[asa] Re: 7th Circuit Decision

From: David Clounch <david.clounch@gmail.com>
Date: Sun Jun 17 2007 - 13:13:00 EDT

Part 3 (BTW, I am only allowed so many posts today. This means I have to
make the posts longer. Sorry.

Continuing on page 3......

Accordingly, rather than
evaluating the proposal under the state's relatively more
flexible policy for new religious groups, see Wis. Admin.
Code § DOC 309.61, they considered it under the procedure
for forming a new inmate activity group, see Wis. Admin.
Code § DOC 309.365. Applying the latter standard, they
denied the request, stating that they were not forming new
activity groups at that time.
Kaufman argues that the defendants' refusal to allow him
to create the study group violated his rights under both the
Free Exercise Clause and the Establishment Clause of the
First Amendment. We note that Kaufman relies only on the
First Amendment and at this stage of the litigation has not
tried to take advantage of the added protections of the
Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. § 2000cc et seq.
We address his claim under the Free Exercise Clause
first. An inmate retains the right to exercise his religious
beliefs in prison. Tarpley v. Allen County, 312 F.3d 895, 898
(7th Cir. 2002). The problem here was that the prison
officials did not treat atheism as a "religion," perhaps in
keeping with Kaufman's own insistence that it is the
antithesis of religion. But whether atheism is a "religion"
for First Amendment purposes is a somewhat different
question than whether its adherents believe in a
supreme being, or attend regular devotional services, or
have a sacred Scripture. The Supreme Court has said that a
religion, for purposes of the First Amendment, is distinct
from a "way of life," even if that way of life is inspired by
philosophical beliefs or other secular concerns. See Wisconsin
v. Yoder, 406 U.S. 205, 215-16 (1972). A religion need
not be based on a belief in the existence of a supreme being


4 No. 04-1914

(or beings, for polytheistic faiths), see Torcaso v. Watkins,
367 U.S. 488, 495 & n.11 (1961); Malnak v. Yogi, 592 F.2d
197, 200-15 (3d Cir. 1979) (Adams, J., concurring);
Theriault v. Silber, 547 F.2d 1279, 1281 (5th Cir. 1977) (per
curiam), nor must it be a mainstream faith, see Thomas v.
Review Bd., 450 U.S. 707, 714 (1981); Lindell v. McCallum,
352 F.3d 1107, 1110 (7th Cir. 2003).
Without venturing too far into the realm of the
philosophical, we have suggested in the past that when a
person sincerely holds beliefs dealing with issues of "ultimate
concern" that for her occupy a "place parallel to that
filled by . . . God in traditionally religious persons," those
beliefs represent her religion. Fleischfresser v. Dirs. of Sch.
Dist. 200, 15 F.3d 680, 688 n.5 (7th Cir. 1994) (internal
citation and quotation omitted); see also Welsh v. United
States, 398 U.S. 333, 340 (1970); United States v. Seeger,
380 U.S. 163, 184-88 (1965). We have already indicated that
atheism may be considered, in this specialized sense, a
religion. See Reed v. Great Lakes Cos., 330 F.3d 931, 934
(7th Cir. 2003) ("If we think of religion as taking a position
on divinity, then atheism is indeed a form of religion.").
Kaufman claims that his atheist beliefs play a central role
in his life, and the defendants do not dispute that his beliefs
are deeply and sincerely held.
The Supreme Court has recognized atheism as equivalent
to a "religion" for purposes of the First Amendment on
numerous occasions, most recently in McCreary County, Ky.
v. American Civil Liberties Union of Ky., 125 S.Ct. 2722
(2005). The Establishment Clause itself says only that
"Congress shall make no law respecting an establishment
of religion," but the Court understands the reference to
religion to include what it often calls "nonreligion." In
McCreary County, it described the touchstone of
Establishment Clause analysis as "the principle that the
First Amendment mandates government neutrality between
religion and religion, and between religion and nonreligion."

No. 04-1914 5

Id. at *10 (internal quotations omitted). As the Court put it
in Wallace v. Jaffree, 472 U.S. 38 (1985):
At one time it was thought that this right [referring to
the right to choose one's own creed] merely proscribed
the preference of one Christian sect over another, but
would not require equal respect for the conscience of the
infidel, the atheist, or the adherent of a non-Christian
faith such as Islam or Judaism. But when the
underlying principle has been examined in the crucible
of litigation, the Court has unambiguously concluded
that the individual freedom of conscience protected by
the First Amendment embraces the right to select any
religious faith or none at all.
Id. at 52-53. In keeping with this idea, the Court has
adopted a broad definition of "religion" that includes nontheistic
and atheistic beliefs, as well as theistic ones. Thus,
in Torcaso v. Watkins, 367 U.S. 488, it said that a state
cannot "pass laws or impose requirements which aid all
religions as against non-believers, and neither can [it] aid
those religions based on a belief in the existence of God as
against those religions founded on different beliefs." Id. at
495. Indeed, Torcaso specifically included "Secular
Humanism" as an example of a religion. Id. at 495 n.11.
It is also noteworthy that the administrative code
governing Wisconsin prisons states that one factor the
warden is prohibited from considering in deciding whether
an inmate's request to form a new religious group should be
granted is "the absence from the beliefs of a concept
of a supreme being." See Wis. Admin. Code § DOC
309.61(d)(3), cited in Kaufman v. McCaughtry, 2004 WL
257133, at *9. Atheism is, among other things, a school of
thought that takes a position on religion, the existence and
importance of a supreme being, and a code of ethics. As
such, we are satisfied that it qualifies as Kaufman's religion
for purposes of the First Amendment claims he is

The same is not true with respect to Kaufman's Establishment
Clause claim. The Supreme Court reaffirmed
the utility of the test set forth in Lemon v. Kurtzman,
403 U.S. 602 (1971), in McCreary, 125 S.Ct. at 2732-35.
Compare Van Orden v. Perry, 125 S.Ct. 2854, 2860-61
(2005) (plurality questions continuing utility of Lemon test).
A government policy or practice violates the Establishment
Clause if (1) it has no secular purpose, (2) its primary effect
advances or inhibits religion, or (3) it fosters an excessive
entanglement with religion. Lemon, 403 U.S. at 612-13;
Books v. City of Elkhart, 235 F.3d 292, 301 (7th Cir. 2000).
The Establishment Clause also prohibits the government
from favoring one religion over another without
a legitimate secular reason. See Linnemeir v. Bd. of
Trustees of Purdue Univ., 260 F.3d 757, 759 (7th Cir. 2001);
Metzl v. Leininger, 57 F.3d 618, 621 (7th Cir. 1995) ("[T]he
First Amendment does not allow a state to make it easier
for adherents of one faith to practice their religion than for
adherents of another faith to practice their religion, unless
there is a secular justification for the difference in
treatment."); Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d
1160, 1168-69 (7th Cir. 1993) ("Under the Establishment
Clause, the government may not aid one religion, aid all
religions or favor one religion over another.").

The district court went astray when it evaluated
Kaufman's claim on the assumption that he wanted to form
a nonreligious group. Based on that premise, it held that
the defendants were entitled to assess Kaufman's proposal
under the more restrictive set of regulations that applies to
normal social groups. Had the premise been correct, the
conclusion would have followed: no one says that a person
who wants to form a chess club at the prison is entitled

8 No. 04-1914
under the Establishment Clause to have the application
evaluated as if chess were a religion, no matter how devoted
he is to the game. In addition, the district court correctly
noted that in certain circumstances the government may
make special accommodations for religious practices that
are not extended to nonreligious practices without violating
the Establishment Clause. See Corp. of the Presiding
Bishop of the Church of Jesus Christ of Latter-Day Saints v.
Amos, 483 U.S. 327, 334 (1987); Charles v. Verhagen, 348
F.3d 601, 610 (7th Cir. 2003). Indeed, RLUIPA requires
prisons to do just that, and the Supreme Court has recently
upheld its constitutionality. Cutter v. Wilkinson, 125 S.Ct.
2113 (2005); see also Charles, 348 F.3d at 610-11.
The problem with the district court's analysis is that
the court failed to recognize that Kaufman was trying
to start a "religious" group, in the sense we discussed
earlier. Atheism is Kaufman's religion, and the group
that he wanted to start was religious in nature even though
it expressly rejects a belief in a supreme being. As he
explained in his application, the group wanted to
study freedom of thought, religious beliefs, creeds, dogmas,
tenets, rituals, and practices, all presumably from an
atheistic perspective. It is undisputed that other religious
groups are permitted to meet at Kaufman's prison, and
the defendants have advanced no secular reason why
the security concerns they cited as a reason to deny
his request for an atheist group do not apply equally to
gatherings of Christian, Muslim, Buddhist, or Wiccan
inmates. The defendants argue that all they are doing is
accommodating religious groups as a whole, as they
are required to do under RLUIPA. See Cutter, 125 S.Ct.
2113; Charles, 348 F.3d at 610-11. But the defendants have
not answered Kaufman's argument that by accommodating
some religious views, but not his, they are promoting
the favored ones. Because the defendants failed even to
articulate—much less support with evidence—a secular
No. 04-1914 9
reason why a meeting of atheist inmates would pose a
greater security risk than meetings of inmates of other
faiths, their rejection of Kaufman's request cannot survive
the first part of the Lemon test. See Lemon, 403 U.S. at
612-13; Books, 235 F.3d at 301. We therefore vacate
the grant of summary judgment in the defendants' favor
on Kaufman's claim under the Establishment Clause
and remand for further proceedings.

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Received on Sun Jun 17 13:13:15 2007

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