In an earlier post, we considered United States v. Ballard and its attempt to draw a workable line between protecting religious exercise and enforcing the law.

That case involved fraud and taking money from others, and the court distinguished between beliefs (whose veracity could not be questioned), and whether the defendants actually believed (if not, they were committing fraud). In the world of the 1940s, and its relatively monolithic Christian culture, it is not hard to understand how the jury reasoned its way to a conviction. One should not commit fraud whatever one’s religious beliefs.

But in the contemporary administrative state those questions are much more complicated, both because of the reach of the law and our much more openly pluralistic society. Given the myriad aims and interests the government now purports to serve, the chances of Ballard being applied more broadly increases. The danger of outright religious persecution is not yet as dire as Justice Jackson contemplated in his Ballard dissent, but under this logic the substantial burden part of the balancing test seems less secure.

There are a number of ways a court might assess whether the sincerity of religious belief applies to a given regulatory situation.

A court might conduct a fact finding exercise to see whether the religious beliefs, even if sincere, could actually apply to the law at issue. This seems to be the process followed in Zubik. But the court disagreed with the objectors’ view that accommodation would implicate them in activity they believed morally wrong. One could take the Jackson position, that a court cannot question either the substance of the beliefs or whether defendants actually believe them. People often believe things that seem outlandish to others, and to draw the line where the Ballard majority did would invite unwelcome scrutiny of religious conduct.

But another way is to look at the sincerity of the government’s beliefs, which has the advantage of being compatible with the current balancing test framework for analyzing substantial burden, is to look at the government’s sincerity. RFRA does part of the work. As the Supreme Court has stated, “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.” But that does not go to whether the government’s interest is, in fact, compelling. The law of free speech has some categories of compelling interests that justify narrowly-tailored restrictions on speech. Religious freedom cases, generally, have not articulated similar standards. Courts have often just assumed that the interest the government asserts is compelling, even if it is pitched at a high level of generality, such as “health” or “equality.” Even the contraceptive mandate cases focus more often on the least restrictive means part of the balancing test, but do not question the legitimacy of the governmental interests. The mandate cases have the opportunity to declare that generic interests, as applied to particular plaintiffs, are not sufficiently clear to be compelling without further evidence of what those interests actually mean.