crime are not credible when they claim to be pacifists.
Steven D. Smith
It can be a hard question, but not necessarily any harder than comparable questions that courts and regulators address all the time.
Douglas Laycock
Sincerity is difficult to adjudicate, and probably insincerity can be found only in relatively clear cases. The decision has to be made by courts in individual adjudications. In contexts where the risk of insincere claims is high (typically because claims of conscience align with secular self-interest), this can become a compelling reason for refusing exemptions to sincere and insincere alike.
Robert Vischer
I think it’s very difficult (see, e.g., the courts trying to navigate these lines in the military draft cases). That’s another reason to avoid legislating on these issues in the first place whenever possible. In some cases, of course, we have to legislate on a contested moral issue (e.g., the military draft), in which case I believe that legislators have the responsibility to establish criteria for determining the sincerity of the belief, and courts/agencies have the responsibility to apply those criteria.
Mark R. Wicclair Tests of sincerity are subject to bias. Hence, generally, I do not favor such tests. Due to the enormous risks and burdens associated with wartime military service, a sincerity test may be appropriate in this special case. However, such tests generally are not appropriate when determining whether to accommodate members of professions with who claim to have conscience-based objections to providing a good or service.
M. Cathleen Kaveny
I think there are practical ways to do so, but they are very expensive and require resources in litigation.
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