A Festivus for the Rest of Us…in Prison

Occasionally we’ll hear a story in the legal or mainstream press about a judge (usually “out there in crazy California, or something”) giving “official recognition” to some very small religion, or to some “religion” that has its origins in pop culture (e.g., Jedi).

These stories – if you read about them in forwarded emails, anyway – are usually framed as yet another example of the wrong direction our country is headed in, because the government is giving all these weird belief systems official recognition. It will probably also have something crazy to say about how President Obama is a secret Muslim, Kenyan, space alien, or maybe two children posing as an adult.

A story just came out about a prisoner who secured a religious accommodation for his desire to celebrate Festivus, an alternative to Christmas that was popularized by the Seinfeld TV series. Basically, a prisoner wanted to maintain his lean but robust physique while in prison. So, he requested that he be served the Kosher meal option, which happened to be healthier. He also requested double portions. The county sheriff, whose office pays for meals in the county jail, objected. The prisoner claimed that his religion, “Healthism,” required healthy eating, which everyone involved acknowledged was a farce. For whatever reason, the judge wanted his order to stand, so he asked the prisoner’s lawyer to suggest a religion he could write down in his order to make it stick. The lawyer said “Festivus,” thus enshrining the holiday in the hallowed halls of California jurisprudence.

While amusing, these stories often miss several very important points, and promote misunderstanding of the relationship between religion and the government. This can cloud the public’s understanding of important legal issues such as prisoners’ rights, employment discrimination, and separation of church and state.

First of all, the government doesn’t maintain some master list of “legitimate” religions, or religious beliefs, and the government isn’t in the business of recognizing religions. Contrary to some popular assumptions, your belief system doesn’t automatically get “official” recognition if you accumulate a certain number of followers (the figures I’ve heard people casually cite range from 20 to 50), because, in the United States, there are no “valid” and “invalid” religions.

There’s a basic reason for this: the 1^st Amendment. It says that the government can’t prohibit the free exercise of religion (that is, they can’t interfere with the religious practices of private individuals), and, more importantly, that the government cannot “establish” a religion – set up an official state church. Over the years, this prohibition has been read quite broadly by the courts to mean that the government can’t formally endorse any particular religion(s). There is some authority saying that the government can enact policies that favor religion in general (as opposed to irreligion), but that’s about as far as it can go.

There are several areas of law that require the government, or private entities, to give “reasonable accommodation” to an individual’s religious beliefs and practices. This largely derives from the Free Exercise clause of the First Amendment (or, in the case of private employers, 20^th Century civil rights legislation). However, in determining if an employee’s (or prisoner’s) request for an accommodation is valid, the first thing you have to decide is if it’s religious in nature.

This is probably where most people assume that the “master list” comes into play. Really, though, the court has to make a simple factual determination: is the plaintiff’s belief sincerely held, and is it religious in nature? It doesn’t matter if it’s a religion that the plaintiff just made up, of which he is the only follower.

Sometimes, a court might conclude that the plaintiff’s beliefs aren’t religious in nature, or aren’t sincerely held. These are questions of fact, and they have to be determined based on the evidence available in each individual case. This might be what gives the impression that the government can recognize, or decline to recognize, a religious denomination.

Deciding if a belief is religious in nature is pretty easy. If it deals with the supernatural or spiritual, and the plaintiff believes that it requires them to do something specific (rituals, prayers, etc.), or refrain from doing something (working on a certain day, for example), then it’s religious.

The much harder part is figuring out if the belief is sincerely held. Last I checked, courts don’t have access to mind-reading technology yet (and that’s just disgraceful, in my opinion. Write your congressman). So, how do they figure out if a belief is sincere or not? As with any question of fact dealing with a person’s state of mind, you have to infer it from their conduct.

How long has the plaintiff professed to belong to his or her religion? How observant of the religion has he or she been in the past?

Obviously, if the plaintiff has observed his or her religion for years, we can probably assume that it hasn’t all been a ruse to get a day off work, or a special meal in jail. On the other hand, if the plaintiff was recently denied a special request at work (for instance), and undergoes a sudden religious conversion which conveniently requires the accommodation that was just denied, well, a court’s skepticism would be understandable.

One of the great things about this country is that, when the constitution says “freedom of religion” (paraphrasing), it really means it. We’re so serious about religious freedom that we hardly even second-guess the beliefs of a person who belongs to a religion nobody has heard of, and we’ll usually even give them the benefit of the doubt that their beliefs are sincere, as long as they don’t give a really good reason to question their sincerity.