L. Joe Dunman (University of Louisville Brandeis School of Law) has posted Ignoring Religious Sincerity on SSRN. Here is the abstract:
Over the past decade and a half, scholars of law and religion have formed a strong consensus in favor of religious sincerity tests in constitutional and statutory claims for accommodation and exemption. These scholars argue that sincerity tests are effective tools for rooting out cynical fakers from true believers and preventing fraudulent claims for special religious privileges. However, this consensus overestimates the reliability of sincerity tests and underappreciates the risk of harm that they pose. In response, this article argues that religious sincerity tests should instead be abandoned, for two reasons. First, the circumstantial evidentiary proxies used by courts to determine religious insincerity are clumsy, unreliable, and poorly attuned to the nature of religious life. They impose secular expectations on believers that most religions do not impose themselves. Second, clumsy sincerity tests risk creating “false negative” results: declaring sincere religious people to be insincere. False negatives not only strip sincere believers of constitutional and statutory protection, but also the dignity of their religious autonomy and identity. In the absence of sincerity tests, courts still have plenty of tools to reject dangerous or impractical religious accommodation and exemption claims. There are other steps to the relevant analysis, such as religiosity, burden, and the balancing of government and employer interests. A finding of sincerity is never dispositive on its own. This article offers numerous examples where courts can rule against religious claimants without concerning themselves at all with sincerity. Without imposing sincerity as a gatekeeper, government can still regulate and employers can still manage, while believers maintain their religious identities and dignity.
Highly Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum