215 F.3d 90 (D.C. Cir. 2000), 98-5485, Kalka v. Hawk

• Citation: 215 F.3d 90
• Party Name: Ben Kalka, Appellant v. Kathleen Hawk, et al.,Appellees
• Case Date: June 23, 2000
• Court: United States Courts of Appeals, U.S. Court of Appeals — District of Columbia Circuit

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215 F.3d 90 (D.C. Cir. 2000)

Ben Kalka, Appellant

v.

Kathleen Hawk, et al.,Appellees

No. 98-5485

United States Court of Appeals, District of Columbia Circuit

June 23, 2000

Argued January 11, 2000

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Appeal from the United States District Court for the District of Columbia(97cv02259)

William M. Hohengarten, appointed by the court, argued the cause and filed the briefs as amicus curiae on the side of appellant.

Ben Kalka, appearing pro se, was on the briefs for appellant.

Marina Utg off Braswell, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Dara A. Corrigan, Assistant U.S. Attorney, entered an appearance.

Before: Williams, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge Tatel.

Randolph, Circuit Judge:

Ben Kalka was a federal prisoner. After his conviction in 1991, he was incarcerated in seven different Federal Correctional Institutions ("FCIs"). Kalka claims to be a long-time member of the American Humanism Association ("AHA"). He alleges that at six of the prisons, he attempted to form "humanist groups within the chapels of the prisons they maintain," Complaint at 12, but with one exception, the wardens refused to recognize humanism as a religion and therefore turned him down.¹ Acting pro se, Kalka brought this action for an injunction and damages against officials of the Bureau of Prisons, claiming that they had violated and were still violating the religion clauses of the First Amendment. We affirm the district court's grant of summary judgment in favor of the defendants.

I

Each federal prison has a Religious Services Department headed by a chaplain responsible for managing the institution's religious activities. Prison chaplains are also charged with deciding whether to introduce new religious components to the Department. When a decision on an inmate's request cannot be reached locally,

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the request is passed on for review by the Religious Issues Committee at BOP's Central Office in Washington, D.C. The Committee then forwards its recommendations to the prison's warden, who makes the final determination. See generally Bureau of Prisons Program Statement No. 5360.07, Religious Beliefs and Practices (effective Aug. 22, 1997).

Although each prison evidently maintains a "chapel," we do not know exactly what this entails. A "chapel" might simply be a corner of an ordinary room set aside at certain times for religious services. (In a letter to the warden at FCI-Jesup, Georgia, the prison chaplain wrote of a "multi-purpose auditorium (Chapel area).") BOP regulations require only that space be made available.

The most recent events leading to this lawsuit occurred when Kalka applied to establish a chapter of the American Humanism Association under the aegis of the Religious Services Department at FCI-Jesup, Georgia. Kalka supported his application with information about humanism, including portions of essays, excerpts from AHA publications, and a copy of a book entitled The Philosophy of Humanism by Corliss Lamont.

After reviewing these items, Chaplain David W. Fox forwarded them to the warden, Tom L. Wooten, along with a memorandum discussing Kalka's request "to have counselors and celebrants enter the prison to conduct a 'non-theistic,' secular and naturalistic approach to philosophy." The chaplain recommended referring Kalka's application to the Central Office Religious Review Committee. He listed several matters of concern for the warden's consideration, among which were the AHA's non-theistic nature; humanism's lack of ceremonial rituals; the description of humanism as a philosophy; and Kalka's classification of his faith choice as Jewish. Chaplain Fox also mentioned that the AHA "is not associated with any type of spirituality or higher being, as is espoused by our groups currently meeting under the guide of [the] religious services department."

Heeding the chaplain's suggestion, warden Wooten transferred Kalka's request to the Central Office Religious Review Committee. In his transmittal letter, the warden wrote that he had "serious concerns" about recognizing humanism as a religion. In particular, he noted that the materials Kalka presented clearly document the AHA's "philosophical and educational nature" and that "[t]he group does not appear to ascribe to any type of Deity, God, or Spiritual Advisor."

The Religious Issues Committee conducted an extensive review of Kalka's submission. In the information he provided, humanism is described alternately as a philosophy, a nontheistic religion, a life stance and a world view. A letter from a humanist association president notes that even among humanists, the question whether humanism is a religion is a "contentious one."

Corliss Lamont's book, The Philosophy of Humanism, considered "a standard text and reference" on secular humanism, describes humanism as "a philosophy that advocates happiness in this life rather than hope for a heaven in an afterlife." Lamont defines humanism as "a philosophy of joyous service for the greater good of all humanity in this natural world and advocating the methods of reason, science, and democracy." Among humanism's central tenets, Lamont lists a rejection of the supernatural; the belief that the universe is self-subsisting; that humans are a part of the natural universe; and that there is no life after death. The Lamont excerpt Kalka submitted labels humanism "a many faceted philosophy" but makes no reference to any religious component.

Kalka had also submitted a portion of an essay by Gerald A. Larue entitled "Positive Humanism." In it Larue writes:"it is absolutely essential that we continue to express the impact of rational and scientific analysis on modern life and thought."

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Among other things, the author calls upon humanists to "take stands against sloppy thinking, against the imposition of ancient interpretations on modern life and living, [and] against the efforts to impose religious teachings and interpretations on society." Rational thought as opposed to religious faith is also stressed in another document Kalka provided, an AHA statement entitled "What is Humanism?".The statement affirms humanism's focus on "reason and science" and repeatedly refers to humanism as a philosophy rather than a religion.

Other parts of Kalka's submission describe humanism as a religious movement. For instance, an excerpt from the AHA's Free Mind magazine discusses the Humanist Society of Friends ("HSOF"), a group whose motto is "a scientific religion for a scientific age." The article speaks of the "concept of Humanism as a non-theistic religion," stating that its view of humanism as a religion "allows for the opening of many doors and acquiring of many privileges that Humanism as a philosophy d[oes] not." Another AHA publication includes an advertisement advising readers of AHA sponsored humanist counselors who provide humanistic marriage and memorial services and have the legal status of minister in all fifty states.

Kalka also furnished his own statement attesting that humanism "is a study of ethics, and a religion for some in a personal way." Whether it was a religion for him, his statement did not say.²

From these sources, the Committee concluded that the needs and purposes of Kalka's proposed AHA group were "more philosophical and educational in nature." Additionally, one committee member spoke with an outside source associated with the AHA who confirmed the Committee's determination that the group was more philosophically oriented. The Committee notified FCI-Jesup's warden of its conclusion, recommending that he not permit a chapter of the AHA to meet under the auspices of the Religious Services Department. It reasoned that the requirements of the group could be met outside of the Religious Services Department, a program which is reserved for groups that are "religious" in nature. Humanist literature should also be excluded from the chapel, the Committee decided, because only literature which is "religious" and connected to a recognized religious group is "distributed within the confines of the Religious Services Department."

The warden denied Kalka's request to allow AHA meetings as a chapel activity but informed him that he could establish a humanism group under the aegis of the prison's Education Department. On Kalka's administrative appeal, the BOP affirmed. Explaining its decision, a BOP administrator wrote that AHA's "own newsletters and literature ... consistently refer[ ] to Humanism as a 'philosophy' and not a 'religion.' "He added that in numerous requests for tax-exempt § 501(c)(3) status, the AHA has described itself as "an educational organization and not a religious organization." See 26 U.S.C.§ 501(c)(3). The BOP official also mentioned the Supreme Court decision in Torcaso v. Watkins, 367 U.S. 468 (1961), commenting that the Court's reference to Secular Humanism as a religion applied only to a particular group of humanists known as the Fellowship of Humanity. Kalka was again told that his group was free to meet as part of the prison's Education Department.³

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In September 1997, Kalka brought this action against BOP Director Kathleen Hawk and other named and unnamed BOP officials, alleging that BOP's policy of excluding humanist groups from prison chapels violates the Free Exercise and Establishment Clauses of the First Amendment.⁴ As a remedy, Kalka sought compensatory damages, a portion of which would be used to establish humanist groups in each of the nation's prisons.⁵ He also sought an injunction compelling "prison officials so that Chapters of the American Humanism Association can be formed in all of the prisons" the BOP manages and an order "enjoining prison...