Religious Sincerity and the Reasons for Religious Freedom

• DOI: 10.1177/1065912919861150
• Date: 01 December 2020
• Published date: 01 December 2020
• Subject Matter: Articles

https://doi.org/10.1177/1065912919861150

Political Research Quarterly

2020, Vol. 73(4) 866 –877

© 2019 University of Utah

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DOI: 10.1177/1065912919861150

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Article

Any observer of courts—or even political discourse more

generally—over the past several years will recognize that

the matter of religious accommodation has become some-

thing of a big deal. Most prominently, the Supreme Court

has settled cases involving an employer’s refusal to pro-

vide employees with insurance coverage for contracep-

tion (Burwell v. Hobby Lobby Stores [2014]) and a

business owner’s refusal of service to a same-sex couple

(Masterpiece Cakeshop v. Colorado Civil Rights

Commission [2018]), both on grounds of religious objec-

tion. Vice President Mike Pence’s most noteworthy (or

notorious) act prior to hitching his wagon to Donald

Trump was an effort to pass religious freedom legislation

in Indiana that ignited a firestorm among many who saw

it as an effort to legalize discrimination. The academy has

taken note of the rise of religious accommodation as a

salient political issue, with a flood of articles and books

over the past few years taking on the matter (e.g., Esbeck

2017; Patten 2017a, 2017b; Sepinwall 2015; Tebbe 2017;

Vallier 2016a; Vallier and Weber 2018).

Interesting among all this attention is the relative

neglect of an absolutely fundamental part of any attempt

to adjudicate religious claims in a legal-political setting:

sincerity. Most people generally assume—and courts

have likewise insisted—that for a religious belief or com-

mitment to warrant accommodation, the claimant’s pro-

fession of belief must be sincere. Insincere religious

professions, in other words, are not protected by the Free

Exercise clause of the First Amendment of the United

States Constitution, nor by any statutory measures aimed

at protecting religious freedom. This bright-line standard

for the worthiness of religious claims is intuitive enough,

but it has been only thinly theorized by either courts or

theorists and scholars of law and religion. Some of the

existing literature focuses on countering religious fraud,

rather than adjudicating sincerity in free exercise claims

(Greenawalt 2006; Senn 1990, 110–18; also United States

v. Ballard [1944]). The literature that examines sincerity

in free exercise contexts tends to focus on judicial tests

for evaluating a claimant’s sincerity (e.g., Adams and

Barmore 2014; Chapman 2017, 70; Loewentheil and

Reiner Platt 2018). Comparatively less theoretical atten-

tion has been paid to the underlying notion of sincerity

itself. (I will say more about this distinction below.)

Courts, for their part, tend almost always to grant that

professions of belief brought to their attention are sincere

(Chapman 2017, 1214). The rare belief actually to be

rejected as insincere is typically so transparently conniv-

ing as to gather little sympathy (e.g., the couple who

claimed to be the founders and only members of the

861150PRQXXX10.1177/1065912919861150Political Research QuarterlyGolemboski

research-article2019

1Augustana University, Sioux Falls, SD, USA

Corresponding Author:

David Golemboski, Government & International Affairs, Augustana

University, 2001 S. Summit Ave., Sioux Falls, SD 57197, USA.

Email: david.golemboski@augie.edu

Religious Sincerity and the Reasons

for Religious Freedom

David Golemboski1

Abstract

Embedded in U.S. legal frameworks governing the free exercise of religion is a criterion that has received surprisingly

little theoretical attention: sincerity. Only those professions of belief that are sincere warrant legal accommodation.

Nearly all of the existing literature on sincerity focuses on judicial “tests,” or evidentiary frameworks, for judging

sincerity. This paper, in contrast, interrogates the notion of sincerity itself, developing a conception of what properly

constitutes a sincere profession of belief. That conception includes three elements: genuineness, nonopportunism,

and intelligibility. I then consider a fourth potential component of sincerity, vigilance, which concerns a believer’s

consistency in living in accordance with their belief. A number of authors have recently proposed judicial tests requiring

some sufficient degree of vigilance, but I argue that a vigilance criterion is incompatible with the fundamental values and

objectives that underwrite the commitment to religious liberty in liberal political orders.

Keywords

religion, free exercise, sincerity, religious liberty, consistency