Over the weekend I attended a very interesting talk on the Religious Freedom Restoration Act (RFRA) by Nicholas Little who is the Legal Director for the Center for Inquiry. He reminded us that RFRA was originally meant to provide legal protection for minority religious practices but is now being used by majority religions to gain privileges and discriminate against others and has become the main vehicle for people to argue against the Affordable Care Act. He said that while courts are required to give deference to the religious beliefs of people because of RFRA, the closely related Religious Land Use And Institutionalized Persons Act (RLUIPA), and the Free Exercise of religion clause of the First Amendment, this poses a problem with people who try to use that to get special privileges.



He said that prisoners are the most imaginative in trying to trying to use religious exemptions to ease their difficult conditions, such as the one who claimed to belong to the Church of Sirloin Steak that requires followers to eat a steak once a week. More common is to request kosher food because it is in general of much better quality than regular prison fare. (I am told that kosher food on flights that serve meals is also better and that seasoned travelers request it even if they are not Jewish.) But apparently it costs three times as much to provide a kosher meal as a regular one and so prison officials try to make sure that a prisoner is authentically Jewish before granting that request.

When it comes to legal cases, the courts are reluctant to get involved in whether a person’s religious beliefs are sincere or not and usually take sincerity as a given because making judgments about whether a person’s religious beliefs are genuine gets them involved all manner of messy theological issues that they would much rather avoid.

Take for example a recent opinion by Nebraska US District Court judge John M. Gerrard where he ruled against a prisoner Stephen Cavanaugh who had requested that his Pastafarian religious beliefs be given the same privileges as other religions. You can read the opinion here. The judge has clearly spent some time studying the gospel of the Church of the Flying Spaghetti Monster and goes into it in some depth and quotes from it. I got the feeling that he rather enjoyed this case because of its playful character and the ruling is a lot of fun to read.

The prisoner had requested that he be given the same accommodations as other religions, and requested access to Pastafarian literature and trappings such as a pirate costume and “grog, a parrot, a seaworthy vessel, a “Colander of Goodness,” and to take off every Friday as a “religious holiday.”

The judge did not make a determination as to the sincerity of Cavanaugh’s beliefs, recognizing that that was fraught with difficulty. Rather than trying to decide if the prisoner’s Pastafarianism was genuine, the court instead looked at the doctrine of the Church of the Flying Spaghetti Monster and said that it was clearly satire and not authentic.

The judge was careful to state the courts are not required to adjudicate the plausibility of religious claims. However, he said that the statute could not avoid having courts make some determination as to what constitutes a religious belief as opposed to one that was a “way of life, however virtuous and admirable, if it is based on purely secular considerations.” So, based on prior rulings, he took a shot at defining what constitutes a religion.

First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.

He noted that “this case is difficult because FSMism, as a parody, is designed to look very much like a religion.” The judge concluded, however, that the historical record clearly indicates that the Church of the FSM was invented as a joke at the expense of the religious proponents of intelligent design in order to counter their efforts to undermine the teaching of evolution.

Nonetheless, it is evident to the Court that FSMism is not a belief system addressing “deep and imponderable” matters: it is, as explained above, a satirical rejoinder to a certain strain of religious argument. Nor, however, does FSMism advocate for humanism or atheism, which the Court acknowledges have been found to be “religious” for similar purposes.

… And it is no more tenable to read the FSM Gospel as proselytizing for supernatural spaghetti than to read Jonathan Swift’s “Modest Proposal” as advocating cannibalism.

… This is not a question of theology: it is a matter of basic reading comprehension. The FSM Gospel is plainly a work of satire, meant to entertain while making a pointed political statement. To read it as religious doctrine would be little different from grounding a “religious exercise” on any other work of fiction. A prisoner could just as easily read the works of Vonnegut or Heinlein and claim it as his holy book, and demand accommodation of Bokononism or the Church of All Worlds.

In the case of the Pastafarians, it may be easy for the courts to decide that the doctrine itself is not sincere since there is a long trail of evidence pointing to the satirical nature of the Church of the Flying Spaghetti Monster. But it may not be that easy to decide whether (say) Satanist doctrines are genuine or not, given that Satan worship dates all the way back to biblical times and they have a doctrine and rituals. And what about the many variations of pagan religions that are also quite old and have quite elaborate cosmologies and rituals?

Things could get quite interesting if these more credible groups stake their claims in courts.