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COPYRIGHT 2005 J.M. Dawson Studies in Church and State
A recent case handed down by the Seventh Circuit Court of Appeals holds that atheism is entitled to the same treatment that traditional religions receive under the Constitution. The case, Kaufman v. McCaughtry (2005), has many religious groups upset because the decision seemingly bolsters atheism. Yet some atheist groups are also concerned because the case arguably requires atheist groups to pose as "religious organizations to receive equal treatment. The case adds to an already confused state of constitutional law on what qualifies as "religion."
James Kaufman was an inmate incarcerated at the Waupan Correctional Institution in Wisconsin. He submitted to prison officials a written request to form an inmate group "to stimulate and promote Freedom of Thought and inquiry concerning religious beliefs, creeds, dogmas, tenets, rituals and practices, and to educate and provide information concerning religious beliefs, creeds, dogmas, tenets, rituals, and practices." Prison officials denied Kaufman's request, concluding that it was not motivated by "religious" beliefs as required under the Wisconsin penal code. Kaufman sued the State of Wisconsin, claiming that his rights under the Free Exercise Clause were violated.
"The problem here," noted the Seventh Circuit, "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 court held, therefore, that 'atheism is [the inmate's] religion, and the group that he leads is religious in nature even though it expressly rejects a belief in a supreme being." The court was relying, of course, on a number of U.S. Supreme Court precedents that treat a range of nonreligious' beliefs as the equivalent of religion. The court continued: "The Supreme Court has said that a religion, for purposes of the First Amendment, is distinct from a way of life,' even it 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) nor must it be a mainstream faith." Thus, the court concluded, atheism is equivalent to religion for purposes of the First Amendment and Kaufman should have been given the right to meet to discuss atheism and related topics with fellow inmates.
The Kaufman case is important because if atheism qualifies as "religion," it is entitled to the same free exercise privileges accorded to religion under the Constitution. Traditionally, this has not usually been the case. It is uncertain whether the Supreme Court will review Kaufman, but as of now, the case creates a bit more confusion in an already confused area of the law.
DEFINING RELIGION
The task of distinguishing religion from nonreligion has proven to be a difficult one for American courts. The operative word of the religion clauses--religion--was left undefined By the framers. This omission, however, did not result from oversight. Defining the term would have placed a permanent imprimatur on those forms of faith and belief that conformed to their definition. The framers instead chose to leave the term undefined, thus protecting a diversity of beliefs, not merely the traditional ones, from undue advancement or prohibition of expression by government. This guarantee of freedom of religion, the centerpiece or American liberties, has served to protect all religions, old and new, against governmental preference, intrusion, and harassment.
The task of giving meaning to the term "religion" inevitably falls to the judicial branch. By tracing the evolution of the meaning of religion, this essay will show that as religious pluralism in America has expanded, the constitutional meaning of religion has expanded as well. It is argued that the American courts' unwillingness to adhere to any fixed definition of religion prevents, in statutory and nonstatutory contexts alike, an otherwise inevitable erosion of religious liberty and diminution of our free society. But does the Kaufman case carry this premise too far? Should atheism carry the status of religion under the Constitution? Before addressing this question, it might be helpful to trace the history of the constitutional meaning of "religion" as it has emerged from judicial opinions.
The American judiciary's formal inquiry into the constitutional meaning of religion commenced in 1878 when the United States Supreme Court decided the case of Reynolds v. United States. In that case the Court considered a Mormon's argument that his practice of polygamy was a religious duty and therefore protected under the Free Exercise Clause. In searching for the scope of protected religious activity in the Constitution, the Court stated: "The word "religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted."
The Court examined statements from James Madison and Thomas Jefferson for guidance in ascertaining the framers' meaning of the word "religion." For Madison, religion was "the duty we owe to our creator," and for Jefferson, "a matter which lies solely between man and his God." While these statements are far from being exhaustive definitions, they accord with the common understanding of religion in late eighteenth-century America as a relationship between a person and some Supreme Being. But while Madison, Jefferson, and most of the founders were theists, there is no evidence that the constitutional framers wrote the First Amendment to protect only theism. Some of the founders clearly sought religious freedom for nontheists. Jefferson, for example, wrote that his Virginia Statute for Religious Freedom was to "comprehend within the mantle of its protection the Jew and Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination." The Court's inquiry into the founders' understanding of the meaning of religion produced no clear answers. Satisfied that the defendant's polygamous practices were too unconventional to be protected by the First Amendment, the Court found it unnecessary to formulate a definition of religion.
Twelve years later the propriety of polygamy was again the issue before the Supreme Court. In Davis v. Beason, the Court upheld an Idaho statute that required individuals registering to vote to swear that they neither practiced polygamy nor belonged to any organization that looked upon polygamy favorably. The defendant, a devout Mormon, asserted that the statute violated the Free Exercise Clause. This time the Court was more specific in stating its understanding of the term "religion": "The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will." But while the defendant's beliefs and practices clearly fit within this definition, the Court held that only his beliefs, and not his practices, were protected under...
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