By Bob Williams


The United States Court of Appeals for the Seventh Circuit has reversed a summary judgment against a Wisconsin state prisoner whose request to form a prisoner atheist group was denied by the Wisconsin Department of Corrections(WDOC).

James Kaufman filed a Request for New Religious Practice with the WDOC, asking to form a new prisoner group interested in humanism, atheism and free thought. WDOC interpreted this request not as a request for a new religious group but for a secular activity group. While the secular group policy is stringent (see: Wis. Admin. Code § DOC 309.365), the religious group policy is reportedly more flexible (see: Wis. Admin. Code § DOC 309.61).

Kaufman filed a First Amendment claim pursuant to 42 U.S.C. § 1983, but failed to raise a concomitant claim under the Religious Land Use of Institutionalized Persons Act (RLUIPA). The United States District Court for the Western District of Wisconsin assumed Kaufman wanted to form a nonreligious group and entered summary judgment for the WDOC on the ground that the secular activity group policy permitted such discretion. While this decision would have been correct for a chess club, it was error when applied to a religious group.

On appeal, the Seventh Circuit analyzed both the free exercise of religion and establishment of religion clauses of the First Amendment. Prisoners retain the right to exercise religious beliefs in prison, including atheism. A belief in a supreme being or beings is not required for religious exercise. The Seventh Circuit previously held that if religion is "taking a position on divinity, then atheism is indeed a form of religion." See: Reed v. Great Lakes Cos., 330 F.3d 931, 934 (7th Cir. 2003).

Further, the United States Supreme Court found atheism equivalent to a religion for First Amendment purposes. See: McCreary County v. ACLU, 125 S.Ct. 2722 (2005). Even the WDOC Administrative Code prohibits the warden from considering "the absence from the [prisoner's] beliefs of a concept of a supreme being" when considering an application for a new religious group.

To establish a free exercise claim, Kaufman had to show that his right to practice was significantly burdened. Kaufman produced no evidence that he would be unable to practice atheism without a study group, nor did he show that alternatives such as self-study, informal gatherings and correspondence were inadequate. The appeals court thus affirmed the summary judgment ruling.

To establish an establishment claim, it must be shown that the WDOC policy had no secular purpose, was not neutral to religion, or fostered excessive entanglement with religion. The Court found Kaufman was trying to start a religious group based on atheism and, shifting the burden to the WDOC, found the WDOC provided no secular reason as to why atheist meetings would pose a greater security risk than other religious faith meetings. The WDOC claimed they were accommodating religious groups as a whole as required by their policy and RLUIPA. However, WDOC's actions indicated it was willing to accommodate some religious groups but not others.

The state cannot make it easier for one religion to practice over another without secular justifications. Summary judgment was therefore vacated and the cause remanded on the establishment claim. See: Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir. 2005).

On remand, the district court dismissed various defendants from the lawsuit. See: Kaufman v. McCaughtry, USDC WD WI, Case No. 03-C-027-C, 2005 WL 2848395. In a subsequent appellate ruling, the Seventh Circuit held that two of the defendants in the suit, the warden and chaplain, were entitled to qualified immunity. See: Kaufman v. McCaughtry , 192 Fed.Appx. 556 (7th Cir. 2006)

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