Adjudicating Religious Sincerity

By Chapman, Nathan S. | Washington Law Review, September 1, 2017 | Go to article overview

Adjudicating Religious Sincerity


Chapman, Nathan S., Washington Law Review


INTRODUCTION

Comedian John Oliver recently started a church, "Our Lady of Perpetual Exemption."1 He wanted to expose the tax exemptions available to televangelists who exchange promises of prosperity for donations.2 Within weeks, Oliver had received tens of thousands of dollars.3 Oliver claimed the stunt was entirely legal-the church had been incorporated in Texas, had complied with IRS registration requirements, and was therefore entitled to receive unlimited donations tax-free.4 It wasn't. Even considering the IRS's fuzzy conception of "church,"5 "Our Lady" was missing a crucial component of a religious accommodation claim: sincerity.6 The scheme was, of course, a parody. By attempting to expose fraud, Oliver may have committed it.

Oliver is not alone in his confusion about the legal relevance of a religious accommodation claimant's sincerity. The black-letter law is pretty clear, but scholars question it and judges-including Supreme Court justices-misunderstand it. The rule is simple: to qualify for a religious accommodation, a claimant must demonstrate sincerity.7 Courts and government officials adjudicate religious sincerity in a wide variety of contexts: fraud;8 immigration;9 employment discrimination;10 prisoner religious accommodations;11 conscientious objection from service in the armed forces;12 and statutory accommodations from general laws.13 The requirement makes sense. The point of a religious accommodation is to reduce the burden that a law may impose on someone's religious exercise. When a claimant is insincere, the law imposes no burden on religious exercise at all.14

Yet scholars have long questioned the wisdom and constitutionality of adjudicating religious sincerity. Most of them have endorsed Justice Jackson's dissenting opinion in the 1944 case United States v. Ballard.15 The Supreme Court concluded that the First Amendment forbids the government from prosecuting persons on the ground that their religious beliefs are empirically inaccurate. Doing so requires the government to evaluate theological claims, something the Establishment Clause forbids. Justice Jackson would have gone further. He argued that courts should read the First Amendment to also prohibit the government from evaluating whether persons actually hold the religious beliefs they profess. His nuanced reasoning boiled down to the conviction that it is impossible to adjudicate religious sincerity without also passing judgment on whether the claimant's beliefs are plausible.16

Based largely on this argument, Professor Kent Greenawalt's assessment probably reflects the mainstream view among legal scholars. "[S]ome inquiry into sincerity is often essential," but "for just the reasons that Justice Jackson offered," "alternative approaches [to adjudicating religious sincerity] are preferable if they are feasible."17 Some go further. Judge John Noonan argues that "Jackson seems to me right"18-"the first amendment requires" the government to abstain from inquiring into one's religious sincerity.19 Even those scholars who accept that adjudicating religious sincerity may be a necessary evil suggest changing the ordinary rules of pleading and evidence to provide as much protection for claimants as possible.20 No one has offered a sustained defense of the adjudication of religious sincerity under the ordinary pleading and evidentiary standards.21

Uneasiness about adjudicating religious sincerity was limited to law reviews until the recent contraceptive mandate cases. During the oral argument in Burwell v. Hobby Lobby,22 Justice Kagan suggested that it would be unconstitutional to "test the sincerity of religion."23 Perhaps channeling the prevailing scholarly view, Justice Sotomayor called it "the most dangerous piece" of a religious accommodation analysis.24 And Justice Ginsburg's dissenting opinion, joined by three other justices, asserted that "a court must accept as true" a plaintiff's "factual allegations that a plaintiff's beliefs are sincere and of a religious nature. …

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