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July 27th, 2017

Insight

Is the Divine a pasta monster? That's a legal question

Noah Feldman

By Noah Feldman Bloomberg View

Published April 19, 2016

What's a religion? The question is fundamental to the legal analysis of religious freedom, yet courts avoid addressing it. The Supreme Court has never given a concrete answer. The result: Courts don't claim to be able to define religion, but think they know it when they see it.

The consequences can be surprising. I recently wrote about a case in which an appeals court expressed skepticism about whether a religion based on the use of traditional Native American hallucinatory substances was really a religion. And just last week a federal district court rejected a prisoner's religious-liberty claim on the ground that his faith, Pastafarianism, is a parody of religion rather than religion itself.

The facts of the parody case are entertaining -- but they're also important. As it turns out, the adherents of the parody religion are engaging an important set of claims about religion. Their claims are both theological and constitutional. And they may press the courts to create new law on the topic of religious liberty.

The case arose under the Religious Land Use and Institutionalized Persons Act of 2000, the legal little sister of the better-known Religious Freedom Restoration Act of 1993. Stephen Cavanaugh, a prisoner in the Nebraska State Penitentiary, says that he is a member of the Church of the Flying Spaghetti Monster, and sought religious accommodations in association with what he described as his faith. A federal district court in Nebraska rejected his claim.

If you haven't heard of FSMism, as I hadn't, you're in for a treat. Its core ideas are expressed in a book, the Gospel of the Flying Spaghetti Monster.

In essence, as the federal court in Nebraska explained, the doctrine of the Flying Spaghetti Monster emerged in response to the idea of intelligent design, a social and intellectual movement that points to gaps in the evidence for the theory of evolution and asserts that life must have been created by some intelligent life force.

The intelligent design movement was created at least in part to find a legal way to get an updated form of creationism taught in public schools. In the failed attempt to achieve that goal, its advocates insisted that intelligent design wasn't a religious teaching, but rather a secular one.

The author of the pasta gospel, Bobby Henderson, took intelligent-design and reasoned, isn't it just as likely that it's a flying spaghetti monster as a beatific, omnipotent god? With the spaghetti-monster scripture in place, rituals arose and adherents materialized. The faith promises a holiday every Friday. Its rituals are performed in what the faithful call "pirate talk."

And this past weekend, in a wonderful coincidence, the first known legal Pastafarian wedding was solemnized in Akaroa, New Zealand. Pictures show the couple and the celebrant, a Flying Spaghetti Monster minister, in what look like Pirates of the Caribbean outfits. Reportedly the minister blessed the couple in these words: "May your sails be full, your compass point true, and your noodley best mate keep you warm and happy all the days and nights of your journey together."

New Zealand recognizes Pastafarianism as a religion, or at least allows its self-described ministers to perform marriages under its laws. The federal court in Nebraska held otherwise.

The court acknowledged that the case was a hard one "because FSMism, as a parody, is designed to look very much like a religion." And it "candidly" admitted that precedent wasn't very helpful in such a case.

But it concluded that it would be a mistake to consider a parody of religion to count as an actual religion. "It is no more tenable to read the FSM Gospel as proselytizing for supernatural spaghetti," the court said, "than to read Jonathan Swift's 'Modest Proposal' as advocating cannibalism."

There's something perversely poetic about this result. Intelligent design claimed it wasn't a religion, yet a federal court found that it was one. Pastafarianism, founded in response to intelligent design, claims to be a religion -- and a federal court has now held that it isn't one.

The court may not have gotten this case right. Yes, Pastafarianism was born as a parody. But that parody came to be accompanied by rituals, adherents and beliefs. Those are some of the key sociological factors that go into a description of religion. What's more, Pastafariansim is based on a parody with a serious point: It aims to show not only that intelligent design is silly, but that organized religions are silly. That's a claim about ultimate meaning that could fairly be called theological.

It's entirely possible that adherence to flying spaghetti monsterism could play the same role in the life of a follower as religion does in the life of a believer. In these ways, it's at least as much of religion as atheism or humanism, which courts have sometimes found to be religions for purposes of federal law.

The most important thing about the Church of the Flying Spaghetti Monster is that it forces us to ask the tough question of what should count as a religion. The point of smart parody is to make us think. Even if its faith never achieves recognition in the U.S. courts, the Noodly Appendage has already achieved that much. Thank Him.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."

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