The Search for a Shibboleth: How History and Existing Law Inform a Workable Standard for Religious Sincerity

I. Introduction

“[W]hen any of the fugitives of Ephraim said, “Let me go over,” the men of Gilead said to him, “Are you an Ephraimite?” When he said, “No,” they said to him, “Then say Shibboleth,” and he said, “Sibboleth,” for he could not pronounce it right. Then they seized him . . . .”^[1]

This biblical excerpt describes a story of battle between two tribes. For protection, the soldiers of Gilead devised a linguistic test to reveal the Ephraimites.^[2] Why was a single word a suitable protector? Due to a difference in dialects, each tribe pronounced “Shibboleth” differently.^[3] The wrong pronunciation revealed the soldier’s identity as the enemy.

Gilead needed a trustworthy indicator of deceit, a factor to distinguish the friend from the foe. Courts in the business of religious sincerity can relate. Rather than differentiating between enemy and comrade, courts must decipher between the sincere and the disingenuous. Courts need their own Shibboleth, a test that confirms the sincerity of the individual claiming that their freedom of religion has been infringed upon. However, the sincerity context poses its own challenges. Courts cannot use a test crafted to a specific religion (dialect), but one that is generally applicable to all—major or minor, old or new, organized or individual. This rejects any notion of a simple inquiry based on a single rule. The test must be multifaceted to compensate for the sheer diversity of religious beliefs.

This Note seeks to neaten the Court’s approach when faced with a question of religious sincerity. The Court seems to harbor a “we’ll cross that bridge when we come to it” attitude, failing to articulate a specific inquiry. Don’t be fooled—the Court still evaluates sincerity. However, its methodology remains anonymous. This Note does not desire a test of uniform application, as this would be an impossible endeavor with a fact-specific doctrine and every case presenting a new set of facts. Rather, this Note aims for a uniform description of a standard to insert some semblance of predictability in the jurisprudence of religious sincerity.

Part II identifies the stage on which the Court decides religious freedom cases, specifically ones involving religious sincerity. Between the First Amendment and City of Boerne v. Flores, the Court developed the American legal attitude toward religious freedom. It identified the line between conduct and belief with the understanding that conduct is often on behalf of beliefs. The Court displayed indecisiveness as it worked to develop a standard by which freedom of religion claims could be assessed. Regarding sincerity specifically, a bevy of precedent stems from three main categories: conscientious objection, prisoner accommodations, and employee accommodations. Part II provides a brief history of each and, more importantly, a discussion of the facts considered by courts when faced with a religious sincerity issue. Courts’ approaches in each of these areas, although ill-defined, offer valuable insight into the development of a workable sincerity standard.

Part III identifies three areas of law outside religious jurisprudence that are also informative in this development. Hate crime prosecutions, marriage fraud prosecutions, and intentional infliction of emotional distress claims, each require a court to reach into the heart or mind of the individual; religious sincerity cases demand a similar task. However, courts have figured out ways to add structure to what would otherwise be vague guesswork.

Part IV summarizes Part II and Part III, emphasizing the factors and considerations courts employ in their respective assessments of belief, hate, love, and distress.

Lastly, Part V presents the workable standard. When faced with an issue in which the religiosity of the individual is relevant, courts should assess whether the religious beliefs are sincerely held considering all the facts and circumstances. If this sounds familiar, the Court has applied this test before, usually identified as the totality of the circumstances. Fourth Amendment jurisprudence is the most familiar with this test, although other areas of law utilize the flexibility and fact-friendly nature of this test as well. Part V ends by identifying a sampling of factors courts should consider during the application of this religious sincerity test.

II. Background

A. Religious Freedom in America

The First Amendment of the Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”^[4] Although notably missing from the original Constitution, drafted and ratified in the late 1780s, the Framers eventually adopted the Free Exercise Clause based on similar provisions in state constitutions.^[5]

A century later, the Supreme Court decided one of the first cases that required interpretation of the Free Exercise Clause, Reynolds v. United States.^[6] Reynolds, a member of the Church of Jesus Christ of Latter-Day Saints, was found guilty pursuant to a federal law that prohibited bigamy.^[7] According to Reynolds, male members of the Mormon Church were required to participate in polygamy and failure or refusal to do so would invite the penalty of damnation.^[8] The Court unanimously rejected Reynolds’ free exercise claim.^[9] Chief Justice Waite justified this decision largely through the dichotomy between action and belief:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices . . . . So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.^[10]

In 1940, the Supreme Court reiterated this distinction in Cantwell v. Connecticut. Justice Roberts wrote that “the [First] Amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.”^[11] Cantwell also marks an important milestone in religious freedom jurisprudence as it incorporated the Free Exercise Clause to apply to the states through the Fourteenth Amendment.^[12]

The 1963 case of Sherbert v. Verner strengthened the protection of the freedom to exercise one’s religion by “complet[ing] the process of introducing the compelling state interest standard into First Amendment law.”^[13] The Court “consider[ed] whether some compelling state interest . . . justifie[d] the substantial infringement of appellant’s First Amendment right.”^[14] “[A] rational relationship to [a] state interest would” not be enough, but “[o]nly the gravest abuses, endangering paramount interests, [would] give occasion for permissible limitation.”^[15] The Court clarified that even if it had found such abuses, the appellee must “demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”^[16] Justice Brennan’s use of the compelling state interest test was the first clear espousal of what has come to be known as “strict scrutiny.”^[17]

However, the Court abandoned the Sherbert test for free exercise challenges when it decided the 1990 case, Employment Division v. Smith.^[18] Justice Scalia, writing for the majority, determined that a valid and neutral law of general applicability—even if it incidentally burdens a religious practice—does not offend the First Amendment.^[19] The Court in Church of Lukumi Babalu Aye v. City of Hialeah clarified this rule. A law that fails to satisfy the Smith requirements of neutrality and general applicability “must be justified by a compelling governmental interest and . . . narrowly tailored to advance that interest.”^[20]

In direct response to the Court’s decision in Smith, Congress passed the Religious Freedom Restoration Act (RFRA), which sought to reinstate the Sherbert compelling interest test in cases where the burden on free exercise of religion was at issue.^[21] However, these congressional efforts were thwarted by City of Boerne v. Flores. In this 1997 case, the Court held that Congress exceeded the scope of its power under Section 5 of the Fourteenth Amendment, which only gives Congress the power to enforce a constitutional right.^[22] This holding severely limited the applicability of RFRA from all federal, state, and local laws to only federal law under the statute’s current version.^[23] “Many states . . . have passed their own version[] of RFRA” to compensate for the federal statute’s limitation.^[24]

Decades of precedent illustrate the struggle of the Court to define the freedom of religion granted by the First Amendment. What is the scope of this right? What level of scrutiny is appropriate? Religious sincerity exemplifies this struggle as the Court confronts the inherent tension between the individual’s freedom to not only possess, but act upon, personal religious beliefs and the government’s authority to command the conduct of its people while maintaining a separation from religion.

B. Classic Applications of Religious Sincerity

Religious freedom is a central value of the United States, as reflected by the First Amendment and a consistent subject of cases decided by the Supreme Court.^[25] In seminal cases of religious jurisprudence, the Court has largely ignored the issue of religious sincerity. Reynolds’ Mormon man and Cantwell’s Jehovah Witnesses avoided any question regarding the sincerity of their faith.^[26] A single footnote in Sherbert clarified that no question had been addressed regarding the Seventh-Day Adventist’s sincerity of religious belief.^[27] Only the concurrence and dissent in Smith address sincerity of the Native American Church’s members.^[28] Lukumi and City of Boerne also declined to question the sincerity of the Santeria adherent or the Catholic Archbishop, respectively.^[29] Despite the Court’s historical avoidance, there are certain contexts in which sincerity of belief is specifically addressed, including conscientious objection and religious accommodation, both in prisons and by employers.

1. Conscientious Objection

Although military service in the United States predated the birth of the nation, the government did not implement compulsory recruitment, rather than voluntary enlistment, until the Civil War era.^[30] The draft was used again for World War I but ended with the war.^[31] Congress enacted a peacetime draft for the first time in anticipation of involvement in World War II.^[32] This round of conscription continued through the end of the Vietnam War in 1973.^[33] Registration for the Selective Service was reinstated in 1980 and continues today for all eighteen-year-old males in America.^[34]

Exemptions accompanied the first federal conscription legislation for those who provided a substitute in their place or paid a substantial fee.^[35] After much controversy, Congress amended the original legislation to include an alternative service option for those who are “conscientiously opposed to the bearing of arms,” the first hint of conscientious objection in federally mandated enlistment.^[36] This option continued through both World Wars and was limited to strictly religious grounds rather than political, moral, or personal grounds.^[37]

The high rates of draft resistance in the Vietnam War era resulted in several Supreme Court cases that were instrumental in the development of the conscientious objector exemption.^[38] The process for exemption involved filling out a questionnaire that required a statement of the applicant’s religious beliefs and evidence of sincerity.^[39] If the questionnaire, coupled with a personal interview, demonstrated the sincerity of religious beliefs, the applicant was classified as a conscientious objector.^[40] If denied, the applicant had the right to appeal.^[41] Witmer v. United States, which was likely born out of the Korean War effort, demonstrates this application and appeals process.^[42] The defendant’s conscientious objection claim was denied, and the Supreme Court affirmed.^[43] The Court considered the defendant’s inconsistency in both claimed exemptions and willingness to aid the war effort—first as a farmer willing to contribute to the war effort and then as a conscientious objector also opposed to noncombatant service—as casting considerable doubt on his sincerity, the “ultimate question in conscientious objector cases.”^[44]

A 1965 case, United States v. Seeger, involved defendants that refused to submit to induction in the armed forces based on conscientious objection.^[45] Justice Clark evaluated the constitutionality of a section of the Universal Military Training and Service Act, which defined “religious training and belief” as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.”^[46] The Court held that Congress used “Supreme Being” rather than “God” to clarify that the statute applied to all religions and excluded political, sociological, and philosophical views.^[47] The Court also determined that the test for belief in a Supreme Being was “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.”^[48]

In Seeger, the Court recognized that religious belief is an “intensely personal area” and the claim of a registrant’s belief is to “be given great weight.”^[49] Yet, the Court also recognized that whether the belief is truly held is a “significant question” and one that “must be resolved in every case” as a prime consideration regarding the validity of a conscientious objector exemption claim.^[50] Here, in Seeger’s case, the Court approved of the Court of Appeals’ conclusion that his sincerity was not in question based on his upbringing in a devout Catholic home and education in Quaker beliefs.^[51]

While still relying on Seeger, the Court in Welsh v. United States limited the statute’s exclusion of “essentially political, sociological, or philosophical views or a merely personal moral code” as a basis for a conscientious objection claim.^[52] The Court seemed willing to accept views that rest upon moral or ethical principles in addition to religious beliefs as long as they are deeply held.^[53] In Gillette v. United States, the Court clarified that “persons who object . . . to participating in a particular war,” rather than all war, do not fall within the conscientious objector exemption.^[54] The Gillette Court also reiterated that the willingness to use force in self-defense and openness to future change in convictions regarding participating in the war do not warrant denial of conscientious objector status.^[55]

A 1971 Supreme Court decision, Clay v. United States, involved a petitioner draft dodger by the name of Cassius Clay, better known as world champion boxer, Muhammed Ali.^[56] Ali’s conviction for refusal to submit to induction into the Armed Forces was ultimately reversed by the Court due to the combination of the Appeal Board, relying on a Department of Justice (DOJ) letter denying Ali’s claim without a statement of reasons, and the DOJ later conceding Ali’s beliefs were both based on religious training and sincere.^[57]

Arguably, the most important addition to Selective Service jurisprudence was the Clay Court’s synthesis and application of conscientious objector precedent developed over the previous two decades:

In order to qualify for classification as a conscientious objector, a registrant must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form . . . He must show that this opposition is based upon religious training and belief, as the term has been construed in our decisions . . . And he must show that this objection is sincere.^[58]

Because there has not been a draft in the United States since the Vietnam War, sincerity inquiries for conscientious objectors have taken a backseat in recent history. However, this jurisprudence was instrumental in developing courts’ understanding of sincerity to apply in later contexts.

2. Imprisonment

A few years prior to deciding Employment Division v. Smith, the Supreme Court addressed religious accommodation for incarcerated persons in a 1987 case, Turner v. Safley.^[59] Justice O’Connor reiterated that prisoners retain important constitutional rights while incarcerated.^[60] With this in mind, the Court held that when a prison regulation impacts an inmate’s constitutional rights, the regulation is valid if it is “reasonably related to legitimate penological interests,” finding that strict scrutiny would be too burdensome to impose on prison administration.^[61] This holding reflected four factors that are relevant when considering the reasonableness of the regulation: (1) a valid, rational connection between the regulation and a legitimate governmental interest; (2) an alternative means of exercising the right that remains open to other inmates; (3) the impact that the accommodation will have on the guards, inmates, and allocation of prison resources; and (4) the absence of ready alternatives.^[62]

When considered alongside the development of general religious freedom, the Smith decision confirms the deferential attitude exhibited by the Court in Turner.^[63] RFRA sought to replace this deferential approach with strict scrutiny in religious freedom contexts, which included prisons.^[64] After City of Boerne limited RFRA’s reach to federal jurisdiction (and therefore, only federal prisons), Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, which most notably imposed strict scrutiny when the institution received federal funding or the substantial burden affects interstate commerce.^[65]

In Cutter v. Wilkinson, the Court upheld the constitutionality of RLUIPA’s institutionalized-persons provision.^[66] Claimants must demonstrate that the prison regulation at issue interferes with their “religious exercise . . . whether or not compelled by, or central to, a system of religious belief,” sincerity of belief, and that the prison regulation “substantially burdens” their religious practice.^[67] The Cutter Court addressed the second requirement in a footnote, granting permission to prison officials to question whether the prisoner’s religiosity is authentic.^[68] The Fourth Circuit Court case, Lovelace v. Lee, clarified that a “lack of sincerity . . . with respect to one [religious] practice [does not indicate a] lack of sincerity with respect to others.”^[69] In other words, “mere inconsistency in practices or beliefs does not prove that a [prisoner’s] religio[us belief] is inauthentic.”^[70]

Prisons have resorted to a variety of tests to ferret out the sincerity of inmates’ beliefs. In general, prisoners will fill out a questionnaire demonstrating religious faith and identifying the related accommodation.^[71] After receiving the requested accommodation, a prisoner may still be deemed insincere based on further observation, and the accommodation may be removed.^[72] Some prisons defer to the assessment of a chaplain who is tasked with the determination of an inmate’s religious sincerity.^[73] Other prisons attempt to defer to the religious law of the claimed religion to guide the sincerity assessment.^[74] Another prison implemented a policy (which was later deemed unconstitutional) that required inmates to possess certain religious items as a prerequisite for applying for other religious accommodations.^[75] Other facilities may implement a “strikes” rule that allows prisoners to lapse, or fail to conform to their claimed belief, a certain amount of times before the granted accommodation is removed.^[76]

Religious accommodations in prison also affect inmates on death row and the circumstances of their anticipated execution. In 2022, the Supreme Court decided such a case that was uniquely positioned to draw positions on religious sincerity from the Justices. In Ramirez v. Collier, John Ramirez was convicted and sentenced to death in a Texas state court for the murder–robbery of Pablo Castro.^[77] While awaiting execution, Ramirez “requested that his pastor be [allowed] to ‘lay hands’ on him and ‘pray over’ him while the execution” occurred.^[78] After denial of this request, Ramirez sued prison officials for violating his rights under RLUIPA and the First Amendment, seeking a stay of the execution until they accepted this religious accommodation.^[79] The Court held that Ramirez was likely to prevail because the prison officials’ total ban on audible prayer or religious touch was violative of Ramirez’s rights under RLUIPA.^[80]

The Ramirez majority was quick to accept that the defendant’s accommodation requests were based on a sincere religious belief.^[81] Justice Thomas’s dissent displays a more hesitant attitude. He spends much of his opinion highlighting the process with which Ramirez had accomplished “more than a decade of delay” of his execution.^[82] He argued that Ramirez employed piecemeal and bait-and-switch tactics that resulted in manipulative litigation aimed at delay.^[83] This engagement in vexatious litigation counseled against a conclusion that Ramirez’s beliefs were, in fact, sincere.^[84] The majority turned to the characterization of the laying of hands and prayer as traditional religious exercises and the pastor confirming the religious significance of “prayer accompanied by touch” as grounds for Ramirez’s sincerity.^[85] After dismissing those as irrelevant, Justice Thomas then pointed to the only other evidence relied upon—Ramirez’s own grievance—as an indication of his “evolving litigation position” and therefore evidence of insincerity, as conceded by the majority.^[86]

3. Employment

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual because of their religion.^[87] The Act requires employers to reasonably accommodate an employee’s religious observance, practice, and belief unless the employer can demonstrate that doing so would impose an “undue hardship on the conduct of . . . business.”^[88] The Equal Employment Opportunity Commission (EEOC) files suit on behalf of employees when it believes there has been a Title VII violation.^[89] However, the opportunity for a successful suit is limited, as only two causes of action exist under Title VII: disparate treatment and disparate impact.^[90]

The requirement to accommodate religious beliefs only applies to those that are “sincerely held.”^[91] An individual’s sincerity is highly dependent on their credibility, which is not automatically negated by the individual’s selective or inconsistent religious observance.^[92] The sincerity inquiry begins, and often ends, with the employee’s statements, supplemented by further questioning and other evidence if necessary.^[93] Ultimately, according to the EEOC, sincerity is “rarely at issue,” “generally presumed, or easily established.”^[94]

The religiosity of the employer, not just the employee, can also be relevant. Title VII has an exemption for religious organizations to the extent that they can employ individuals of a particular religion and assert an “on the basis of religion” defense to a discrimination claim.^[95] This defense may not be pretext for another form of discrimination, and the employee has the burden of proving such pretext.^[96] The religious organization exemption applies only if the organization’s “purpose and character are primarily religious.”^[97] This mirrors the “sincerely held” requirement for an employee or applicant and is determined by a multi-factor inquiry articulated by the court in LeBoon v. Lancaster Jewish Community Center.^[98]

Religious accommodations in employment experienced a new challenge with the emergence of COVID-19 and its associated vaccinations. After the World Health Organization (WHO) declared the arrival of a global pandemic in March 2020, clinical trials began almost immediately.^[99] These efforts culminated in the emergency use authorization of the Pfizer-BioNTech, Moderna, and Johnson & Johnson vaccines by the Food and Drug Administration (FDA) less than a year later.^[100]

In September 2021, President Biden announced that the Department of Labor would issue a rule designed to increase vaccination rates among the working population.^[101] This rule required employers with 100 or more employees to ensure that their employees were vaccinated for COVID-19. The rule allowed employers to offer an alternative of weekly testing and masking but did not require employers to offer this option. If an employee did not comply, they would be fired; if an employer did not comply, it would be fined.^[102] States, businesses, trade groups, and nonprofit organizations challenged the vaccine mandate, and the Supreme Court in NFIB v. OSHA concluded that OSHA exceeded its authority granted by Congress in issuing the mandate.^[103]

Based on Title VII, some employees objected to COVID-19 vaccination because it violated their religious beliefs.^[104] The EEOC instructed employers to assume “sincerely held belief” unless the employer has an objective basis for questioning sincerity.^[105] For COVID-19 vaccines in particular, it is understandable that employers would be suspicious of their employees requesting an exemption from the mandate based on their religious beliefs.

COVID-19 vaccination quickly became politicized, likely due to the beginning stages of the pandemic coinciding with the final months prior to the 2020 election. This sowed vaccine hesitancy and distrust in the scientific community, predominantly in Republicans.^[106] That an employee would refuse the vaccine for political, rather than religious, reasons was not far-fetched. Plus, only a handful of religions claim theological opposition to vaccinations.^[107] Some were religiously opposed to the Johnson & Johnson vaccine specifically due to the use of a fetal cell line in production.^[108] This begs the sincerity question: did the employee also refrain from other medications that used fetal cell lines?^[109] Although the sincerity inquiry in the employment context is generally uncomplicated, COVID-19 provides a unique context, emphasizing the importance of a workable sincerity standard.

III. Areas of Law

Attempting to assess the sincerity of one’s religious belief seems like a daunting task for a court. Essentially, the fact finder must decipher the thoughts of a defendant or, more often, a claimant. These thoughts are likely deeply personal and central to the identity of a person. Although the complexity and protection of religious beliefs in America may be unique, the practice of assessing what is going on in someone’s mind is not foreign to the court of law. A familiar example occurs when the prosecution or plaintiff has the burden of proving the mental state of the defendant.^[110] Other areas of law demonstrate this judicial practice and can be instructive in formulating a workable standard that courts can utilize for religious sincerity evaluations.

A. Hate Crimes

Conviction of a hate crime is largely predicated on the “hate” possessed by the defendant. Not only does the prosecutor have to prove the defendant intended to commit the act, but that they did so with a specific hateful motivation or bias as a basis for that intent.^[111]

The Civil Rights Act of 1968 featured a section that made it a crime to commit specific enumerated wrongs against someone because of their “race, color, religion, or national origin.”^[112] In 1990, Congress passed the Hate Crimes Statistics Act, which required the Attorney General to produce an annual report summarizing the data about crimes involving evidence of prejudice.^[113] Congress later authorized the use of sentencing enhancements for hate crimes under the Violent Crime Control and Law Enforcement Act of 1994; the Sentencing Guidelines were amended accordingly.^[114]

As federal hate crime legislation stood in the early twenty-first century, there were significant gaps that limited its effectiveness. The passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in 2009 made significant changes.^[115] The Act removed the requirement that the victim be involved in a federally protected activity, covered victims targeted due to an actual or perceived enumerated characteristic, extended protection to cover sexual orientation and gender identity, and included additional requirements for FBI data tracking.^[116] Although most hate crime prosecution is accomplished by state and local officials, many states do not have hate crime legislation as comprehensive as the federal Shepard-Byrd Act, while a few states do not have hate crime legislation at all.^[117]

Although the majority of prosecutors have hate crime legislation at their disposal, they are often reluctant to pursue such charges.^[118] This is mostly due to the incorporation of a motive element, which is not customarily a required statutory element as opposed to intent.^[119] Motive seeks why the defendant pursued a course of conduct while intent seeks what the defendant sought to accomplish.^[120] The question then becomes whether the extra effort required to prove bias is worth sentence enhancement, if successful.^[121]

When the prosecutor does decide to prove animus, certain categories of evidence prove more influential than others. The defendant’s words surrounding the events underlying the case are strong indicators of motivation. In Wisconsin v. Mitchell, Mitchell asked a group of black men whether they felt “hyped up to move on some white people.”^[122] After a boy walked past the group, Mitchell encouraged the group to go after him and said, “[t]here goes a white boy; go get him.”^[123] These remarks evidenced that Mitchell selected the victim based on his race, resulting in an aggravated battery conviction with a sentence enhancement.^[124] Mitchell stands as an important case in hate crime jurisprudence because the Court found that the hate crime statute did not violate the First Amendment right to freedom of speech.^[125] The Court also recognized that “[t]he First Amendment . . . does not prohibit the evidentiary use of speech to establish . . . motive or intent.”^[126] For example, slurs and other hateful speech during the altercation, testified to by witnesses, are often used as indicators of bias-motivated crime.^[127] Courts will also look to other evidence indicative of hateful bias by defendants including tattoos and the contents of their residence.^[128]

B. Marriage Fraud

Immigration officials are tasked with differentiating between a real marriage and a sham marriage. The difference lies in the reason behind the marriage and the authenticity of the relationship acting as the basis for the marriage. The U.S. immigration system arguably incentivizes the evasion of immigration laws through marriage due to the limited number of immigrant visas and the lengthy waiting period.^[129] Because the system prioritizes the immigrant spouses of U.S. citizens and permanent legal residents, taking advantage of a spousal relationship seems attractive and convenient compared to the conventional and burdensome route of obtaining a visa.^[130]

In 1986, Congress passed the Immigration Marriage Fraud Amendments Act, which provided for the punishment of an “individual who knowingly enters into a marriage to evade any provision of the immigration laws.”^[131] When marriage fraud cases end up in court, circuits are split between two tests that aim to determine this intent required under § 1325(c).^[132] The build a life test provides that a marriage is fraudulent “if it was entered into for the sole purpose of evading immigration laws.”^[133] The evade the law test considers a marriage to be fraudulent if it was entered into “with any intent to evade immigration laws.”^[134]

The marriage-based immigration process can be described as a long investigation aimed at gathering evidence demonstrating intent—the intent to marry for love or for citizenship. The first step of the process requires submission of a Petition for Alien Relative (Form I-130) to the United States Citizenship and Immigration Services.^[135] The form indicates which documents are required to prove a spousal relationship: marriage certificate, documentation of termination of any previous marriages, and passport-style photos of the petitioner and spouse.^[136] In addition, the form suggests submission of one or more of the following documentation to prove a bona fide marriage: (1) documents showing joint ownership of property; (2) a lease showing joint tenancy; (3) documents showing a combination of financial resources; (4) birth certificates of children born to petitioner and spouse together; (5) third-party affidavits with personal knowledge of the marriage; and (6) anything that shows an ongoing marital union.^[137]

After two years of marriage on a conditional basis, the couple will petition to remove this status and submit to a personal interview (conducted separately) by immigration officials to determine the authenticity of the marriage.^[138] Officials look for evidence that suggests a bona fide marriage, such as cohabitation, joint bank accounts, merging of assets, and “mental and emotional connection through shared life experience.”^[139] Officials also pay attention to indicators of fraudulency, whether legitimate considerations or not, such as unusual cultural differences, large age discrepancies, incorrect responses to interview questions, overcompensation, and inconsistencies between the couple.^[140]

United States v. Murry exemplifies the evidence gathered throughout the immigration process working against the defendants in a fraudulent marriage case. Murry follows two sham marriages created by a couple, the Ramcharans, in the hopes of obtaining green cards.^[141] After divorcing, the Ramcharans continued to live in the same home and present themselves as husband and wife.^[142] Even after Diann and Murry were married, the Ramcharans opened a bank account together.^[143] Murry also drafted a note, clarifying that in the event of divorce or death, his wife would receive nothing.^[144] When Murry filled out military transfer forms, he misspelled his wife’s name every single time.^[145] Guevara and Rajesh’s wedding ceremony provided more evidence—the small size, lack of formality, and no pictures of the couple kissing.^[146] In addition, the couple also maintained separate residences.^[147] Both couples and the officiator of their weddings were eventually indicted on multiple counts, including conspiracy to commit marriage fraud.^[148]

C. Intentional Infliction of Emotional Distress (IIED)

A central factor of an IIED claim is the existence of the plaintiff’s emotional distress, which is far from a readily identifiable condition. Regardless of this difficulty, plaintiffs find a way to prove the intangible—emotional pain—that is worthy of liability.

The path to recognition of tort liability for pure emotional distress was a reluctant one. In 1934, the Restatement of Torts provided that “conduct . . . likely to cause only a mental or emotional disturbance to another does not subject the actor to liability.”^[149] This position was not new but merely echoed the prior history of tort law.^[150] After courts increasingly awarded damages for emotional distress, the Restatement of Torts eased its prior opposition, and legal scholars pushed for recognition of IIED—the Restatement (Second) of Torts established the IIED prima facie case that tort law is familiar with today.^[151] “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”^[152]

The comment to the Restatement clarifies the “severe emotional distress” element of the prima facie case. Emotional distress may include fright, grief, shame, humiliation, anger, worry, and nausea. Liability hinges on the extremity of the distress with the “intensity” and “duration” as important factors to consider. Liability is also dependent on a reasonableness standard, that is, what “no reasonable man could be expected to endure.”^[153]

Even after IIED’s adoption into the Restatement (Second) of Torts, the general rule remains that there is no liability for pure emotional distress.^[154] Courts adopt this position because of their skepticism of IIED as an independent cause of action with an often disfavored and narrow application.^[155] IIED critics fear the susceptibility to spurious claims based on “invisible injuries to the soul or psyche.” These injuries are harder to disprove and, therefore, easier to falsify or exaggerate.^[156] It seems that the concerns of IIED have been mitigated in two main ways: focus on the extreme and outrageous conduct element and reliance on physical manifestations of emotional distress.

The idea behind the first method is demonstrated by the Restatement comment which clarifies that the “extreme and outrageous” nature of the defendant’s conduct is an important indicator of the existence of emotional distress.^[157] Other legal minds go farther. Russell Fraker suggests that the conduct and the distress elements cease to be independent but merge to produce a “totality of facts” standard.^[158] The court in Bristow v. Drake Street Inc. admitted to this tendency to merge outrageousness and distress, resulting in a balancing test effect where more evidence is required of one element if another is found lacking.^[159] Daniel Givelber asserts that the four elements of an IIED claim merge into one: the outrageousness of the defendant’s conduct.^[160] Limone v. United States illustrates the willingness of this court to focus on the conduct rather than the emotional injury. The court’s emotional distress inquiry was brief: “it is unarguable that the [defendants’ conduct] caused the victims severe emotional distress. Therefore, the plaintiffs satisfied their burden of proving all the elements of their claims for [IIED].”^[161]

In the second method, IIED starts to look more like its “cousin,” negligent infliction of emotional distress (NIED), which allows recovery only for physical harms resulting from emotional injury.^[162] Courts do not often fight the establishment of the fourth prima facie element when plaintiffs bring evidence of physical (or more accurately, outward) showings of distress. In Wilson v. Monarch Paper Co., Wilson was diagnosed with depression and possible suicidality by a psychiatrist.^[163] He was later hospitalized for a psychotic manic episode and diagnosed with manic-depressive illness or bipolar disorder.^[164] Wilson remained depressed for over two years during which he was given shock therapy.^[165] Satisfied with this evidence, the court identified the outrageousness of the defendant’s conduct as the sole issue, and ultimately affirmed the jury’s finding in favor of Wilson’s IIED claim.^[166] Regardless of the success of the plaintiff’s overall IIED claim, courts do not consider the emotional distress of the plaintiff to be at issue with evidence of outward indicators.^[167]

IV. Lessons Learned from History and Other Law

Courts have developed guidelines by which they evaluate religious sincerity. This case law sheds light on what evidence courts expect in this inquiry, specifically in the areas of conscientious objection, imprisonment, and employment. All three seem to have the same starting point: the perspective of the individual. After all, it is their own sincerity that is questioned, so who better to speak to whether their religious beliefs are sincerely held? An initial statement by the individual, whether through an interview, questionnaire, or testimony, provided this perspective.^[168] But it is at this starting point that the inquiries start to diverge.

Courts assessing a conscientious objection claim may consider other circumstances that reflect religiosity, like growing up in a devout household.^[169] Courts in prisoner accommodation cases seem more comfortable considering extrinsic evidence, even assessments by chaplains or similar religious leaders.^[170] The employment context offers the strictest evaluation, displaying reluctance to consider more than the individual’s own description of their sincerely held religious belief.^[171] However, courts in all three areas concede that apparent conflicts in beliefs or inconsistency in religious observation does not disqualify a finding of sincerity.^[172] Yet inconsistency, in both reason for requesting an accommodation and religious practice, does weaken an individual’s claim.

Courts can glean valuable lessons from hate crime, marriage fraud, and IIED cases when the innerworkings of an individual’s mind is central to the relevant issue. Was the defendant motivated by hate during their unlawful conduct? Is this couple married because they truly sought to unite their individual lives, or is there another, unlawful, reason for their union? Did the victim of the defendant experience distress on an emotional level? In all three areas, courts converge on a trustworthy strategy: evidence of outward indicators.

In the context of hate crimes, a defendant’s animosity toward an individual because of an immutable and protected characteristic is evidenced largely by two main categories: the circumstances surrounding the incident at issue and the defendant’s characteristics.^[173] Immigration officers are much less limiting in the evidence they welcome from the applicant couple, relying on a comprehensive assessment of their relationship. Interviews, documentation, and third-party testimony are all utilized.^[174] Courts faced with an IIED action look to two main categories of distress indicators: the defendant’s conduct and the physical or behavioral manifestations of the emotional distress. However, in IIED actions, unlike the other two areas of law, the court relies on a reasonableness test, removing some of the subjectivity that challenges the inquiry.^[175]

Courts’ sincerity assessments are valuable teachers for what specific evidence is beneficial. Cases of conscientious objection, imprisonment, and employment demonstrate a method that focuses on the individual’s perspective bolstered by supporting evidence. Although an examination of typical judicial practice regarding religious sincerity is necessary, stopping here would be unwise. Hate crimes, marriage fraud, and IIED cases, analogous in their confrontation of the obscure, provide further instruction, emphasizing the importance of that supporting evidence.

V. An Old Friend: Totality of the Circumstances Test

Reflecting on both historical and alternative legal contexts, a multitude of factors prove to be informative for the courts. Sincerity of belief, along with the other areas of law, require fact-specific inquiries, suggesting a need for a standard that is flexible and holistic. This is a call for a totality of the circumstances test: whether the individual’s religious belief is sincerely held based on all the facts and circumstances. In many ways, the Court already operates under this standard. The Court has not articulated a bright-line rule to apply to sincerity issues but rather considers a class of evidence traditionally accepted in this context.^[176] But the Court has yet to put a name to its method of analysis or enumerate specific factors to use.

A. Totality Test Precedent and Reception

The totality test has a bevy of precedent, supporting its credibility as a workable standard. The most notable applications occur in the context of Fourth Amendment jurisprudence. In Illinois v. Gates, the Court famously replaced a “two-pronged test” with a totality of the circumstances approach to answer the question as to whether there is probable cause.^[177] The Court’s decision largely relied on the nature of the ultimate question of probable cause as a “practical, nontechnical conception.”^[178] It valued the relationship between the factors under the totality test—one’s deficiency may be compensated by the strength of another—rather than a strictly independent inquiry into each factor under the previous test.^[179] The Court also intimated that this type of analysis was traditionally used when faced with issues of probable cause but just perhaps never identified it by name.^[180]

In Schneckloth v. Bustamonte, the Court used the totality of the circumstances test to determine whether the defendant’s confession was voluntary in accordance with due process.^[181] It also explicitly listed relevant factors, rooted in the “characteristics of the accused and the details of the interrogation” and gathered from prior Fourth Amendment cases.^[182] The Court noted that none of these factors was determinative or controlling but all were considered in the analysis.^[183] Although the totality test is favored in the Fourth Amendment context, many other areas of law utilize this test, including bankruptcy, FLSA employee status determination, and workplace harassment to name a few.^[184]

The utility of the totality test is far from settled opinion. In Miranda v. Arizona, the Court held that because custodial interrogations are inherently coercive, a defendant must be made aware of his rights in order for a confession to be deemed voluntary.^[185] The Court in Dickerson v. United States clarified that Miranda found the totality test to be insufficient on its own due to the difficulty for law enforcement to conform and for courts to apply consistently.^[186] However, Justice Scalia pushed back on this idea to replace the totality test, recognizing the difficulties Miranda has posed for the Court since the decision.^[187]

Returning to Illinois v. Gates, Justices criticized the test for the possibility of “evisceration” of the probable cause standard.^[188] The totality test weakens the probable cause requirement, as it enables courts to find sufficient probable cause with ease.^[189] However, this critique does not necessarily translate to a sincerity application. In the case of probable cause, a weaker test weighs in favor of law enforcement in the balancing test between governmental and privacy interests. Here, a “weak” test errs on the side of an individual who believes their religious freedom has been violated. The framers included the Bill of Rights to protect against a strong national government and its possible abuses to the rights of the people.^[190] While the probable cause application seems contradictory to original function of the amendments, a religious sincerity application is in alignment.

States have also rejected the totality test for being “ambiguous” and “devoid of guidance.”^[191] It is true that the totality test is not a rigid, bright-line rule. The majority in Illinois v. Gates favorably identifies this fact, noting the test’s compatibility with areas of diversity and doctrines without hard certainties.^[192] One’s religious beliefs are deeply personal and complex. Although likely tethered to a religious text or community, an individual’s beliefs are shaped by life experience. No two members of the same denomination will espouse the exact same set of beliefs. The evaluation of religious sincerity only works with a test that allows for a realm of possibilities. In this context, the totality test is not ambiguous and lacking guidance, but rather adaptable and individualistic. Where arguably ill-suited for probable cause, religious sincerity demonstrates a perfect fit.

Ultimately, the Court’s own use of the totality standard lends itself credence. Prior to addressing the merits of the case, courts must decide whether the issue at hand is even justiciable. There are many reasons why an issue is considered nonjusticiable, one of which is the identification of a political question. A list of factors set out in Baker v. Carr include the “lack of a judicially discoverable and manageable standard[]” as an indicator of a political question.^[193] The continued and varied use of the totality of the circumstances test suggests that the Court considers it to be a workable standard, especially in more amorphous areas of law.

B. Anatomy of the Sincerity Totality Test

Incorporated within the totality of the circumstances test are the relevant factors that courts apply to the facts of a case. The ambiguity critiques of the totality test hold water without an idea of what considerations should direct the inquiry. For example, the Court in Schneckloth followed its approval of the totality test with a list of factors to act as a guide for lower courts in later application.^[194] The following are suggestions of factors, drawn from history and alternative legal contexts, that courts should take notice of when determining whether an individual’s religious beliefs are sincerely held, considering all the facts and circumstances:

Individual’s statement: This factor is crucial as demonstrated by the classic religious sincerity inquiries.^[195] Although no factor is a requirement within the totality test, an individual’s own assessment of their beliefs and characterization of their religion should be given great weight. This can take many forms, such as an affidavit, answers to a questionnaire, transcript of an interview or deposition, or live testimony by the individual.

Third-party witnesses: The perspective of those familiar with the life of the individual is also valuable. Well-suited witnesses will be family, friends, coworkers, neighbors, and members of their religious community.^[196] These third parties have likely gained a dependable impression of the individual as members of the same communal spaces.

Assessment by religious leaders: On one hand, a religious leader may act as a third-party witness as a member of the individual’s religious community. However, a religious leader is uniquely poised to opine on the claimed religious belief at issue. This opinion is not dispositive, nor does it reflect a superior understanding of sincerity as compared to the individual himself. However, the opinion can shed light on the plausibility of the religious belief being sincerely held. It is tempting to consider this factor as analogous to expert testimony, but the sincerity context challenges this perception. Although religious leaders may provide useful context, the individual remains the expert in their own sincerity. Also, it is unlikely that religious leaders’ assessments would fit neatly within the expectations of expert testimony in a judicial setting.^[197]

Physical evidence: This factor encompasses a wide range of possibilities outside the realm of testimony. What are outward signs that could point to an individual’s religiosity? Tattoos, clothes, household decorations, possession of religious texts and other items, consumption of religious media, and the like.

Inconsistencies: Discrepancies in the individual’s proffered reasoning or explanation are also telling. If an individual put forth a secular reason prior to claiming a violation of religious freedom, the likelihood of finding sincerity is weakened. The same can be said when an individual demonstrated prior acceptance of the current source of religious discrimination. This relates to the following factor.

Timing: How long did the individual tolerate the alleged religious freedom violation before pursuing action? Does the timing of the claim coincide when another plausible, yet secular, reason?

These factors should act only as guidance for courts when applying the totality test to evaluate religious sincerity and do not represent a comprehensive list.

VI. Conclusion

This Note attempts to present a manageable and workable test when evaluating the religious sincerity of an individual. The Court may not dictate or regulate belief, but it should determine whether a belief exists at all when it forms the basis of a claim or defense. Although an arguably imperfect fit in other legal contexts, the totality of the circumstances test is uniquely equipped for the personal and complex nature of religious beliefs. The individual’s statements coupled with extrinsic evidence form this careful inquiry. The sincerity totality test allows the Court to decide whether an individual’s religious beliefs are sincerely held, considering factors including (but not limited to) the individual’s statement, third-party witnesses, assessment by religious leaders, physical evidence, inconsistencies in the individual’s reasoning, and the timing of the alleged claim. This standard provides the Court with its very own Shibboleth, crafted to identify the insincere and protect those vulnerable to bearing the burden of false religiosity.

Rachel Howard