James J. Kaufman v. JEFFREY PUGH, Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1009
J AMES J. KAUFMAN,
Plaintiff‐Appellant,
v.
J EFFREY P UGH, Warden, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 11‐cv‐168‐bbc — Barbara B. Crabb, Judge.
____________________
SUBMITTED J UNE 12, 2013* — D ECIDED A UGUST 16, 2013
____________________
Before BAUER , WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. This is our second encounter with
Wisconsin inmate James Kaufman’s effort to compel the
prison system to treat atheism, which he follows, on the
* After an examination of the briefs and the record, we have concluded
that oral argument is unnecessary. Thus, the appeal is submitted on the
briefs and the record. See FED . R. A PP. P. 34(a)(2).

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2 No. 13‐1009
same footing as other religious beliefs. In 2005, this panel
addressed Kaufman’s claim that the Wisconsin prison in
which he was then housed had violated the Free Exercise
and Establishment Clauses of the First Amendment by refus‐
ing his request to create a religious study group dedicated to
atheism, while allowing religious study groups dedicated to
other religions. We held that Kaufman’s request to form
such a group must be treated as a request to form a “reli‐
gious” group rather than a nonreligious activity group. So
understood, the Establishment Clause requires the prison to
provide a “legitimate secular reason” for allowing other reli‐
gious groups, but prohibiting an atheist one. Kaufman v.
McCaughtry, 419 F.3d 678, 683‐84 (7th Cir. 2005) (Kaufman I)
(citations omitted).
Kaufman has since been moved to the Stanley Correc‐
tional Institution (Stanley), where he has encountered nearly
identical resistance to his efforts to create an atheist practice
group. After submitting a number of grievances, he filed a
new lawsuit asserting among other things that the prison’s
refusal to permit an atheist group to function violates both
the Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. § 2000cc, et seq., and the Free Exercise
and Establishment Clauses in the First Amendment to the
U.S. Constitution. Kaufman also contended that the prison
violated the same provisions by denying his request to wear
a “knowledge thought ring” that he regards as a religious
symbol and by failing to make atheist books that he donated
available in the prison library.
Although the prison officials apparently had not read our
2005 opinion in Kaufman I and thus rejected Kaufman’s re‐
quests out of hand because his proposed group does not

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No. 13‐1009 3
recognize any kind of divine entity or higher power, the dis‐
trict court did not make that mistake. It recognized that the
atheist study group is a religious one, but it found that the
prison supplied a legitimate secular reason for prohibiting
an atheist group: Only two inmates (including Kaufman), it
thought, have any interest in an atheist group, and it would
be impractical to spend limited resources to create a study
group for only two members. The court also found that the
prohibition of a “knowledge thought ring” did not impose a
substantial burden on Kaufman’s religious practice and was
justified by the prison’s secular interest in security. Finally, it
held that there was no evidence that the defendants were
responsible for losing the books Kaufman donated or that
this loss was anything more than isolated negligence. On
appeal, Kaufman contests the district court’s grant of sum‐
mary judgment in favor of defendants on all three of these
claims. We affirm in part and vacate in part.
I
Inmates at Stanley Correctional Facility are permitted to
practice religion through “Umbrella Religious Groups”
designed to allow inmates to congregate with those who
share relatively similar beliefs. For reasons of security and
logistics, the prison does not create sub‐groups for each
specific sect within a given faith family. The existing
umbrella groups are Protestant, Islam, Native American,
Catholic, Jewish, Eastern Religions, and Pagan. When
inmates express interest in participating in religious study,
they fill out a Religious Preference form that allows them to
select one of the recognized umbrella groups, “no
preference,” or “other.” If the inmate selects “other,” he may
write in a religion. If the religion he specifies does not fall

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4 No. 13‐1009
within one of the seven umbrella groups, he is not permitted
to attend a religious practice group, though he may practice
on his own by visiting the religious library or meeting with
the Chaplain individually. The prison does not keep records
of what religion inmates write in after selecting “other” on
the form, and so the authorities do not know how many
inmates have selected “other” and written “atheist,”
“humanist,” “secular,” “freethinker,” or another similar
term. Kaufman has submitted evidence indicating that if an
inmate writes in “atheism,” the prison does not recognize
this as a religion at all, and instead lumps the prisoner in
with the “No Preference” group.
An inmate wishing to create a practice group for a reli‐
gion not covered by the existing umbrella groups must sub‐
mit a special request form. Kaufman did so on October 22,
2009, stating that he wanted to form “a study group for in‐
mates who are Atheists (also possibly listed as Humanists,
Freethinkers, Rationalists, Agnostics, and who may have
possibly checked ‘No Preference’ because there is no Atheist
option on the preference form), or any other inmates who
may be interested in such studies.” He explained that the
group would be “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; responsibili‐
ties and privileges in society; right versus wrong, and ethical
issues.” His request acknowledged that “Atheism ‘requires’
no specific activities, but neither does any other belief sys‐
tem.” He maintained, however, that his proposed study
group is “‘related’ to Atheism because of the general human
need/urge to learn about everything around us, how we re‐
late to and function with other people, how and why things

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No. 13‐1009 5
(life) are the way they are, our relationship with other peo‐
ple.”
Disregarding or perhaps unaware of the ruling in Kauf‐
man I, the Chaplain recommended denying Kaufman’s athe‐
ist group because it “is not viewed as a religious request.”
His written explanation stated that “[r]eligion or being un‐
der a religious umbrella group would require a system of
human thought which usually includes symbols, beliefs and
practices that give meaning to the practitioner’s experiences
through a higher power, deity, or deities.” The Warden
adopted the Chaplain’s recommendation and denied the re‐
quest. Kaufman responded with a second special request on
December 24, 2009, in which he took care to explain that the
group would do more than conduct a study of the history of
religion. The Chaplain and the Warden saw no material dif‐
ference in the new submission, however, and so they denied
it as well. A member of the Religious Practices Advisory
Committee added that the “types of discussions listed as ex‐
amples are more educational and philosophical in nature,
therefore would not be considered a religious study group.”
RLUIPA, which applies to programs and activities that
receive federal financial assistance (like the prisons here),
provides that the government may not impose a “substantial
burden on the religious exercise of a person residing in or
confined to an institution” unless the burden is the “least
restrictive means” of serving a “compelling governmental
interest.” 42 U.S.C. § 2000cc‐1; see Cutter v. Wilkinson, 544
U.S. 709 (2005). The Free Exercise Clause prohibits the state
from imposing a “substantial burden” on a “central religious
belief or practice.” Kaufman I, 419 F.3d at 682‐83 (quoting
Hernandez v. Comm’n of Internal Revenue, 490 U.S. 680, 699

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6 No. 13‐1009
(1989))(citing Civil Liberties for Urban Believers v. City of
Chicago, 342 F.3d 752, 760 (7th Cir. 2003)). In the prison
context, a regulation that impinges on an inmate’s
constitutional rights, such as one imposing a “substantial
burden” on free exercise, may be justified if it is “reasonably
related to legitimate penological interests.” O’Lone v.
Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley, 482
U.S. 78, 89 (1987)). As we explained in Kaufman I, however,
the Establishment Clause may be violated even without a
substantial burden on religious practice if the government
favors one religion over another (or religion over
nonreligion) without a legitimate secular reason for doing
so. 419 F.3d at 683 (citing Linnemeir v. Bd. of Trustees of Purdue
Univ., 260 F.3d 757, 759 (7th Cir. 2001); Metzl v. Leininger, 57
F.3d 618, 621 (7th Cir. 1995); Berger v. Rensselaer Cent. Sch.
Corp., 982 F.2d 1160, 1168‐69 (7th Cir. 1993)).
In Kaufman I, we explained that religious beliefs protect‐
ed by the Free Exercise and Establishment Clauses need not
involve worship of a supreme being. 419 F.3d at 682 (citing
McCreary Cnty., Ky. v. Am. Civil Liberties Union of Ky., 545
U.S. 844, 860 (2005). In Wallace v. Jaffree, 472 U.S. 38 (1985),
the Supreme Court left no room for doubt on this point:
[T]he Court has unambiguously concluded that the
individual freedom of conscience protected by the
First Amendment embraces the right to select any re‐
ligious faith or none at all. This conclusion derives
support not only from the interest in respecting the
individual’s freedom of conscience, but also from the
conviction that religious beliefs worthy of respect are
the product of free and voluntary choice by the faith‐
ful, and from recognition of the fact that the political

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No. 13‐1009 7
interest in forestalling intolerance extends … to en‐
compass intolerance of the disbeliever and the uncer‐
tain.
Id. at 52‐54. In Kaufman I, we also pointed out that the ad‐
ministrative code governing Wisconsin prisons prohibits the
Warden from considering “the absence from the beliefs of a
concept of a supreme being” as a reason not to recognize a
new religious group. 419 F.3d at 682 (citing Wis. Admin.
Code § DOC 309.61(d)(3)). Accordingly, we found that it was
error to treat Kaufman’s request to form an atheist study
group as a non‐religious request. Atheism is “a school of
thought that takes a position on religion, the existence and
importance of a supreme being, and a code of ethics,” and it
is thus a belief system that is protected by the Free Exercise
and Establishment Clauses. Id.
Notwithstanding these legal principles, Kaufman’s Free
Exercise claim failed in his first suit because he did not show
that the lack of the requested group would impose a
substantial burden on his practice of atheism. (Kaufman did
not present a RLUIPA theory, see id. at 681.) There was no
evidence “that he would be unable to practice atheism
effectively without the benefit of a weekly study group.” Id.
at 683. For the same reason, Kaufman again cannot prevail
under the Free Exercise Clause. Similarly, because he cannot
prevail under RLUIPA unless he first demonstrates “a
substantial burden on [his] religious exercise,” 42 U.S.C.
§ 2000cc‐1(a), the prison’s policy with respect to groups does
not violate his rights under RLUIPA.
Kaufman’s new Establishment Clause claim, in contrast,
presents a different question (just as it did before): we must
evaluate whether the prison has provided a legitimate

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8 No. 13‐1009
secular justification for discriminating between the proposed
atheist study group and the seven recognized umbrella
groups. The record on this point is not as clear as it needs to
be. First, the idea that the prison’s action was justified
because not enough people were interested in an atheist
group came late to the game. The contemporaneous
explanations indicate that the authorities denied Kaufman’s
request because they thought that an atheist group does not
qualify as a “religious” one. Kaufman I conclusively held to
the contrary. The district court properly spotted the error,
but it found nonetheless that the prison had a legitimate
secular reason for denying Kaufman’s request because, as it
understood the record, only two inmates had expressed any
interest in an atheist group.
But a closer look at Kaufman’s submissions in both the
district court and this court reveals that Kaufman is chal‐
lenging the finding that he was one of a group of only two.
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.” He
does not challenge the prison’s interest in using umbrella
groups; to the contrary, he would like a non‐theistic, secular
umbrella group. He points to general evidence such as al‐
manacs suggesting that as many as 10 to 14% of the popula‐
tion 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. The
district court suggested that insofar as Kaufman’s request
included sub‐groups such as “Humanist” and “Freethinker,”
it was not a religious request because it swept in too many
dissimilar schools of thought. But it is hard to believe that

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No. 13‐1009 9
Kaufman’s group included more variants than the Native
American group (the Bureau of Indian Affairs recognizes 566
tribes, most of which have their own religion, see “Indian
Entities Recognized and Eligible To Receive Services from
the United States Bureau of Indian Affairs,” 77 Fed. Reg.
47868‐01 (Aug. 10, 2012), or the “Eastern Religions” group,
or even the Protestant sects (which number in the thousands,
see WORLD C HRISTIAN E NCYCLOPEDIA : A C OMPARATIVE
SURVEY OF C HURCHES AND R ELIGIONS IN THE MODERN W ORLD
(David B. Barrett et al. eds., 2001)). In his request, Kaufman
was attempting to sweep in the like‐minded inmates who he
thought would be interested in his proposed umbrella
group.
The prison has one other argument that deserves
attention. Putting the preference forms to one side, it points
out that Kaufman was the only inmate who asked for the
formation of an atheist umbrella group. If there were others,
it suggests, it would have seen more such requests. Kaufman
responds that atheist inmates less persistent than he has
proven to be would have been deterred from submitting a
form, because their efforts to designate atheism as an
alternate religious viewpoint were, metaphorically, thrown
in the trash. In our view, the fact that Kaufman alone made
such a request is evidence on the prison’s side, but it is not
conclusive. We cannot tell, on the record as it stands, if more
inmates would have designated atheism if it had been an
option on the preference form. (That is why political
candidates push so hard to get their names on ballots; it is
cold comfort to be told that one can run as a write‐in.)
A recent PEW survey of prison chaplains suggests that
Kaufman may be on to something, and that there might be at

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10 No. 13‐1009
least as many prisoners interested in an atheist group as one
sees in the Pagan, Eastern Religions, or Jewish groups. Reli‐
gion in Prisons: A 50‐State Survey of Prison Chaplains, The
PEW Forum on Religion and Public Life, available at
http://www.pewforum.org/Social‐Welfare/prison‐chaplains‐
perspectives.aspx (last visited August 15, 2013). According
to the survey, 1.7% of prisoners identify as Jewish and Pa‐
gan, and 0.9% identify as Buddhist, while “[o]n average,
chaplains say that about 11% of the inmate population is
atheist, agnostic or has no particular religious affiliation.” If
only one‐tenth of this 11% category would select the “athe‐
ist” option if it were included among the umbrella groups,
there would be a comparable number of atheists to Pagans,
Jews, and Buddhists. If this is the case, then there may be no
objective basis for refusing to create an umbrella atheist
group, unless the prison could show that the expansion from
seven to eight groups was somehow prohibitive. Because we
have no evidence on this, we cannot determine how much
weaker (if at all) the inmates’ interest in an atheist group is,
nor are we in a position to say whether the prison’s justifica‐
tion is compatible with the Establishment Clause.
We can assume that the district court was correct when it
ruled that the prison has no duty to recognize every minor
religion or belief system that attracts at least two inmates.
But we think that further exploration of the degree of inter‐
est that actually prevails at Stanley is necessary before it will
be possible to rule on Kaufman’s claim. Kaufman points out
that in December 2011, Stanley had a total of 1,465 inmates:
178 Catholics, 236 Muslims, 166 Pagans, 517 Protestants, 28
from Eastern Religions, 67 Jewish, and 67 Native American.
That left 206 inmates of unknown affiliation—approximately
14% of the total. In his brief, Kaufman cites a number of

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No. 13‐1009 11
studies from the U.S. Census Bureau, the New York Times
2004 Almanac, the 2003 World Almanac, and so forth, show‐
ing that somewhere between 7 and 14% of adult Americans
describe themselves as being atheist, agnostic, or humanist.
That suggests that out of the 1,465 inmates, somewhere be‐
tween 102 and 206 might fall within the proposed group.
Only a credible survey of the inmate population, or the sim‐
ple expedient of adding “atheist, agnostic, or humanist” to
the preference form and collecting new data, can resolve this
uncertainty.
II
Inmates are permitted to possess religious property or
wear religious emblems only if it is approved by the
Chaplain. Permissible religious emblems are determined by
an inmates’ membership in an umbrella group. The
Chaplain maintains a list of religious emblems associated
with each umbrella group’s specific practices, and inmates
must belong to the umbrella group in order to possess
associated religious emblems. The prison’s strict policy on
religious emblems arises from concern about their use as
symbols of gang membership. For instance, caps worn in a
distinct way, or jewelry with a particular color or pattern,
may be usurped to symbolize gang loyalty rather than
religious faith.
Kaufman wanted to acquire a new religious emblem,
which he described as a “knowledge thought ring”—a ster‐
ling silver ring engraved with the word “knowledge.” He
admitted that the ring was not commonly recognized among
atheists, but he argued that the choice of an Atheist symbol
is individualized, “unique to each person.” The Chaplain
denied the request for at least two independent reasons:

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12 No. 13‐1009
atheism is not a recognized umbrella group, and the ring
was not on the list of permissible religious emblems.
The district court correctly dismissed this claim. It cannot
succeed under RLUIPA or the Free Exercise Clause because
the inability to wear the ring does not impose a “substantial
burden” on Kaufman’s ability to practice atheism. Kaufman
admits this when he concedes that the ring is an individual‐
ized symbol. For the same reason, the prison’s control of re‐
ligious emblems does not discriminate against atheism in
violation of the Establishment Clause. Cf. Easterling v. Pol‐
lard, No. 12‐1532, 2013 WL 3787486 (7th Cir. July 22, 2013)
(nonprecedential) (no RLUIPA violation by prison that re‐
fused to recognize inmate’s idiosyncratic belief that Rama‐
dan began one month in 2010 earlier than date recognized by
Fiqh Council of North America and used universally). It is
entitled to draw a distinction between, on the one hand, reli‐
gious emblems that are common to the members of other
umbrella religious groups, easy to recognize, and difficult to
abuse as a gang symbol, and on the other hand, emblems
that are unique to each prisoner and potential security risks.
III
Three used books were mailed to Kaufman through the
prison mail system. Kaufman was not permitted to receive
them because prisoners may receive only new books mailed
directly from the publisher or a commercial retailer. (This is
because of the risk that used books from private senders
may conceal contraband.) Kaufman filed a form electing to
donate the used books to the chapel library, but they never
showed up there. Five other books that Kaufman has donat‐
ed are maintained in the general library. Kaufman claims

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No. 13‐1009 13
that the loss of these three books violates RLUIPA and the
Free Exercise Clause.
Although the state argues that Kaufman has abandoned
this claim on appeal, we are satisfied that he has done
enough to preserve it. That said, however, the claim is going
nowhere. The absence of the books does not impose a sub‐
stantial burden on Kaufman’s ability to follow his atheistic
beliefs. Indeed, there is no evidence that the prison inten‐
tionally lost Kaufman’s books, and thus there is nothing to
support the accusation that it was discriminating in this way
against atheism. Nor is there any evidence that the prison
made other religious books donated by inmates available in
the chapel library, but consciously refused to make atheist
books available.
IV
We VACATE the grant of summary judgment on Kauf‐
man’s claim that the defendants violated the Establishment
Clause by denying his request for an atheist religious group
and R EMAND for further proceedings consistent with this
opinion. We A FFIRM the grant of summary judgment in favor
of the defendants on all other claims. Each party is to bear its
own costs on appeal.

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