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.
Ireland: ‘Pastafarian’ who wants to wear colander on head loses bias case
Why would we want to accommodate the religious beliefs of prisoners? I can think of 2 types of reason:
1 The prisoner may believe that if he does not carry out certain religious practices he will be punished by God (in the worst case, he will be punished eternally in Hell). To be forced to live in that fear could be considered as an additional punishment.
2 The prisoner may consider that he has an absolute moral duty to carry out those duties. Being unable to carry them out will cause him mental suffering, over and above the fact of imprisonment.
I’m not sure about #1. In regard to #2, I would be tempted to say “You should have thought of that earlier”. If he is married he has duties towards his wife, and we accept that he will be unable to carry them out while in prison. It’s part of the punishment.
Orange Is The New Black had a whole story line this past season with prisoners claiming to be Jewish because the kosher food was a whole lot better than the crap that cost-cutting foisted on everyone. The story culminated in one of the prisoners actually finding meaning in Judaism and she ended up converting by the end of the season. It was done well enough that even a grouchy atheist like myself enjoyed it.
Simpler solution: no religious exemptions. Not that it will happen in the near future.
I’m always surprised how some atheists find reasonable accommodations for religions, like kosher food, to be some horrible thing. It’s not a big deal, and in a multicultural society we should be open to reasonable requests.
Forcing non-kosher food on Jews, or giving beef to Hindus, or whatever is not just a lack of respect to someone’s religious beliefs, but a total lack of respect for them entirely. It’s completely at odds with a humanistic and multicultural approach, and rhetoric like #2 or #4 always shocks me a bit.
@doublereed
One objection I may have with your statement is the preparation of kosher foods can be at odds with a humanistic approach if you consider an ethical treatment of animals as humanistic. So, no, it is not necessarily completely at odds. Perhaps where we may disagree is on what a “reasonable” request is. (On that note, I think one problem I have with your comment is you use the qualifier “reasonable” in combination with more absolutist terms like “total” and “completely” that it’s difficult to know what you are saying. Are you saying, for example, that it is completely at odds within reasonable requests, but not completely at odds with unreasonable requests?)
A second objection I may have is linking eating beef to religion. So what about vegetarians? Is that a religion? If not, do they have to eat beef? The point here is that I think this is broader than religion that I would not label it as a “religious exemption.” Rather, it’s a reasonable dietary restriction. (Kosher food, though, would not fit this category.)
Leo,
That’s an interesting question about whether vegetarianism (or veganism) is a protected right that prisons have to accommodate. The answer seems to be no. Different prisons have different policies, and PETA lists the 10 best places to be a vegetarian.
The best advice for vegetarians heading for prison seems to be to adopt a religion that has vegetarianism as a central tenet.
doublereed @5:
Maybe I’m too old to be shocked, but I do find their smug dismissal a bit nauseating.
Leo @6:
You mean as opposed to the humanistic approach which informs the provision of meat to other prisoners? AKA factory farming.
Because prisoners retain their fundamental human right to freedom of conscience and to practice their religion.
Seriously, you do not suddenly forfeit all of your fundamental human rights when you’re convicted of a crime. (Although apparently this is a controversial notion in the barbaric, pseudo-mediaeval dungeon that the US penal system…)
I think this is a totally arbitrary distinctions and it turns freedom of religion into the privilege of believers of institutionalized religion. There is no reason why a vegetarian should be a follower of a recognized vergetarian religion in order to get vegetarian meals. Every one can have an epiphany and to start his own religion, or believe that something that started as a parody has real meaning to them.
That is why I am against religious exemptions. The choices that are available shouldn’t be depending on the professed beliefs of someone. Reasonable accommodations are reasonable for everyone. I you think some “religious” accommodation is reasonable, all comparable accommodation should be available to anyone. Not just those that can declare an interest from religious grounds.
Like others here, I am not a fan of religious exemptions. But if a person makes this kind of claim, they had better demonstrate a STRICT adherence to their religion. Yeah, even the stuff like not wearing clothing with more than one material, and willing to stone a woman to death if she is not a virgin on her wedding night.
@6 Leo
If you want to disagree about what is reasonable, that is one thing. If you want to be dismissive and basically just say “eh fuck em” then that’s another thing entirely.
Well obviously kosher food is a reasonable dietary restriction if vegetarian is. Hell, isn’t all vegetarian food kosher???
Well reasonable accommodations toward religion do encompass more than just dietary restrictions. I certainly think vegetarians should be accommodated.
@6 Leo
I just wanted to point out that #2, #4, and #12 are not for making reasonable accommodations broader and apply to more people, but making them stricter. Often in a somewhat mocking tone.
Doublereed- I am thinking about those who use religion as a defense when it is convenient for them to do so. If you feel you shouldn’t have to provide a service to, say, a gay person because of your deeply held Christian faith, you had better demonstrate that you consistently do “Christain” things, even when -- and especially when -- it is inconvenient.
When the only justification one can provide to be exempt from lawful compliance is that so doing would violate a religious mandate, it is tantamount to justifying it as a personal conviction. de gustibus and all that.
Clearly, the legal system still affords religious conviction a privilege it doesn’t afford other personal convictions.
(Under the law, all people are equal, but the religious are more equal than the rest)
@15 Matt G
I take pretty much the same position as the ACLU, which defends reasonable accommodations as well as fights against using religion to discriminate.