By JOE PATRICE
Depending on where you get your news, the greatest threat to our constitutional freedoms is not government surveillance, not mounting abortion restrictions, and not the undermining of Gideon. No, the great threat to our rights is the assault on religious freedom — specifically “Judeo-Christian” freedom, because preemptively banning Sharia law is perfectly reasonable.
And while some states like Mississippi have been hard at work defending America’s constitutional right to hate gay people based on something itinerant Hebrews wrote down thousands of years ago, and the reasonable GOP candidate for president’s views on this topic have been described as “terrifying,” there’s one place where religious freedom still gets the short end of the stick.
In an opinion earlier this week, Judge John Gerrard rejected the religious persecution claims of one Stephen Cavanaugh, an inmate at the Nebraska State Penitentiary. So is that it? Is religious freedom only important when it protects those on the outside or is something more fundamental at work here? The answer is a little of both depending on how you look at it.
By the way, can we take a second and ask why Judge Gerrard seems to get all the pro se religion cases? Remember the prosanity when God sued homosexuality? That was Judge Gerrard judging the King of Kings. At the time he wrote, “This Court is not the place to seek opinions regarding theological matters.”
To kick off the opinion, Judge Gerrard writes at length about Cavanaugh’s professed creed — the Church of the Flying Spaghetti Monster. For the unfamiliar, “FSMism” — or Pastafarianism — answers the theory of “intelligent design,” exposing the latter’s claim to “religious neutrality” since there’s no reasonable alternative to the Judeo-Christian deity as the “intelligent designer” in the theory. Most of us had a good, smug chortle. Cavanaugh, potentially, found a new Messiah.
On the basis of this faith, Cavanaugh requested a number of privileges from his jailers. Look, it’s hard to argue with his conviction — he “has several tattoos proclaiming his faith.” Nonetheless, Judge Gerrard decided FSMism wasn’t a “real” religion under the RLUIPA. So much for his courtroom not being the place for theological matters.
The Court finds that FSMism is not a “religion” within the meaning of the relevant federal statutes and constitutional jurisprudence. It is, rather, 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.”
But hold on, how can a court make such a pronouncement? After all, Judge Gerrard (potentially trollingly) opens his discussion of the law with…
Courts must not presume to determine the plausibility of a religious claim.See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2778 (2014).
That should end the inquiry, right? Subject, at least, to the reasonableness of accommodating Cavanaugh’s requests. Well, that’s the whole rub. Prison is one of the few places where the government may be compelled to intrude upon religious convictions because it controls every aspect of the inmate’s life in the name of holding that person and this condition gives Judge Gerrard the entrée to develop an opinion that attempts to reflect “reality” as opposed to “whatever the hell the majority in Hobby Lobby was talking about.”
This is not a question of theology: it is a matter of basic reading comprehension.
Zing. Not to break up Judge Gerrard’s flow, but when President Obama sought to replace the delightfully biting Judge Richard Kopf on the bench, he picked a truly worthy successor.
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.
Uh-oh, Scientologists. Seriously though, Judge Gerrard is exceedingly cautious in roping off FSMism from more established religions precisely because part of respecting religious freedom is respecting that not everything based in religion is an article of religious belief. To that point:
But that principle must have a limit, as courts have found when confronted with cultural beliefs; secular philosophies such as scientism, evolutionism, and objectivism; and institutions like the “Church of Cognizance” or “Church of Marijuana.” “Because RLUIPA is a guarantor of sincerely held religious beliefs, it may not be invoked simply to protect any ‘way of life, however virtuous and admirable, if it is based on purely secular considerations.'” (internal citations omitted)
That’s just it, isn’t it? The religious freedom craze — say, passing legal protections for vendors to deny service to homosexuals — is nothing more than throwing a bone to protecting a “way of life… based on purely secular considerations.” Even if one’s deeply held religious beliefs hold homosexuality as a sin, that’s at best a reason not to take it up yourself. The bright lights of Broadway will surely miss you.
Look, until 1978 Mormons were still cleaving awfully close to the idea that black people bore “the mark of Cain,” but that didn’t exempt them from adhering to the Civil Rights Act. Judge Gerrard takes the confined (pun!) case of religious freedom for prisoners to lay the groundwork for a broader attack on the “religious freedom movement” of constitutionally gussied-up bigotry.
But “however virtuous and admirable,” Judge Gerrard’s efforts to contextualize religious freedom are bittersweet because they come — perhaps unsurprisingly — at the expense of one of the most vulnerable segments of the population. And lest you say this doesn’t have anything to do with holding prisoners to a higher standard, on the outside, governments have recognized FSMism repeatedly — in Massachusetts, Wisconsin, Oklahoma, even Utah.
Honestly, was Cavanaugh asking for anything truly disruptive to the prison routine? According to the opinion, Cavanaugh doesn’t even articulate an exercise of his faith that the prison has substantially burdened. The one he tries to forward — dressing like a pirate — would not encumber his practice so much as his ability to “preach” FSMism according to its own Gospel. In another brilliant aside, the opinion notes that Cavanaugh didn’t specify what pirate regalia entailed:
[T]hey would presumably include such things as grog, a parrot, a seaworthy vessel, a “Colander of Goodness,” and to take off every Friday as a “religious holiday.”
My point is, this opinion could have dispensed with the claim on that basis and still allowed Cavanaugh to make more reasonable requests, such as a designated period to meet with other worshippers (if any). We didn’t have to knock down the very foundation of this prisoner’s attempt to make his incarceration slightly more tolerable.[1] With state and local governments bending over backward to accommodate an aggressive breed of “religious freedom,” did we have to die on the hill of the most benign of interpretations? In a sense that’s what equal before the law should mean, but maybe we could have let this slide until Mississippi gets sorted out.
But here we are again, with prisoners getting the shaft. Some day, we’ll all have to answer to the Spaghetti Monster over this mistreatment. Until then we can only ask His forgiveness.
Can I get a “Ramen”?
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[1] Pastafarianism is at least not demanding obviously preferential treatment like the Church of New Song, who asked for porterhouse steaks for communion. Still, some prisons humored the more benign requests of its members, such as worship time. And that turned out to be just a cover for white supremacist prison beatings. So, I can see why prisons might be leery of creating gathering time, but until proven otherwise we should assume Cavanaugh would have the best of intentions.
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