In de Wilde v. the Netherlands (9476/19, Decision 9.11.2021) the ECHR has held that Article 9 of the Human Rights Convention is not applicable and in non-recognition of Pastafarianism as a religion or belief has endorsed rejection by the Netherlands of identity photos of Pastafarians wearing a colander.
The Court's statement indicates
Facts – The applicant is a so-called “Pastafarian”, a follower of the “Church of the Flying Spaghetti Monster”. When she tried to renew her identity card and her driving licence, she submitted identity photographs of herself on which, allegedly in line with the prescriptions of her belief, she was wearing a colander. These were rejected, in accordance with the delegated legislation in force, which required the identity photograph on official identity documents to show the bearer bareheaded unless a head covering was prescribed by the bearer’s religion. Her challenges were unsuccessful; the administrative and judicial authorities found that Pastafarianism did not qualify as a “religion”. The applicant complained, inter alia, that the domestic authorities, in particular the Administrative Jurisdiction Division of the Council of State, had misapplied the standards developed by the Court and that no account had been taken of her forum internum.
Law – Article 9: Given the applicant’s complaints, the core question was whether Pastafarianism could be regarded as a “religion” or “belief” to be protected by Article 9. The Court replied in the negative. In particular, it found no reason to deviate from the findings of the Administrative Jurisdiction Division, whose decision appeared carefully measured and did not seem in any way arbitrary or illogical. That court had duly applied the standards set out in the Court’s case-law and noted a lack of the required conditions of seriousness and cohesion. While accepting that the applicant had been consistent in wearing her colander out of doors, it found that she had not shown that she belonged to a Pastafarian denomination that met the above preconditions. In this context, the Court noted that the original aim for which the Pastafarian movement had been founded had been to protest against the introduction into the school curriculum of the state of Kansas of the doctrine of “intelligent design” alongside the theory of evolution; this had inspired a movement critical of the influence and privileged position afforded to established religions in some contemporary societies. That movement had sought to express this criticism by parodying aspects of those religions and by claiming the same privileges for itself with a view to propagating its message. This understanding was supported not only by the form and content of Pastafarian teaching but also by the appearance in one of its “canonical” texts of the outright statement to that effect.
In these circumstances, and in particular given the very aims for which the Pastafarian movement had been founded, the Court did not consider Pastafarianism to be a “religion” or “belief” within the meaning of Article 9. Consequently, the wearing of a colander by followers of Pastafarianism could not be considered a manifestation of a “religion” or “belief”, even if the person concerned submitted that he or she chose to do so out of a conviction that was genuine and sincerely held.
It followed that Article 9 could not apply either to the “Church of the Flying Spaghetti Monster” or to those who claimed to profess its doctrines.
