religion for purposes of the First Amendment

KAUFMAN v. McCAUGHTRY
James J. KAUFMAN, Plaintiff-Appellant, v. Gary R. McCAUGHTRY, et al., Defendants-Appellees.

No. 04-1914.

— August 19, 2005

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
James J. Kaufman, Jackson Correctional Institution, Black River Falls, WI, for Plaintiff-Appellant.

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.

We begin with the main event:  Kaufman’s argument that the prison officials violated his constitutional rights when they refused to give him permission to start a study group for atheist inmates at the prison.   The events underlying Kaufman’s lawsuit occurred while he was an inmate at Wisconsin’s Waupun Correctional Institution.   Kaufman sued the then-warden of Waupun, Gary R. McCaughtry, in part in his individual capacity for damages, and so he remains a party despite the fact that Waupun now has a different warden and Kaufman is now at a different institution, the Jackson Correctional Institution.   While at Waupun, Kaufman submitted an official form titled “Request for New Religious Practice,” in which he asked to form an inmate group interested in humanism, atheism, and free speaking.   The group would work “[t]o stimulate and promote Freedom of Thought and inquiry concerning religious beliefs, creeds, dogmas, tenets, rituals and practices[, and to] educate and provide information concerning religious beliefs, creeds, dogmas, tenets, rituals, and practices.”   See Kaufman v. McCaughtry, 2004 WL 257133, *4 (W.D.Wis. Feb.9, 2004).   Kaufman also submitted a list of atheist groups and literature.   The officials concluded that Kaufman’s request was not motivated by “religious” beliefs.   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, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).   A religion need not be based on a belief in the existence of a supreme being (or beings, for polytheistic faiths), see Torcaso v. Watkins, 367 U.S. 488, 495 & n. 11, 81 S.Ct. 1680, 6 L.Ed.2d 982 (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, 101 S.Ct. 1425, 67 L.Ed.2d 624 (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, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970);  United States v. Seeger, 380 U.S. 163, 184-88, 85 S.Ct. 850, 13 L.Ed.2d 733 (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., 545U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (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.”  Id. at *10 (internal quotations omitted).   As the Court put it in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (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, 105 S.Ct. 2479.   In keeping with this idea, the Court has adopted a broad definition of “religion” that includes non-theistic and atheistic beliefs, as well as theistic ones.   Thus, in Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982, 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, 81 S.Ct. 1680.   Indeed, Torcaso specifically included “Secular Humanism” as an example of a religion.  Id. at 495 n. 11, 81 S.Ct. 1680.

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 attempting to raise.

Kaufman argues that the defendants’ refusal to permit him to meet with other atheist inmates to study and discuss their beliefs violates the Free Exercise Clause.  “ ‘[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.’ ”  O’Lone v. Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987));  see also Sasnett v. Litscher, 197 F.3d 290, 292 (7th Cir.1999).   In the context of the Free Exercise Clause, Kaufman must first establish that his right to practice atheism was burdened in a significant way.   See Hernandez v. Comm’n of Internal Revenue, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (plaintiff must show a “substantial burden” on a “central religious belief or practice” to prevail under the Free Exercise Clause);  Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 760 (7th Cir.2003) (collecting cases).   He failed utterly to do so.   Kaufman introduced no evidence showing that he would be unable to practice atheism effectively without the benefit of a weekly study group.   The defendants apparently allow him to study atheist literature on his own, consult informally with other atheist inmates, and correspond with members of the atheist groups he identified, and Kaufman offered nothing to suggest that these alternatives are inadequate.

Moreover, an inmate is not entitled to follow every aspect of his religion;  the prison may restrict the inmate’s practices if its legitimate penological interests outweigh the prisoner’s religious interests.  Tarpley, 312 F.3d at 898;  Canedy v. Boardman, 91 F.3d 30, 33 (7th Cir.1996).   The defendants submitted an affidavit stating that allowing any group of inmates to congregate for a meeting raises security concerns and requires staff members to supervise the group.   Prison officials unquestionably have a legitimate interest in maintaining institutional security, see, e.g., Lindell v. Frank, 377 F.3d 655, 658-59 (7th Cir.2004), and we cannot say that their denial of Kaufman’s request for a study group was not rationally related to that interest.   Accordingly, the district court properly granted summary judgment on Kaufman’s claim insofar as it arises under the Free Exercise Clause.