Guise of Belief: Acquiring Religious Accommodations with an Invented Religion and a Veil of Religious Sincerity

By: Jarrett Field

What catch-all term exists that can adequately describe diverse new (relatively speaking) “religious” groups that exist, at least presumably, to problematize the role of religion in government? How does one identify and categorize groups that deliberately avoid identification and classification? Terms like “parody” or “satiric” religions are widely used, but they beg the question—they assume from the start that the system in question is illegitimate. Will we always be able to readily identify when an invented religion (a term popularized by Dr. Carole Cusack) is merely satire? Perhaps more importantly, will courts always be able to make this determination?

“Parody” religions aren’t new, and for the most part, they’re written off as a chuckle worthy anecdote of the internet age. They often spawn short “weird news” stories that combine a clickbait-humor angle with a brief explanation of the supposed policy goals of an actor on behalf of the religion. Or at best, they receive scholarly attention for “forc[ing] a public conversation about the definition of religion.” Countless articles have been spawned describing the patently satiric belief systems of well-known parody religions like the Church of the Flying Spaghetti Monster (or, Pastafarianism), which began as an attempt to attack the inclusion of intelligent design in school curriculums by a Kansas school board. The absurdism of a spaghetti-based deity was no doubt an intentional attack on the legitimacy given to intelligent design by the school board, despite assurances on Pastafarianism’s website by creator Bobby Henderson that “[Pastafarianism] is legitand backed by hard science. Anything that comes across as humor or satire is purely coincidental.” But parody religions can be sniffed out because they want to be. Their purpose, for now, is to openly mock and thereby question the role of religion in government. It’s not difficult for a judge to look at Pastafarianism and determine the belief is insincere, not by use of any clever legal test, but merely by looking at the parody religion on its face.

This is exactly what happened in Cavanaugh v. Bartelt, 178 F. Supp. 3d 819 (2016), when a federal judge in Nebraska heard a religious discrimination suit filed by a prisoner for the right to wear religious regalia (naturally pirate regalia, in this case) and meet for weekly worship services, among other things. Cavanaugh, the plaintiff, was able to convey at least a degree of religious sincerity, given that the opinion acknowledges he “has several tattoos proclaiming his faith” and has “openly declared his beliefs for many years.” The opinion acknowledges that Pastafarianism “contains a serious argument” regarding the place of religion in public education, and discusses the origin of Pastafarianism and its supposed tenets at length. Ultimately, the court found that the plaintiff Cavanaugh failed to state a plausible claim for relief and that Pastafarianism is “plainly a work of satire, meant to entertain while making a pointed political statement.” Much of the opinion relies on this understanding of Pastafarianism as plain satire, as well as Cavanaugh’s failure to assert that the prison’s practice put a “substantial burden” on his religious exercise (necessary for claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA)).

Notwithstanding dismissing the case for failure to state a claim, the line Judge Gerrard walks between acknowledging Burwell v. Hobby Lobby Stores, Inc. and its admonition that “[c]ourts must not presume to determine the plausibility of a religious claim,” and dismissing Pastafarianism as plain satire is thin. Gerrard seems to conflate the sincerity of the professed believer and the legitimacy and plausibility of the belief system. After citing Hobby Lobby, Gerrard ends the paragraph by arguing that RLUIPA cannot be used to protect a belief system that is purely secular, and if “an asserted belief system [is] so bizarre, so clearly non-religious in motivation,” it may not be entitled to protection. Deciding that a religion is bizarre seems to be an obvious inference into the plausibility of a religious claim. Even more worrisome, the cases Gerrard cites to legitimize his determination that Pastafarianism is non-religious, United States v. Zielinski (N.D.N.Y. 2013), Frazee v. Illinois Department of Employment Security (SCOTUS 1989), and Koger v. Bryan (7th Cir. 2008), among others, are all older cases that may have been overruled by the Supreme Court in Hobby Lobby (2014).

Assuming SCOTUS did not intend to forbid it in Hobby Lobby, the ability to separate out “real” religions and their followers from the “fakes” is not a laughing matter, and is a practice taken up by the court system historically. This ability is vital for determining who ought to be entitled to religious asylum, protection from employment discrimination on the basis of religion and reasonable workplace accommodations, accommodations for prisoners such as special diets and possession of religious items like prayer rugs, conscientious objection from serving in the military, drug use, and perhaps even the right of a business to refuse to serve a specific demographic. The potential for religious accommodation to grant otherwise unavailable protections and rights should not be understated. For example, Sandford Levinson of The University of Texas at Austin suggests that religious liberty might be used as a tool to refuse to cooperate with the federal government regarding its immigration and deportation policies. Adoption of an invented religion might thereby lend itself to protest efforts.

What if an invented religion was not so easily dismissed as satire? What if the deliberately outlandish were replaced by a perfectly plausible, albeit manufactured, belief system? What if the humor present in Pastafarianism, susceptible to a federal judge’s “basic reading comprehension,” were stripped away, and we were left with a belief system imperceptibly similar to major organized religions that regularly secure religious exemptions and accommodations? How could a court of law pierce the veil of a well-developed invented religion to determine whether a claim has merit?

The answer, if one exists, is not obvious. Scholars from the Stanford Law Review and Washington Law Review contend that “courts can, and should, adjudicate religious sincerity” to determine when claimants have a legitimate belief worthy of judicial acknowledgement. They posit that a court’s scrutiny “should proceed as any other factual determination of a party’s mental state,” with the exception that the Constitution forbids an inference of insincerity from implausibility of the belief. Such a factually based test might only be suitable for the sincerity of believers in traditional organized religions. If a prisoner claimant alleges to be a devout Muslim and files suit to grow a beard against prison regulations, but in accordance with his purported faith as in Holt v. Hobbs, a factual inquiry into the claimant’s history of having a beard, attending mosque, and observance of daily prayer, among other things, may be sufficient to determine the claimant’s sincerity. Courts have long adjudicated both religious sincerity and the legitimacy of a religious group. Some, including Supreme Court Justice Ruth Bader Ginsburg, believe that courts “must accept as true” plaintiffs’ assertion that their religious beliefs are sincere. But what if the belief system in question requires no external acts of religious observance, or the system is tailored to its user group such that their regular pre-conversion unique activities, choice of clothing, and ethical beliefs constitute religious observance?

Regardless, relying on a factual inquiry seems to dodge the real question. It’s perfectly plausible to imagine a professed member of a religion designed to confer the maximum legal accommodations who has all of the necessary trappings of a genuine devout and sincere believer, such that neither jury nor judge could parse him from a devout member of a more traditional religion. Are we to withhold accommodations from religions insufficiently old or widely recognized? Such a system might be unconstitutional under First Amendment Establishment Clause jurisprudence, which maintains that the government cannot favor one religious belief system over another.

What’s left to do? We certainly can’t refuse to at least attempt to parse the “fake” from the sincere—false religious accommodation claims would create enormous costs. And we can’t abolish religious accommodations altogether, as this would likely have widespread unpalatable effects on the genuinely religious, especially those that already face prejudicial treatment, like Muslims. Is there any way for a jury or judge to see past a sufficiently sophisticated farce? For now, we’ll have to hope that invented religions stick to humor and forgo genuine dedication to acquiring religious accommodations through an elaborate ruse.