November 22, 2012
This guest post was written by Jogchum Vrielink.*
A small-town Belgian café owner was convicted for failing to comply with the smoking ban. His defense: his establishment is in fact a house of prayer for his religion.
In a café in Wachtebeke, in the west of Flanders, repeated violations of the smoking ban were observed. After a written warning had been issued in July 2011, additional infringements were established in September and December of that year.
The café owner refused to pay the proposed settlement and invoked the right to freedom of religion. He claimed to be a member of the ‘Only and Universal Smokers Church of God’ (Enige en Universele Rokerskerk van God). The café itself should be considered as an oratory or chapel of said faith, and smoking as its religious rite.
The criminal court of Ghent was impervious to that argument and imposed a fine of 1,650 euros. The court stated that the defendant “evidently [has] no respect for rules that must be observed in the general interest”. Furthermore, the judge found the defendant’s appeal to religious freedom to “testify to arrogance and contempt”.
The Smokers Church is not a mere figment of the café owner’s imagination. It was founded in 2001 by Dutch television producer Michiel Eijsbouts. Eijsbouts refers to himself as ‘Pope’ or ‘Smokelighter’ (Rooksteker), and claims his movement has all the marks of a religion.
The church’s website clarifies how it all works. In order to become a member, people need to send a 5 euro note and a handwritten version of the ‘Smokers Oath’, to the church headquarters. That oath pledges allegiance “to the Church, its authority and its God, in the Holy Covenant of Smokers”. Subsequently one receives a membership card, that supposedly “grants the right to ‘smoke religiously’ anyplace and anytime”.
Although, as such, the ‘religious smokers’ claim a right to smoke anywhere, in practice they only tend to do so at home or in their ‘places of worship’. As you may have guessed, these places of worship are cafés that accede to the Smokers Church, whereupon (only) church members are allowed to smoke on the premises.
In the Netherlands, a few dozen cafés joined the initiative. At least one of those received a fine. However, after the Dutch smoking ban was relaxed in 2010, most of these establishments were no longer covered by the prohibition. At the time, the ban was abolished for small cafés (maximum 70 m2) without staff. In Flanders, aside from the café in Wachtebeke, pubs in Antwerp, Mechelen, and a number other places have also joined the Smokers Church.
Invisible Pink Unicorns
Although the founder of the ‘Church’ formally denies it, it would appear obvious that the Smoking Church is a hoax, like there are many others in the religious sphere. One could think for instance of the Church of the Flying Spaghetti Monster, or ‘pastafarianism’ (a portmanteau of ‘pasta’ and ‘Rastafarianism’). Within this ‘religion’, the central belief is that an undetectable Flying Spaghetti Monster, or ‘noodly master’, created the universe. The deity is usually depicted as a tangled bunch of spaghetti with two meatballs, and eyes on stalks.
A variation of this is the belief in Invisible Pink Unicorns (IPU), whose unparalleled spiritual powers are sufficiently demonstrated by the fact that they are both invisible and pink. According to its founders, the religion is – “like all religions” – based on a combination of faith and logic: that the unicorns are pink, requires a leap of faith, that they are invisible, is based on logic, since one is obviously unable to see them.
Both of the aforementioned parodies have been devised in order to counteract the influence of existing religions on politics and education. The Flying Spaghetti Monster, for instance, was invented in response to the decision of the Kansas State Board of Education to permit the teaching of Intelligent Design (ID) as an alternative to evolution in public school science classes. In a satirical open letter to the Board, one Bobby Henderson demanded that the belief in the Flying Spaghetti Monster would be allotted equal time in the classrooms, alongside ID and evolution. Since that time, ‘pastafarianism’ has taken on a life of its own.
The Smokers Church seems to fit in a somewhat different category of hoax religions: one aimed at obtaining privileges and/or circumventing regulations. Another example of this is the Missionary Church of Kopimism (‘copy-me-ism’), that extolls file sharing as a religious experience, seeking to justify it under that pretext. It holds CTRL+C and CTRL+V to be its sacred symbols, and its followers dress up as pirates. The religion has been officially recognized in Sweden, although the country has not legalized its ‘rite’ for the time being. It is possible however for the religion’s ordained priests to solemnize marriages.
Another representative of this category is that of the Dutch ‘Monastic Order of the Sisters of Saint Walburga’ (Kloosterorde van de Zusters van Sint Walburga), from the 1980s. That case involved a sex club in Amsterdam, which represented itself as a religious order in the Church of Satan. Sex shows were claimed to constitute an integral part of the order’s religious practice. The aim of all this seemed to be to avoid police checks: if the club could be classified as ‘place intended for worship’, police entry was not allowed, except in case of flagrante delicto.
The Court of Appeals (Gerechtshof) of The Hague stated in its ruling that it was unclear whether the ‘Order’ could really be seen as a genuine religion, given the lack of “a structured organization amongst its followers”. The Dutch Supreme Court (Hoge Raad) took the same view. In a passage that has since become a classic in Dutch constitutional law, the Court considered that it could be inferred from the police reports that “the activities of Saint Walburga do not distinguish themselves from that of any other sex club, and that no religious experience of any kind can be discerned either among the paying visitors or among the performing women that Saint Walburga designates as ‘Sisters’”.
What the above issues have in common is that they make use of the difficulty to define the concept of religion. Innumerable definitions have been proposed by theologians, sociologists and anthropologists, but each definition has its shortcomings.
In law, offering a conclusive definition is even more difficult. This has to do with the separation of Church and State and the core of religious freedom itself. Both require restraint on the part of courts (and authorities in general) in assessing what may or may not constitute a religion.
A problem that arises from this obligation of interpretative restraint is that religious freedom will sometimes be invoked even when it is debatable whether an ‘actual’ religion is involved.
One solution for this problem is to nonetheless formulate some general criteria to determine what constitutes a religion. Within Europe, the Strasbourg institutions for instance, require that beliefs “attain a certain level of cogency, seriousness, cohesion and importance”, in order to qualify for protection under Article 9 of the European Convention on Human Rights (freedom of religion and belief). One must also be able to prove that a religion actually exists (‘identifiability’) to invoke religious liberty.
Even such general criteria, however, may sometimes have unduly restrictive effects, or at least lead to controversy. In 1977, for instance, an adherent of Wicca (‘witchcraft’) seemed to be unable to claim the Convention’s protection, which gave rise to criticism.
For this reason it has become increasingly prevalent, when possible, to simply start from the assumption of an interference with the freedom of religion, and to assess the legitimacy of this interference in light of the right’s limitation clause. This is also the approach which the Belgian Constitutional Court invariably takes in such matters.
In 2010, for instance, the Court had to deal with an applicant who – allegedly for reasons based on religion and conviction – opposed the production of biofuel, finding it to be destructive for the world’s most vulnerable communities. The applicant therefore considered that a law, which obliged oil companies to mix a certain percentage of biofuel in with their fossil fuel, amounted to an unconstitutional violation of his freedom of religion.
In its ruling, the Constitutional Court simply avoided the issue of whether the applicant’s ‘religion’ met any relevant criteria, stating that even “in the assumption that the contested provision entailed an interference with the freedom of conscience and religion, the measure would nevertheless be reasonably justified” in light of its legitimate aim (protection of the environment), and its lack of disproportionate consequences (e.g. only biofuels were included that met strict sustainability criteria concerning food security, biodiversity and compliance with the social legislation). Finally, the Court pointed out that the applicant was not in fact “being forced to fill the fuel tank of his vehicle with biofuels”, since he can “make use of a vehicle which is not driven by gasoline or diesel”.
This approach avoids precarious debates on the question whether something can or cannot be seen as (the exercise of) a religion. Although in rare cases, an a priori filter may remain necessary nonetheless.
Ashes to ashes
Returning to the judgment of the Ghent court: although the court ignores the invoked defense (or even seems to regard it as an aggravating factor), the foregoing suggests that the legal issue is not that simple. At least, while the outcome of the case is no doubt defensible, the reasoning seems to fall short.
It may have been preferable had the court followed the approach exemplified inter alia by the Belgian Constitutional Court. For even in the assumption that the café-owner could invoke the right to freedom of religion, punishment would still be justified given the legitimate aim and proportionality of the ban.
As long as the Belgian smoking ban is in force, even (allegedly) ‘religious smokers’ will have to worship their “Holy Trinity of Smoke, Fire and Ashes” elsewhere…
*Jogchum Vrielink is coordinator at the Centre for Discrimination Law (Research Centre on Equality Policies, Institute for Constitutional Law, University of Leuven). Contact: firstname.lastname@example.org.
 Ghent Criminal Court, 30 October 2012.
 Simply referred to as ‘Smokers’, as distinguished from (non-religious) ‘smokers’. In the words of Eijsbouts: “For a smoker with a small ‘s’ it is just a bodily need. For a smoker with a capital ‘S’ it is a spiritual need, you have to have a religious experience. When you are lighting up, you have to think of God”.
 Likewise, the belief in Invisible Pink Unicorns is used, by atheists, to rhetorically argue that supernatural beliefs are arbitrary and illogical, while also being immune against falsification. It has often been likened, in that regard, to Bertrand Russell’s ‘teapot’. This teapot was used by Russell in 1952 to demonstrate that the burden of proof, specifically in the case of religion, is upon those making unfalsifiable claims rather than on others: “Many orthodox people speak as though it were the business of sceptics to disprove received dogmas rather than of dogmatists to prove them. This is, of course, a mistake. If I were to suggest that between the Earth and Mars there is a china teapot revolving about the sun in an elliptical orbit, nobody would be able to disprove my assertion provided I were careful to add that the teapot is too small to be revealed even by our most powerful telescopes. But if I were to go on to say that, since my assertion cannot be disproved, it is intolerable presumption on the part of human reason to doubt it, I should rightly be thought to be talking nonsense. If, however, the existence of such a teapot were affirmed in ancient books, taught as the sacred truth every Sunday, and instilled into the minds of children at school, hesitation to believe in its existence would become a mark of eccentricity and entitle the doubter to the attentions of the psychiatrist in an enlightened age or of the Inquisitor in an earlier time” (B. Russell, “Is There a God?”, commissioned -albeit never published- by Illustrated Magazine).
 In Austria, for instance, an individual – Niko Alm – was granted the right to be depicted on his driver’s license wearing a pasta strainer as ‘religious headgear’. He claimed this to be a requirement of pastafarianism. Alm did so as part of an ironic response to reading that headgear was allowed on licenses and passports only for confessional reasons. Although spokespersons for the authorities indicated that the photo was not approved on religious grounds, but simply because Alm’s photo met the requirement that his face was fully visible, the card did take an unusually long time to be issued. Moreover, Alm was asked to submit to a medical interview in order to check on his mental fitness to drive.
 While there is in fact a Saint Walburga or Walpurga (albeit in the Catholic rather than Satanic tradition), the choice for this particular name seems mostly to have been a play on words having to do with the sex club’s location. The club was located on a street called ‘OZ Voorburgwal’. As such, it was not that much of a leap from ‘(voor)burgwal’ to ‘Walburg(a)’.
 Supreme Court of the Netherlands, 31 October 1986, NJ 1987, 173.
 See e.g. the following ECtHR-cases: Campbell and Cosans v. the UK, § 36; Lautsi and others v. Italy, § 58; Jakóbski v Poland, § 44.
 European Commission for Human Rights, X v United Kingdom, Application No. 7291/75, admissibility decision of 4 October 1977.
 Applicant described his beliefs as ‘multi-disciplinary’. Referring inter alia to elements of Christianity, Buddhism and Eastern religions.
Since tobacco contains drugs, and has a (pre) history of sacramental use, it may be useful to let a little American air in on the debate. This is Wiki on mescaline legality:
Where there is exclusive federal jurisdiction or state law is not “racially” limited, peyote use by Native American Church members is legal and “racially” neutral in the United States. This exemption from federal criminalization is as old as creation of federal law creating peyote related offenses.
This law has been codified as a statute in the American Indian Religious Freedom Act of 1978, and made part of the common law in Peyote Way Church of God v. Thornburgh, (5th Cir. 1991); it is also in administrative law at the 21 C.F.R. 1307.31. The C.F.R. part dealing with “SPECIAL EXEMPT PERSONS” states:
Section 1307.31 Native American Church. The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law.
U.S. v. Boyll, 774 F.Supp. 1333 (D.N.M. 1991) addresses this racial issue specifically and concludes:
For the reasons set out in this Memorandum Opinion and Order, the Court holds that, pursuant to 21 C.F.R. § 1307.31 (1990), the classification of peyote as a Schedule I controlled substance, see 21 U.S.C. § 812(c), Schedule I(c)(12), does not apply to the importation, possession or use of peyote for ‘bona fide’ ceremonial use by members of the Native American Church, regardless of race.
United States federal law (and many state laws) protects the harvest, possession, consumption and cultivation of peyote as part of “bonafide religious ceremonies” (the federal statute is the American Indian Religious Freedom Act, codified at 42 U.S.C. § 1996a, “Traditional Indian religious use of the peyote sacrament,” exempting only use by Native American persons, while some state laws exempt any general “bonafide religious activity”). American jurisdictions enacted these specific statutory exemptions in reaction to the U.S. Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), which held that laws prohibiting the use of peyote that do not specifically exempt religious use nevertheless do not violate the Free Exercise Clause of the First Amendment. Peyote is listed by the United States DEA as a Schedule I controlled substance.
Seedling Peyote cactus which has been growing for roughly one year.
Although many American jurisdictions specifically allow religious use of peyote, religious or therapeutic use not under the aegis of the Native American Church has often been targeted by local law enforcement agencies. Non-Natives attempting to establish spiritual centers based on the consumption of peyote as a sacrament or as medicine, such as the Peyote Foundation in Arizona, have been prosecuted.
Native Americans are allowed to answer “no” on the armed forces application question, “Have you ever used illegal drugs?”, with respect to peyote.
And then life gets really interesting as archaeo-historical evidence for sacramental drug use all over the place – including Europe – builds up. The case in hand may appear trivial, but it’s the tip of a very large iceberg indeed,