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Religion as Disobedience

Posted by on Wednesday, May 31, 2023 in Articles, Volume 76, Volume 76, Number 4.

Xiao Wang | 76 Vand. L. Rev. 999

Religion today offers plaintiffs a ready path to disobey laws without consequence. Examples of such disobedience abound. In the past few years alone, courts have enjoined vaccine mandates, invalidated stay-at-home orders, and set aside antidiscrimination laws protecting same-sex couples. During the 2021–2022 Term, plaintiffs relied once again on free exercise to subvert laws governing public education, capital punishment, and school prayer. Some hospitals have begun denying fertility treatment to LGBTQ employees on this same basis.

How did religion become a skeleton key for lawbreaking without repercussion? The conventional wisdom is that, after decades of neglect, the Supreme Court finally began to take seriously the government’s burden in free exercise cases. When the Court now says that the government must prove its laws serve compelling interests and are narrowly tailored, it actually means it.

But that is just part of the story. Courts are not only making the government’s job harder. They are also making the plaintiff’s job easier. Before courts apply strict scrutiny, plaintiffs must show that their religious practices are sincere. Courts and scholars point to sincerity as serving an all-important gatekeeping function: letting in claims of genuine religious exercise and keeping out non-meritorious requests for accommodation.

Yet sincerity is in practice an empty requirement. A systematic review of nearly 350 federal appellate cases—the first such analysis of its kind—reveals that the Supreme Court has never, in the past thirty years, found a single plaintiff to be insincere. Federal appellate courts, likewise, have found plaintiffs sincere 93% of the time (compare that to employment discrimination and ADA cases, where plaintiffs carry their burden just 27% and 60% of the time, respectively). And who is insincere? Pro se plaintiffs. Per the data, parties proceeding pro se are almost 800% more likely to be found insincere than someone with counsel. The only population without a license for disobedience, it turns out, is the already marginalized.

These shortcomings matter. Without appropriate tools to discern genuine religious practice from opportunistic litigation, free exercise becomes an open invitation to true believers and make-believers alike to break the law. With religious exemptions becoming an increasingly visible part of state, federal, and international law, that comes with clear costs: to the rule of law, to the credibility of true believers, and to the public. To prevent religion as disobedience from running amok, it is time to start taking sincerity seriously.

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Xiao Wang