UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


KALKA, BEN

v.

HAWK, KATHLEEN


98-5485a

D.C. Cir. 2000


*	*	*


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


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




__________

n 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




__________

n 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




__________

n 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


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


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.




__________

n 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 




__________

n 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...."


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 




__________

n 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


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




__________

n 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. Sec.
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.,


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 


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


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


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


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


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.


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


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


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


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