[asa] Re: 7th Circuit Decision

From: David Clounch <david.clounch@gmail.com>
Date: Fri Jun 29 2007 - 18:41:43 EDT

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."

                                           - 7th Circuit Court

In my school district the school board and administration officials argue
that the first amendment calls for them to ban books that explain the
Christian world view (even if its only one sentence in the book). But books
that explain non-religious world-views (non-religion) are ok, and in fact
are protected. This is a common misunderstanding held by many people. And my
school board is a subset of folks who happen to have that misunderstanding
but who also have the power to act on it. And indeed have acted on it.
Would anybody like to see the video tape? They ban books based on the
content of the books. But only pro-religious books are banned. Another
book, objected to by parents because it tells elementary children about
deviant sexual practices such as necrophila, was defended by board members
as being protected by the First Amendment.

Many parents in the district consider this banning of "religion only" to
have the effect of a preference of non-religion. It is difficult to see
how this preference amounts to neutrality.

The district has a history of non-neutral banishment of religion,
particularly of Christianity. For example, the district historically had a
backpack flyer policy that allowed all extra-curricular after school
programs to notify students and parents of after school events. The
superintendent, John Haro, decided that Christianity must be excluded, and
he banned the one church group that was providing flyers to invite students
to their after school sports program. It is said the district's own
attorney advised this banning would lose in court. A local group challenged
the new policy. Approximately 18 months went by with the ban still in
effect. When the North Star Legal Center filed federal lawsuit Haro
relented, but only after suit was filed. Then he banned flyers from all
groups equally. Just to get rid of the Christians. While technically
banning all groups (sailing club? chess club) is neutral, clearly Haro did
not intend to be neutral in the sense of the cited principle. A principle
which itself comes from U S Supreme Court cases. (Sorry, I dont have time
to quote that case tonight because I really would like to quote the entire
case in context so readers can just read it and make up their own minds
about what it actually says. The above pink background paragraph/fragment is
not out of context because the entire establishment clause argument of the
7th Circuit appears in this thread as one contiguous series of postings.)

n 6/17/07, David Clounch <david.clounch@gmail.com> wrote:
> 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 Fri Jun 29 18:42:17 2007

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