Incentivizing religious insincerity

“Christian Man Sues Employer, Saying Getting Fingerprinted Violates His Faith.”

Henry Harrington says that his Christian faith prohibits his getting fingerprinted and that his religious liberty would be violated if he lost his job at a debt-collection agency for refusing to be fingerprinted for his background check.

Three things to bear in mind here:

1. Christianity does not usually forbid its adherents from allowing themselves to be fingerprinted.

2. Christianity — in theory, if not in practice — absolutely prohibits its adherents from working for a debt-collection agency.

3. None of that matters in cases like this of religious accommodation in the workplace.

The courts do not concern themselves in cases like this with any questions about the substantial legitimacy of any individual’s “religious” claims. Those claims might be wholly idiosyncratic and heterodox. That doesn’t matter. All that matters is that the claims be “sincere.”

So even if you identify your religion as “Presbyterian” and argue that as a devout Presbyterian you must be given Thursdays off, the courts have opted to decide that it’s not their business to point out that no other Presbyterians regard Thursdays as a sectarian holy day or that Presbyterianism, typically, includes no such practice. All the courts are concerned with is whether or not your peculiar and novel brand of “Presbyterianism” is sincere.

I appreciate the reasons for this approach. The courts do not want to entangle themselves in determining what does and does not constitute being Presbyterian, nor in evaluating whether or not a citizen is being a “good” Presbyterian. And we don’t want the courts weighing in on such questions either.

But it’s also worth noting that those same courts regularly do weigh in on exactly such questions when it comes to the matter of conscientious objectors. An actual Presbyterian who claims to have a religious commitment to pacifism faces a far higher burden of proof than a whackjob pseudo-Presbyterian who claims he can’t work on Thursdays or be fingerprinted for a background check. A pacifist Presbyterian may manage to convince the courts that their pacifism is a sincere religious belief, but they’ll have to do so in the face of a legal system that will eagerly catechize them on the history of Presbyterianism and its formal doctrines on military service.

The inconsistency here, I think, stems from an extreme skepticism about any claim that would allow a citizen to avoid being drafted into the military. It’s not that the courts are inherently skeptical that anyone might have a sincere religious conviction that forbids violence, but that they presume bad faith on the part of anyone who seeks to avoid getting drafted for any reason. While those seeking workplace accommodations are presumed sincere, those seeking CO status from the draft are presumed to be insincere and will have to work hard to prove their convictions are genuine.

There’s a rational basis for some basic level of skepticism toward conscientious objector claims. CO status is, in a sense, something of worth. We can even assign it a rough monetary value based on the illegal black market in medical deferments that accompanies every activation of a war-time draft. Exemption from conscription into potentially life-threatening combat is a potential motive for fraud and it would be irresponsible not to acknowledge that.

But I’m not comfortable with the intrinsically sectarian expression that the courts have given to this legitimate skepticism toward would-be conscientious objectors. It’s not that I want the courts to be — or, worse, to pretend to be — wholly ignorant of the distinctions between the historic peace churches and the Catholic or Reformed traditions. But I very much do not want the courts to imagine that they have either the competency or the jurisdiction to tell a Berrigan-style Catholic pacifist that his religious convictions are not as legitimate or as obviously genuine as those of his more hawkish brethren. The courts have no basis for weighing in on whether Dorothy Day or Gregory VII was a better Catholic. That’s none of their business.

It seems like there ought to be some more secular way of expressing skepticism about the possible motives of candidates for CO status. “Follow the money” and “cui bono?” are useful, non-sectarian principles that might be applied here to acknowledge that any given candidate might be expressing sincere religious convictions but that they might also be attempting to exploit the system insincerely.

The same is true, of course, for those seeking workplace accommodations. It’s entirely possible that Mr. Harrington is wholly sincere in his religious conviction — that his devout belief in some kind of Antichrist folklore translates, for him, into a genuine, conscience-driven avoidance of fingerprinting. But it’s also entirely possible that someone making such a claim might be seeking to avoid having their fingerprints taken for other reasons, and it seems foolish and obtuse not to allow any consideration of that possibility.

It’s highly unlikely that Harrington himself is trying to hide anything that a fingerprint search might reveal. If he were, he wouldn’t be pursuing very public, high-profile litigation. But if he wins this case — as he probably will — that will set a standard that makes such religious exemptions to background checks more routine, and that will surely be exploited by others whose motives are not the same as his innocently and ignorantly fearful superstition.

This is the problem with a hear-no-evil, see-no-evil approach that simultaneously presumes sincerity and makes the presumed presence of that sincerity the only consideration. People are not always sincere. Particularly when there’s something to be gained by feigning sincerity.

Imagine, for example, a hypothetical billion-dollar retail chain — an empire of craft stores, perhaps — whose only motive is to maximize profits a the expense of their employees. Such a greed-driven enterprise might attempt to secure some “religious” exemption to laws protecting its employees based purely on financial motives. It is foolish to respond to this ploy by decreeing that 1) The corporation’s religious “sincerity” is not permitted to be examined or questioned in any way, and 2) “Sincerity” requires that they be granted whatever exemptions they seek. That renders us powerless to prevent even transparent exploitation of this “religious liberty” loophole.

Such an approach, in fact, incentivizes the cynical exploitation of feigned “sincerity.” It incentivizes insincerity. And just as bad money drives out good money, bad faith drives out good faith.

Someday soon, some sincerely confused “sovereign citizen” loon is going to hire a shrewd lawyer who will reframe their delirious conspiracy theory as a sincere religious conviction. That will be an interesting day.