Of course, I found this via a Christian wingnut group
claiming that the court said atheism is a religion,
which the court did not:
http://www.ca7.uscourts.gov/tmp/LE17J3LD.pdf
....
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
inmate group to study and discuss atheism.
....
While at Waupun [prison], 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 prac-
tices[, and to] educate and provide information concerning
religious beliefs, creeds, dogmas, tenets, rituals, and prac-
tices.
....
The officials concluded that Kaufman's request was not moti-
vated 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.
....
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 Wiscon-
sin 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
(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 "ulti-
mate 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 posi-
tion 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."
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.
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, 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
attempting to raise.
....
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
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 sur-
vive 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.
....
---
Merlyn LeRoy
.
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