What Counts as Religion According to SCOTUS? Whose Religion is Protected? Whose Isn't?
Brad is joined by Dr. Charlie McCrary, postdoctoral researcher at Arizona State University and author of the new book, Sincerely Held: American Secularism and Its Believers. They discuss how SCOTUS determines what counts as religion, and thus what is deserving of protection under the 1st Amendment. Their conversation focuses on the "sincerity test" of religious belief, which has become a cornerstone of US jurisprudence, framing what counts as legitimate grounds for First Amendment claims in the eyes of the law. McCrary provides an original account of how sincerely held religious belief became the primary standard for determining what legally counts as authentic religion.
Charles McCrary at the New Republic: https://newrepublic.com/article/165942/sincerely-held-religious-belief-law
Charles' Book - Sincerely Held: https://press.uchicago.edu/ucp/books/book/chicago/S/bo135951072.html
Subscribe for $5.99 a month to get bonus episodes, ad-free listening, access to the entire 500-episode archive, Discord access, and more: https://axismundi.supercast.com/
Order Brad's new book, Preparing for War: The Extremist History of White Christian Nationalism and What Comes Next: https://www.amazon.com/Preparing-War-Extremist-Christian-Nationalism/dp/1506482163
To Donate: https://www.paypal.com/paypalme/BradleyOnishi
SWAJ Apparel is here! https://straight-white-american-jesus.creator-spring.com/listing/not-today-uncle-ron
Learn more about your ad choices. Visit megaphone.fm/adchoices
Axis Mundy Axis Mundy Welcome to Straight White American Jesus.
My name is Brad Onishi, faculty at the University of San Francisco.
Our show is hosted in partnership with the Kapp Center at UCSB.
And today I have an amazing guest who is Dr. Charlie McCrary, who is a postdoctoral researcher at Arizona State University.
And talk more about you in a minute here, Charlie, but just want to say thanks for taking the time to join me today.
Yeah, thank you for having me on.
We're recording at an early hour today because of childcare stuff and everything.
So I want to just thank Charlie for getting up early to have this conversation.
I also want to give a shout out to Emma, who has been a research assistant on our show for a little bit here, who has a new job and has helped me with research for this episode and others, and just excited for Emma.
So Emma, I want to say congrats on your next adventure.
All right.
Charlie, you are an amazing scholar who has just published a book, and that is Sincerely Held, American Secularism and its Believers.
And it focuses on what's called the sincerity test and how that is used to determine, you know, what counts as religion and what counts as something that should be protected by the First Amendment in terms of our our freedom of the free exercise clause and so on.
And so basically the sincerity test has a huge, huge, huge kind of impact on what counts as religion, religious practice, the way people are able or not able to practice their religious traditions and so on.
So you just published this book with Chicago.
Before that, you were a postdoctoral researcher at the Danforth Center, have published all over the Journal of American Academy of Religion, Religion and American Culture, and the journal Religion, and also written for popular outlets such as Religion and Politics, The Revealer.
And I'm actually going to link, folks, the essay in The New Republic in the show notes because it really does provide just a nice kind of opening window into the book and everything that you're up to there.
Let me start here, Charlie.
A lot of people listening are going to have just a very vested interest in understanding how religious freedom and freedom from religion are determined by the court systems in this country.
However, most of them won't be familiar with the details of how the courts have decided what is authentic religious belief and thus deserving of constitutional protection.
The courts also, on the flip side, have a hand in deciding what is not authentic religious belief or at least not deserving of protection under the Constitution and under the law.
So, very basic question.
Some folks listening are going to know this.
A lot will not.
What is the sincerity test?
Yeah, well, first of all, thanks again for having me and for the nice intro.
So the Sincerity Test, this applies, you've gone over this in previous shows and people probably know this, but there's kind of two sides of religious freedom.
There's the Free Exercise Clause and then the Establishment Clause, one of which is protecting the rights of individual believers, practitioners, and then the other is, you know, church-state separation.
How these go together, whether they're a conflict, etc.
Maybe we'll get into that.
But for the most part, Sincerity is about free exercise.
And in the 1940s, there was this case called U.S.
v. Ballard, 1944.
It's a fascinating case.
I won't go into too many of the details.
But essentially, there was this group that had a series of beliefs that seemed to be not true, including that their founder was immortal.
So after he died, This claim was that eyebrows were raised.
So anyway, they get arrested for mail fraud, for sending fraudulent materials through the mails.
They argue, this isn't fraudulent, this is our religious belief.
And so this goes all the way to Supreme Court, and there the Supreme Court says, Okay.
It's actually not our job as a secular court to say whether a religious belief is true or not.
That seems like a bad idea.
And I mean, I agree with that.
This does seem like this would be some dicey territory.
So they say instead, what we're going to do is just say, do you really believe it?
Is this, is this a religious belief as opposed to, you know, political or something else?
And do you actually believe it?
Are you not just, you know, making it up?
So that's the sincerity test.
Is it really religious and is it really sincere?
Yeah, and thank you.
First of all, thank you for that great explanation.
I'm sort of dumbstruck because you said, we as a secular court.
And I just thought to myself, oh, wow, the days of having a secular court.
But that is neither here nor there.
All right.
So that was you know, that was about 80 years ago.
And I guess the next question is, how is this sincerity test used to determine whether or not someone's religious belief and or practice should be protected?
I guess what I'm asking is this.
How has the court kind of gone about figuring out if somebody is sincere in believing that their founder is immortal, even though that person has died or in the Flying Spaghetti Monster, which might be an example that that some people listening might understand all the way to whether or not.
Native Americans smoking peyote or consuming peyote for religious purposes are doing that in a quote-unquote sincere way.
I mean, these are the kinds of questions that come up before the court.
So how do they determine what is sincere and what isn't?
There are a few ways.
I want to say the sincerity test nowadays is actually kind of a weak test.
Which doesn't mean it's not important, it just means that it's usually relatively easy to pass it.
Because if the court doesn't want to find in your favor, they'll usually find some other ways.
They're kind of hesitant to say somebody is.
being insincere.
Now, there's one recent exception to this, which is really interesting, and maybe we could talk more about this later, but Clarence Thomas wrote this dissent in Ramirez, this person who was on death row and wanted to have his pastor pray with him.
You might have discussed this on the show.
And so the Supreme Court found in his favor, 8 to 1, said that he really does need the pastor in there.
But Thomas wrote this dissent where he, and this is just earlier this year, he really strongly said, Uh, this guy isn't sincere.
Like he doesn't really believe that he needs this pastor there.
This is just a part of a series of evasion.
He's just trying to delay the inevitable.
And he said there, we really need to look more carefully into the sincerity claims of people.
Maybe that's just a one-off.
I don't know if that actually means anything going forward.
It was weird.
But anyway, so other than some, some exceptions, how do they decide?
Usually, um, If there's obvious ulterior motives, that's one thing that's going to make it make a claim a little bit more suspect.
You know, if you're saying if you're incarcerated and you're saying I need a diet of raw fruits and vegetables.
Uh, why would you be doing that?
Unless you, like, really had some strong belief, you know?
It's not like saying, I, my religion says I need gourmet meals.
Oh, okay.
Maybe you should look at that.
Or, my religion says I'm a conscientious objector to war.
I don't want to go fight in Vietnam.
Well, there are lots of reasons you might not want to go fight in Vietnam, right?
So, so that's one thing, the ulterior motives, and also just consistency, if they're evaluating somebody's If this seems like a new and very convenient belief, it'll get a little bit more scrutiny.
Thanks for listening to this free preview of our Swadge episode.
In order to get access to the full episode and so much more, become a Straight White American Jesus Premium Subscriber by clicking the link in the show notes.
It'll take you like two clicks, I promise.
In addition to getting access to this episode, you'll have access to the entire Swadge archive, over 550 episodes.
You'll also get an extra episode every month, ad-free listening, Discord access, and so much more.
All that for less than six bucks a month, and it helps us keep our flag up and continue to safeguard democracy from religious nationalism, extremism, and rising authoritarianism.
