Re: [asa] 7th Circuit Decision

From: David Opderbeck <>
Date: Sun Jun 17 2007 - 14:21:10 EDT

Establishment clause jurisprudence is notoriously difficult. While cases
like *Kaufman *hold that atheism is a "religion" under the first amendment,
another line of cases suggests that a "religion" must involve at least some
practices that are traditional indicia of "religion," such as ceremonies and
prayer. See *Malnak v. Yogi*, 592 F.2d 197 (3d Cir. 1979) (Adams, J.,
concurring). *Altman v. Bedford Cent. School Dist.*, 245 F.3d 49 (2d Cir.
2001); *Wiggins v. Sargent*, 753 F.2d 663 (8th Cir. 2000); *Carpenter v.
Wilkinson*, 946 F. Supp. 552 (6th Cir. 1996); *Alvarado v. City of San Jose*,
94 F.2d 1223 (9th Cir. 1996); *U.S. v. Meyers*, 847 F.2d 1408 (10th Cir.
1991); *Dettmer v. Landon*, 799 F.2d 929 (4th Cir. 1986); *Africa v.
Pennsylvania*, 662 F.2d 1025 (3d Cir. 1981); *U.S. v. Dykema*, 666
F.2d1096 (7th Cir. 1981);
*Udey v. Kastner*, 644 F. Supp. 1441 (E.D. Tex. 1986).

For a brief but thorough paper criticizing the *Kaufman* holding, see:

Thus, the issue of whether atheism is a "religion" under the first amendment
is unsettled. It seems that courts are sometimes willing to consider
atheism or "non-belief" a sort of "religion" for purposes of "protecting"
atheists against intrusions into the public square by theists, but are
usually less willing to consider atheism a "religion" when theists argue
that removing theistic speech from the public square creates a vacuum that
gets filled with the "religion" of atheism. (On this, see Richard John
Neuhaus, *The Naked Public Square*).

On 6/17/07, David Clounch <> wrote:
> I apologize for originally posting in the wrong place. I intended to
> start a new thread. Gmail didn't make it obvious what the subject line was
> and I clicked send too soon. Gmail didn't challenge sending because the
> subject was already set, just not displayed.
> Dave C
> This is a short sequence of the original 7th Circuit decision in the
> Kaufman case.
> I will post only the parts about the establishment clause claim. And
> break these into pieces in sequence. The sequence may get lengthy but the
> pieces hopefully will be short.
> Lets start with the reference to the case:
> In the
> United States Court of Appeals
> For the Seventh Circuit
> ____________
> No. 04-1914
> Plaintiff-Appellant,
> v.
> Defendants-Appellees.
> ____________
> Appeal from the United States District Court
> for the Western District of Wisconsin.
> No. 03-C-027-C—Barbara B. Crabb, Chief Judge.
> ____________
> ____________
> Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
> WOOD, Circuit Judge. Wisconsin inmate James Kaufman
> filed this suit under 42 U.S.C. § 1983, claiming as relevant
> here that prison officials violated his First Amendment
> rights. He raises three unrelated issues. Of the three, the
> one that has prompted the issuance of this opinion is his
> claim that the defendants infringed on his right to practice
> his religion when they refused to allow him to create an
> ------------------------------
> 2 No.
> 04-1914
> inmate group to study and discuss atheism. Kaufman also
> argues that the defendants used an overly broad definition
> of "pornography" when they prevented him from receiving
> several publications containing sexual content and photographs
> of nude men and that they improperly opened
> outside of his presence several letters that he claimed were
> "legal" mail. The district court dismissed the pornography
> claim at screening, see 28 U.S.C. § 1915A, and granted
> summary judgment in favor of the defendants on the other
> two. On appeal, Kaufman contests the merits of those
> decisions, argues that he should have been allowed to
> amend his complaint to add another claim, and claims that
> he should have been permitted to conduct additional
> discovery. We affirm in part and vacate and remand in part.

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Received on Sun Jun 17 14:21:46 2007

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