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" <[EMAIL PROTECTED]>:
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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[1] Please note that messages sent to this large list cannot be viewed
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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 Links: ------ [1] /horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
