Judging Religious Sincerity

Abstract

Religion in law is notoriously hard to define. And yet because religion is legally protected and enshrined in national constitutions and international law as part of the liberal commitment to freedom of religion, courts in various jurisdictions are left with the essential task of determining what religion is for the purpose of protecting it. One way courts have addressed the uneasy relationship between religion and secular law is to abstain from any involvement in the resolution of religious questions. Thus when confronted with accommodation claims from otherwise generally applicable laws or regulations on religious grounds, courts have largely focused instead on the sincerity of the believer as the primary factor of whether to grant the claim. In this paper, I look at three judicial settings: the U.S. Supreme Court, the Supreme Court of Canada and the European Court of Human Rights and consider their respective approaches to sincerity in accommodation claims. I argue that we must go beyond this uncritical embrace of the sincerity requirement, and consider the problems and costs associated with it.

Keywords: Freedom of religion, sincerity, substantial burden, comparative law