Sincerity and Burden

When courts apply heightened scrutiny to a free exercise claim (whether under a constitutional or statutory standard), they are asked to evaluate the sincerity of the religious objection and the burden imposed on the objector.  These inquiries turn out to be more complicated than they appear at first glance.

There are several ways to conceptualize “burden”: (1) government is forcing me to do something that my religion forbids; (2) government is making it more expensive or less convenient to do something that my religion requires; or (3) government is prohibiting something that my religion requires.  Are these definitions overinclusive? Underinclusive? What do we do with non-mandatory religious conduct?

Ballard holds that courts may only inquire into whether a person sincerely holds religious beliefs, and not whether those beliefs are true or false. What are the reasons underlying the Court’s standard here? Notice that Justice Jackson’s dissent would go further, arguing that courts shouldn’t even be able to determine sincerity.

Lyng holds that there is no burden in the federal government building a road through a portion of a national forest which was traditionally used for religious purposes by members of Native American tribes. How do you explain the Court’s holding?

A related question is that of consistency. How should courts analyze beliefs that don’t look consistent from the outside, either because they change over time or because a single individual disagrees with the official hierarchy?

Reading Assignment:

  • United States v. Ballard, 322 U.S. 78 (1944)

  • Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)

Optional Reading: