Not all Expressions of Purported Religious Beliefs are Protected by the First Amendment, Cavanaugh v. Bartelt, Docket No. 4:14-cv-03183-JMG-CRZ Doc # 47 Filed: 04/12/16

Apr. 18, 2016 / by Eric Marcy

The Dismissal of Federal and State Civil Right Claims

Federal District Court Declines to Protect the Church of the Flying Spaghetti Monster [FSM]
In an entertaining, thoughtful, and well-reasoned decision the Honorable John M. Gerard, United States District Judge, for the District of Nebraska, has defined the limits of the First Amendment in the recognition of religion and the protections afforded by Federal and State constitutional and statutory provisions protecting the Free Exercise of Religious Beliefs. Judge Gerard wades into the murky waters of what defines a “true” religion that is worthy of protection. In this case, the court engaged in an analysis of the tenets of an inmate’s assertion of religious belief and dismissed a lawsuit brought by the inmate. The court concluded that the Church of FSM is “satire” and not worthy of consideration as a religion or the protections afforded religious belief under Federal and State law. This case demonstrates that the Federal judicial system will not hesitate to determine the legitimacy of the assertion of personally held religious beliefs. An inmate at a Nebraska State Penitentiary filed a lawsuit in the District of Nebraska advancing the Federal and State Claims which protect the free exercise of religious beliefs. The Plaintiff alleges violations of the religious freedom provisions of:
  1. The Free Exercise Clause of the First Amendment to the U.S. Constitution;EJM Blog - Flying Spaghetti Monster in Heavenly Clouds Image.jpg
  2. The Equal Protection Clause of Fourteenth Amendment of U.S. Constitution;
  3. Art I, § 4 of the Nebraska constitution;
  4. Art. I, § 3 of the Nebraska constitution.; and
  5. The Court analyzed the Complaint under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq.
Some might assert that the Federal Government should not be interfering with a person’s religious beliefs and should not be the arbiter of what defines a “true religion” or whether an individual is expressing a sincerely held religious belief. Others might advance that “big government” should have no role in limiting the free exercise of religion. Yet others still might conclude that determining whether a religion is legitimate or not legitimate is a slippery slope that will undermine the First Amendment’s Free Exercise of religious belief. Judge Gerard determined that there are limits to one’s asserted exercise of faith that, by necessity, require an analysis of the nature of the beliefs expressed and whether there has actually been a substantial burden on religious beliefs. In dismissing the complaint the court concluded:
  1. “FSMism is not a ‘religion’ within the meaning of the relevant federal statutes and constitutional jurisprudence”;
  2. “It is, rather, a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education.”
(ECF Doc. No. 47, Page 1 of 16 - Page ID # 162). In making this judgment the court reviewed the tenets of the FSM faith and concluded that the assertion of being a “Pastafarian” in and of itself does not establish a religion. Additionally the general and vague assertions in the complaint compelled the court to look beyond the complaint and take judicial notice of the writings regarding the divinity of the “Flying Spaghetti Monster [FSM].” In considering the free exercise claims the court referenced and cited, Bobby Henderson, The Gospel of the Flying Spaghetti Monster 111-13 (2006) (FSM Gospel). (ECF Doc. No. 47, Page 5 of 16 - Page ID # 166). The court determined that the “religion” of FSM “contains a serious argument” that, however, is not religious, rather it is satirical. The court determined that only through analysis of and reviewing FSM rites and practices may one discern the “deliberate absurdity of its provisions.” (ECF Doc. No. 47, Page 1 of 16 - Page ID # 162). In determining that the church of the Flying Spaghetti Monster is not worthy of "Free Exercise" religious protection, the court noted the following tenants of the FSM faith:
  1. That FSM is “fastest-growing carbohydrate-based religion”;
  2. That gravity may explained not by a so-called scientific theory, but rather by the “assuring touch from the FSM's Noodly Appendage”;
  3. That the FSM “worship service . . . is conducted in Pirate-Speak";
  4. That congregants attend the service “in dashing buccaneer garb.” Which was one of the Plaintiff’s request for religious accommodation;
  5. That the "Pastfarian" religion’s Heaven has “a Stripper Factory and a Beer Volcano”;
  6. The court notes that in taking judicial notice “it is clear from the FSM Gospel that ‘religious clothing’ means a pirate costume and ‘communion’ is, not surprisingly, ‘a large portion of spaghetti and meatballs.’ FSM Gospel at 38, 160”;
  7. The court also stated that while the Plaintiff “does not specifically identify the other ‘religious’ practices he seeks; they 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’."
The Flying Spaghetti Monster at the Heart of the Free Exercise Lawsuit[/caption] Assessing whether a court considers religious rites and practices to be absurd is measured on the current understanding of religion beliefs and societal norms. Over the course of history there have been scores of different religions, the rites of which may not only be considered absurd, but at times brutal and evil to people of a different faith. What is one man’s religion may well be another’s heresy. While it may be necessary to determine the scope and interpretation of current laws – any judgment on what is or is not a religion raises some interesting dilemmas. The court recognizes this issue in stating that it “is well-aware of the risks of such an endeavor: it might be too restrictive, and unduly exclusive of new religions that do not fit the criteria derived from known religious beliefs.” (ECF Doc. No. 47, Page 12 of 16 - Page ID # 173). The court analyzed the claims asserted under the Religious Land Use and Institutionalized Persons Act, summarizing the protections as:
RLUIPA provides that in a program that receives federal financial assistance, [Fn 4, “Every State accepts federal funding for state prisons.”]
[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a). A "'religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). The statute is to be "construed in favor of a broad protection of religious exercise, to the maximum extent" permitted by the statute and the Constitution. 42 U.S.C. § 2000cc-3(g).
(ECF Doc. No. 47, Page 7 of 16 - Page ID # 168). The court then proceeded to peer into the soul of the Plaintiff to determine “whether the objector's beliefs are truly held.” In support of the assertion the sincerity of his beliefs the Plaintiff “has ‘openly declared his beliefs for many years’ and ‘has several tattoos proclaiming his faith.’" (ECF Doc. No. 47, Page 5 of 16 - Page ID # 162). The court noted that a prison may determine of authenticity of the belief and the court may assess the “plausibility” to the religious claims. While there is really no alternative, vesting the court with the authority to determine the “plausibility” of a religion – raises serious questions about the pliability or limitations of the First Amendment. In its ultimate determination, the court notes that “[t]his 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.” (ECF Doc. No. 47, Page 10 of 16 - Page ID # 171). Courts determining what does and does not constitute a truly held religious belief and what does or does not constitute a religion raises complex constitutional issues requiring the subjective determination by the judge hearing each case. When does a religion reach the level of “absurdity?” In this case the decision may have been easy, it may not be so easy in other claims of religious beliefs. One thing is for sure, each claim will be subject to strict scrutiny and evaluated based upon the current religious and moral standards. The court will be carefully reviewing the individual’s sincerity of belief and the rituals and rites of the religion in question. I would also note that it is one of the more unusual and entertaining opinions to read.

Topics: Constitutional Rights, Civil Rights Litigation, prisoner rights, free exercise of religion, civil rights, first amendment

Eric Marcy

Written by Eric Marcy

Eric Marcy is a Shareholder at Wilentz, Goldman, & Spitzer, PA, 90 Woodbridge Center Drive, P.O. Box 10, Woodbridge, N.J. 07095. He has been employed with the firm since September of 1985 and has a wide variety of experience in criminal, civil, and administrative litigation. View Mr. Marcy’s bio at

Mr. Marcy has been a member of the New Jersey Association of Criminal Defense Lawyers since 1987. He served as a Trustee of the NJ-ACDL from 2001 to 2010. He also served on the legislative committee and instrumental in creating Association’s website and served as the website administrator for the NJ-ACDL (

Mr. Marcy served as an instructor for the Institute of Continuing Legal Education Criminal Practice “Skills and Methods” program for newly admitted attorneys from 2000 to 2009.

Mr. Marcy has served as a panelist on credited Continuing Legal Education programs on Ethics, Municipal Liability, and Police Liability for the New Jersey Association for Justice, the National Business Institute, and Lorman Educational Services.

Mr. Marcy has been selected for inclusion in New Jersey Super Lawyers® lists 2018-2017, 2009-2006. Super Lawyers is published by Thomson Reuters. A description of their selection process can be found in the respective link above. The aforementioned organization is a private peer review organization, not a court specific public certification vehicle. No aspect of this advertisement has been submitted to or approved by the Supreme Court of New Jersey.

He is also an authorized attorney under the New Jersey State PBA Legal Protection Plan, representing law enforcement officers in administrative, civil and criminal matters.

Inquiries may be directed to him by telephone at 732-855-6004 or by email at

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