Neuroscience, Sincerity, and the Law

Abstract

This article focuses on the United States to consider how recent developments in neuroscience, specifically in the ability of researchers to measure directly certain types of brain activity through technologies such as functional Magnetic Resonance Imaging (fMRI), might be used so as to render states of mind, such as sincerity, measurable as “objective facts” on a par with other observable phenomena for the purposes of resolving specific legal cases.  The primary focus will be on sincerity itself, particularly in relation to religious beliefs that are claimed as a basis for exemption for compliance with an existing statutory regime of general applicability.  Part One examines how the issue of sincerity has manifested in disputes concerning conscientious objections to participating in the military draft.  Part Two reviews the science of fMRI and consider issues raised by the use of fMRI scans as evidence in legal cases.  Part Three addresses these issues specifically as they might bear on considerations raised in the conscientious objector cases discussed in Part One.  It considers the challenges of applying fMRI technology to these sorts of cases.  Part Four considers the recent case of Burwell v. Hobby Lobby Stores, Inc., where the U.S. Supreme Court upheld a closed corporation’s claim under the Religious Freedom Restoration Act to be exempt from complying with a provision of the Affordable Care Act concerning the provision of medical insurance to employees that covered certain forms of contraception because it substantially burdened the religious beliefs of its owners – effectively attributing their beliefs to the corporation.  The Court explicitly did not consider the sincerity of claims in this case, but this paper will explore how the adoption of fMRI technology could potentially change this approach.