What if Courts Considered Sincerity of “Religious Freedom” Litigants?

If I didn’t know better I would think that an establishment called The Hitching Post was more likely to be an old-time saloon than the newest front in the religious exemption wars. But that just goes to show I don’t appreciate a good pun when I see one, because The Hitching Post is, in fact, the name of a for-profit wedding chapel in Coeur d’Alene, Idaho, that has found itself in the midst of the heated debate over religious exemptions and same-sex marriage.

Or it might be more accurate to say it’s been shoved into the middle of that debate by the Alliance Defending Freedom, the conservative impact litigation organization, which filed suit on behalf of the Knapps (owners of the Hitching Post) soon after the Ninth Circuit overturned Idaho’s marriage ban, even though no enforcement action against the Knapps had been taken (or even threatened).

Much has already been written about the Hitching Post’s lawsuit, and in particular the bizarre white-washing—or maybe Christian-washing—that is evident when one compares screen grabs of the company’s website only a few weeks ago with its current incarnation. It’s obvious why this troubles us on a practical, human level—it suggests that the apparently newfound commitment to officiating only cross-sex Christian marriages is really just a convenient mask for homophobia, and that the Knapps only discovered their newfound devotion when gay marriage became the law of their land.

But there’s another reason it should trouble us—at least those of us with an interest in how the law deals with these questions—regardless of whether or not the Hitching Post gets its exemption or not. And that’s because the doctrine as it currently exists doesn’t have a good way of taking account of these kinds of facts. There was a similar pattern in Hobby Lobby, where it became apparent that (1) Hobby Lobby had covered contraception in its health plan until the ACA was passed requiring it to do so, which was the first point at which anyone apparently thought to check on whether they covered it, and (2) even after the lawsuit it continues to invest money in its 401k plans in the companies that manufacture the types of contraception to which it religiously objects.

None of this made it into the opinion though, because as current doctrine stands, courts are loath to consider the “sincerity” of a plaintiff’s religious beliefs. Whether or not we should question a plaintiff’s sincerity qua sincerity is a question I’ll leave for another time But I think these kinds of cases get at a different but related issue—that maybe when we talk about sincerity we’re not talking so much about your belief at a given moment, but about whether you’re acting the way we think someone with your beliefs should act.

In other words, are you acting in a way that is consistent with your beliefs as you yourself have expressed them? Courts may be unable to plumb the depths of a man’s soul, but they can certainly compare his (or her) past behavior to his (or her) current statements, and see if there is any contradiction between them. In other legal contexts courts have to compare actions to statements and interpret intentions as a routine matter.

I’m not necessarily saying that’s the approach the doctrine should take—this is a question I’m currently thinking and starting to write about in my own academic work, and I don’t have a clear answer yet. But I think that sense of discord—between what a plaintiff says he or she believes and what his or her actions suggest—gets at what many people find so infuriating about this kind of contrast. And sometimes that indignation is a good indication that the law is missing an important part of the story.

29 Comments

  • reedjim51@gmail.com' Jim Reed says:

    You could look at this as a culture war, and the question is how dedicated are you to destroying the other side, and when did you enlist? Beyond that, all things are fair in war.

  • zinealine@gmail.com' cranefly says:

    The question is whether we can agree that no one should have to follow a law that they sincerely disagree with. In other words, whether we want a government or not.

    Because we can’t constitutionally privilege the sincere moral objections of certain classes of people (sexist, anti-gay Christians) over others.

  • imjessietr@yahoo.com' Kelly says:

    It is my opinion that doctrines used to discriminate against others be assessed for hypocrisy and falsehoods and such. The government can’t tell you what to believe, but surely “fraud” and “libel” and “slander” and “harassment” are already covered, right?

  • pdm6288@aol.com' cynic728 says:

    Perhaps with the ACA requirements demanding coverage for abortifacients, people’s attention was drawn to the issue now. They may not have recognized that their 401(k) was invested in companies manufacturing contraception products or thought to check out that possibility prior to this time. Since there are always liberal secularists willing to Google ad nauseam to find that one “ah ha” or “gotcha” when it comes to Christians, especially Catholics and Evangelicals, we can be sure that those with closely held beliefs and in all good conscience will be left having to defend themselves on some miniscule shred of evidence that disputes their claims. When the ministers started offering marriage ceremonies at the Hitching Post, was the conversation about same sex marriage taking place in our government circles? They probably never even thought that one day they would be “forced” to perform same sex marriages and so the time to think about their options before they began was lost to them as it never crossed their minds until our government “in its wisdom” said otherwise. Please also consider making the difference between contraception products and abortifacient products clear in future posts on this subject.

  • photoshockpenn@gmail.com' NelsonRobison says:

    The idea of Hobby Lobby was to be tied only to an exemption to contraceptives and their availability to employees of “Christian” corporations. What has transpired since this decision has proven Justice Ginsburg correct. The floodgates have opened to hundreds of cases based solely on the ideal of “corporate personhood” and the idea that corporations can have religious beliefs and making the corporations exempt from the laws of the land with regards to exemptions to discrimination laws based solely on the corporations rights to practice discrimination.

    If the courts are going to consider corporations people, if the courts are going to make decisions based on religious exemptions, then they must take into account the sincerity of religious beliefs. It cannot be that corporations become exempt from the scrutiny of their religious beliefs when they are going to claim these same beliefs to discriminate against LGBTQ and minorities who are living in this nation.

    Should the courts now exempt the corporations who are claiming “Christian” corporations from scrutiny, that would then mean that these same corporations are claiming special privileges for themselves that other corporations don’t have, which would be wrong in so many ways. The least of which, that corporations are not corporeal people and don’t deserve the same rights as people.

  • junesxing@yahoo.com' Jeffrey Samuels says:

    interesting thought.What if a gay person sues the evangelicals for libel or slander, asking them to show proof that their sexual orientation is harmful outside of Christian religious dogma. Is a Christian’s religious law admissible as law in court?

  • frjesusgaylord@yahoo.com' FrJesusGaylord says:

    Yeah, Christians, especially Catholics and Evangelicals, should never have to bear any responsibility whatsoever for their actions. After all, their sins are forgiven, so full steam ahead!

  • robert.m.jeffers@lonestar.edu' Rmj says:

    Do Christians have religious law?

    Besides, in a slander suit, you have to prove damages arising from the slander. Perhaps at one point homosexuality could be considered “slander per se” (or libel; the terms are really interchangeable now); but surely no longer.

    So to say someone is gay, or even to say gay people are going to hell; is that slander? Does it cause you to lose money, to lose contracts, business opportunities, etc? Can you show actual damages for it?

    Which is why so few people file slander/libel suits; nothing to do with the 1st Amendment, everything to do with old-fashioned tort law. And is expressing a religious belief, however repulsive (my own beliefs teach me gays and lesbians are people, not their sexual preferences, so I don’t agree with those who think homosexuality is a sin), a slander?

    I don’t think any court would accept that legal argument, with or without the Hobby Lobby ruling.

  • kithkal@ubernet.net' Franklin says:

    So the High Priestess of the government established American Civic Religion of Socialism hit the nail on the head, again. You are SO right Kara. Sincerity is important. In fact in a SCOTUS RFRA case a few years ago a man claiming to hold sincere beliefs in an African tribal religion, that would allow him to import leopard skins, was found to actually be a Catholic, so his RFRA claims died.

    So maybe I can help you figure out this religious conundrum you obviously don’t understand. It starts when the government REQUIRES me or others to act, often in ways we were already acting.

    What surprises me, repeatedly, is how you Feminists, who believe “No” means no and that it is rape otherwise, can’t understand that when the government tells Christians, like me, that we will be forced to do something under threat of fine, imprisonment or loss of income that we MAY have done voluntarily for decades, it immediately becomes sinful to comply. Of course you understand this because, it is just like sex. Voluntary sex can be great but the SECOND it is forced, it is evil.

    When the government tells me I MUST marry a Gay couple or pay a tax in the name of charity, or be drafted to go to war, then my religion of liberty doctrine kicks in to high gear. Force me and I will rebel. I MUST rebel. After all…Rebellion to tyranny is obedience to God. Good must be voluntary or the act becomes Satanic and I must refuse, because of my faith. But you Socialists want to convert people to your religion by FORCE, when government benefit bribes don’t work then you use the government as your weapon. Just like if sex is forced then it isn’t sex. It is RAPE. The government is raping and pillaging us by forcing us to submit…to ANYTHING.

    It is a maximum of the Common Law that: Quod alias bonum et justum est, si per vim vel fraudem petatur, malum et injustum efficitur. What is otherwise good and just, if sought by force or fraud, becomes bad and unjust. 3 Co. 78. So when Hobby Lobby had been paying for those contraceptives but were now told they were required to pay or face huge fines, it changed from voluntary sex to rape and Hobby Lobby fought back and threw the rapist out.

    I will happily give to charity until the government collects a tax to pay for what WAS charity. I would marry a Gay couple UNTIL the government said I would be punished. I would join the U.S. military if I supported the defensive war but if the government were to attempt to draft me, even for a war I supported, I would rather rot in prison than accept such voluntary slavery. I will not be raped, to any degree, by the government.

    I reserve the right to refuse service to anyone and yet I refuse no one. But tell me I MUST SERVE and I would rather die than serve.

  • asmorrell@gmail.com' Andre M says:

    This @sshole again

  • blestou@gmail.com' blestou says:

    What a hack piece. At issue in Hobby Lobby was abortiofacients, not contraception per se. The law changed overnight on the Hitching Post, so they changed their corporate language to protect themselves (and was “reported” by a gay propaganda website). Nothing inconsistent. Nothing non “sincere”.

    Everything can be made to look bad when you intentionally misrepresent and obscure pertinent facts.

  • reedjim51@gmail.com' Jim Reed says:

    We thought the hitching post was just trying to stir up trouble. Maybe HL too.

  • junesxing@yahoo.com' Jeffrey Samuels says:

    I don’t know. Saying or writing that a particular individual is immoral can bring a lawsuit and has in the past. What is the difference for someone calling a businessman immoral in print (libel) and suing for redress and a gay person doing the same. In both cases isn’t the burden of proof on the accuser? and if that is the case, can Christian doctrine be used as a justification?

  • “Please also consider making the difference between contraception products and abortifacient products clear in future posts on this subject.”
    …………..
    Why don’t you make it clear for us? Inquiring minds want to know.

  • truktyre@hotmail.com' Craptacular says:

    “Everything can be made to look bad when you intentionally misrepresent and obscure pertinent facts.” – blestou

    Like homosexuality?

  • fiona64@livejournal.com' fiona64 says:

    Perhaps with the ACA requirements demanding coverage for abortifacients

    Citation needed.

  • fiona64@livejournal.com' fiona64 says:

    At issue in Hobby Lobby was abortiofacients, not contraception per se

    Nope. First of all, the claims in Hobby Lobby were scientifically, verifiably *false.* The owners claimed to “believe” that the contraceptives were abortifacient, and should have been laughed out of court because they were wrong. However, the very next day after the ruling, it was expanded to cover *all* contraception. http://www.thenation.com/blog/180509/supreme-court-has-already-expanded-its-narrow-hobby-lobby-ruling

  • blestou@gmail.com' blestou says:

    Those are popular opinions, but not facts as you suppose. Hobby Lobby did not change their coverage. You misread the propaganda article you linked. The current medical consensus is that the few drugs in question do not function as the Greens fear, but it has never been verified “scientifically” and thus the concern in the face of uncertainty. The criticism stands: this article was terrible.

  • fiona64@livejournal.com' fiona64 says:

    Um, sweetie? I suggest that you re-read the article to which I linked. The ruling was expanded to cover ALL contraception. ALL.

    And BCPs and IUDs do not cause abortion, as the HL people claimed. Yes, it has been verified scientifically. You’re welcome.

  • blestou@gmail.com' blestou says:

    The ruling perhaps, not the company itself. Thank you for conceding the point.

    I’d be happy to read any double-blind clinical study proving the other claims that you’d care to link.

  • fiona64@livejournal.com' fiona64 says:

    WTF? Seriously? You think that someone, somewhere, could propose a double-blind study of giving pregnant women various medications to determine whether or not they would cause abortion would get past an institutional review board *anywhere*?

    How about if, instead, you look at an article that explains exactly how these things do and do not work? http://www.thesurvivaldoctor.com/2013/02/23/abortion-and-the-pill/

  • blestou@gmail.com' blestou says:

    “we have minimal data on how often these therapies allow for fertilization but not implantation”

    “A study to evaluate birth control pills and other hormonal forms of contraception is anticipated.”

    “Pro-life groups, however, argue that pregnancy begins with fertilization. From that standpoint, preventing implantation of a fertilized egg is abortive.”

    “The contraception decision is ultimately a personal one. It comes down to your attitudes concerning the definition of pregnancy, your conclusions about the facts, and your own moral and ethical beliefs.”

    You keep linking to articles that prove my point. It is appreciated, but it’s odd since it seems like you are arguing with my position.

  • fiona64@livejournal.com' fiona64 says:

    Just because an anti-choice group makes an “argument,” does not mean it is scientifically valid.

  • blestou@gmail.com' blestou says:

    “How about if, instead, you look at an article that explains exactly how these things do and do not work? http://www.thesurvivaldoctor.c…”

  • fiona64@livejournal.com' fiona64 says:

    I don’t think you understood the point the doctor was making: anti-choice groups *argue* that the pill causes abortion. The doctor was NOT agreeing with them; he was saying that they make the argument.

    Jesus wept.

  • blestou@gmail.com' blestou says:

    Again, your doctor’s conclusion:
    “The contraception decision is ultimately a personal one. It comes down to your attitudes concerning the definition of pregnancy, your conclusions about the facts, and your own moral and ethical beliefs.”

  • fiona64@livejournal.com' fiona64 says:

    Yes, sweetie. Use of contraception does come down to those things.

    None of it changes the scientific *fact* that BCPs do NOT cause abortion.

    Jesus wept. Again.

  • blestou@gmail.com' blestou says:

    Random Internet commenters can call something a “fact” (in spite of a referenced paucity of evidence), but that doesn’t make it so. Nor does it constrain the courts, nor does it change our First Amendment.

    Everything you’ve posted in this thread has been incorrect per your own links. If you just like angrily slandering religious people, then whatever, but it doesn’t change the facts.

    I’m done. You may slander away.

  • fiona64@livejournal.com' fiona64 says:

    Um, sweetie? Scientists know that BCPs don’t cause abortions — no matter what some subset of ignorant religious people may believe.

    You need to learn a couple of things: one is the difference between libel and slander, and another is why neither applies here.

    Rock on with your ignorant self.

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