By ELIZABETH WARMERDAM
Tuesday, August 20, 2013
(CN) - A Wisconsin inmate's request to form an atheist study group deserves the same consideration afforded to a recognized "religious" group, the 7th Circuit ruled.
This is the second case in which inmate James Kaufman has attempted to compel the prison system to allow him to form and participate in an atheist group, the same way other inmates are allowed to create religious study groups.
In its 2005 ruling on Kaufman's first complaint, the Chicago-based federal appeals court said Kaufman's request to form an atheist group "must be treated as a request to form a 'religious' group rather than a nonreligious activity group. So understood, the Establishment Clauses [of the First Amendment] requires the prison to provide a 'legitimate secular reason' for allowing other religious groups, but prohibiting an atheist one."
That ruling found that religious beliefs do not need to involve worship of a supreme being to merit protection under the Free Exercise and Establishment Clauses.
Kaufman's claim under Free Exercise failed, however, because he did not show that he faced a substantial burden on his ability to practice atheism by not being allowed to participate in an atheism group. Kaufman filed his next complaint after he was transferred to Stanley Correctional Facility and was allegedly again denied the right to form an atheist group. He wanted to form the group "for the study of the history of religion, where and how religious beliefs originated, the origins of belief, and the possible future of belief systems; responsibilities and privileges in society; right versus wrong, and ethical issues."
The warden adopted the prison chaplain's view that Kaufman's request could not be viewed as a religious request and denied it, despite the 7th Circuit's ruling on Kaufman's previous suit.
U.S. District Judge Barbara Cobb in the Western District of Wisconsin recognized the error, but determined that the prison had a legitimate secular reason for prohibiting an atheist group based on evidence that only two inmates had any interest in such a group.
Kaufman challenged the finding that he was one of only two inmates interested in atheism. He argued that atheism is not an option on the prison's "Religious Preference" form, which allows inmates to select one of seven recognized religious umbrella groups. The only other options are "no preference" or "other," in which an inmate can write in a religion.
"He contends that the prison made it impossible to know how many inmates would have joined such a group, because it ignored 'write-in' votes for atheism (or related schools of thought) and re-characterized them as 'No Preference,'" Judge Diane Wood wrote for the three-judge panel.
Kaufman "points to general evidence such as almanacs suggesting that as many as 10 to 14 percent of the population self-identifies as atheistic, and he suggests that hidden in the mass of 'No Preference' inmates are enough people to justify a group that would meet once or twice a month," she added.
Supporting Kaufman's argument is a recent survey of prison chaplains that shows "there might be at least as many prisoners interested in an atheist group as one sees in the Pagan, Eastern Religions, or Jewish groups," Wood wrote.
"According to the survey, 1.7 percent of prisoners identify as Jewish and Pagan, and 0.9 percent identify as Buddhist, while '[o]n average, chaplains say that about 11 percent of the inmate population is atheist, agnostic or has no particular religious affiliation,'" she added. "If only one-tenth of this 11 percent category would select the 'atheist' option if it were included among the umbrella groups, there would be a comparable number of atheists to Pagans, Jews, and Buddhists."
Further exploration is necessary to determine how many inmates at Stanley would actually be interested in an atheism group before the court can rule on Kaufman's claims, according to the ruling.
Based on Kaufman's claim, 206 out of Stanley's 1,465 inmates - or 14 percent - are of unknown religious affiliation. Applying Kaufman's citations that between 7 and 14 percent of adult Americans describe themselves as being atheist, agnostic or humanist, it is possible that between 102 and 206 of Stanley's inmates might fall within Kaufman's proposed group.
"Only a credible survey of the inmate population, or the simple expedient of adding 'atheist, agnostic, or humanist' to the preference form and collecting new data, can resolve this uncertainty," Wood wrote. The 7th Circuit did find that the lower court properly dismissed Kaufman's request to wear a "knowledge thought ring," a silver ring engraved with the word "knowledge" that Kaufman says is a religious emblem. Kaufman's inability to wear the ring does not impose a "substantial burden" on his ability to practice atheism and could cause potential security risks, according to the ruling.
NOTE FROM KAUFMAN: The Court of Appeals refuses to rule that prohibiting Atheist inmates from meeting in groups, and in prohibiting Atheist inmates from possessing an Atheist emblem, violates the Free Exercise Clause; at the same time, if Christians, Muslims, Jews, Pagans, or Natives were to be denied groups or emblems, this WOULD BE a Free Exercise violation. The Court refuses to explain this disparate treatment.
Link to Seventh Circuit's final ruling: Kaufman v Pugh ruling