Satire is a dish best served al dente. The Austrian authorities issued a driver’s license to a “Pastafarian” with a picture of him wearing the approved headgear of the satirical religion: a plastic IKEA colander. The story was fed into the news-of-the-weird cycle and churned out faster than noodles from a pasta roller. The aim of Nico Alm’s impish stunt, as he explained on his blog at its outset, was not to win legal privileges for the Church of the Flying Spaghetti Monster, but rather to challenge the religious exemption to the regulations barring head coverings from official ID photographs.

Alm expected his request to be denied, thus dramatizing his claim that the exemption discriminates against non-religious citizens. The police, who are responsible for issuing the IDs, have insisted that his headgear was accommodated not because of its declared religious significance but because it left his face clearly visible. This only clouded the issue. The Department of Transportation website states that head coverings are permitted only for “religious reasons” (religiösen Gründen), and that in such cases, the face must be visible from the lower chin to the forehead.

The affair raises questions that go beyond the jokey “church”—questions with which every society must grapple: What is religious freedom? Does it entitle some people to special protection under the law, and if so, which people? We can persist in drawing increasingly arbitrary lines between Rastafarian and Pastafarian, between the Church of Jesus Christ, Scientist and the Church of Scientology, or we can join the few pioneering scholars of religion and the law who have found another way. The solution is that no one is entitled to religious freedom because there is no such thing as religious freedom.

Straining Credulity

On what grounds could we conclude that the man in the pasta strainer deserves less deference from the state than the woman in the hijab or the man in the kippa? Is it that their faiths are “real,” and his fake? There are two ways that the state could judge that a faith is real as opposed to fake. One is to determine that the objects of the faith are true. The other is to determine that the adherence is authentic.

Anyone who has ever applied for a driver’s license will have doubts about the competence of government to record a street address correctly, let alone pierce the veil of eternity. Locke said it better: “The one only narrow way which leads to Heaven is not better known to the Magistrate than to private Persons, and therefore I cannot safely take him for my Guide, who may probably be as ignorant of the way as my self.” Yet even if the state could ascertain the truth, and even if we could somehow overlook the enmity that would be sown between communities and nations by adopting it, we would still have to establish that the state has a positive interest in advancing that truth.

The problem is that any purported public good of religion to which one can point—as a source of moral education, identity, social cohesion, or a check on the forces of profit or centralized power—can be found in forms of thought and solidarity outside of the traditional confessions; even in Alm’s secular humanism. Therefore, the state would have an interest in advancing that good wherever it may be found, not in advancing religion as such.

Is the Pastafarian inauthentic? His religion is phony, but he is sincerely committed to it. Sartre would say he is authentic so long as he recognizes the commitments that make him who he is and takes responsibility for them. But once again, if the state were to make special provisions for every commitment that is authentic in this sense, it would be forced to look beyond “religious” headgear to baseball caps, do-rags, and much more.

According to a more communitarian strain of authenticity, a practice is authentic only if it is connected in the right way with a tradition; for instance, one of the monotheisms. The danger here is that government officials will be given the power and authority to determine how the tradition is to be understood and honored. As Winnifred Fallers Sullivan proposes in her 2007 book The Impossibility of Religious Freedom, such determinations will tend to favor official or “high” religion—practices linked to recognizable doctrine supported by canonical texts and clerical hierarchies—over “lived religion,” the non-doctrinal, often orally-transmitted practices of local communities and individuals. Lived religion can be disqualified from protection because it is thought to flow from personal preference, not “real” faith. Such favoring of tradition over local autonomy may be convenient for the administrative purposes of the bureaucratic state, but it serves no other good.

Worse, it is an arbitrary and invidious failure of equal treatment before the law. A glance around the globe reminds us what is at stake. Whether it is the Copts of Egypt, the Ahmadiyya of Pakistan, or the unregistered Protestants of China, self-identifying religious minorities can, to varying degrees, suffer the consequences of being deemed inauthentic by decree. During the French debate on the veil, President Sarkozy declared, “The burqa is not a religious sign,” suggesting that women had no religious right to don it. If the ideal of religious freedom means anything, surely it should prevent the magistrate from pronouncing on what constitutes the legitimate practice of a faith and what does not.

An Equality-Based Solution?

A legal regime of religious freedom perpetrates this same inequality on all non-religious citizens, for it denies to them some privileges that are granted to other citizens simply by virtue of their membership in a religious community. Is there any moral justification for granting religion special protection—such as exception from generally applicable laws—while denying it to comparable secular commitments? In a recent exchange with William Galston in Dissent magazine, Colin Koproske and I survey various arguments for the specialness of religion. We are still looking for one that works.

Beginning with a series of articles in the mid-1990s and culminating in Religious Freedom and the Constitution, Christopher Eisgruber and Lawrence Sager have defended an alternative understanding of religion in the law, which they call “Equal Liberty.” According to Equal Liberty, “all persons—whether engaged in religiously-inspired enterprises or not—enjoy rights of free speech, personal autonomy, associative freedom, and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow religious practice to flourish.” The religious are free, but not because they enjoy religious freedom. They are free insofar as all are free. In a liberal society, we all inhabit an equal space of personal and associative liberty in which to worship, blaspheme, or just fix our suppers.

As Sullivan notes, forsaking religious freedom for an equality-based approach would not only “end discrimination against those who do not self-identify as religious or whose religion is disfavored. It might also force religious groups to fend for themselves politically, economically, and philosophically in a new world of radical normative pluralism.”