If the self defense issue doesn’t satisfy you then perhaps the case of the conscientious objector would? For many years such claims had to be rooted in a religious belief though the SCOTUS did allow for sincere non-religious pacifist belief.
The claimant arguably has a very strong motive for avoiding military service even if that motive is not grounded in sincere pacifist beliefs.
Yet, draft boards and courts examined a C.O. claimant’s beliefs for many years to attempt to ascertain the sincerity of belief. They talked with the claimant, examined his actions in light of his professed beliefs, reviewed statements from religious advisers, and came to a decision.
And that decision was sometimes finely parsed. They could induct one claimant but limit him to a support role away from the front. The next they might grant complete exemption to induction. And perhaps another they might reject the claim outright by disbelieving the sincerity of the claimant.
You misunderstand me. As a matter of law, what evidence would be sufficient to support a jury finding that a public corporation held X belief sincerely? A resolution adopted by the board? A shareholders’ vote? Is unanimity required? A majority? A majority of the quorum prescribed by the laws of the incorporating state?
Same point been making all along, that the more subjective the evidence, the less reliable the application of law. And therefore. the less equal. Hence, the less just.
You must be aware of this argument, you act as though you have quite thoroughly rebutted it. Yes, of course, the “finder of fact” is empowered by the law to determine the sincerity. But simply conferring a superhuman ability on a judge or jury does not make it so, it simply makes it legal.
Judges and juries are selected, elected, appointed or otherwise installed. They are not ordained.
And what if there is no objective evidence of sincerity, or lack thereof? Tie goes to the runner? is there a default position, some standard that the subject must meet?
And yes, it is somewhat of a reminiscence, as I have personal acquaintance with people who applied for CO status, a couple here in the People’s Republic of Minnesota, and another in Texas. Would it surprise you to hear that the standards for sincerity were variable?
Besides which, in was an answer to friend Iggy, who seemed to be implying that this was done with CO status, and done well. I personally find that claim questionable. Naturally, as always, I appreciate your criticism of my rhetorical efforts.
A. Why did you think repeating it IN CAPITAL LETTERS would clarify matters; and
B. If it isn’t drawn from any legislation or judicial ruling, why is it relevant? Has it been established by anyone that for the corporation to decide to act in uniformity, all the shareholders must be in agreement? On other matters, corporate actions are decided by shareholder majorities, no? Why is this special, and if it is, is anyone advocating that shareholders be polled to establish that uniformity exists?
It’s an interesting point, but in this particular case the analogy is not quite apt: Hobby Lobby is not deciding on actions that primarily affect only itself. As a corporation based and doing business in the U.S., it is subject to numerous laws and obligations with respect to the well-being of its employees. Hobby Lobby is acting (and now has SCOTUS support, unfortunately) on an issue that impacts them, far more than the Hobby Lobby shareholders.
Well, more in any tangible way. I’m prepared to recognize that the Hobby Lobby shareholders sincerely believe they’ll be subject to fiery torment on the next plane of existence if they didn’t intervene in their employees’ health insurance in this manner.
Got a Supreme Court cite saying that a fact-finder may permissibly consider the piety of the RFRA or free exercise claimant? I know some lower courts have referenced consistency and breadth of practice in finding non-Christian beliefs insincere, but I’m not persuaded that it is good law.
I appreciate the post, in that it cogently describes the issue without Bricker’s characteristic Socratic cockhole method.
I get it. I really do. They have to pay a penalty if not providing insurance. But I still contend, that the initial argument that they’re being forced to do something against their religion makes no sense, since they pay wages, which have even greater opportunity for sinning than health care.
But, if three people tell you you’re drunk, you should lie down, so I’ll drop it.
Actually, I simply meant to imply that draft boards and/or judges have assessed the sincerity of beliefs for a long time now. This is not some new requirement that has arisen due to the Hobby Lobby case.
I think you’re right too. But the legal test is whether or not their religious belief is sincerely held, not whether it is not whether their beliefs are consistent with their own actions, reasonable, rational, not hypocritical, not politically motivated, or sane. So a company like Hobby Lobby, which gives millions of investment dollars to contraceptive makers, directly gives people who buy contraception money to do so, does a great deal of business with a country that has mandatory abortions, and didn’t have a problem covering some of the very same drugs before Obamacare was passed gets to claim, and win, that their religious beliefs are sincere.
We can still Pit the fuck out of Hobby Lobby for that (which Bricker seems having a problem grasping), but as far as the legal standard goes, they’re in the clear.
Which emphasizes, once again, one of the problems with expanding RFRA like the Court did.
It will get even more interesting with the Little Sisters/Wheaton College cases and the inevitable next generation of cases.
I don’t think the Supreme Court has ever bothered to address the unsurprising principle that a finding of fact at trial is generally binding on appeal, even in cases of religious belief.
But certainly the circuits have.
Sourbeer v. Robinson, 791 F. 2d 1094, 1102 (3rd Cir 1986):
Why is that not good law – it certainly is in the Third Circuit.
In the Fifth Circuit, Hopkins v. Schlesinger, 515 F.2d 1224, 1228 (1975), concerning an Army lieutenant who discovered his religious piety after the Army turned him down for medical school:
Did you read what the courts said? It supports my position more than yours.
The Third Circuit said: “Though we may agree that courts should not put undue weight on past or unrelated departures from orthodoxy, such is not the case here.”
The Fifth Circuit said: "Sometime in late 1971 or early 1972 Lt. Hopkins rebelled against Ranger training, purportedly on conscientious grounds. Yet, he sought no release from the Service. He continued on for a year or more and took no action toward gaining his release until after the Army rejected his application to attend medical school under the auspices of the military. This was not “timing”
These are exceptions that prove the rule. They both involve conduct occurring after the claim at issue, and both uphold the general standard that piety of practice prior to the claim, or in related spiritual matters, is an improper factor to consider.
And the phrase “exception that prove the rule,” is simply the old inclusio unius est exclusio alterius. In this case, it doesn’t apply: the courts are welcome to give weight to the evidence…just not “undue weight.”
And if “related spiritual matters” are improper to consider, explain “The court also took note that Sourbeer failed to designate a spiritual adviser who could visit with him in the R.H.U., as he would have been permitted.” The visits of a spiritual adviser are clearly related to his claim of belief, but the circuit court lists that approvingly as a factor that the trial court considered.
That’s technically true, but not a very good reading of the phrase here. It’s more like, I should not give undue weight to the fact that **Bricker **is Catholic in considering his opinion on whether rollercoasters are fun. The subsequent sentences make clear that the weight assigned in this case was only appropriate because it was post-claim non-exercise of the same general practice. That is a miniscule exception to the larger rule. The equivalent of my following up my rollercoaster comment by noting that I might consider your religious background if the rollercoaster were named The Abortionator, or something.
Not a related claim of belief. His claim was that while he was in RHU, he wasn’t permitted to attend worship services. But he didn’t ask for the services of a spiritual advisor while he was in RHU. That is not a “past or unrelated departure from orthodoxy.” It is a contemperaneous and highly-related practice.
Moreover, when analyzing finding for clear error, it is sufficient that the Court relied on a valid basis for finding insincerity. This isn’t even a holding that it is proper to find insincerity on the basis of a highly-related but non-identical contemperaneous practice.
The larger point is this: out of thousands upon thousands of RFRA and pre-1990 free exercise claims, there are only a few dozen that find insincerity. That stands in stark contrast to the number of cases in which non-religious mental states are held to be non-credible or insincere. And the scope of permissible evidence is indisuputably more restricted when it comes to religious beliefs. Your own cites say so, and I could produce many more that agree.
Your attempt to paint proof of religious insincerity to be the equivalent of proving lack of fear in the self-defense context is very misguided. The permissible and available evidence in the religious context is far narrower.
Huh? I thought I pretty clearly defined what I meant in the sentences that followed that paragraph. Which part was unclear to you?
And if my contention was that religious sincerity is never rejected, then you would have a point. Since that is plainly not my contention, I’m confused. Are the potential counter-arguments to sincerity narrowed or limited by the Court’s desire not to weigh in on the piety of the claimant, or not?