215 F.3d 90 (D.C. Cir. 2000)
Ben Kalka, Appellantv.Kathleen Hawk, et al.,Appellees
No. 98-5485
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2000Decided June 23, 2000

Appeal from the United States District Court for the District of Columbia(97cv02259)
William M. Hohengarten, appointed by the court, argued  the cause and filed the briefs as amicus curiae on the side of  appellant.
Ben Kalka, appearing pro se, was on the briefs for appellant.
Marina Utg off Braswell, Assistant U.S. Attorney, argued  the cause for appellees.  With her on the brief were Wilma  A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant  U.S. Attorney.  Dara A. Corrigan, Assistant U.S. Attorney,  entered an appearance.
Before:  Williams, Randolph, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Opinion concurring in part and concurring in the judgment  filed by Circuit Judge Tatel.
Randolph, Circuit Judge:


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


2
* Each federal prison has a Religious Services Department  headed by a chaplain responsible for managing the institution's religious activities.  Prison chaplains are also charged  with deciding whether to introduce new religious components  to the Department.  When a decision on an inmate's request  cannot be reached locally, the request is passed on for review  by the Religious Issues Committee at BOP's Central Office in  Washington, D.C.  The Committee then forwards its recommendations to the prison's warden, who makes the final  determination.  See generally Bureau of Prisons Program  Statement No. 5360.07, Religious Beliefs and Practices (effective Aug. 22, 1997).


3
Although each prison evidently maintains a "chapel," we do  not know exactly what this entails.  A "chapel" might simply  be a corner of an ordinary room set aside at certain times for  religious services.  (In a letter to the warden at FCI-Jesup,  Georgia, the prison chaplain wrote of a "multi-purpose auditorium (Chapel area).")  BOP regulations require only that  space be made available.


4
The most recent events leading to this lawsuit occurred  when Kalka applied to establish a chapter of the American  Humanism Association under the aegis of the Religious Services Department at FCI-Jesup, Georgia.  Kalka supported  his application with information about humanism, including  portions of essays, excerpts from AHA publications, and a  copy of a book entitled The Philosophy of Humanism by  Corliss Lamont.


5
After reviewing these items, Chaplain David W. Fox forwarded them to the warden, Tom L. Wooten, along with a  memorandum discussing Kalka's request "to have counselors  and celebrants enter the prison to conduct a 'non-theistic,'  secular and naturalistic approach to philosophy."  The chaplain recommended referring Kalka's application to the Central Office Religious Review Committee.  He listed several  matters of concern for the warden's consideration, among  which were the AHA's non-theistic nature;  humanism's lack  of ceremonial rituals;  the description of humanism as a  philosophy;  and Kalka's classification of his faith choice as  Jewish.  Chaplain Fox also mentioned that the AHA "is not  associated with any type of spirituality or higher being, as is  espoused by our groups currently meeting under the guide of  [the] religious services department."


6
Heeding the chaplain's suggestion, warden Wooten transferred Kalka's request to the Central Office Religious Review  Committee.  In his transmittal letter, the warden wrote that  he had "serious concerns" about recognizing humanism as a religion.  In particular, he noted that the materials Kalka  presented clearly document the AHA's "philosophical and  educational nature" and that "[t]he group does not appear to  ascribe to any type of Deity, God, or Spiritual Advisor."


7
The Religious Issues Committee conducted an extensive  review of Kalka's submission.  In the information he provided, humanism is described alternately as a philosophy, a nontheistic religion, a life stance and a world view.  A letter from  a humanist association president notes that even among humanists, the question whether humanism is a religion is a  "contentious one."


8
Corliss Lamont's book, The Philosophy of Humanism,  considered "a standard text and reference" on secular humanism, describes humanism as "a philosophy that advocates  happiness in this life rather than hope for a heaven in an  afterlife."  Lamont defines humanism as "a philosophy of  joyous service for the greater good of all humanity in this  natural world and advocating the methods of reason, science,  and democracy."  Among humanism's central tenets, Lamont  lists a rejection of the supernatural;  the belief that the  universe is self-subsisting;  that humans are a part of the  natural universe;  and that there is no life after death.  The  Lamont excerpt Kalka submitted labels humanism "a many  faceted philosophy" but makes no reference to any religious  component.


9
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 humanists to "take stands against sloppy thinking, against the  imposition of ancient interpretations on modern life and living, [and] against the efforts to impose religious teachings  and interpretations on society."  Rational thought as opposed  to religious faith is also stressed in another document Kalka  provided, an AHA statement entitled "What is Humanism?".The statement affirms humanism's focus on "reason and science" and repeatedly refers to humanism as a philosophy  rather than a religion.


10
Other parts of Kalka's submission describe humanism as a  religious movement.  For instance, an excerpt from the  AHA's Free Mind magazine discusses the Humanist Society  of Friends ("HSOF"), a group whose motto is "a scientific  religion for a scientific age."  The article speaks of the  "concept of Humanism as a non-theistic religion," stating that  its view of humanism as a religion "allows for the opening of  many doors and acquiring of many privileges that Humanism  as a philosophy d[oes] not."  Another AHA publication includes an advertisement advising readers of AHA sponsored  humanist counselors who provide humanistic marriage and  memorial services and have the legal status of minister in all  fifty states.


11
Kalka also furnished his own statement attesting that  humanism "is a study of ethics, and a religion for some in a  personal way."  Whether it was a religion for him, his statement did not say.2


12
From these sources, the Committee concluded that the  needs and purposes of Kalka's proposed AHA group were  "more philosophical and educational in nature."  Additionally,  one committee member spoke with an outside source associated with the AHA who confirmed the Committee's determination that the group was more philosophically oriented.  The  Committee notified FCI-Jesup's warden of its conclusion,  recommending that he not permit a chapter of the AHA to  meet under the auspices of the Religious Services Department.  It reasoned that the requirements of the group could  be met outside of the Religious Services Department, a  program which is reserved for groups that are "religious" in nature.  Humanist literature should also be excluded from  the chapel, the Committee decided, because only literature  which is "religious" and connected to a recognized religious  group is "distributed within the confines of the Religious  Services Department."


13
The warden denied Kalka's request to allow AHA meetings  as a chapel activity but informed him that he could establish a  humanism group under the aegis of the prison's Education  Department.  On Kalka's administrative appeal, the BOP  affirmed.  Explaining its decision, a BOP administrator wrote  that AHA's "own newsletters and literature ... consistently  refer[ ] to Humanism as a 'philosophy' and not a 'religion.' "He added that in numerous requests for tax-exempt  501(c)(3) status, the AHA has described itself as "an educational organization and not a religious organization." See 26  U.S.C. 501(c)(3).  The BOP official also mentioned the  Supreme Court decision in Torcaso v. Watkins, 367 U.S. 468  (1961), commenting that the Court's reference to Secular  Humanism as a religion applied only to a particular group of  humanists known as the Fellowship of Humanity.  Kalka was  again told that his group was free to meet as part of the  prison's Education Department.3


14
In September 1997, Kalka brought this action against BOP  Director Kathleen Hawk and other named and unnamed BOP  officials, alleging that BOP's policy of excluding humanist  groups from prison chapels violates the Free Exercise and  Establishment Clauses of the First Amendment.4  As a remedy, Kalka sought compensatory damages, a portion of which would be used to establish humanist groups in each of the  nation's prisons.5  He also sought an injunction compelling  "prison officials so that Chapters of the American Humanism  Association can be formed in all of the prisons" the BOP  manages and an order "enjoining prison 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


15
The defendants moved to dismiss the claims, and the  district court, treating the motion as one for summary judgment, ruled in their favor.  Kalka v. Hawk, No. 97-2259  (D.D.C. Sept. 29, 1998).  For purposes of resolving the motion, 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 humanist 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 reasonable, 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 ensure 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.

II

16
* Qualified immunity shields officials from liability for damages so long as their actions were objectively reasonable, as  measured in light of the legal rules that were "clearly established" 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 Supreme Court has therefore instructed the lower courts that  the validity of a qualified immunity defense should be determined as early as possible, preferably before discovery and  trial.  See, e.g., Anderson v. Creighton, 483 U.S. 635, 640 n.2  (1987).


17
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 arguen do that Kalka's humanism is a  "religion," and then determining whether this was clearly  established.


18
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  decision making 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 uncertain."  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 So perhaps the statement about what the courts "must" do  describes only what the courts ordinarily should do.


19
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 resolution 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 deciding 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 56, at 385 (5th ed. 1994).  Consider Wilson. 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 constitutional 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).


20
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 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 immunity rulings;  when they do appeal, the winning officials can  cross-appeal the ruling against them regarding the constitutionality 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.


21
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  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.] 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 decision making  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 without considering whether, as the court of appeals had held, the  prisoner had a First Amendment right protecting his correspondence against official interference. These decisions flow  from a long line of Supreme Court pronouncements 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).  Federal courts should not decide constitutional questions 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., concurring).


22
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 constitutional 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.


23
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 immunity "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).


24
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 arguen do that Kalka's humanism is a "religion," but as we next explain, the defendants are still entitled  to qualified immunity.

B

25
To repeat, qualified immunity shields these defendants  from liability for civil damages if their actions were objectively reasonable, as measured in light of the legal rules that  were "clearly established" at the time of their actions.  Harlow 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.


26
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 religions, 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 Amendment 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?).


27
In Torcaso, the Court struck down a Maryland law requiring 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:


28
Among religions in this country which do not teach what would generally be considered a belief in the existence 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, FaithsMen 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.


29
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, discussed 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, sermons, singing and meditation, and had "leaders" who  preached and ministered to the group's members.  See Washington 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 Humanity 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.


30
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.").


31
A reasonable prison official would not have believed that  excluding Kalka's humanism from the prison's Religious Services 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. 92-93.  Given the judiciary's exceedingly vague guidance, in the face of a complex and novel question, the actions of the defendants therefore did not violate "clearly established" law.


32
Affirmed.


33
Tatel, Circuit Judge, concurring in part and concurring  in the judgment:


34
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 distinguishable from Wilson.  As my colleagues observe, the constitutional question is one for which injunctive relief is potentially  available, rendering inapplicable the Supreme Court's rationale for departing from the principle that constitutional decision making 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 potential 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);  Sacramento, 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 defamatory letter).  Accordingly, I agree with my colleagues that  Wilson does not control here.


35
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 96;  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, 215 F.3d 20, 24 (D.C. Cir. 2000) (quoting Threadgill 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.


36
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" constitutional 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 interpretation later survive appellate review.  But most of our  sister circuits do not look to unreviewed district court decisions 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, 215 F.3d at 23.


37
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.


38
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.


39
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 pronouncements 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:


40
[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 constitutional violation, even a finding of qualified immunity requires some determination about the state of constitutional 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 whenever 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.


41
Sacramento, 523 U.S. at 841 n.5.


42
With respect to the court's concern that the Wilson procedure might require discovery and trial to resolve constitutional 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:


43
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 demand customarily imposed upon those defending a long drawn out lawsuit.


44
Id.


45
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 whether Kalka has "alleged the deprivation of an actual constitutional right at all."  Wilson, 526 U.S. at 609.



Notes:


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.


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.


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.


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.


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 Sacramento 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, concurring in Sacramento, urged preservation of the lower courts' "flexibility, in appropriate cases, to decide 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 85859.  The fact that Justice Breyer went on to join the majority  opinions in both Conn and Wilson tends to indicate his belief that the opinions do not mandate a wholesale abandonment of this  practice.


9
 The courts of appeals have jurisdiction in civil cases over "all  final decisions of the district courts."  28 U.S.C. 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 my petition for certiorari. "The literal language of the [28 U.S.C.]  1254 (1) reference to 'any party' is broad enough to encompass the successful or prevailing party before the court of appeals." ROBEERT L. STERN ET AL., 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.


