True Believers? Sincerity and Article 9 of the European Convention on Human Rights
Wolff, T. (2021). True Believers? – Sincerity and Article 9 of the European Convention on Human Rights. European Constitutional Law Review, 1-28. doi:10.1017/S1574019621000171
28 Pages Posted: 19 Jul 2021
Date Written: July 5, 2021
In jurisdictions where a right to freedom of religion or belief (hereafter, freedom of belief) is enshrined in law, courts must sometimes determine whether individuals who invoke said right are being honest about what they claim to believe. Determining (in)sincerity in this context is a delicate matter, and there is no consensus as to which types of considerations for doing so are legitimate.
This article’s first objective is to outline what I take to be the most defensible approach to this matter. The central questions here are: which types of circumstance raise legitimate doubts about sincerity? And what evidentiary role should these credibility-undermining circumstances play in the judicial fact-finding process? To provide some background to these questions, the second and third sections are devoted to a conceptual analysis of sincerity in the context of freedom of belief. The second section offers an account of the three ways an individual can be insincere about belief, while the third section explores the conceptual linkage between sincerity and ulterior motive: insincerity occurs when an individual demands to practice her ‘belief’ while solely having an ulterior motive. The fourth section discusses which circumstances may be taken as evidence of insincerity so understood. Five candidates are considered. The first two, ‘implausible manifestation’ and ‘inconsistency with beliefs of co-believers’, are rejected. The remaining three, ‘obvious unseriousness of the belief system’, ‘ignorance regarding the belief system’, and ‘personal inconsistency’, should be seen as providing legitimate evidence of insincerity, or so I argue. Some of these circumstances (e.g., personal inconsistency) are emphasised by almost all writers on the subject, which allows me to draw on their work. Others have received little or no scholarly attention, which impels me to develop some tentative ideas of my own. The fifth section provides a short discussion of burden of proof.
The article’s second objective concerns the case law on sincerity. Most of the literature focusses on the ways American and British courts assess (in)sincerity of belief. This article turns the spotlight onto the European Court of Human Rights (hereafter: the Court). With respect to Article 9 of the European Convention on Human Rights (hereafter: the Convention), a case law guide on the Court’s website states that ‘domestic authorities are not justified in casting doubt on the sincerity of the beliefs which an individual claims to hold without supporting their position with solid, cogent evidence’. Given this strong admonition directed at the Contracting States, it is worth examining how the Court goes about assessing (in)sincerity in Article 9 cases (or, rather, how it supervises the way states perform this task).
The article’s strategy for connecting the two objectives is as follows. In the discussion of each candidate for credibility-undermining circumstance, an account is included of its role in pertinent case law. Some circumstances have repeatedly been addressed by the Court, and the article attempts to determine whether it has done so in a consistent and persuasive manner. With respect to some other circumstances, on the other hand, examining the case law yields scarce results, owing to the fact that the Court has not yet had the opportunity to address them. (For example, to my knowledge, the Court has never decided on a case that involved a parody religion.) In these cases a more speculative account is given by extrapolating or analogising the case law on adjoining subjects.
Keywords: sincerity, freedom of religion, article 9 European Convention on Human Rights, parody religions, fraudulent religions, ulterior motive
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