Atheist inmate refused authorization for atheism study group

[Douglas Laycock]

  I said the willingness to treat atheism as a religion is very
encouraging.  Here's why:

  One of biggest obstacles to free exercise exemptions today is the
following argument (I'm filling in some of the reasons for what is
often stated in conclusory form):

  1.  We can't exempt only believers, because that would discriminate
against nonbelievers, who are similarly situated because they simply
have a different answer to religious questions.  (The reason here is
commonly condensed to: because that would give a preference to
religion.)

  2.  But we can't exempt nonbelievers, because nonbelief is not a
religion.

  3.  Therefore, we can't exempt anybody.

  The Supreme Court has unanimously rejected point 1 three times
(/Amos, Kiryas Joel, Cutter/).  Yet the argument refuses to die.  I
think points 1 and 2 are inconsistent.  And they leave the tail
wagging the dog; no exemptions for the deeply held beliefs of 90% or
so of the population because we can't figure out what to do about the
other 10%.  So I think it's good for everybody, believer and
nonbeliever alike, to see a judge take an atheist claim seriously.

  Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>         Any thoughts on this?
>
>         From Kaufman v. Schneiter, 2007 WL 521218 (W.D. Wis. Feb.
15,
> 2007):
>
>         "Petitioner is an atheist. He contends that prison
officials
> have violated his rights under the free exercise clause and RLUIPA
in
> three ways: (1) by refusing to authorize a study group for inmates
who
> have described themselves as atheists, freethinkers, humanists and
> 'other' and those who have identified themselves to prison
officials as
> having no religious preference; (2) by failing to provide
petitioner
> with publications about atheism; and (3) by preventing him from
ordering
> publications about atheism.
>
>         "Petitioner has not stated a claim under the free exercise
> clause for one simple reason. He does not allege (nor is it
possible to
> see how he could plausibly do so) that merely reading books about
> atheism or meeting in a study group with inmates of various
> philosophical bents constitutes the exercise of his religion, that
is
> 'the observation of [ ] central religious belief[s] or practice[s]'
of
> atheism. Civil Liberties for Urban Believers, 342 F.3d at 760.
> Therefore, petitioner must be denied leave to proceed on his claim
that
> respondents Taylor, Hepp and Huibregtse violated his First
Amendment
> free exercise rights by refusing to provide him with materials
about
> atheism or to authorize a study groups for atheist, humanist and
> freethinking inmates and inmates with no or an 'other' religious
> preference....
>
>         "In this case, petitioner is not challenging the prison's
> decision to deny atheists the opportunity to meet together to
discuss
> their commonly held religious beliefs. Instead, petitioner alleges
that
> he asked prison officials to authorize a group for inmates of
differing
> religious and philosophical persuasions, including inmates with no
> religious preference at all, to meet together to discuss their
differing
> ideas. Such an activity is more akin to a debate society meeting
than to
> a group religious practice. Although petitioner might wish to share
his
> atheist beliefs with others (just as a Christian inmate might wish
to
> evangelize his fellow prisoners), prison officials do not violate
> inmates' free exercise rights when they refuse to permit gathering
of
> inmates of different religious or philosophical persuasions for the
> purpose of facilitating inter-religious dialogue. By refusing to
> authorize a study group for inmates who designate themselves as
> atheists, humanists, freethinkers and "other" and inmates who have
no
> religious preference, respondents Taylor and Hepp did not violated
> petitioner's rights under the free exercise clause or RLUIPA."
>
>         On the other hand, from the same case:
>
>         "[If] petitioner was unable to order books about atheism
because
> of the facility's ban on publications ... [then] the actions of
prison
> officials may have violated his rights under the free exercise
clause
> and RLUIPA as well as the free speech clause of the First
Amendment."
>
>         Why would studying atheism together be unprotected by
RLUIPA
> because it isn't "the observation of [ ] central religious
belief[s] or
> practice[s]" of atheism, but ordering books about atheism be
protected
> by it?  And why would a request for a study group for
> atheists/freethinkers/humanists/"other" and those "who have no
religious
> preference" be treated as a request "to authorize a group for
inmates of
> differing religious and philosophical persuasions" -- simply
because the
> group doesn't just include self-described atheists but also others
who
> sound pretty close to atheism but don't fit within that
"denomination"?
>
>         Eugene
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>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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