Originally uploaded at SSRN.

Abstract

Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility of a claimant’s religious beliefs, it may adjudicate whether the claimant holds those beliefs sincerely.

Unfortunately, Burwell v. Hobby Lobby introduced confusion. The majority opinion appears to conflate the requirement that a claimant be sincere with the requirement that the claimant show that the government has “substantially burdened” the claimant’s religious exercise. The dissenting opinion, by contrast, suggests that courts simply may not adjudicate religious sincerity. The first of these mistakes muddies the water about the relationship between sincerity and the other elements of a religious accommodation claim; the second illustrates the ongoing confusion for many jurists and scholars about the constitutional concerns surrounding an inquiry into a claimant’s religious sincerity.

This Article attempts to defend and clarify the sincerity requirement. Against the scholarly consensus, it argues that courts can and should adjudicate an accommodation claimant’s religious sincerity. Insincere claims impose costs on the government, third parties, and religious liberty itself. Courts can adjudicate sincerity, and reduce these costs, without violating the Establishment Clause. The Constitution’s “no-orthodoxy principle” should be understood to prohibit a court from inferring that a claimant is insincere merely because the claimant’s religious belief is implausible. Otherwise, a court should evaluate a claimant’s sincerity by applying the ordinary rules of evidence. Moreover, when the claimant’s sincerity is not in issue, a court should resist allowing its suspicion to affect the rest of its legal analysis. Finally, the Article clarifies the distinctions between whether a claimant is sincere, whether the claim is based on religious exercise, and whether the government has imposed a substantial burden on that exercise.

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