Sincerity in Religious Exemption Law

New York, March 10, 2015—Although U.S. judges tend to be reluctant to question the sincerity of religious claimants in most cases, they are actually well-situated to evaluate if religious objections are sincere, said Kara Loewentheil, a research fellow and director of the Public Rights / Private Conscience Project at Columbia Law School’s Center for Gender and Sexuality Law, in a Feb. 23 working session with students and practitioners.
 

Noting that courts already weigh factors like timing and consistency to determine the sincerity of conscientious objectors to war and people who claim illegal drugs are religious sacraments, Loewentheil suggested that they are equipped to apply such criteria to a broader range of cases. If judges had done so in Burwell v. Hobby Lobby Stores, Inc., she noted, they might have discovered that Hobby Lobby’s 401(k) employee retirement plan held mutual funds with investments in manufacturers of some of the contraceptives and abortifacients the company objected to in the case.

“We use the word ‘sincerity,’” she said, “but what courts are really evaluating is consistency: they are asking if plaintiffs are acting in a way that is consistent, as a minimum baseline, with the beliefs they profess to hold.”

That baseline is especially difficult to pin down for new converts and people with inconsistent practices, such as those who backslide into behavior considered sinful under the faith they profess, Loewentheil said. Still, she added, it is an important avenue of inquiry.

“It’s time to start talking about evaluating religious sincerity and stop pretending the courts aren’t already doing it in some cases,” she said. “The conversation should be out in the open so we can be consistent about sincerity in religious exemption cases and not leave it to be inconsistently invoked, especially against unpopular claimants.”