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.
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."