                             UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53



              United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604

                              Submitted August 9, 2006
                              Decided September 7, 2006


                                         Before

                           Hon. WILLIAM J. BAUER, Circuit Judge

                           Hon. DIANE P. WOOD, Circuit Judge

                           Hon. ANN CLAIRE WILLIAMS, Circuit Judge


No. 06-2149

JAMES J. KAUFMAN,                                 Appeal from the United States
             Plaintiff-Appellant,                 District Court for the
                                                  Western District of Wisconsin.
              v.
                                                  No. 03-C-027-C
GARY R. MCCAUGHTRY and JAMYI
J. WITCH,                                         Barbara B. Crabb, Chief Judge.
            Defendants-Appellees.



                                       ORDER


       James Kaufman is an inmate in Wisconsin’s prison system. The present appeal
relates to his claim under 42 U.S.C. § 1983 that various officials of Wisconsin’s
Waupun Correctional Institution, where he was incarcerated for a time, violated his
First Amendment rights by refusing to allow him to organize a group of atheists. The
district court initially dismissed the suit on the ground that atheism is not a “religion,”
and thus that the prison officials acted within their discretion when they treated his
request as one subject to the rules for secular organizations. This court reversed, see
No. 06-2149                                                                      Page 2


Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir. 2005) (Kaufman I), finding that
Kaufman’s proposed group qualified as “religious” for Establishment Clause purposes,
and thus that it was entitled to be treated the same as other religious groups in the
prison. Id. at 684. On remand, the only two defendants remaining in the action were
Gary R. McCaughtry and Jamyi Witch, respectively the Warden and Chaplain of
Waupun. The defendants filed a second motion for summary judgment, this time
claiming that they were entitled to qualified immunity, because the plaintiff’s rights
were not clearly established at the time they acted. The district court agreed with this
position and entered judgment for the defendants. We affirm.

       The history of Kaufman’s request is set forth in our earlier opinion; we assume
familiarity with it here. The only question we must resolve is whether the district court
correctly concluded that defendants enjoyed qualified immunity under the
circumstances of this case. The leading Supreme Court decision, as the district court
recognized, is Saucier v. Katz, 533 U.S. 194 (2001). There the Court set forth a
sequential test for claims of qualified immunity. First, the court must decide a
threshold question, namely, whether “[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer’s conduct violated a
constitutional right?” Id. at 201. If the answer is no, then there is no need to explore
immunity any further. If it is yes, the court must then decide “whether the right was
clearly established.” Id. The latter inquiry, the Court emphasized, “must be
undertaken in light of the specific context of the case, not as a broad general
proposition.” Id.

        In Kaufman’s case, our earlier opinion established the first of the two Saucier
points: we held that his allegations were enough to assert the violation of a
constitutional right. Thus, the only issue before us now is whether the rule was clearly
established, such that the defendants should have known that they were violating it
under the particular circumstances they faced. At a high enough level of generality, the
rules have been clear for some time. As the Supreme Court put it in McCreary County,
Ky., v. American Civil Liberties Union of Ky., 545 U.S. 844, 125 S.Ct. 2722, 2733 (2005):

      The touchstone for our analysis is the principle that the “First
      Amendment mandates governmental neutrality between religion and
      religion, and between religion and nonreligion.” Epperson v. Arkansas,
      393 U.S. 97, 104 (1968); Everson v. Board of Ed. of Ewing, 330 U.S. 1,
      15-16 (1947); Wallace v. Jaffree, [472 U.S. 38,] 53 [1985].

But, as the district court rightly commented, the picture becomes murkier when we
factor in more of the specifics. In certain circumstances, as the Supreme Court
recognized in Cutter v. Wilkinson, 544 U.S. 709 (2005), the government is entitled to
make special accommodations for religious practices that are not extended to
nonreligious practices. The parties agree that no case prior to 2002 alerted the prison
No. 06-2149                                                                      Page 3


officials to the fact that they might need to draw the line between atheism, as “a school
of thought that takes a position on religion, the existence and importance of a supreme
being, and a code of ethics,” see Kaufman I, 419 F.3d at 682, and an entirely secular
school of thought. Nor did earlier law throw much light on how that line should be
drawn.

       The defendants point out that even some judges have been uncertain about the
way atheism should be treated. See, e.g., Kilaab Al Ghashiyah v. Dept. of Corr. of State
of Wisconsin, 2003 WL 1089526 (E.D. Wis. 2003), disapproved by Charles v. Verhagen,
348 F.3d 601 (7th Cir. 2003). Kaufman himself, from time to time, claimed that he did
not regard atheism as a religion. He went so far as to cross out all references to the
term “religion” on the form he tendered to the officials. At no point has Kaufman
directed our attention to case law prior to the time the defendants acted that clearly
held that prison officials had to treat atheist groups just the same as Muslim groups,
or Christian groups, or Wiccan groups, for purposes of the formation of study groups
in the prison. Recalling the purpose of qualified immunity, which is to shield
government officials performing discretionary functions from damage liability when
their conduct does not violate clearly established rights, see Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982), we conclude that the officials here have shown that they are
entitled to qualified immunity.

      The judgment of the district court is AFFIRMED.
