Ben Kalka v. Kathleen Hawk,appellees

TATEL, Circuit Judges.

Opinion for the by Court filed Circuit Judge RANDOLPH.

Opinion concurring in part and concurring in judgment filed Circuit Judge TATEL.

RANDOLPH, Circuit Judge: Ben Kalka was a prisoner. federal Af- ter his conviction in he was incarcer- ated in seven different Federal Correction- al (“FCIs”). Institutions Kalka claims to be a long-time member of the American (“AHA”). Humanism Association He al- leges that at six of prisons, attempt- he ed to form “humanist groups within the chapels of prisons they maintain,” Complaint but with one exception, the wardens to recognize refused human- ism religion as a and therefore turned him se, down.1 Acting pro Kalka brought this injunction action for an and damages against officials of the Prisons, Bureau of claiming they had violated and were still violating religion clauses First Amendment. We affirm the district grant court’s of summary judgment in fa- vor of the deféndants.

I prison

Each federal a Religious Ser- Department vices headed by a chaplain William Hohengarten, M. appointed by responsible for managing the institution’s court, argued the cause and filed the religious activities. chaplains Prison are briefs as amicus curiae on the side of also charged with deciding whether to in- appellant. new religious troduce components to the Kalka, Ben se, appearing pro was on Department. When a decision an in- briefs for appellant. request mate’s cannot locally, be reached 1. Kalka claims that he was allowed to start Bureau Prisons submitted evidence to FCI-Tucson, chapter one AHA contrary. depart- religious services guide [the] review the on for passed request Cen- ment.” at BOP’s Issues Committee

Religious The Com- D.C. Washington, tral Office suggestion, war- Heeding chaplain’s recommendations its forwards mittee then request to transferred den Wooten warden, makes the prison’s to the Religious Review Com- Office the Central Bureau generally determination. final letter, the transmittal war- In his mittee. No. Statement Program Prisons “serious concerns” he had wrote that den and Practices Beliefs 5360.07, Religious religion. aas recognizing humanism about 22,1997). (effective Aug. the materials he noted that particular, evidently main- prison each Although clearly document presented Kalka exactly not know do “chapel,” we tains a and educational na- “philosophical AHA’s might simply “chapel” A this entails. what ap- group does and “[t]he ture” that ordinary set aside room of an a corner be God, type Deity, any to pear to ascribe (In religious services. for certain times Advisor.” Spiritual or FCI-Jesup, Geor- to the warden a letter con- Issues Committee Religious The of a “multi- wrote chaplain prison gia, of Kalka’s sub- an ducted extensive review area).”) BOP (Chapel auditorium purpose provided, information he In the mission. only space that require regulations alternately as a is described humanism made available. a religion, life a non-theistic philosophy, leading to this recent events The most a A view. letter and a world stance to applied Kalka when occurred lawsuit notes that president humanist association Hu- American of the chapter a establish humanists, among even aegis of the under the manism Association a religion a is “con- is humanism at FCI- Department Religious Services tentious one.” ap- supported Kalka his Jesup, Georgia. book, Philosophy The Corliss Lamont’s human- about information with plication Humanism, text “a standard considered essays, excerpts ism, including portions humanism, secular de- on and reference” copy a of a and publications, AHA philosophy “a scribes humanism Human- Philosophy book entitled The life rather than happiness advocates Lamont. ism Corliss Lamont in an for a heaven afterlife.” hope items, Chaplain reviewing these After joy- philosophy as “a humanism defines to the war- forwarded them David W. Fox good of all greater for the service ous Wooten, a memo- den, along with Tom L. and advo- this natural humanity in world request “to discussing Kalka’s randum science, reason, and cating the methods enter and celebrants have counselors Among central democracy.” humanism’s ‘non-theistic,’ secular prison to conduct tenets, rejection of the Lamont lists philosophy.” approach and naturalistic the universe the belief supernatural; referring Kal- chaplain recommended part are a self-subsisting; that humans is Reli- Office application to Central ka’s universe; is that there and of the natural sever- He listed gious Review Committee. excerpt The Lamont life death. no after the warden’s al matters of concern many “a labels humanism Kalka submitted consideration, among which no refer- but makes philosophy” faceted nature; humanism’s AHA’s non-theistic any religious component. ence to rituals; description lack of ceremonial portion also submitted Kalka had philosophy; of humanism as A. entitled “Posi- essay by Larue Gerald faith as Jewish. choice classification of “it is In it writes: Larue tive Humanism.” Fox also mentioned Chaplain continue to we absolutely type of essential any AHA “is not associated with and scienti- impact of rational express being, espoused as is higher spirituality thought.” analysis modern life fic on meeting under the currently groups our Among things, the author upon calls AHA who confirmed the Committee’s de- humanists to “take against stands sloppy termination that the group was philo- more thinking, against the imposition of ancient sophically oriented. The Committee noti- interpretations on modern life and living, fied FCI-Jesup’s warden of conclusion, its [and] the efforts impose reli- recommending that he not permit a chap- gious teachings and interpretations on so- ter of the AHA to meet under the auspices ciety.” Rational thought as opposed to of the Religious Services Department. It religious faith is also stressed another reasoned that the requirements of the document provided, Kalka an AHA state- group could be met outside of the Reli- ment entitled “What Humanism?”. The gious Department, Services a program statement affirms humanism’s focus which is reserved for groups that are “reli- “reason and science” and repeatedly refers gious” in nature. Humanist literature to humanism as a philosophy rather than a should also be excluded from the chapel, religion. decided, Committee because only liter-

Other parts ature which “religious” of is submission de- connected to scribe recognized humanism as a religious religious group movement. is “distributed instance, For within excerpt from the confines of AHA’s the Religious Ser- Free Mind magazine vices Department.” discusses the Hu- manist Society of Friends (“HSOF”), a The warden denied Kalka’s request group whose motto is “a religion scientific allow AHA meetings as a chapel activity for a scientific age.” The speaks article of but informed him that he could establish the “concept of Humanism as a non-theis- humanism group under the aegis of the religion,” tic stating that its view of hu- prison’s Education Department. Kal- On manism as a religion “allows for open- ka’s administrative appeal, the BOP af- ing of many doors and acquiring of many firmed. Explaining its decision, a BOP privileges that Humanism as a philosophy administrator wrote that AHA’s “own d[oes] not.” Another AHA publication in- newsletters and literature ... consistently cludes an advising advertisement readers refer[ to] Humanism as a ‘philosophy’and of AHA sponsored humanist counselors not a ‘religion.’ He added that numer- provide humanistic marriage and me- ous requests for 501(c)(3) § tax-exempt morial services and have the legal status of status, the AHA has described itself “an as minister in all fifty states. organization educational a reli- Kalka also furnished his own statement gious organization.” See 26 U.S.C. attesting that humanism “is a study 501(c)(3). § The BOP official also men- ethics, and a religion for some person- in a tioned Court decision in Tor- al way.” Whether it was a religion for Watkins, caso v. him, his statement did not say.2 commenting that the Court’s sources, From these the Committee con- reference to Secular Humanism as a reli- cluded that the needs and purposes of gion applied only particular to a group of Kalka’s proposed AHA group were “more humanists known as the Fellowship of Hu- philosophical and educational in nature.” manity. again Kalka was told that his Additionally, one committee member spoke group was free to part meet as of the with an outside source associated with the prison’s Education Department.3 AHA, 2. The organization, an umbrella chapter in- he intended to start would have been cludes Friends, Society Humanist associated group. with that group which alleges Kalka has received tax- decision, 3. Prior to the district court's Kalka exempt status based on religious its purpose. declined the offer to meetings have AHA Complaint See indication, at 12. There is no Department. Education changed He later however, that Kalka is a member of the Hu- filed, mind. At the time the briefs were manist Society of Friends or that the AHA begun Kalka had teaching a class on human- his humanist exercising freely from him brought 1997, Kalka September reasonable Such id. at 8. See Kathleen beliefs. Director BOP action said, court necessary, the are BOP restrictions and unnamed named and other Hawk inmates all for opportunity ex- to ensure policy that BOP’s officials, alleging id. religion. their chap- freely to prison exercise groups cluding humanist no constitutional Having concluded 'and Estab- Exercise the Free violates els ex- occurred, the district First Amendment.4 violations of the Clauses lishment immu- on the compensatory opinion no sought pressed Kalka remedy, aAs officials. be used BOP nity would defense of which portion damages, each of groups humanist to establish in- sought an also He prisons.5 nation’s II so officials “prison compelling

junction A As- Humanism American Chapters the pris- in all formed can sociation offi immunity shields Qualified “en- order and an manages the BOP ons” long as so liability damages cials , they will so that prison officials joining reasonable, objectively were actions their for dissemi- include chapels their allow legal rules light measured literature to inmates nation the time “clearly established” be might or that religious, conventionally Fitzgerald, 457 v. Harlow actions. their anti-religious.”6 fact, being viewed, as in 2727, 73 800, 102 S.Ct. U.S. the to dismiss moved defendants Moritsugu, The (1982); v. Farmer 396 L.Ed.2d court, the treating claims, district and the (D.C.Cir.1998). im The 610, 613 F.3d 163 summary judgment, for one as motion but damages from simply is not munity Hawk, No. Kalka v. favor. in their ruled proceed the participate having from 29, pur- For (D.D.C. Sept. 97-2259 472 U.S. Forsyth, v. Mitchell See ings. motion, the court resolving the of poses 2806, 411 526, 86 511, 105 S.Ct. and humanism, as professed assumed has therefore (1985). Supreme Court The See Kalka, religion. awas practiced validi the lower courts the instructed that BOP’s It 4. concluded op. at mem. should immunity defense qualified of a ty chapel the prison access to him denying prefer early possible, as as determined reasonably Kalka prevent not did See, e.g., discovery and trial. ably before at id. beliefs. See humanist exercising his 483 U.S. Creighton, Anderson that BOP’s to establish 6. Kalka faded (1987). 3034, 523 97 L.Ed.2d 2,n. and conduct services him to to allow offer first must us tell we Both sides through Education the literature distribute alleged a Kalka has whether determine id. was unreasonable. Department on violation, depends claim, constitutional the Clause Establishment theOn to which Kalka “humanism” Kal- on restrictions BOP’s held court “religion” within is a allegedly subscribes reasonable, chapel were use of ka’s Amendment. First meaning of the prevent they did not because particularly in view individuals vens Curi- claim Amicus FCI-Edgefield. See Brief ism se, pro action Kalka filed Support the facts Court-Appointed Counsel ae Plaintiff-Appellant complaint he cited 12. Kalka at earlier in Ben and that Fed- Agents Named v. Six Unknown Bivens alleged vio- complaint also Though 4. 388, Narcotics, 91 403 U.S. Bureau eral Fourteenth Amend- of the Fifth lations 1999, 619 29 L.Ed.2d S.Ct. ments, presented in his claims were those by the district decided and were briefs light now moot injunctive claim is 6.The court. April custody federal on Kalka’s release May 20, 28(j) damages Letter filed Amicus 2000. See his claim for 5. Kalka framed defen- not the individual against the BOP Nonetheless, as a Bi- will treat it we dants. 95 Layne, Wilson v. cuit’s conclusion but not with all of its 1692, 143 L.Ed.2d (1999), they say, reasoning. is, It instance, true that precludes us from simply assuming ar- footnote five in Sacramento was “tenta guendo that Kalka’s humanism is a “reli- tively worded,” Horne, 191 F.3d at gion,” and then determining whether this but there appears to be nothing tentative clearly was established. about the textual passage in Conn, quoted Wilson, that the courts “must” The initially critical passage in Wilson is as fol decide plaintiff if the has alleged “A lows: a consti evaluating a claim of quali tutional right. On the other hand, fied first ‘must determine wheth Supreme Court has itself plaintiff er the warned against has alleged deprivation “dissecting] of an sentences actual right all, Reports States so, as though they if proceed to were the determine whether that United States Code.” Mary’s St. right was clearly Honor established the time of Center Hicks, 502, 515, the alleged violation.’ Id. at S.Ct. 125 L.Ed.2d (1993); S.Ct. 1692 Reiter Gabbert, Conn (quoting v. Sonotone Corp., 143 L.Ed.2d (1979).8 (1999)). So Court had suggested this perhaps the statement about order of what decisionmaking in a footnote in courts “must” do County only describes what the Lewis, Sacramento courts ordinarily should do. n. 140 L.Ed.2d calling it ap “better The Second Circuit also refused to treat proach” because, if “always” courts ruled procedure Sacramento as mandatory first when no because: “where there is qualified immuni established constitutional existed, right ty, a court’s assertion that a constitutional “standards of official conduct would remain right exists pure would be dictum.” uncertain.” The Second Horne, Circuit treats 191 F.3d at 247. One wonders. A County Sacramento, and the two cases conclusion that a constitutional right exists following it—Conn and Wilson—as not al would be if dictum only if.it were ways requiring federal courts dispose of unnecessary to the decision. But if the the constitutional claim before upholding a Sacramento line of cases requires the con qualified immunity defense. See Horne v. stitutional issue to be first, reached a low Coughlin, (2d 191 F.3d Cir.1999); er court’s resolution of that issue becomes Servs., Sound v. Inc. Town a necessary part of Aircraft its decision. The fact East Hampton, (2d 192 F.3d Cir. that the case theoretically could have been 1999).7 agree We with the Second Cir decided without deciding the constitutional 7. The Eleventh Circuit had (11th reached the same 1999); 1270-71 Cir. B.C. v. Plumas Uni conclusion, but did Dist., so before the Court decid (9th Sch. F.3d 1265-66 fied ed Wilson. See Georgia Cir.1999); Santamorena v. Paulk, Mili Crosby v. 187 F.3d tary College, (11th (11th 147 F.3d Cir.1999). Cir. Judge Edmondson expressed there doubt whether footnote five in Sacramento (191 8. Home 248) mentioned F.3d at represented Court; holding of the he added Breyer, Justice Sacramento, concurring in that footnote five had not expressly invoked urged preservation of the lower courts’ "flexi- Supreme Court’s supervisory power over bility, cases, appropriate § to decide the lower courts. See id. at 1343 n.14. Since claims basis of immunity, and then, panels other of the Eleventh Circuit thereby wrestling avoid with constitutional is- have quoted treated the language from Wilson sues that are either poorly present- difficult or mandatory, as have other circuits. See ed." 523 U.S. at 118 S.Ct. 1708. The Shields, Jones v. (8th 207 F.3d 494-95 fact that Breyer Justice join went on to 2000); Cir. Warner, Kitzman-Kelley v. opinions majority in both Conn and Wilson (7th Cir.2000); F.3d Corp. Suarez tends to indicate his opinions belief that the McGraw, Indus. (4th 202 F.3d do not mandate a wholesale abandonment of Cir.2000); Parnell, Hartley practice. appeal question cases fail to adverse rul is of no moment. "A court's stat and, view, necessary ings; they appeal, winning ed on its basis for when do deciding cross-appeal ruling against does not become dictum because officials can a critic would have decided on another regarding constitutionality them Stern, Henry Friendly, their actions. See Robert L. When

basis." J. In Praise of Cross-Appeal Erie-And of the New Federal Common to or Cross-Petition-Cer Law, Ray. 383, (1964). tainty Confusion?, 39 N.Y.U. L. 87 HARV.L.Rav. 763 Wright written, (1974). percentages, As Professor has if "the Whatever deliberately deciding point Supreme Court believes it is a Second Circuit's is that the question, sup surely newly- it is wise to Court could not have wanted pose rights recog the constitutional devised constitutional to be decided, been unless and until some later nized at the district court level without suggests giving any ap Court a different answer." federal officials chance for WRIGHT, CHARLESALAN THELAWOFFEDERAL pellate review. (5th ed.1994). § COURTS at 385 Consid police considerations Several er Wilson. The Court held that offi the Second cers violate the Fourth Amendment when the direction us in move they bring reporters line cases the Sacramento If Circuit. into the home while they executing warrant, rule that consti fast hard and down laid are a search but right decided to be always have issues tutional that this constitutional had not been considered, immunity defense before established and so the defendant liability squaring difficulty great would we officers were immune from damages. Supreme certainly in three other statements rule with regarding Mitchell decisions. did not think its conclusion Fourth Amendment was dictum. It Forsyth, framed its decision thus: "We hold that it reviewing the “appellate held is a violation of the Fourth Amend claim defendant’s of the denial of the ment.. . ." 526 U.S. at the correctness not consider need Pope Illinois, facts, nor even see also version plaintiffs allega 95 L.Ed.2d 439 plaintiffs determine it need All a claim. actually state tions gave The Second Circuit another whether of law: question ais determine reading reason for its of Wilsonand Comn~ the violated allegedly norms legal the qualifiedimmunity Whenever the issue is established defendant is, reached-that whenever the constitu ” In actions.... challenged time of tional issue is first decided 897, Leon, 924- 468 U.S. States government official-"the defendants will (1984), 3405, 677 L.Ed.2d 25, 82 104 S.Ct. opportunity appeal have no to for re ad “cases recognized the Court newly view of the right declared constitutional immu good-faith question dressing the higher in the courts." 191 F.3d at U.S.C.1983, ... courts 42 nity under severity problem may 247.9 The of this conforming their discretion considerable depend plaintiffs on how often in Bivens court of party before prevailing cessful jurisdiction in appeals have The courts 9. L. Stern appeals.” final decisions over cases "all bt civil Robert al. ed.1993). (7th § Normal 45 28 U.S.C. courts.” district Court Practice winning party a favorable may appeal from petitions filed ly, party granted U.S. Forney Apfel, 524 appealed to judgment. See the loser court after the district (1998). 269 S.Ct. court of appeals but before the court of review, isit Supreme Court respect 44. The .to Id. at judgment. With appeals rendered may party prevailing whether settled the cer- granted apparently not petition never Court has language literal "The for certiorari. prevailed in the petition party tiorari 'any 1254(1) to § reference U.S.C.] the [28 appellate court. Id. encompass the suc- enough to is broad party' decisionmaking processes to exigencies the official’sactions is potentially available, particular cases.” inAnd Procunier v. as it will be when alleged constitutional Navarette, 434 U.S. 98 S.Ct. 55 violation is ongoing. While defendants to L.Ed.2d 24 the Court itself went injunction may actions raise defenses that directly the immunity to defense and sus avoid the issue, constitutional they may not tained it without considering whether, as interpose the of qualified defense immuni- the court of appeals held, had the prisoner ty. Although injunctive portion of this had a First right Amendment protecting (see case has become moot supra 6), note correspondence against official inter there is still potential pris- ference. These decisions flow from a long oners who practice humanism may bring line of Supreme pronouncements such suits and settle whether judicial counseling restraint constitu (of humanism another) one form or is a tional decisionmaking, the most notable of religion within the First Amendment. which is Ashwander v. Valley Tennessee This possibility of injunctive actions satis- Authority, 297 288, 346-47, 56 S.Ct. fies the Court’s desire for “clarity in the (1936) L.Ed. (Brandéis, J., legal standards (Wil- for official conduct” concurring). Federal courts should not son, 526 U.S. at 119 S.Ct. It is decide constitutional questions unless it is another reason why deciding Kalka’s case necessary to do so. See Three Affiliated without reaching the constitutional issue Tribes Fort Berthold Reservation v. does contradict the reasoning of Sacra- Wold P.C., Engineering, 467 U.S. mento or Conn and Wilson, none of which 104 S.Ct. 81 L.Ed.2d 113 involved alleged ongoing violations of a also, e.g., See Nelson, Jean 472 particular individual’s constitutional rights. 846, 854, 86 L.Ed.2d (1985); Ashwander, 297 U.S. at There is still another distinction be (Brandéis, J., concurring). Be tween this Sacramento, case and Conn and fore reaching a question, a Wilson, perhaps important more than the federal court should therefore consider ones already mentioned. Whether Kalka’s there is a noneonstitutional humanism is a religion under the First ground case, for deciding the and if there Amendment could not be decided in the is, dispose of the case on ground. abstract. Not only discovery but also a Bernard, Oil v.Co. 89, 99, Gulf may trial be necessary to resolve ques (1981); tion. Yet immunity “entitle Bolden, Mobile v. (1980); ment is an immunity suit rather States, Burton v. United 283, 295, than a mere defense liability; ... it is (1905); L.Ed. 482 Ash effectively lost if a case is erroneously wander, 297 U.S. at permitted go to trial.” Mitchell v. For (Brandéis, J., concurring). syth, 526, 472 U.S. at 105 S.Ct. 2806. In

Furthermore, extending qualified the Supreme immunity public to Court’s offi cers, stated rationale for the the proce sought Sacramento Court to “avoid excessive dure does not pertain disruption to all government of permit and the tort actions. The resolution Sacramento of many footnote insubstantial claims on states: “if the policy of summary judgment.” Harlow, avoidance were 457 U.S. at always followed in 818, favor ruling of quali 102 S.Ct. 2727. The then goal is to fied immunity whenever there was no relieve the “defendant who rightly claims clearly settled constitutional pri qualified rule of immunity [from] in engaging] ex mary conduct, standards of official conduct pensive and time consuming preparation to would tend to remain uncertain.... defend the suit on its merits.” Siegert v. at U.S. 841 n. 118 S.Ct. 1708. This Gilley, 111 S.Ct. little force injunctive when against relief (1991). 114 (1965). Har- Justice 13 L.Ed.2d in say that to sense no makes It thus the with opinion Seeger the joined lan is entitled one whether to determine order later concluded and misgivings,” “gravest first hold trial we must to had statutory construction the Court’s that be would we is what Yet that trial. the v. United Welsh legitimate. been not to the directly proceeded if we saying 1792, 26 States, of human- form Kalka’s whether Seeger (1970). Whether First the under religion a constituted ism the in as used “religion” define to meant the other rea- and For this Amendment. of Instead is doubtful. First Amendment mentioned, there- we shall we sons the First Amend- history of the discussing human- arguendo assume fore the histo- there discussed ment, explain, next but as we “religion,” is a ism Furthermore, the Court draft. ry of the qualified to are still entitled defendants inter- the constitutional cite not even did immunity. in Torcaso religion expressed of pretation Watkins, B (1961); it did 6 L.Ed.2d repeat, To be- an individual’s respect what explain in liability for defendants these shields to the beliefs parallel be must liefs objec actions if their were damages civil (in fervency of faiths religious conventional light in reasonable, as measured tively vision? overarching world in an beliefs? “clearly estab rules legal life or our meaning explaining in actions. Har their the time lished” believing in pow- universe? in in the place 457 U.S. at Fitzgerald, low pure of science ken beyond the ers Creighton, 483 2727; Anderson reason?). Farmer 639, 107 S.Ct. a Torcaso, we down And so struck 613. F.3d at Moritsugu, to to declare notaries type requiring of humanism Maryland law ask must holding subscribes, to if reli as a condition allegedly their belief God Kalka which said, not, “religion” may the Court established was office. States gion, non-believers,” or meaning. against Amendment’s religions First “aid all within in the aon belief religions based “aid those tradi- by observing may start We religions those of God existence surely would religion notions tional Id. beliefs.” on different founded ‘religion’ term “[T]he humanism. include statement, last this To his rela- views of one’s to has reference not nec- “religion” did signified obligations Creator, to to his tions God, the Court belief essarily entail a being and for his of reverence they impose a footnote: attached will.” character, obedience and of country which Among religions Beason, 133 U.S. Davis v. generally what would teach Note, do not (1890); see L.Ed. 637 existence a belief considered Re- Constitutional Toward a Definition Taoism, Buddhism, Ethical Cul- God áre 1056, 1065 n.60 L. Rev. ligion, 91 Harv. and others. ture, Humanism Secular case draft-exemption dur- in a But Society v. Dis- Washington Ethical war, Supreme Court ing Vietnam Columbia, U.S.App.D.C. trict “in statutory language interpreted Humanity 127; Fellowship Being” include relation to Alameda, Cal.App.2d 153 County its life of in the occupies “which belief 394; Encyclopaedia II P.2d by that filled place parallel possessor 293; Encyclopae- Sciences the Social but religions, traditional of other God” id., 325-327; (1957 ed.) Brittanica dia sociologi- political, “essentially to exclude (2d By Archer, Live Faiths Men 797; States cal, views.” philosophical 120-138, 254- Purinton), revised ed. 165, 176, Seeger, 695, 712; 1961 World Almanac particular non-theistic group calling Year Book of American Churches for itself the “Fellowship of Humanity” quali 1961, 29, fied religious as a organization under Cali fornia law. See Grove v. Mead Sch. Dist. Id. at 495 n. 11. Buddhism and Taoism (9th No. 753 F.2d Cir.1985) are well established Eastern religions. J., (Canby, Malnak, concurring) (quoting “The examples other two given by the 592 F.2d at See also Alvarado Court refer to explicitly orga non-Theist v. City Jose, San 94 F.3d 1223, 1228 & nized groups, discussed cited in cases (9th Cir.1996) n. 2 (citing cases supporting footnote, that were found to be reli the limited scope of the footnote); Torcaso gious for exemption tax purposes primarily Peloza Capistrano Dist., Sch. Unified because of organizational their similarity (9th Cir.1994) (“[N]either F.3d to traditional American church groups.” Supreme Court, nor circuit, this has ever Yogi, (3d Malnak 592 F.2d held that evolutionism or secular human Cir.1979) (Adams, J., concurring). “Ethi ism ‘religions’ are for Establishment cal Culture” referred to the beliefs of the Clause purposes.”). Washington Ethical Society, an organiza A reasonable prison tion official regular that held would not Sunday services with have believed that excluding sermons, Bible reading, hu singing and medi manism the prison’s tation, Religious Ser had “leaders” preached Program vices was unlawful. See Kimber ministered to the group’s members. Quinlan, lin v. (D.C.Cir. 199 F.3d See Washington Soc’y Ethical v. District 1999). There was precedent neither Columbia, de (D.C.Cir. of 1957). claring humanism general to be a reli Society held was entitled to a gion any nor prior ruling on the religious tax as a exemption religious corporation nature of Kalka’s beliefs. Information though even its members re considered the Religious Issues Com quired to believe a Supreme Being or a mittee suggested that the American Hu supernatural power. See id. at 129. manism Association’s precepts were rooted Fellowship Humanity v. County in philosophy not religion. supra pp. Alameda, Cal.App.2d 92-93. the judiciary’s Given exceedingly P.2d 394 the second cited in case vague guidance, in face of complex Torcaso, organization an of Secular Hu question, and novel the actions of the de sought manists a tax exemption on the fendants therefore did not violate “clearly ground they used their property established” law. “solely and exclusively for religious wor ship.” Despite the group’s non-theistic be Affirmed. liefs, the court determined that the activi TATEL, Circuit Judge, concurring in ties of the Fellowship Humanity, which part and concurring judgment: weekly included Sunday meetings, were I believe this has discretion to analogous to the activities of theistic “ avoid deciding whether Kalka ‘al- churches and thus entitled to exemp leged deprivation anof actual constitu- tion. See id. at 315 P.2d 394. tional right,’ Wilson v. Layne, 526 U.S. The Court’s statement in Torcaso does 603, 609, 143 L.Ed.2d 818 not stand for the proposition that human (1999) Gabbert, (quoting Conn v. ism, no matter in what form and no matter 286, 290, 143 how practiced, to a amounts religion under (1999)), only one reason: case is the First Amendment. The Court offered factually distinguishable from Wilson. As no test for determining what system of my colleagues observe, the constitutional beliefs as a “religion” under is one for injunctive relief First Amendment. The may most one is potentially available, rendering inappli- read into the Torcaso footnote idea cable the Supreme Court’s rationale for

100 “clearly decisions court district unreviewed that constitu principle departing pur- for rights constitutional established” avoided be decisionmaking should tional analysis. qualified of poses County Sacramen possible. See where of would event, officials government 5, 118 that 833, 841 n. Lewis, U.S. 523 v. to conform to future conduct tailor have to 1043 L.Ed.2d 140 of the interpretation court’s a district with violation alleged nature ongoing liability Constitution, personal else risk relief injunctive for potential consequent ap- survive later interpretation that in should one every this case distinguish sister of our But most review. pellate has used Court Supreme district unreviewed to not look do Wilson, circuits 526 See procedure. Wilson clearly established' (me for decisions court 143 603, 119 S.Ct. Services, See, Sound e.g., rights. of police Aircraft accompanied representatives dia F.3d 192 Hampton, East Town Inc. v. private warrant executing arrest ficers Anaya v. Cross- (2d Cir.1999); 337 286, 119 Conn, home); Inc., 195 F.3d Sys., Managed Care roads executed (prosecutor 399 L.Ed.2d 143 Cir.1999); v. (10th Chandler client 594 attorney while warrant search Cir.1999) (11th James, 1276 F.3d jury); Sacra grand before testifying was Collins, v. Jean J., concurring); (Tjoflat, 833, 118 S.Ct. mento, (en banc). Cir.1998) (4th during killed (motorcyclist L.Ed.2d Gardner, F.2d v. But Tribble see Siegert by police); chase high-speed Cir.1988) court district (9th (looking to 226, 111 S.Ct. Gilley, 500 rights); clearly established for opinions employee (1991) (government L.Ed.2d (8th 70, 73-74 F.3d Long, 72 Hayes v. defamatory wrote supervisor that claimed circuit Cir.1995) (same). Although this col my with letter). agree I Accordingly, issue, it I think addressed here. never not control does that Wilson leagues ever hold would unlikely that we highly by the three persuaded I am less decision district court an unreviewed following for gives court reasons constitutional clearly establish could Second Cir with the Agreeing Wilson. Executive In re: right. Office “the cuit, colleagues first conclude my President, 215 F.3d at have surely could not Supreme concern nonappealability I think the rights also newly-devised wanted this court’s to coexist with sweeping too level court the district at recognized to ordinarily should” “courts chance statement any officials giving federal without Slip Op. procedure. the Wilson see follow Slip Op. review.” appellate for applies all That concern 247 10. F.3d Coughlin, also Horne courts, for district immunity claims before Cir.1999). District why not? (2d But judges have decision district at the time effect. precedential no decisions have will plaintiff knowing whether way no the cir the law of “do not establish They if ruling. But an adverse appeal indeed, they even estab ..., nor, do cuit cases, a reason it cannot be to all applies it Exec In re: district.’ ‘the law of the lish way of ordinary from the departing President, F.3d utive Office of doing things. Threadgill (D.C.Cir.2000) (quoting Indus., Inc., F.2d Armstrong World con court’s second do I share Nor Cir.1991)). (3d of Government 1366,1371 difficulty great “we would have cern: inabil injured by an hardly be could ficials with procedure] [the Wilson squaring legal no rulings that appeal ity to three other statements with, force. begin 11. To Slip Op. decisions.” was three cases those recent the most cases course, in some the fact that Of Forsyth, see Mitchell decided might be unable officials government if concern be a source could appeal yet twice 1999 the Supreme With respect to the court’s concern that Court stated courts “must” reach the the Wilson procedure might require dis- constitutional issue before deciding wheth covery and trial to resolve constitutional right er the allegedly clearly violated was questions, thereby depriving defendants of established, Wilson, 609, see at immunity suit, Slip Op. see 1692; Conn, S.Ct. 526 U.S. at 119 Wilson states that courts “must first de- S.Ct. and four times the 1990s the termine whether plaintiff the alleged has Supreme Court itself followed proce the deprivation of an actual constitutional Wilson, dure. 526 U.S. right at all-” 818; Conn, 143 L.Ed.2d 526 U.S. added). S.Ct. (emphasis me, To 1292, 143 399; L.Ed.2d Sac suggests that courts begin by should ask- ramento, 140 ing only whether a plaintiffs allegations, if Siegert, true, 500 make out a constitutional violation. Surely L.Ed.2d 277. it Siegert, moreover, makes clear that is these more recent cases that reflect the Court envisioned that the is- constitutional Supreme Court’s current view. sues would be resolved “purely legal” ones. 500 U.S. at 111 S.Ct. 1789. any event, In we have no square need to Indeed, the primary Siegert reason gave procedure Wilson with the earlier deci- for deciding the constitutional question is sions, Supreme for the already has precisely the reason gives this court done so. my colleagues observe, As avoiding it: earlier “decisions flow from a long line of A necessary Supreme Court concomitant to the pronouncements determi- counsel- nation judicial of whether ing restraint constitutional constitutional deci- right asserted a sionmaking, plaintiff the most is “clearly notable of is established” at the time Ashwander v. Valley defendant Authority, Tennessee acted is the determination of plaintiff (1936) L.Ed. has asserted (Brandéis, J., violation of a concur- ring).” right constitutional Slip all. Op. Sacramento, at 12. Decision of however, legal this purely permits courts expressly expeditiously held to weed out that the suits Ashwander which fail principle did not the test apply requiring without constitutional defendant tort claim at rightly qualified issue claims there: engage expensive and time consuming generally [T]he sound rule of avoiding preparation to defend the suit on its determination of constitutional issues merits. purposes One of immuni- does readily here; fit the situation ty, or qualified, absolute is to spare when liability is claimed on the basis of a not only defendant unwarranted liability, violation, constitutional even a finding of but unwarranted customarily demands qualified immunity requires some deter- imposed upon those defending long mination about the state of constitution- drawn out lawsuit. al law at the time the officer acted.

What significant is more is that if Id. policy of avoidance always followed Finally, important, and most consider- in favor of ruling ation of these last reasons three for not whenever there was no settled following precluded Wilson Wilson conduct, rule of primary itself. The Supreme Court could standards of official conduct would tend spoken in more mandatory “A terms: uncertain, to remain to the detriment court evaluating a claim qualified immu- both of officials and individuals.- nity ‘must first determine whether Sacramento, 523 U.S. at 841 n. S.Ct. plaintiff alleged deprivation of an actual constitutional at all.’ right Wil- (em

son, Conn, added) 526 U.S. (quoting phasis As the S.Ct. clear, prece made “[i]f also has direct Supreme] of [the dent rest case, appears to yet in a application line of in some rejected on reasons should fol decisions, Appeals the Court directly controls.... case which low Quijas v. Rodriguez de Shearson/Ameri Inc., Express, can (1989). Only directly control does Wilson because we have discretion facts on these do has “al determining whether Kalka avoid actual constitu of an deprivation leged Wilson, right at all.” tional 1692. America, STATES UNITED Appellee, McCOY, Appellant. Michael 99-3088. No. Appeals, States Court of Columbia Circuit. District April 2000. Argued Decided June

Case Details

Case Name: Ben Kalka v. Kathleen Hawk,appellees

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 23, 2000

Citation: 215 F.3d 90

Docket Number: 98-5485

Court Abbreviation: D.C. Cir.