Kalka, Ben v. Hawk, Kathleen

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2000 Decided June 23, 2000

No. 98-5485

Ben Kalka,

Appellant

v.

Kathleen Hawk, et al.,

Appellees

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 appel-

lant.

Marina Utgoff 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 prison-

er. 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 excep-

tion, 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 institu-

tion'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, 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 recom-

__________

1 Kalka claims that he was allowed to start one AHA chapter at

FCI-Tucson, in 1994. The Bureau of Prisons submitted evidence to

the contrary.

mendations to the prison's warden, who makes the final

determination. See generally Bureau of Prisons Program

Statement No. 5360.07, Religious Beliefs and Practices (effec-

tive 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 audito-

rium (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 Ser-

vices 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 for-

warded 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 chap-

lain recommended referring Kalka's application to the Cen-

tral 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 trans-

ferred 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 provid-

ed, humanism is described alternately as a philosophy, a non-

theistic religion, a life stance and a world view. A letter from

a humanist association president notes that even among hu-

manists, 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 human-

ism, 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." Among other things, the author calls upon human-

ists to "take stands against sloppy thinking, against the

imposition of ancient interpretations on modern life and liv-

ing, [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 in-

cludes 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 state-

ment 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 associat-

ed with the AHA who confirmed the Committee's determina-

tion 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 Depart-

ment. 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

__________

2 The AHA, an umbrella organization, includes the Humanist

Society of Friends, a group which Kalka alleges has received tax-

exempt status based on its religious purpose. See Complaint at 12.

There is no indication, however, that Kalka is a member of the

Humanist Society of Friends or that the AHA chapter he intended

to start would have been associated with that group.

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

s 501(c)(3) status, the AHA has described itself as "an edu-

cational organization and not a religious organization." See 26

U.S.C. s 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

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 reme-

dy, Kalka sought compensatory damages, a portion of which

__________

3 Prior to the district court's decision, Kalka declined the offer to

have AHA meetings in the Education Department. He later

changed his mind. At the time the briefs were filed, Kalka had

begun teaching a class on humanism at FCI-Edgefield. See Brief

Amicus Curiae of Court-Appointed Counsel in Support of Plaintiff-

Appellant Ben Kalka at 12.

4 Though Kalka's complaint also alleged violations of the Fifth

and Fourteenth Amendments, those claims were not presented in

his briefs and were not decided by the district court.

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 officials so that they

will allow their chapels to include for dissemination to inmates

literature that is not conventionally religious, or that might be

viewed, in fact, as being anti-religious."6

The defendants moved to dismiss the claims, and the

district court, treating the motion as one for summary judg-

ment, ruled in their favor. Kalka v. Hawk, No. 97-2259

(D.D.C. Sept. 29, 1998). For purposes of resolving the mo-

tion, the court assumed that humanism, as professed and

practiced by Kalka, was a religion. See mem. op. at 4. It

concluded that BOP's denying him access to the prison chapel

did not prevent Kalka from reasonably exercising his human-

ist beliefs. See id. at 6. Kalka failed to establish that BOP's

offer to allow him to conduct services and distribute literature

through the Education Department was unreasonable. See

id. On the Establishment Clause claim, the court held that

BOP's restrictions on Kalka's use of the chapel were reason-

able, particularly because they did not prevent him from

freely exercising his humanist beliefs. See id. at 8. Such

reasonable restrictions are necessary, the court said, to en-

sure the opportunity for all inmates freely to exercise their

religion. See id. Having concluded that no constitutional

violations occurred, the district court expressed no opinion on

the qualified immunity defense of the BOP officials.

__________

5 Kalka framed his claim for damages as against the BOP not the

individual defendants. Nonetheless, we will treat it as a Bivens

claim against the individuals in view of the facts that Kalka filed the

action pro se, and that earlier in his complaint he cited Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971).

6 The injunctive claim is now moot in light of Kalka's release from

federal custody on April 20, 2000. See Amicus 28(j) Letter filed

May 9, 2000.

II

A

Qualified immunity shields officials from liability for dam-

ages so long as their actions were objectively reasonable, as

measured in light of the legal rules that were "clearly estab-

lished" at the time of their actions. Harlow v. Fitzgerald, 457

U.S. 800, 818-19 (1982); Farmer v. Moritsugu, 163 F.3d 610,

613 (D.C. Cir. 1998). The immunity is not simply from

damages but from having to participate in the proceedings.

See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The Su-

preme Court has therefore instructed the lower courts that

the validity of a qualified immunity defense should be deter-

mined as early as possible, preferably before discovery and

trial. See, e.g., Anderson v. Creighton, 483 U.S. 635, 640 n.2

(1987).

Both sides tell us we first must determine whether Kalka

has alleged a constitutional violation, which depends on

whether the "humanism" to which Kalka allegedly subscribes

is a "religion" within the meaning of the First Amendment.

Wilson v. Layne, 526 U.S. 603 (1999), they say, precludes us

from simply assuming arguendo that Kalka's humanism is a

"religion," and then determining whether this was clearly

established.

The critical passage in Wilson is as follows: "A court

evaluating a claim of qualified immunity 'must first determine

whether the plaintiff has alleged the deprivation of an actual

constitutional right at all, and if so, proceed to determine

whether that right was clearly established at the time of the

alleged violation.' " Id. at 609 (quoting Conn v. Gabbert, 526

U.S. 286, 290 (1999)). The Court had suggested this order of

decisionmaking in a footnote in County of Sacramento v.

Lewis, 523 U.S. 833, 841 n.5 (1998), calling it the "better

approach" because, if courts "always" ruled first on qualified

immunity when no clearly established constitutional right

existed, "standards of official conduct would remain uncer-

tain." The Second Circuit treats County of Sacramento, and

the two cases following it--Conn and Wilson--as not always

requiring federal courts to dispose of the constitutional claim

before upholding a qualified immunity defense. See Horne v.

Coughlin, 191 F.3d 244 (2d Cir. 1999); Sound Aircraft Servs.,

Inc. v. Town of East Hampton, 192 F.3d 329, 334 (2d Cir.

1999).7 We agree with the Second Circuit's conclusion but

not with all of its reasoning. It is, for instance, true that

footnote five in Sacramento was "tentatively worded," Horne,

191 F.3d at 248, but there appears to be nothing tentative

about the textual passage in Conn, quoted in Wilson, that the

courts "must" initially decide if the plaintiff has alleged a

constitutional right. On the other hand, the Supreme Court

has itself warned against "dissect[ing] the sentences of the

United States Reports as though they were the United States

Code." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515

(1993); Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979).8

__________

7 The Eleventh Circuit had reached the same conclusion, but did

so before the Court decided Wilson. See Santamorena v. Georgia

Military College, 147 F.3d 1337, 1343 (11th Cir. 1998). Judge

Edmondson there expressed doubt whether footnote five in Sacra-

mento represented a holding of the Court; he added that footnote

five had not expressly invoked the Supreme Court's supervisory

power over the lower courts. See id. at 1343 n.14. Since then,

other panels of the Eleventh Circuit have treated the quoted

language from Wilson as mandatory, as have other circuits. See

Jones v. Shields, 2000 WL 298244, at *3 (8th Cir. Mar. 23, 2000);

Kitzman-Kelley v. Warner, 203 F.3d 454, 457 (7th Cir. 2000);

Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000);

Hartley v. Parnell, 193 F.3d 1263, 1270-71 (11th Cir. 1999); B.C. v.

Plumas Unified Sch. Dist., 192 F.3d 1260, 1265-66 (9th Cir. 1999);

Crosby v. Paulk, 187 F.3d 1339, 1345 (11th Cir. 1999).

8 Horne mentioned (191 F.3d at 248) that Justice Breyer, concur-

ring in Sacramento, urged preservation of the lower courts' "flexi-

bility, in appropriate cases, to decide s 1983 claims on the basis of

qualified immunity, and thereby avoid wrestling with constitutional

issues that are either difficult or poorly presented." 523 U.S. at 858-

59. The fact that Justice Breyer went on to join the majority

opinions in both Conn and Wilson tends to indicate his belief that

So perhaps the statement about what the courts "must" do

describes only what the courts ordinarily should do.

The Second Circuit also refused to treat the Sacramento

procedure as mandatory because: "where there is qualified

immunity, a court's assertion that a constitutional right exists

would be pure dictum." Horne, 191 F.3d at 247. One

wonders. A conclusion that a constitutional right exists

would be dictum if and only if it were unnecessary to the

decision. But if the Sacramento line of cases requires the

constitutional issue to be reached first, a lower court's resolu-

tion of that issue becomes a necessary part of its decision.

The fact that the case theoretically could have been decided

without deciding the constitutional question is of no moment.

"A court's stated and, on its view, necessary basis for decid-

ing does not become dictum because a critic would have

decided on another basis." Henry J. Friendly, In Praise of

Erie--And of the New Federal Common Law, 39 N.Y.U. L.

Rev. 383, 386 (1964). As Professor Wright has written, if

"the Court believes it is deliberately deciding a constitutional

question, it is wise to suppose that the constitutional question

has been decided, unless and until some later Court suggests

a different answer." Charles Alan Wright, The Law of

Federal Courts s 56, at 385 (5th ed. 1994). Consider Wil-

son. The Court held that police officers violate the Fourth

Amendment when they bring reporters into the home while

they are executing a search warrant, but that this constitu-

tional right had not been clearly established and so the

defendant officers were immune from liability in damages.

The Supreme Court certainly did not think its conclusion

regarding the Fourth Amendment was dictum. It framed its

decision thus: "We hold that it is a violation of the Fourth

Amendment...." 526 U.S. at 613; see also Pope v. Illinois,

481 U.S. 497 (1987).

The Second Circuit gave another reason for its reading of

Wilson and Conn. Whenever the qualified immunity issue is

reached--that is, whenever the constitutional issue is first

__________

the opinions do not mandate a wholesale abandonment of this

practice.

decided against the official--"the government defendants will

... have no opportunity to appeal for review of the newly

declared constitutional right in the higher courts." 191 F.3d

at 247.9 The severity of this problem may depend on how

often plaintiffs in Bivens cases fail to appeal adverse immuni-

ty rulings; when they do appeal, the winning officials can

cross-appeal the ruling against them regarding the constitu-

tionality of their actions. See Robert L. Stern, When to

Cross-Appeal or Cross-Petition--Certainty or Confusion?,

87 Harv. L. Rev. 763 (1974). Whatever the percentages, the

Second Circuit's point is that the Supreme Court surely could

not have wanted newly-devised constitutional rights to be

recognized at the district court level without giving federal

officials any chance for appellate review.

Several other considerations move us in the direction of the

Second Circuit. If the Sacramento line of cases laid down a

hard and fast rule that constitutional issues always have to be

decided before the immunity defense is considered, we would

have great difficulty squaring that rule with statements in

three other Supreme Court decisions. Mitchell v. Forsyth,

472 U.S. at 528, held that an "appellate court reviewing the

denial of the defendant's claim of immunity need not consider

the correctness of the plaintiff's version of the facts, nor even

determine whether the plaintiff's allegations actually state a

__________

9 The courts of appeals have jurisdiction in civil cases over "all

final decisions of the district courts." 28 U.S.C. s 1291. Normally,

a party may not appeal from a favorable judgment. See Forney v.

Apfel, 524 U.S. 266, 270 (1998).

With respect to Supreme Court review, it is not settled whether a

prevailing party may petition for certiorari. "The literal language

of the [28 U.S.C.] s 1254(1) reference to 'any party' is broad enough

to encompass the successful or prevailing party before the court of

appeals." Robert L. Stern et al., Supreme Court Practice 45 (7th

ed. 1993). The Court has granted petitions filed by a winning party

in the district court after the loser appealed to the court of appeals

but before the court of appeals rendered judgment. Id. at 44. The

Court has apparently never granted the certiorari petition of a

party who prevailed in the appellate court. Id.

claim. All it need determine is a question of law: whether

the legal norms allegedly violated by the defendant were

clearly established at the time of the challenged actions...."

In United States v. Leon, 468 U.S. 897, 924-25 (1984), the

Court recognized that in "cases addressing the question of

good-faith immunity under 42 U.S.C. 1983, ... courts have

considerable discretion in conforming their decisionmaking

processes to the exigencies of particular cases." And in

Procunier v. Navarette, 434 U.S. 555 (1978), the Court itself

went directly to the immunity defense and sustained it with-

out considering whether, as the court of appeals had held, the

prisoner had a First Amendment right protecting his corre-

spondence against official interference. These decisions flow

from a long line of Supreme Court pronouncements counsel-

ing judicial restraint in constitutional decisionmaking, the

most notable of which is Ashwander v. Tennessee Valley

Authority, 297 U.S. 288, 346-47 (1936) (Brandeis, J., concur-

ring). Federal courts should not decide constitutional ques-

tions unless it is necessary to do so. See Three Affiliated

Tribes of Fort Berthold Reservation v. World Engineering,

P.C., 467 U.S. 138, 157-58 (1984). See also, e.g., Jean v.

Nelson, 472 U.S. 846, 854 (1985); Ashwander, 297 U.S. at 347

(Brandeis, J., concurring). Before reaching a constitutional

question, a federal court should therefore consider whether

there is a nonconstitutional ground for deciding the case, and

if there is, dispose of the case on that ground. See Gulf Oil

Co. v. Bernard, 452 U.S. 89, 99 (1981); Mobile v. Bolden, 446

U.S. 55, 60 (1980); Burton v. United States, 196 U.S. 283, 295

(1905); Ashwander, 297 U.S. at 347 (Brandeis, J., concur-

ring).

Furthermore, the Supreme Court's stated rationale for the

Sacramento procedure does not pertain to all constitutional

tort actions. The Sacramento footnote states: "if the policy

of avoidance were always followed in favor of ruling on

qualified immunity whenever there was no clearly settled

constitutional rule of primary conduct, standards of official

conduct would tend to remain uncertain...." 523 U.S. at 841

n.5. This has little force when injunctive relief against the

official's actions is potentially available, as it will be when an

alleged constitutional violation is ongoing. While defendants

to injunction actions may raise defenses that avoid the consti-

tutional issue, they may not interpose the defense of qualified

immunity. Although the injunctive portion of this case has

become moot (see supra note 6), there is still the potential

that other prisoners who practice humanism may bring such

suits and settle the question whether humanism (of one form

or another) is a religion within the First Amendment. This

possibility of injunctive actions satisfies the Court's desire for

"clarity in the legal standards for official conduct (Wilson, 526

U.S. at 609). It is another reason why deciding Kalka's case

without reaching the constitutional issue does not contradict

the reasoning of Sacramento or Conn and Wilson, none of

which involved alleged ongoing violations of a particular

individual's constitutional rights.

There is still another distinction between this case and

Sacramento, Conn and Wilson, perhaps more important than

the ones already mentioned. Whether Kalka's humanism is a

religion under the First Amendment could not be decided in

the abstract. Not only discovery but also a trial may be

necessary to resolve the question. Yet the qualified immuni-

ty "entitlement is an immunity from suit rather than a mere

defense to liability; ... it is effectively lost if a case is

erroneously permitted to go to trial." Mitchell v. Forsyth,

472 U.S. at 526. In extending qualified immunity to public

officers, the Court sought to "avoid excessive disruption of

government and permit the resolution of many insubstantial

claims on summary judgment." Harlow, 457 U.S. at 818.

The goal then is to relieve the "defendant who rightly claims

qualified immunity [from] engag[ing] in expensive and time

consuming preparation to defend the suit on its merits."

Siegert v. Gilley, 500 U.S. 226, 232 (1991).

It thus makes no sense to say that in order to determine

whether one is entitled to immunity from trial we must first

hold the trial. Yet that is what we would be saying if we

proceeded directly to the question whether Kalka's form of

humanism constituted a religion under the First Amendment.

For this and the other reasons we have mentioned, we shall

therefore assume arguendo that Kalka's humanism is a "reli-

gion," but as we next explain, the defendants are still entitled

to qualified immunity.

B

To repeat, qualified immunity shields these defendants

from liability for civil damages if their actions were objective-

ly reasonable, as measured in light of the legal rules that

were "clearly established" at the time of their actions. Har-

low v. Fitzgerald, 457 U.S. at 818; Anderson v. Creighton,

483 U.S. at 639; Farmer v. Moritsugu, 163 F.3d at 613. And

so we must ask whether the type of humanism to which Kalka

allegedly subscribes, if a religion, was a clearly established

"religion" within the First Amendment's meaning.

We may start by observing that traditional notions of

religion surely would not include humanism. "[T]he 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." Davis

v. Beason, 133 U.S. 333, 342 (1890); see Note, Toward a

Constitutional Definition of Religion, 91 Harv. L. Rev. 1056,

1065 n.60 (1978). But in a draft-exemption case during the

Vietnam war, the Supreme Court interpreted the statutory

language "in a relation to a Supreme Being" to include a

belief "which occupies in the life of its possessor a place

parallel to that filled by the God" of other traditional reli-

gions, but to exclude "essentially political, sociological, or

philosophical views." United States v. Seeger, 380 U.S. 163,

165, 176 (1965). Justice Harlan joined the Seeger opinion

with the "gravest misgivings," and later concluded that the

Court's statutory construction had not been legitimate.

Welsh v. United States, 398 U.S. 333, 345 (1970). Whether

Seeger meant to define "religion" as used in the First Amend-

ment is doubtful. Instead of discussing the history of the

First Amendment, the Court there discussed the history of

the draft. Furthermore, the Court did not even cite the

constitutional interpretation of religion expressed in Torcaso

v. Watkins, 367 U.S. 488, 489-90 (1961); and it did not

explain in what respect an individual's beliefs must be parallel

to the beliefs of conventional religious faiths (in fervency of

beliefs? in an overarching world vision? in explaining the

meaning of life or our place in the universe? in believing in

powers beyond the ken of science or pure reason?).

In Torcaso, the Court struck down a Maryland law requir-

ing notaries to declare their belief in God as a condition to

holding office. States may not, the Court said, "aid all

religions against non-believers," or "aid those religions based

on a belief in the existence of God as against those religions

founded on different beliefs." Id. at 495. To this last

statement, which signified that "religion" did not necessarily

entail a belief in God, the Court attached a footnote:

Among religions in this country which do not teach

what would generally be considered a belief in the exis-

tence of God are Buddhism, Taoism, Ethical Culture,

Secular Humanism and others. See Washington Ethical

Society v. District of Columbia, 101 U.S.App.D.C. 371,

249 F.2d 127; Fellowship of Humanity v. County of

Alameda, 153 Cal.App.2d 673, 315 P.2d 394; II Encyclo-

paedia of the Social Sciences 293; 4 Encyclopaedia Brit-

tanica (1957 ed.) 325-327; 21 id., at 797; Archer, Faiths

Men Live By (2d ed. revised by Purinton), 120-138, 254-

313; 1961 World Almanac 695, 712; Year Book of Ameri-

can Churches for 1961, at 29, 47.

Id. at 495 n.11. Buddhism and Taoism are well established

Eastern religions. "The other two examples given by the

Court refer to explicitly non-Theist organized groups, dis-

cussed in cases cited in the footnote, that were found to be

religious for tax exemption purposes primarily because of

their organizational similarity to traditional American church

groups." Malnak v. Yogi, 592 F.2d 197, 206 (3d Cir. 1978)

(Adams, J., concurring). "Ethical Culture" referred to the

beliefs of the Washington Ethical Society, an organization

that held regular Sunday services with Bible reading, ser-

mons, singing and meditation, and had "leaders" who

preached and ministered to the group's members. See Wash-

ington Ethical Soc'y v. District of Columbia, 249 F.2d 127,

128 (D.C. Cir. 1957). The Society was held entitled to a tax

exemption as a religious corporation even though its members

were not required to believe in a Supreme Being or a

supernatural power. See id. at 129. In Fellowship of Hu-

manity v. County of Alameda, 153 Cal.App.2d 673, 674

(1957), the second case cited in Torcaso, an organization of

Secular Humanists sought a tax exemption on the ground

that they used their property "solely and exclusively for

religious worship." Despite the group's non-theistic beliefs,

the court determined that the activities of the Fellowship of

Humanity, which included weekly Sunday meetings, were

analogous to the activities of theistic churches and thus

entitled to an exemption. See id. at 697.

The Court's statement in Torcaso does not stand for the

proposition that humanism, no matter in what form and no

matter how practiced, amounts to a religion under the First

Amendment. The Court offered no test for determining what

system of beliefs qualified as a "religion" under the First

Amendment. The most one may read into the Torcaso

footnote is the idea that a particular non-theistic group calling

itself the "Fellowship of Humanity" qualified as a religious

organization under California law. See Grove v. Mead Sch.

Dist. No. 354, 753 F.2d 1528, 1537 (9th Cir. 1985) (Canby, J.,

concurring) (quoting Malnak, 592 F.2d at 206, 212). See also

Alvarado v. City of San Jose, 94 F.3d 1223, 1228 & n.2 (9th

Cir. 1996) (citing cases supporting the limited scope of the

Torcaso footnote); Peloza v. Capistrano Unified Sch. Dist.,

37 F.3d 517, 521 (9th Cir. 1994) ("[N]either the Supreme

Court, nor this circuit, has ever held that evolutionism or

secular humanism are 'religions' for Establishment Clause

purposes.").

A reasonable prison official would not have believed that

excluding Kalka's humanism from the prison's Religious Ser-

vices Program was unlawful. See Kimberlin v. Quinlan, 199

F.3d 496, 503 (D.C. Cir. 1999). There was neither precedent

declaring humanism in general to be a religion nor any prior

ruling on the religious nature of Kalka's beliefs. Information

considered by the Religious Issues Committee suggested that

the American Humanism Association's precepts were rooted

in philosophy not religion. See supra pp. 4-5. Given the

judiciary's exceedingly vague guidance, in the face of a com-

plex and novel question, the actions of the defendants there-

fore did not violate "clearly established" law.

Affirmed.

Tatel, Circuit Judge, concurring in part and concurring

in the judgment: I believe this court has discretion to avoid

deciding whether Kalka has " 'alleged the deprivation of an

actual constitutional right,' " Wilson v. Layne, 526 U.S. 603,

609 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290

(1999)), for only one reason: this case is factually distinguish-

able from Wilson. As my colleagues observe, the constitu-

tional question is one for which injunctive relief is potentially

available, rendering inapplicable the Supreme Court's ratio-

nale for departing from the principle that constitutional deci-

sionmaking should be avoided where possible. See County of

Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998). The

ongoing nature of the alleged violation and consequent poten-

tial for injunctive relief distinguish this case from every one

in which the Supreme Court has used the Wilson procedure.

See Wilson, 526 U.S. 603 (media representatives accompanied

police officers executing arrest warrant in private home);

Conn, 526 U.S. 286 (prosecutor executed search warrant of

attorney while client was testifying before grand jury); Sac-

ramento, 523 U.S. 833 (motorcyclist killed during high-speed

chase by police); and Siegert v. Gilley, 500 U.S. 226 (1991)

(government employee claimed that supervisor wrote defama-

tory letter). Accordingly, I agree with my colleagues that

Wilson does not control here.

I am less persuaded by the three other reasons the court

gives for not following Wilson. Agreeing with the Second

Circuit, my colleagues first conclude that "the Supreme Court

surely could not have wanted newly-devised constitutional

rights to be recognized at the district court level without

giving federal officials any chance for appellate review." Slip

Op. at 11; see also Horne v. Coughlin, 191 F.3d 244, 247 (2d

Cir. 1999). But why not? District court decisions have no

precedential effect. They "do not establish the law of the

circuit ..., nor, indeed, do they even establish 'the law of the

district.' " In re: Executive Office of the President, No.

00-5134, ___ F.3d ___, ___ (D.C. Cir. 2000) (quoting Thread-

gill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1371 (3d

Cir. 1991)). Government officials could hardly be injured by

an inability to appeal rulings that have no legal force.

Of course, the fact that in some cases government officials

might be unable to appeal could be a source of concern if

unreviewed district court decisions "clearly established" con-

stitutional rights for purposes of qualified immunity analysis.

In that event, government officials would have to tailor future

conduct to conform with a district court's interpretation of the

Constitution, or else risk personal liability should that inter-

pretation later survive appellate review. But most of our

sister circuits do not look to unreviewed district court deci-

sions for clearly established rights. See, e.g., Sound Aircraft

Services, Inc. v. Town of East Hampton, 192 F.3d 329, 337

(2d Cir. 1999); Anaya v. Crossroads Managed Care Sys.,

Inc., 195 F.3d 584, 594 (10th Cir. 1999); Chandler v. James,

180 F.3d 1254, 1276 (11th Cir. 1999) (Tjoflat, J., concurring);

Jean v. Collins, 155 F.3d 701, 709 (4th Cir. 1998) (en banc).

But see Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir. 1988)

(looking to district court opinions for clearly established

rights); Hayes v. Long, 72 F.3d 70, 73-74 (8th Cir. 1995)

(same). Although this circuit has never addressed the issue,

I think it highly unlikely that we would ever hold that an

unreviewed district court decision could clearly establish a

constitutional right. See In re: Executive Office of the

President, No. 00-5134, ___ F.3d at ___.

I also think the nonappealability concern is too sweeping to

coexist with this court's statement that "courts ordinarily

should" follow the Wilson procedure. Slip Op. at 10. That

concern applies to all qualified immunity claims before district

courts, for at the time of decision district judges will have no

way of knowing whether a plaintiff would appeal an adverse

immunity ruling. But if it applies to all cases, it cannot be a

reason for departing from the ordinary way of doing things.

Nor do I share the court's second concern: that "we would

have great difficulty squaring [the Wilson procedure] with

statements in three other Supreme Court decisions." Slip

Op. at 11. To begin with, the most recent of those three

cases was decided in 1985, see Mitchell v. Forsyth, 472 U.S.

511 (1985), yet twice in 1999 the Supreme Court stated that

courts "must" reach the constitutional issue before deciding

whether the right allegedly violated was clearly established,

see Wilson, 526 U.S. at 609; Conn, 526 U.S. at 290, and four

times in the 1990s the Supreme Court itself followed that

procedure. See Wilson, 526 U.S. 603; Conn, 526 U.S. 286;

Sacramento, 523 U.S. 833; and Siegert, 500 U.S. 226. Surely

it is these more recent cases that reflect the Supreme Court's

current view.

In any event, we have no need to square the Wilson

procedure with the earlier decisions, for the Supreme Court

has already done so. As my colleagues observe, the earlier

"decisions flow from a long line of Supreme Court pronounce-

ments counseling judicial restraint in constitutional decision-

making, the most notable of which is Ashwander v. Tennessee

Valley Authority, 297 U.S. 288, 346-47 (1936) (Brandeis, J.,

concurring)." Slip Op. at 12. In Sacramento, however, the

Supreme Court expressly held that the Ashwander principle

did not apply to the constitutional tort claim at issue there:

[T]he generally sound rule of avoiding determination of

constitutional issues does not readily fit the situation

here; when liability is claimed on the basis of a constitu-

tional violation, even a finding of qualified immunity

requires some determination about the state of constitu-

tional law at the time the officer acted. What is more

significant is that if the policy of avoidance were always

followed in favor of ruling on qualified immunity whenev-

er there was no clearly settled constitutional rule of

primary conduct, standards of official conduct would tend

to remain uncertain, to the detriment both of officials and

individuals.

Sacramento, 523 U.S. at 841 n.5.

With respect to the court's concern that the Wilson proce-

dure might require discovery and trial to resolve constitution-

al questions, thereby depriving defendants of immunity from

suit, see Slip Op. at 13, Wilson states that courts "must first

determine whether the plaintiff has alleged the deprivation of

an actual constitutional right at all...." 526 U.S. at 609

(emphasis added). To me, this suggests that courts should

begin by asking only whether a plaintiff's allegations, if true,

make out a constitutional violation. Siegert, moreover, makes

clear that the Court envisioned that the constitutional issues

would be resolved as "purely legal" ones. 500 U.S. at 232.

Indeed, the primary reason Siegert gave for deciding the

constitutional question is precisely the reason this court gives

for avoiding it:

A necessary concomitant to the determination of whether

the constitutional right asserted by a plaintiff is "clearly

established" at the time the defendant acted is the

determination of whether the plaintiff has asserted a

violation of a constitutional right at all. Decision of this

purely legal question permits courts expeditiously to

weed out suits which fail the test without requiring a

defendant who rightly claims qualified immunity to en-

gage in expensive and time consuming preparation to

defend the suit on its merits. One of the purposes of

immunity, absolute or qualified, is to spare a defendant

not only unwarranted liability, but unwarranted demands

customarily imposed upon those defending a long drawn

out lawsuit.

Id.

Finally, and most important, consideration of these last

three reasons for not following Wilson is precluded by Wilson

itself. The Supreme Court could not have spoken in more

mandatory terms: "A court evaluating a claim of qualified

immunity 'must first determine whether the plaintiff has

alleged the deprivation of an actual constitutional right at

all.' " Wilson, 526 U.S. at 609 (emphasis added) (quoting

Conn, 526 U.S. at 290). As the Supreme Court has also made

clear, "[i]f a precedent of [the Supreme] Court has direct

application in a case, yet appears to rest on reasons rejected

in some other line of decisions, the Court of Appeals should

follow the case which directly controls...." Rodriguez de

Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484

(1989). Only because Wilson does not directly control on

these facts do we have discretion to avoid determining wheth-

er Kalka has "alleged the deprivation of an actual constitu-

tional right at all." Wilson, 526 U.S. at 609.