« Healing Wounds Of War Through Virtual Reality | Main | The Lighter Side Of John Roberts »

August 24, 2005

Atheism As Religion... The Sequel

Regarding yesterday's post on the 7th Circuit ruling cited by the much-maligned World Net Daily, I found the opinion, which does turn out to cite Torcaso. The following is an abbreviated Kaufman v. McCaughtry for Dummies (about as much as I'm capable of - correct me if I've gotten anything wrong) which chronicles the trials of a much-abused prison inmate who says:

1. He was denied his rights to religious freedom under the Free Exercise and Establishment Clauses

2. Prison officials used an overly broad definition of pornography to prevent him from receiving publications containing photographs of sadomasichistic abuse of nude men.

3. Officials improperly interfered with his mail by opening several letters outside of his presence that turned out to be unobjectionable.

The second two claims were dismissed. The facts in the first claim are as follows:

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 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, they considered it under the procedure for forming a new inmate activity group...[and] applying the latter standard... denied the request...
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.
...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.
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).

[Ed. Note: I linked a paper that referenced the Malnak test last night because it seemed relevant but did not have time to look it up, and anyway I'm not a lawyer. At any rate, the Malnak test has three conditions:

...an unusual religion will be entitled to First Amendment protection when the beliefs:

1) ponder such issues as the meaning of life, the afterlife, or man’s place in the universe;
2) are extensive in scope and far-reaching in nature; and
3) are accompanied by the existence of certain formal and outside signs.

No doubt the 'formal and outside signs' referred to by the Court would be the intense devotion and cultlike following displayed by the ACLU, which has never shown any abiding belief in any other principle...


The Court now begins to Muse upon the Nature of the Imponderable. I am leaving the case cites out so you can follow the reasoning:

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.
We have already indicated that atheism may be considered, in this specialized sense, a religion. (“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.”
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.

Interestingly, however, with regard to his Free Exercise claim the Court goes on to rule that Kaufman failed to prove that the prison officials' failure to allow him to form a study group prevented him from the free exercise of his Atheism, which is no more than common sense as that would hardly be the only opportunity he had to practice his 'faith'. The Court also ruled the prison may restrict religious observances as needed in the legitimate interests of prison security.

On the Establishment Clause claim, the court essentially agreed with Kaufman, concluding:

The district court went astray when it evaluated Kaufman’s claim on the assumption that he wanted to form a nonreligious group.... 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 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 survive the first part of the Lemon test.

So there you have it. Discuss amongst yourselves. My brain just exploded.

Posted by Cassandra at August 24, 2005 05:05 AM

Trackback Pings

TrackBack URL for this entry:


I find the whole "atheism as religious practice" thing difficult to understand. If you don't believe in God or other spiritual issue, you don't have a reason for a religous practice. Period.

This is like a sober person complaining that the AA members have more social time.

(I'm not at all sure that my analogy makes a lick of sense, but it came out that way.)

Posted by: KJ at August 25, 2005 01:35 PM

Post a comment

Remember Me?

(you may use HTML tags for style)