The category of ‘‘religion’’ has presented particularly thorny legal problems for the last century. The intellectual difficulty arises from the fact that religion triggers heightened constitutional (and more recently, statutory) protections, while at the same time the specific referent of the word is vague and elastic. To fully allow the term’s full scope risks paralyzing government with unending exceptions under the free exercise clause, whereas recognizing only a few threatens not only the principle of religious liberty but also runs afoul of the establishment clause. The search for a balance initiated at least two discernible responses. First, the Supreme Court tried to define the term according to substantive elements, thereby removing some of its inherent vagueness; and second, it isolated the psychological dimensions of religiosity to be afforded special deference. ‘‘Sincerity of religious belief ’’ belongs to the second phase, during which the Court attempted to fashion a useful standard to identify religion worthy of these legal benefits, and refers to the holding of U.S. v. Ballard, 322 U.S. 78 (1944). To place that rule into jurisprudential context, however, it is necessary to know what came before. The Path to Ballard Before Ballard, the definition of religion had been notoriously both ethnocentric and substantive. In general, the successful religious claimant represented majority congregations that espoused specific tenets of faith such as a belief in the Judeo-Christian deity. In the heyday of the anti-Mormon fervor, the Supreme Court announced ever-narrower restrictions on the kinds of activities that could be ‘‘religious’’ and thereby trigger protections under the free exercise clause. Reynolds v. U.S., 98 U.S. 145 (1878), began by emphasizing the idea of one’s duty to the Supreme Being, implying that religion was necessarily theistic or including as a tenet of orthodoxy a belief in a nonmaterial, supernatural entity. Only those beliefs should receive constitutional deference. Davis v. Beason, 133 U.S. 333 (1880), took the criterion of theism from Reynolds and raised it to the sine qua non to find religion and the heightened protections it was promised. Furthermore, whereas Reynolds had bifurcated religion into two elements of protected belief and unprotected action, Davis restricted religion to only the former (‘‘views and obligations’’). In contrast, the actions of ritual and behavior were glossed as ‘‘cults.’’ This step greatly eased the legal task of identifying what was protected, because the free exercise clause expressly extended only to religion (belief ) and excluded all cultic behavior in which those beliefs might find expression. Finally, The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. U.S., 136 U.S. 1 (1890), required religion not only to be theistic, but also ‘‘enlightened,’’ necessarily diminishing any expectations of protection by minority sects. Ballard and Sincerity A definition of religion that essentially protected only Christianity, or religions structurally and theologically analogous to it, became unwieldy as American society become more multicultural and less parochial. Consequently, a new constitutional direction was taken in 1944 when the Court decided Ballard. Guy Ballard represented himself to be ‘‘a divine messenger,’’ medium for the ‘‘ascended masters’’ Saint Germain, Jesus, George Washington, and Godfre Ray King. The communicated teachings received through this spiritual mediumship formed the foundation for the ‘‘I Am’’ movement. The Ballards were charged and convicted of mail fraud, accused of soliciting funds ‘‘by means of false and fraudulent representations, pretenses and promises’’ by claiming ability to cure ailments. The charge hinged on the assertion that the respondents ‘‘well knew’’ that their claimed spiritual powers were false. At trial, the jury charge set aside the question of the truth of the Ballards’ religious beliefs; instead, the ‘‘issue is: Did these defendants honestly and in good faith believe those things? If they did, they should be acquitted.’’ The Ninth Circuit reversed the conviction and ordered a new trial, concluding that ‘‘the restriction of the issue in question to that of good faith was error,’’ and should have reached to the truth or falsity of the disputed religious tenets. In this, it was imposing a standard that could fit comfortably with Late Corporation’s dicta that religion must be ‘‘enlightened,’’ a finding that entails an evaluative judgment on the religious beliefs claiming resort to First Amendment protections. The U.S. Supreme Court, however, now repudiated that line of reasoning. Religious truth could not be adjudicated, because ‘‘Heresy trials are foreign to our constitution . . . . If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom.’’ The Ballard Court found the pivotal distinction between protected religious practice and unprotected fraud to reside not in the truth of the content of the claims, which would forever be beyond the jurisdiction of the courts, but in the defendant’s internal, psychological condition when asserting them. Religions did not have to be empirically true but only sincerely believed. Sincerity’s Post-Ballard Elaboration An immediate implication of this stance is that religion need no longer ‘‘look like’’ Christianity to be protected. This culturally sensitive position, unfortunately, did not resolve the Court’s difficulties with religion but only shifted the field of contest. By what standard could a trier of fact determine whether a party’s religious beliefs were ‘‘sincere’’? Were such claims even to be adjudicated? Outside the constitutional context, lower courts grappled with these issues, most significantly in a series of conscientious objector cases from 1943 to 1969. Although decided one year before Ballard, U.S. v. Kauten, 133 F.2d 703 (2d Cir. 1943), seemed to operationalized the sincerity standard when it defined a religious belief as one ‘‘finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets.’’ When the U.S. Supreme Court tried its hand to construe ‘‘religion’’ in this same statutory context in U.S. v. Seeger, 380 U.S. 163 (1965), it reiterated the holding of Ballard and held that ‘‘the test of belief ‘in a relation to a Supreme Being is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.’’ While stopping short of the ‘‘martyrdom’’ standard of Kauten, the Court cited the Protestant theologian Paul Tillich’s standard of ‘‘ultimate concern’’ as a tool to find a parallel beliefset to more traditional religious systems. Nothing in this approach, however, required the belief system to focus on traditional theistic spiritual entities, leading the Court to eliminate this criterion in Welsh v. U.S., 398 U.S. 333 (1970). The other body of judicial decisions occurs in the context of unemployment compensation cases and traces a similarly decreasing reliance on organizational affiliation to find protected beliefs so long as the claims are sincere. Highlights include Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981), which held that a person’s protected beliefs were not limited to those shared by the other members of the religious organization. Thomas, a Jehovah’s Witness, had been denied benefits after he refused a work assignment that contributed to weapons manufacturing. The lower court, to characterize his position as a personal philosophy rather than a religious belief and therefore unprotected by the free exercise clause, relied heavily on the fact that other Jehovah’s Witnesses did not object to this work and that Thomas admitted to be struggling over his beliefs. The U.S. Supreme Court rejected the relevance of those facts in terms reminiscent of Ballard: the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation. Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829 (1989), took this process another step forward. Whereas Thomas had been a member of a recognized church, William Frazee acknowledged membership in no specific denomination. The lower court denied Frazee unemployment benefits after he refused to accept a job that required him to work on Sundays. While acknowledging that his convictions were sincere, the Illinois Appellate Court held that constitutional protections required the tenet to be associated with an ‘‘established religious sect’’ rather than a personal commitment. The U.S. Supreme Court disagreed, ruling that any such requirement violated the free exercise clause. Frazee and Thomas (as well as Seeger and Welsh) seemed to firmly establish the principle that sincere belief alone could trigger constitutional analysis rather than organizational membership or any specific constellation of beliefs, including Christian-like theisms. Fallout from Ballard After the dust settled, protected religion had seemingly come to refer to beliefs in which one sincerely believed, with the test of that sincerity being whether the belief occupied a place within the party’s interior life analogous to that held by unquestionably protected beliefs (that is, Christianity). The specific content of the beliefs, and their presumed truth or falsity, and whether they were shared by others, were not to be part of the inquiry. Under this standard, ‘‘religion’’ had moved from a mere synonym for Christianity to a concept of considerable, even infinite, breadth. Concern over precisely this condition had ironically motivated the Reynolds Court to articulate the original belief/action dichotomy that had initiated this line of reasoning that brought about the feared result.
Although the sincerity standard may be satisfactory when using religion as a shield, it creates problems when wielding it as a sword. In other words, this test to find a religious safe harbor works better when hoping to stop the state from requiring the citizen to act against his or her religious beliefs than it does when the party wishes to do something that the government forbids but that is mandated by a sincerely held religious belief. Public order can better tolerate a broad extension of religion in the former context than the latter. This division, rather than a coarse belief/action distinction, may be the better line to draw.
The Supreme Court, however, perhaps despairing that the confusion could ever be satisfactorily resolved, essentially washed its hands of the matter in Employment Div., Dept. of Human Resources of Oregon v. Smith (II), 494 U.S. 872 (1990). In Smith, Justice Scalia drastically curtailed the scope of the free exercise clause by writing that, unless the religious practice had been explicitly targeted by the governmental action, Free Exercise claims would in the future only be successful if coupled with other constitutional provisions (his ‘‘hybrid rights cases’’). That rule would most likely have required different outcomes in both the conscientious objector and unemployment compensation cases. Legislatures rather than courts, Scalia argued, would be a better venue for the protection of minority religious beliefs, however sincerely they may be held.
JAMES M. DONOVAN
References and Further Reading
Cases and Statutes Cited