In Pastafarianism Case, the Nebraska District Court Discriminates
Against Irreligion, Setting a Dangerous Freedom of Religion Precedent
A freedom-of-religion decision issued this month by the U.S. District Court for Nebraska seems to have discriminated against irreligion and in favor of religion by refusing to extend religious rights to a prisoner who claimed to adhere to the ‘Pastafarian’ religion of the Flying Spaghetti Monster.
Unfortunately, the opinion is a step toward engraving into law a principle often expressed by the late Justice Antonin Scalia: that the constitution does not prohibit the government from favoring religion over non-religion. The only difference is that in this case, it is not non-religion which is disfavored- but irreligious satire. I take issue with all of these conclusions, and posit that the decision should be reversed.
In justifying the holding, district court Judge John M. Gerrard seemed to rely on two logically incompatible conclusions: that the inmate, Cavanaugh, had no sincere religious belief in the Flying Spaghetti Monster, and that any religious practices he wanted to engage in had not been burdened.
Importantly, the court also suggested in several places that poor pleading by the pro se plaintiff justified the result, because it showed that Cavanaugh’s claims to religious belief were insincere.
The judge’s decision is all the more puzzling because he recognizes that atheism and out-of-mainstream religious practices qualify as religions for purposes of the law, for which proposition the court produces an prodigious bibliography of legal authority. In fact, the court expressly mentions unorthodox religious beliefs described in two novels, Stranger in a Strange Land (Robert Heinlein, 1961), and Cat’s Cradle (Kurt Vonnegut, 1963).
But when it comes to Pastafarianism, the court puts its foot down, describing it as a mere parody of intelligent design theories, “intended to advance an argument about science, the evolution of life, and the place of religion in public education.”
The opinion, issued April 12, dismissed the case, Cavanaugh v Bartelt, which was a section 1983 action in which the prisoner sought to compel the prison authorities to extend him “the same rights and privileges as religious groups, including the ability to order and wear religious clothing and pendants, the right to meet for weekly worship services and classes and the right to receive communion.’”
Even though the plaintiff did not mention the most relevant statute, the court analyzed the question under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which is broader than the First Amendment, since, like the Religious Freedom Restoration Act (RFRA), it restricts the government from imposing a law of general applicability so as to substantially burden an individual’s religious practices, unless it passes strict scrutiny. Unlike RFRA, however, RLUIPA applies to the states, because it applies to all states that receive federal funding for prisons, and all states do.
The court also took pains to learn about Pastafarianism, so that the judge could “liberally interpret” the prisoner’s complaint, and traced the historical development of this practice from 2006 (The Gospel of the Flying Spaghetti Monster, Bobby Henderson).
Courts must not presume to determine the plausibility of a religious
claim, the court reminds us, citing Burwell v. Hobby Lobby Stores. But RLUIPA does not apply when the individual has no sincere religious beliefs that could be burdened.
“This case is difficult,” the court wrote, because Pastafarianism does not “advocate for humanism or atheism,” which would be a religion for purposes of RLUIPA. “The only position it takes is that others' religious beliefs should not be presented as ‘science.’ Despite touching upon religion, that is a secular argument,” the court wrote.
Clearly the court is partly correct, but the decision is nevertheless wrong. Pastafarianism does smack of satire rather than religious belief, but
there seems little doubt that the disrespectful opinion of adherents toward religious belief is sincere. Pastafarianism’s irreligiosity should be entitled to the same respect as sincere religious beliefs. The government should have no power to favor religion over irreligion.
Satire has historically been a powerful way to criticize beliefs of all kinds, so imprisoned individuals should be as free to gather in prison to satirize religion, as others are to sincerely practice religion. Extending such rights to them might even give them the moral strength necessary to continue on with their disbelief.
The court justified the decision by a second conclusion which was logically irreconcilable with the first: Cavanaugh had not shown how any beliefs he held had been substantially burdened.
The court again complained about poor pleading, explaining that from the pro se complaint, “it would be impossible to tell what he had actually asked for, or why, or anything about his purported beliefs other than their name....Cavanaugh has not alleged anything about what it is that he actually believes—leaving the Court to read the book.”
However, The court decided that it would be pointless to allow the prisoner to amend his complaint.
Adding to the satire, the court interpreted the complaint as seeking relief that would allow the prisoner to dress like a pirate. It seems possible that a rule prohibiting inmates from dressing like pirates would pass strict scrutiny, though the test is sometimes rephrased as ‘strict in theory, fatal in fact.’ On the other hand, if the RLUIPA did guarantee prisoners the right to dress like pirates, and engage in other behavior the Cavanaugh court found objectionable, that may be a statutory issue for Congress o decide.
Perhaps the prisoner might be permitted to wear a small patch of a parrot on his prison shirt; and spaghetti dinners likely occur in the institution on a regular basis anyway. Permitting incarcerated Pastafarians to gather periodically seems like a rather legitimate way of encouraging people to question their religious beliefs and values.
In short, the opinion discriminated in favor of religion, and against irreligiosity. The religious beliefs of the plaintiff may not be sincere, but surely the disbelief of Pastafarians in religion is as sincere as any conviction.
It seems the opinion would likely make the late Justice Scalia pleased on the other side of the veil (unless, indeed, Justice Scalia found himself disappointed when he crossed over).
Hopefully, higher courts will reverse this extremely dangerous precedent.
John Otrompke, JD, a graduate of DePaul University College of Law, and a 2015 AALS FAR applicant, may be reached at John_Otrompke@yahoo.com
