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In Prison, Atheism Is a Religion and Gets the Same Protections

By Gabriella Khorasanee, JD | Last updated on

James Kaufman is one vigilant atheist. In 2005, he tried to compel the Wisconsin prison he was housed in to treat atheism as a religion so that he could form a religious group. Though the court found that atheism should be treated as a religion, they denied his claim because he failed to show the state created a substantial burden on his ability to practice atheism.

Four years later, and in a different prison, Kaufman again tried to form an atheist religious group. The warden either unaware of, or disregarding the Seventh Circuit's opinion in Kaufman 1, denied his request because atheism doesn't recognize a higher power or divinity.

Though the trial court did not overlook Kaufman 1, the district court held that the state had a legitimate interested for prohibiting the atheist group, namely that "it would be impractical to spend limited resources to create a study group for only two members." On appeal, the Seventh Circuit vacated and remanded.

Free Exercise in Prison

The Seventh Circuit reiterated its position in Kaufman 1, where it stated that "the Free Exercise and Establishment Clauses need not involve worship of a supreme being." Instead, it relied on the Supreme Court's decision in Wallace v. Jaffree that noted that "the political interest in forestalling intolerance extends ... to encompass intolerance of the disbeliever and the uncertain."

Umbrella Religious Groups

Here, the Seventh Circuit had to determine whether the prison proved a legitimate interest in discriminating between Kaufman's proposed atheist group, and the existing seven recognized religious umbrella groups in the Wisconsin prison (Native American, Jewish, Catholic, Protestant, Pagan, Islam, and Eastern Religions). The state argued that only two people (including Kaufman) had an interest in atheism. The Seventh Circuit did not agree.

The very nature of determining a prisoner's religion depends on what box he checks when they are admitted -- there is no box for Atheism. Atheism is generally an "Other" category and is written in. The prison characterizes all "other" choices that don't fall within one of the seven recognized umbrella groups as "No Preference." Therefore, the state cannot claim with certainty that only two people expressed an interest in atheism.

Kaufman showed that in general atheists constitute between seven and 14% of the population. He further noted that the percentages of inmates that claimed affiliations such as "Jewish" or "Pagan" were very small -- much smaller than the 11% of inmates claiming no preference.


The Seventh Circuit noted that the only way to know how many prisoners are atheist is to conduct a survey, or to simply add a box for "Atheist" in the religious preference form. With more and more prisoners making claims of Atheism, it may be in the prison system's best interest to update their forms to reflect current case law. Having redundant cases litigating the same issues over and over doesn't help anyone, and is a massive waste of tax dollars.

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