by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
When appointments are made to the U.S. Supreme Court there is often much talk about the potential justice’s “paper trail” — the articles, briefs, or, if the candidate is already a judge, opinions he or she has written. If Judge John M. Gerrard of the U.S. District Court for the District of Nebraska is ever fortunate enough to be appointed to the Supreme Court, I hope that someone questions him about his recent opinion in Cavanaugh v. Bartelt. The decision does not provide much insight into his “judicial temperament” or his position on any hot button social issues that might come before the Supreme Court. It is just a well written and — not to sound too geeky — enormously entertaining opinion to read.
Cavanaugh was a lawsuit filed by a prisoner in a Nebraska prison who claimed to be a “‘Pastafarian,’ i.e., a believer in the divine ‘Flying Spaghetti Monster’ who practices the religion of ‘FSMism’.” Plaintiff sued prison officials, claiming they were not accommodating his religious requests. Judge Gerrard concluded that FSMism was not a religion under the law, but was instead “a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education.” While he acknowledged that these were “important issues and FSMism contains a serious argument,” he held that FSMism was “not entitled to protection as a religion.”
Before addressing the legal issues presented by the complaint, Judge Gerrard provided a brief and entertaining history of FSMism. Because it developed as a response to “intelligent design,” Judge Gerrard traced the debate over teaching evolution in public schools from the adoption of state laws banning the teaching of evolution, to the Supreme Court’s rejection of those laws, to the adoption of state laws requiring that schools teach both evolution and “creation science,” to the Supreme Court’s rejection of “creation science” under the Establishment Clause, to the rise of “intelligent design” as an alternative to evolution. Proponents of “intelligent design” claim that the “Earth’s ecosystem displays complexity suggesting intelligent design by a ‘master intellect.” They try to avoid the Establish Clause issues that brought down “creation science” by not expressly identifying the “master intellect” as a deity.
FSMism was a satirical response to intelligent design. A man named Bobby Henderson wrote a letter to the Kansas Board of Education when it was considering requiring the teaching of “intelligent design” in Kansas’s public schools. In it, he argued that, because “intelligent design” does not “identify the designer, its ‘master intellect’ could just as easily be the ‘Flying Spaghetti Monster’ as any Judeo-Christian deity – and, in fact, there [was] as much scientific evidence for a Flying Spaghetti Monster as any other creator.” His letter became known as the FSM Gospel, and included the following blurb, which Judge Gerrard noted “conveys the flavor” of the “religion”:
Can I get a "Ramen" from the congregation?!
Behold the Church of the Flying Spaghetti Monster (FSM), today's fastest-growing carbohydrate-based religion. According to church founder Bobby Henderson, the universe and all life within it were created by a mystical and divine being: the Flying Spaghetti Monster. What drives the FSM's devout followers, aka Pastafarians? Some say it's the assuring touch from the FSM's Noodly Appendage. There are those who love the worship service, which is conducted in Pirate-Speak and attended by congregants in dashing buccaneer garb. Still others are drawn to the Church's flimsy moral standards, religious holidays every Friday, and the fact that Pastafarian Heaven is way cooler. Does your Heaven have a Stripper Factory and a Beer Volcano? Intelligent Design has finally met its match—and it has nothing to do with apes or the Olive Garden of Eden.
Within these pages, Bobby Henderson outlines the true facts—dispelling such malicious myths as Evolution ("only a theory"), science ("only a lot of theories"), and whether we're really descended from apes (fact: Humans share 95 percent of their DNA with chimpanzees, but they share 99.9 percent with Pirates!).
One of the many interesting side notes in Judge Gerrard’s opinion was his view that taking judicial notice of the FSM Gospel was “effectively the same as taking judicial notice of the Bible.” (Just imagine how this decision could be contorted and contrived during a confirmation hearing: "So Judge Gerrard, are you telling us that you believe the FSM Gospel stands on the same grounds as the Holy Bible?!?")
With this explanation for context, Judge Gerrard then turned to plaintiff’s claims. Plaintiff asserted that prison officials were required to afford his faith the same rights as other religious groups, “including the ability to order and wear religious clothing and pendants, the right to meet for weekly worship service and classes and the right to receive communion.” (Plaintiff did not explain any of these claims in detail, but Judge Gerrard noted that “it [was] clear from the FSM Gospel that ‘religious clothing’ mean[t] a pirate costume and ‘communion’ [was], not surprisingly, ‘a large portion of spaghetti and meatballs.’”) When prison officials refused to do so, plaintiff sued under the First Amendment and Equal Protection Clause of the Constitution and similar provisions in the Nebraska Constitution. Judge Gerrard analyzed plaintiff’s claims under these provisions and the federal Religious Land Use and Institutionalized Person Act (RLUIPA), which generally prohibits prisons from imposing a substantial burden on a prisoner’s religious exercise.
Judge Gerrard observed that Cavanagh was a difficult case “because FSMism, as a parody, [was] designed to look very much like a religion.” But, it was nonetheless evident to him that it was not “a belief system addressing ‘deep and imponderable’ matters,” like a religion, but was instead “a satirical rejoinder to a certain strain of religious argument.” To this end, he noted: “[R]ead[ing] the FSM Gospel literally would be to misrepresent it – and, indeed, to do it a disservice in the process. That would present the FSM Gospel as precisely the sort of Fundamentalist dogma that it was meant to rebut.”
Judge Gerrard was careful not to dissect plaintiff’s beliefs or “question[] the validity of [those] beliefs.” Rather, he held that his decision was “not a question of theology,” but rather “a matter of basic reading comprehension.” He explained:
[A]side from identifying the FSM Gospel, Cavanaugh has not alleged anything about what it is that he actually believes — leaving the Court to read the book. 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.
. . .
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. Of course, there are those who contend — and Cavanaugh is probably among them — that the Bible or the Koran are just as fictional as those books. It is not always an easy line to draw. But there must be a line beyond which a practice is not "religious" simply because a plaintiff labels it as such. The Court concludes that FSMism is on the far side of that line.
Although I have not done an extensive survey, I would bet that this is the only time Jonathan Swift, Kurt Vonnegut, and Robert A. Heinlein were referenced in the same judicial opinion. Regardless, because FSMism was not a “religion,” plaintiff could not allege that a “religious exercise” was burdened, therefore Judge Gerrard dismissed his complaint.
Although he concluded that FSMism was not a religion, Judge Gerrard considered, if it had been, whether prison officials had substantially burdened plaintiff’s religious exercise. He concluded that they had not. Judge Gerrard noted that plaintiff primarily complained that prison officials were not treating FSMism the same as other religions, not that his exercise of FSMism was being burdened. “The closest he comes [to alleging that his exercise of FSMism was burdened was by] alleging that the ‘wearing of special religious clothing is particularly important in FSMism’ because, according to [plaintiff], the FSM Gospel says that the Flying Spaghetti Monster ‘becomes angry if we don’t.’” Again, plaintiff did not identify the “religious clothing” he wanted to wear — a pirate costume — or the source of his belief, but Judge Gerrard found it in the FSM Gospel. In his letter to the Kansas Board of Education, Henderson wrote:
I’m sure you now realize how important it is that your students are taught this alternate theory. It is absolutely imperative that they realize that observable evidence is at the discretion of the Flying Spaghetti Monster. Furthermore, it is disrespectful to teach our beliefs without wearing His chosen outfit, which of course is full Pirate regalia. I cannot stress the importance of this enough, and unfortunately cannot describe in detail why this must be done as I fear this letter is already becoming too long. The concise explanation is that He becomes angry if we don't.
Judge Gerrard observed that this was “an attempt to vex the Kansas Board of Education,” and that “it [was] a joke, at the expense of proponents of intelligent design.” Regardless, Judge Gerrard held that denying plaintiff the right to wear a pirate costume might make it more difficult for him to practice FSMism, but it would not “make him effectively unable to do so, or coerce him into acting contrary to his beliefs,” therefore the prison officials had not done anything to substantially burden the exercise of plaintiff’s religious beliefs.
In the end, Judge Gerrard’s opinion in Cavanagh may not go down in the annals of legal history as a landmark decision, but it is a thorough and entertaining opinion, delivered with a straight face that I don’t think I would have been able to muster.
Pete's Take 