# The Notorious Indiana Bill Just Signed Into Law--Other States Have It?

**URL:** <https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109>\
**Category:** Factual Questions\
**Created:** [March 27, 2015, 1:24pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109 "2015-03-27T13:24:09Z")\
**Posts on this page:** 20\
**Page:** 4

<div class="post-metadata">

**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\
**Post date:** [March 30, 2015, 11:14pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/61 "2015-03-30T23:14:22Z")

</div>

> [@Really\_Not\_All\_That\_Bright](#):
>
> So where are the Indiana courts are going to find such a requirement? 😕

Because the statute protects religious practice. Even without the oodles of caselaw from Yoder etc., it’s still going to necessary for a plaintiff (or a defendant seeking an RFRA shield to a private cause of action) to plead that such-and-so is his religious practice, a claim for which sincerity is a virtual sine qua non. In other words, if the RFRA user cannot prove that his practice is religiously based, the RFRA offers no comfort – and so by necessity he must claim and prove sincerity.

> [@](#):
>
> I’ll consider it, pending your answer to the previous question. You appear to be betting that Indiana courts are lazy - but maybe I missed something.

Let me know.

---

<div class="post-metadata">

**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\
**Post date:** [March 30, 2015, 11:23pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/62 "2015-03-30T23:23:40Z")

</div>

Why is sincerity a _sine qua non_ of religious practice? Do you think all or even most of the people at Mass sincerely believe they are receiving the actual body and blood of Christ?

---

<div class="post-metadata">

**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\
**Post date:** [March 31, 2015, 6:49am UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/63 "2015-03-31T06:49:40Z")

</div>

> [@Really\_Not\_All\_That\_Bright](#):
>
> Why is sincerity a _sine qua non_ of religious practice? Do you think all or even most of the people at Mass sincerely believe they are receiving the actual body and blood of Christ?

I do, but that’s not likely to be relevant. I certainly am convinced that most of the people at Mass sincerely believe that receiving communion is a requirement of their religion, and it’s that belief that is sincere and relevant to the issue of a state RFRA protecting the practice.

I am having trouble imagining a state law that would burden those who believed in the Real Presence but did not burden the reception of communion itself.

---

<div class="post-metadata">

**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\
**Post date:** [March 31, 2015, 10:54am UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/64 "2015-03-31T10:54:07Z")

</div>

Are there other types of laws that have a test of whether a religious belief is sincere?

---

<div class="post-metadata">

**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\
**Post date:** [March 31, 2015, 11:16am UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/65 "2015-03-31T11:16:38Z")

</div>

> [@Richard\_Parker](#):
>
> To summarize, the Indiana law became a firestorm unlike other RFRA laws because:
> 
> (1) It expressly protects corporate practices, unlike most other RFRA laws which protect individuals and churches;
> 
> (2) It was pushed using arguments about the ability to discriminate against gay people, unlike other RFRAs;
> 
> (3) Everyone understands now, post-Hobby Lobby and post-Elane Photography that RFRA laws can be a potential threat to anti-discrimination efforts.

(4) They were asked specifically to include language to say that discrimination against gay people would not be infringed, and refused to do so.

(5) Indiana has no state law against discrimination of gay people, unlike some of the other states, and there’s an issue of state law preempting the local laws.

(6) It explicitly allows it to be brought up in private suits and not just against the government.

---

<div class="post-metadata">

**Author:** ![PatrickLondon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/patricklondon/32/4422_2.png) [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)\
**Post date:** [March 31, 2015, 11:16am UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/66 "2015-03-31T11:16:41Z")

</div>

Isn’t the prior question whether the practice of a religion that forbids this or that form of behavour to its adherents thereby actually forbids the provision of services to or doing business with non-adherents who engage in that form of behaviour? How can the latter impinge on the former? There is a case going through the courts in Northern Ireland on this point at the moment (a baker who refused to provide a cake with a slogan supporting equal marriage).

---

<div class="post-metadata">

**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\
**Post date:** [March 31, 2015, 1:26pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/67 "2015-03-31T13:26:45Z")

</div>

> [@Bricker](#):
>
> I am having trouble imagining a state law that would burden those who believed in the Real Presence but did not burden the reception of communion itself.

It was just an example. Let me see if I can break down your position into its more basic components. Are you saying that a belief which is not sincere is by definition not “religious”?

---

<div class="post-metadata">

**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\
**Post date:** [March 31, 2015, 1:49pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/68 "2015-03-31T13:49:32Z")

</div>

> [@Really\_Not\_All\_That\_Bright](#):
>
> It was just an example. Let me see if I can break down your position into its more basic components. Are you saying that a belief which is not sincere is by definition not “religious”?

I’m not **Bricker** , but for me, a belief that is not sincere is not a belief. The point of the sincerity test is (I assume) to prevent people from suddenly claiming they believe something for which there is no evidence of any actual belief.

---

<div class="post-metadata">

**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\
**Post date:** [March 31, 2015, 1:54pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/69 "2015-03-31T13:54:54Z")

</div>

I know what it’s for, but that definition is rather limiting. I sincerely _believe_ I am a human being. If I was confronted with incontrovertible proof that I am not, I would have a very difficult time changing that belief - probably as difficult a time as someone who was given reason to doubt his religious convictions.

Conversely, I believe in anthropogenic global warming because there is a scientific consensus and I’m not about to do the research myself. If, somehow, the scientific consensus shifted, I’d shrug my shoulders and get on with life. Nonetheless, the _belief_ is there.

---

<div class="post-metadata">

**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\
**Post date:** [March 31, 2015, 2:17pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/70 "2015-03-31T14:17:30Z")

</div>

> [@John\_Mace](#):
>
> I’m not **Bricker** , but for me, a belief that is not sincere is not a belief.

But that wasn’t the question, I believe.

---

<div class="post-metadata">

**Author:** ![wevets](https://avatars.discourse-cdn.com/v4/letter/w/e9a140/32.png) [@wevets](https://boards.straightdope.com/u/wevets)\
**Post date:** [March 31, 2015, 2:23pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/71 "2015-03-31T14:23:39Z")

</div>

IANAL, but I was curious, so I started looking to try to find out if courts often test the sincerity of religious belief. Unfortunately, the First Amendment Center contradicts itself in this article:

> [@](#):
>
> Courts rarely pass judgment on whether individuals’ religious beliefs are sincere, but that’s exactly what the Alaska Court of Appeals did in Lineker v. State of Alaska Jan. 20 when it denied the religious-freedom claims of a couple who douse themselves in extracted marijuana liquid as part of a purported religious ritual.
> 
> …
> 
> To determine whether to accommodate religious claims for exemption from government laws or policies that apply generally to everyone (such as drug laws), courts have frequently applied a test that asks:  
> Whether the religious belief is sincere.  
> Whether the government’s policy substantially burdens the individual’s ability to practice his religion.  
> Whether the government’s policy advances a “compelling state interest.”  
> Whether that interest can be satisfied in a way least restrictive to the religious claim.
> 
> …
> 
> However, perhaps fearing that the state would be unable to meet its burden or perhaps smelling something foul in the marijuana-juice-and-olive-oil defense, the 2006 appellate panel took the additional, rare step of ordering the trial judge to assess whether sincere religious convictions were actually involved. The trial court “should conduct an evidentiary hearing,” the panel said, “at which the Linekers should be given an opportunity to establish that their conduct was based on a sincere religious belief.”

[http://www.firstamendmentcenter.org/how-alaska-court-dealt-with-sincerity-of-religious-belief](http://www.firstamendmentcenter.org/how-alaska-court-dealt-with-sincerity-of-religious-belief)  
Well, crap. That doesn’t help. :dubious:  
Are legal tests of sincerity of religious belief rare or not?  
The ACLU does provide this on sincerity of religious belief:

> [@](#):
>
> What qualifies as a “sincerely held belief”? In addition to proving that something is a religion, you must also convince prison administrators or a court that your beliefs are sincerely held. In other words, you must really believe it. In deciding whether a belief is sincere, courts sometimes look to how long a person has believed something and how consistently he or she has followed those beliefs. See Sourbeer v. Robinson, 791 F.2d 1094, 1102 (3d Cir. 1986) (upholding a finding of insincerity where prisoner only went to religious service 5 times in one year and did not designate a spiritual adviser to visit him); Vaughn v. Garrison, 534 F. Supp. 90, 92 (E.D.N.C. 1981) (upholding a prison’s requirement that an inmate request a pork free diet before qualifying him as a member of the Islamic faith and allowing him to order a Muslim prayer rug). Just because you have not believed something your entire life, or because you have violated your beliefs in the past, does not automatically mean that a court will find that you are insincere. See Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988) (finding “the fact that a person does not adhere steadfastly to every tenet of his faith does not mark him as insincere”); Weir v. Nix, 890 F. Supp. 769, 775-76 (S.D. Iowa 1995) (finding periodic receipt of literature contrary to prisoner’s faith does not necessarily require a finding of insincerity). However, if you recently converted or if you have repeatedly acted in a manner inconsistent with your beliefs, you will probably have a hard time convincing a court that you are sincere.

> **[know\_your\_rights\_--\_\_religion\_november\_2012\_0.pdf](https://www.aclu.org/files/assets/know_your_rights_--__religion_november_2012_0.pdf)**
>
> 32.27 KB

But that seems heavily geared towards the context of providing accommodations to prisoners, and might not be applicable to RFRAs.  
There’s this:

> [@](#):
>
> In her powerful dissent, Justice Ginsburg proclaimed an “overriding interest” in “keeping the courts ‘out of the business of evaluating’ . . . the sincerity with which an asserted religious belief is held.”[5] Under that view, a court “must accept as true” any assertion that one’s “beliefs are sincere and of a religious nature” when evaluating a RFRA claim.[6]

> **[Questioning Sincerity | Stanford Law Review](https://www.stanfordlawreview.org/online/questioning-sincerity-the-role-of-the-courts-after-hobby-lobby/)**
>
> Introduction In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court extended the protections of the Religious Freedom Restoration Act (RFRA) to Ho

But that’s from a dissent, not from the prevailing decision of the court.  
…so legal Dopers, help a non-lawyer out - what do you think of sincerity tests in the legal system?

---

<div class="post-metadata">

**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\
**Post date:** [March 31, 2015, 2:25pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/72 "2015-03-31T14:25:57Z")

</div>

So what? I only have to \*claim \*sincerity to have it be the default assumption. I only have to say “God hates fags” instead of “I hate fags” and it’s up to you to prove I don’t believe it.

The bill’s text defines its usage: \* “As used in this chapter, ‘exercise of religion’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” \*

“Whether or not” includes “not”, please note.

---

<div class="post-metadata">

**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\
**Post date:** [March 31, 2015, 4:25pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/73 "2015-03-31T16:25:26Z")

</div>

> [@wevets](#):
>
> IANAL, but I was curious, so I started looking to try to find out if courts often test the sincerity of religious belief.
> 
> \<snip\>
> 
> …so legal Dopers, help a non-lawyer out - what do you think of sincerity tests in the legal system?

In theory, sincerity is a necessary element of any free exercise claim. That is, one brought directly under the First Amendment or federal RFRA. In practice, sincerity is nearly always stipulated (certainly by the time you get to the appellate level.) The only exceptions I’m aware of are prisoner litigation.

---

<div class="post-metadata">

**Author:** ![gnoitall](https://avatars.discourse-cdn.com/v4/letter/g/bb73d2/32.png) [@gnoitall](https://boards.straightdope.com/u/gnoitall)\
**Post date:** [March 31, 2015, 4:39pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/74 "2015-03-31T16:39:57Z")

</div>

> [@Really\_Not\_All\_That\_Bright](#):
>
> In theory, sincerity is a necessary element of any free exercise claim. That is, one brought directly under the First Amendment or federal RFRA. In practice, sincerity is nearly always stipulated (certainly by the time you get to the appellate level.) The only exceptions I’m aware of are prisoner litigation.

I’m no lawyer, but reading the text of the [majority opinion](https://www.law.cornell.edu/supct/html/04-1084.ZO.html) in _[Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal](http://en.wikipedia.org/wiki/Gonzales_v._O_Centro_Espirita_Beneficente_Uniao_do_Vegetal)_ (which confirmed the validity of the federal RFRA and its applicability against Federal action), I see the words “sincere” seven times, including the phrase “sincere exercise of religion” four times. I find this interesting:  
[Quote=Chief Justice Roberts]  
Before the District Court, the Government conceded the [respondent’s] prima facie case under RFRA. See 282 F. Supp. 2d, at 1252 (application of the Controlled Substances Act would (1) substantially burden (2) **a sincere (3) religious exercise**).  
[/quote]  
(Emphasis added.)

Sincerity of religious intent seems to be a factor in the consideration.

---

<div class="post-metadata">

**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\
**Post date:** [March 31, 2015, 4:59pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/75 "2015-03-31T16:59:58Z")

</div>

I think you may be unclear on the significance of the term “stipulated”. It means the parties agree. The case you cite makes my point rather neatly.

[QUOTE=Roberts, CJ.]  
A religious sect with origins in the Amazon Rainforest receives communion by drinking a sacramental tea, brewed from plants unique to the region, that contains a hallucinogen regulated under the Controlled Substances Act by the Federal Government. \*\*The Government concedes \*\*that this practice is a sincere exercise of religion…  
[/QUOTE]

In other words, the _Gonzales_ court didn’t have to decide whether the belief was sincere because that wasn’t in dispute.

---

<div class="post-metadata">

**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\
**Post date:** [March 31, 2015, 5:16pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/76 "2015-03-31T17:16:19Z")

</div>

> [@Really\_Not\_All\_That\_Bright](#):
>
> In theory, sincerity is a necessary element of any free exercise claim. That is, one brought directly under the First Amendment or federal RFRA. In practice, sincerity is nearly always stipulated (certainly by the time you get to the appellate level.) The only exceptions I’m aware of are prisoner litigation.

By the time you get to the appellate level, the sincerity of the claimant was a fact found by the trial court.

The trial court, it’s true, often sees the parties stipulate the sincerity of the claimant – but that’s because the claimant is often sincere. We hear hypotheticals like, “Well, what if I declare that my religion requires women be bare-breasted in the presence of men, huh. smart guy? Then what?” but those kinds of claims don’t seem to be making it into court.

I’m not aware of any RFRA claim where the sincerity of belief was stipulated at trial and I felt that the party so asserting was actually insincere.

---

<div class="post-metadata">

**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\
**Post date:** [March 31, 2015, 5:20pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/77 "2015-03-31T17:20:05Z")

</div>

How many RFRA trials have you observed?

---

<div class="post-metadata">

**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\
**Post date:** [March 31, 2015, 6:26pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/78 "2015-03-31T18:26:49Z")

</div>

> [@John\_Mace](#):
>
> Can you quote the part of the law that you think allows you to do that?

Can you quote the law that prohibits it?

My understanding is that discrimination is allowed unless it’s a protected class, such as age and race. Gender isn’t a protected class under the US constitution, so you can discriminate against women or men, people who smile too much, or people on bicycles. Does it mean you can discriminate against menstruating women? (Leaving aside how you’d tell, without violating their privacy.)

Please fight my ignorance.

---

<div class="post-metadata">

**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\
**Post date:** [March 31, 2015, 6:36pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/79 "2015-03-31T18:36:00Z")

</div>

For what it’s worth, [politifact](http://www.politifact.com/truth-o-meter/statements/2015/mar/29/mike-pence/did-barack-obama-vote-religious-freedom-restoratio/) did a piece on this.

---

<div class="post-metadata">

**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\
**Post date:** [March 31, 2015, 6:58pm UTC](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109/80 "2015-03-31T18:58:19Z")

</div>

> [@Learjeff](#):
>
> Can you quote the law that prohibits it?
> 
> My understanding is that discrimination is allowed unless it’s a protected class, such as age and race. Gender isn’t a protected class under the US constitution, so you can discriminate against women or men, people who smile too much, or people on bicycles. Does it mean you can discriminate against menstruating women? (Leaving aside how you’d tell, without violating their privacy.)
> 
> Please fight my ignorance.

First, it’s more accurate to say “suspect classification” than “protected class”. The latter term lends itself to confusion. Second, constitutional protections (other than race) only protect you against the government.\* Private discrimination must be prohibited by statute.

When religious beliefs are in conflict with nondiscrimination statutes, the RFRA will effectively nullify the nondiscrimination statute if the government had a compelling interest in outlawing the type of discrimination at issue, and the statute is the least restrictive means of doing so.

\*At least at the federal level. Anyway, for constitutional purpose age classifications are _not_ suspect, but gender classifications are.

[Previous page](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109.md?page=3)

[Next page](https://boards.straightdope.com/t/the-notorious-indiana-bill-just-signed-into-law-other-states-have-it/716109.md?page=5)