Tuesday, April 19, 2016

Is Pastafarianism a Religion?

by Michael Dorf

Last week, Federal District Judge John Gerrard issued a very thoughtful opinion in the strange case of Cavanaugh v. Bartelt. Cavanaugh is a Nebraska inmate who sued various prison officials on grounds that they had discriminated against him on the basis of his religion: FSMism (for Flying Spaghetti Monster) or Pastafarianism. Judge Gerrard rejected Cavanaugh's claims, which were based on the state and federal constitutions. Although Cavanaugh's complaint did not specifically cite the Religious Land Use and Institutionalized Persons Act (RLUIPA) as a basis for relief, Judge Gerrard construed it as also raising a RLUIPA claim, but dismissed that claim as well. The opinion addresses a number of issues, but the central point is that Pastafarianism is not a religion; instead, it is
a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education. Those are important issues, and FSMism contains a serious argument—but that does not mean that the trappings of the satire used to make that argument are entitled to protection as a "religion."
I agree with that conclusion, but with some qualifications.

One might fault Judge Gerrard's opinion for confusing two questions: (1) Did the people who created Pastafarianism intend it as a religion or as a parody of religion? and (2) Does this particular plaintiff sincerely adhere to Pastafarianism as a religion?

Even if the answer to question (1) is no, if the answer to question (2) is yes, then the plaintiff would have stated a religious claim. To be sure, read generously, the opinion does not confuse the two questions. Judge Gerrard notes that "Cavanaugh has not alleged anything about what it is that he actually believes." Perhaps that could be read to imply that if Cavanaugh had alleged that he sincerely believed the tenets of Pastafarianism--gravity is explained by the FSM's noodly appendages, modern humans are descendants of pirates, there is a beer volcano in heaven, etc.--then Cavanaugh would be entitled to the legal benefits that attach to religious belief notwithstanding the satirical intentions of Pastafarianism's creators, but that in the absence of any such allegation, Cavanaugh should be presumed to have adopted Pastafarianism for the same reason that its founders created it: to parody more conventional religions, especially fundamentalist ones.

But even if so, why should belief matter? It is not uncommon for adherents to traditional religions to continue to observe religious rituals even after they have "lost their faith." Of course, in those instances, they are affiliated with a bona fide religion--a set of principles, practices, and communities that take themselves seriously, even if some particular members do not believe all or even any of the religion's tenets. Under RLUIPA, an imprisoned Muslim or Jew who identifies as such even though he has (either temporarily or permanently) lost his faith, would be entitled to Halal or Kosher food. The sincerity question would be whether the inmate sincerely feels a religious obligation to observe the religious dietary laws, not whether he also believes in various religious tenets.

Still, it seems like tradition is doing a lot of the work here. Consider modern liberal denominations of traditional religions, like Unitarian Universalism (UU), which has "no shared creed." Were it not for the historical relationship of UU with protestant Christianity--the paradigm religion in the United States--it is not entirely clear that UU would qualify as religion. The problem would not be that UU is a parody or satire. Clearly UU is meant seriously in a way that Pastafarianism is not. Instead, the problem is that the tenets of UU are--but for their pedigree--indistinguishable from secular ethical humanism. The same might be said about other liberal religions, like Reconstructionist Judaism, which "proposes a religious humanist theology [that] sees God as a power or process working through nature and human beings."

As Nelson Tebbe has argued perceptively, there are contexts in which it is appropriate to treat nonreligious ethical obligations as tantamount to religious obligations, even under current law. In other words, in some circumstances, nonbelief in any religion should count as religion. Something like Tebbe's view has sometimes prevailed. For example, in construing the conscientious objector statute in United States v. Seeger in 1965, the SCOTUS defined a religious belief as any belief that "occup[ies] the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption." But there are also suggestions in the case law and the scholarly literature to the effect that our various statutory and constitutional provisions protect only religious belief as such, full stop. Insofar as these suggestions reflect the law, they confer advantages on members of religious communities with historical ties to traditional religions, even when their tenets do not substantially differ from beliefs held in common by secular communities.

We might see a similar dynamic with respect to the question of seriousness. By contrast with Pastafarianism (which is barely more than a decade old), suppose that archeologists discovered that some well-established religion was actually founded by a con artist or jokester who didn't believe a word of the holy books he fabricated. (No, I do not have any particular religion in mind, although skeptical claims about the founders of various religions have been made from time to time.) But this religion has been around for many years, and has adherents who sincerely believe its tenets, so by now it makes sense to treat it as a bona fide religion, regardless of its origin story. If someone claims to be a member of this religion, courts don't ask for proof that he or she really believes in the religion; the presumption is now in favor of sincere belief.

How long will it take for Pastafarianism to achieve this status? Maybe less time than you think. New Zealand already recognizes Pastafarian wedding ceremonies. One just took place. Were I a Pastafrian myself, I might say something like this: May the happy couple be embraced by the warm love of His noodly appendage, and let us all say "ramen."


Shag from Brookline said...

Via Boston's North End, "Wednesday is Prince Spaghetti Day" was once a "religious" ritual for many.

Cavanaugh is indeed a saucy fellow.

With regard to that New Zealand wedding, I wonder how the honeymoon went assuming a noodly appendage.

This is indeed international, not merely because of the New Zealand wedding, but it revives that age old question whether pasta is of Italian or Chinese origins. (Back then neither Italy or China had red sauce.)

Joe said...

One or more Pastafarians have received the right to wear a colander on their head for their drivers' license photo in this country.

I'm a bit wary of the opinion here but if a real effort was made to protect someone who has Pastafarian beliefs that went beyond simple satire (and I think an argument can be made against the opinion, let me add) -- such as using it as a method to express their underlining beliefs about religion and the world overall -- it works. It sounds like the pro se (?) claimant here was somewhat slipshod in the claims.

Looking into the UU, it surely looks like a church. It does have some tenets. Plus, it carries itself as a religion -- there are religious services etc. Anyways, ethical humanism also is treated as a religion these days -- Torasco v. Watkins cited a couple cases where it appears to be treated as such in the 1950s too. Also, repeatedly courts in open-ended language speak of "conscience" and there are often "conscientious" objections. I think Prof. Dorf supported broader protection of that too but usually the line between religion and conscience is hard to draw.

Also, I think the current rules protect new religions too (some have been discriminated against when they wanted to join in legislative prayers) ... the UU again is not really a good comparison to Pastafarians there. Anyway, this case involved a prison. Usually, Pastafarians should easily have a chance to "express their religion" or whatever. For instance, if they want to have a Pastafarian do a wedding, that's fine. New York in that respect needs to update its laws -- Internet ministers, e.g., are allowed under current court precedent depending on what county you do the deed -- this includes 2/5 of NYC.

Joe said...

ETA: To be clear about the last bit, it isn't "Internet ministers" as much as things like the Universal Life Church (which you often see pop up in NYT wedding announcements) where you simply are able to get "ordained" by submitting your name and you get back some stuff from the home "church." NY laws are a bit opaque but appear to require a bit more than that. Other states, including a few conservative ones, are more universal about the whole thing.

(The matter has been subject of various columns and articles including more than one at Prof. Dorf's Verdict/Justia home.)

Joseph Simmons said...

If I put a yarmulke or a colander upon my head because [who knows why], why should I be able to claim protection for that? Religion is, at least, a belief system. Not all religions require faith (eg Judaism) but the system of belief, however variably followed, is what the law seeks to protect (more accurately, the free exercise).

You are right that tradition does a lot of work, but mostly to show that there is a religious belief system in play. If I develop a personal belief system, it should in principle be no less respected, but there will arise a question of whether I am seeking to exercise a religious belief or not. "But why?" one might ask again, which brings me back to my query of why would it otherwise merit protection?

Traditional religious may at least seem get more respect simply because of the danger of courts trying to analyze religious doctrine and practice to decide whether the person is a true believer according to its tenets. That's just a dangerous path for courts to go down. Being able to show a sincere belief behind a personal or new-fangled religious practice really isn't more than is expected of anyone else. The question, apart from the sincerity issue, is whether it is in fact a religious belief. I don't know if the courts provide a satisfactorily coherent answer and I suspect such an answer is not possible. Yet, that should lack of clarity is intended to insulate religious freedom.

I am reminded of Judge Leon's capacious ruling that anyone with any kind of philosophical reason could opt out of Obamacare:

Ari Diaconis said...

Another thought-provoking post from this excellent blog.

The age of a religion is a legitimate consideration here, even if sincerity of an adherent's belief is what ultimately matters. Indeed, the age of a religion can sometimes act as a silent proxy for an adherent's sincerity.

In the case of old religions, the current adherents are removed from the events surrounding the inception of the religion. So what might begin as a clear parody or con may gradually transform into a legitimate moral system in which adherents sincerely believe. As for some young or new belief systems, the taint of a parody or con is readily apparent: an adherent today cannot realistically hold a sincere belief in a spoof religion created yesterday during a standup performance by a popular comedian.

In this sense, examining the age of a religion when adjudicating what constitutes a religion may function, in at least some capacity, to question sincerity of belief without expressly doing so.

Importantly, courts are more likely to require a long history (i.e., old age) before categorizing a non-theist belief system as a religion, as compared to theist belief systems, which courts more readily categorize as religions. See Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961) (providing a definition of what might be called "non-theist" religion). Indeed, in addition to old age, non-theist belief systems must typically exhibit numerous factors before judges declare them to be religions, such as hierarchical structures, literary manifestations and rituals. See Jeffrey Oldham, Constitutional "Religion." Yet courts don't typically demand as much from theist belief systems. The disparate treatment between non-theist and theist belief systems is ultimately an important invitation for judges to closely examine belief systems that differ from those traditionally categorized as religions. Without such scrutiny, protection under the Free Exercise and Establishment Clauses could expand dangerously, as Professor Tebbe has warned. See Nelson Tebbe, Nonbelievers.

Some noteworthy cases in this area include:

Davis v. Beason, 133 U.S. 333 (1890)

Fellowship of Humanity v. Cnty. of Alameda, 315 P.2d 394 (Cal. Ct. App. 1957)

Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979)

Wisconsin v. Yoder, 406 U.S. 205 (1981)

Thomas v. Review Board, 450 U.S. 707 (1981)

Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3d Cir. 1981)

Shag from Brookline said...

As to what constitutes religion protected under the 1st A, how might originalism differ from non-originalism (e.g., living constitutionalism)? I haven't read Nelson Tebbe's "Nonbelievers" but I share his warning. What if Citizens United type power (money speaks loudly) were applied to religion (i.e., the worship of money)?

Joe said...

"Is Veganism a Religion"


Dan'l said...

The religion that comes to my mind is Scientology that is based on a science fiction novel. The difference is that Pastafarians are honest and admit there is (obviously) no such thing as the Flying Spaghetti Monster, but no theistic religion I know of disavows the reality of its own particular entity regardless of lack of proof of its existence over any other god. See www.godisimaginary.com.

". . . .suppose that archeologists discovered that some well-established religion was actually founded by a con artist or jokester who didn't believe a word of the holy books he fabricated. (No, I do not have any particular religion in mind, although skeptical claims about the founders of various religions have been made from time to time.) But this religion has been around for many years, and has adherents who sincerely believe its tenets, so by now it makes sense to treat it as a bona fide religion, regardless of its origin story. If someone claims to be a member of this religion, courts don't ask for proof that he or she really believes in the religion; the presumption is now in favor of sincere belief."

Shag from Brookline said...

Yes, "Gimme that old time religion" should be challenged/updated. Genesis I or Genesis II?