Does a prison’s failure to regard atheism as a “religious preference” violate the Constitution?

That’s the question raised by a former Missouri prisoner, who contended the failure of the Missouri Department of Corrections (MDOC) to list “atheist” on prison intake forms violated his First Amendment rights.

The case was filed in federal court in Kansas City more than four-and-a-half years ago by Randall Jackson, a persistent DWI (Driving While Intoxicated) offender who served prison terms from 2006-08 and again from 2010-2014.

Jackson argued that MDOC’s failure to list “atheist” on intake forms was a substantial burden on his ability to exercise his religion. He also argued that the prison system violated his rights by conditioning early prisoner release on inmates’ participation in Alcoholics Anonymous-type programs, which require belief in a higher power.

U.S. District Judge Fernando Gaitan Jr. dismissed Jackson’s lawsuit not long after he filed it. But in 2014, the 8th U.S. Circuit Court of Appeals reinstated it and Jackson later amended it as a class action on behalf of all inmates “who do not believe in a god.”

In the lawsuit’s latest twist, Gaitan ruled this week that the case is moot because Jackson has served his prison sentence and is no longer incarcerated. And he found that Jackson had failed to demonstrate MDOC’s failure to include “atheist” on intake forms had substantially burdened his practice of religion.

“Where, as here, plaintiff has testified that he needs no accommodations in order to practice his belief or religion, there is no evidence that the defendants have attempted to advance one belief system over another,” Gaitan wrote in his 40-page order.

Gaitan said that the intake sheets, rather than favoring one religion over another, merely seek to accommodate prisoners holding religious beliefs, as required under the Constitution.

Jackson’s case remains alive, however. Gaitan said that questions remained as to whether he “was given a sufficient opportunity to have a secular alternative accommodation which could reasonably lead to graduation from the MDOC substance abuse program.”

“There’s still going to be a trial of some sort, either in front of the judge or in front of a jury as to whether or not the rehabilitation programs violated his First Amendment rights,” Jackson’s attorney, Christopher Hoffman of St. Louis, said in a phone interview. "As the judge acknowledged in his order, leading mental health professionals, even in the department of corrections, do not believe in the central tenets of AA and similar 12-step programs.”

Hoffman also said he plans to file a motion next week to have the case certified as a class action.

“This is not just relevant to people who are atheists,” Hoffman said. “It’s relevant to anybody who has a substance abuse problem and who may find themselves in the custody of the Missouri Department of Corrections and seeks a scientifically based drug rehabilitation program.”

Credit Courtesy Sam Grover / Freedom from Religion Foundation / Freedom from Religion Foundation Sam Grover, an attorney with the Freedom from Religion Foundation, says religious promotion in state prisons is common and largely goes unchecked.

David Owen, a spokesman for the MDOC, said the department does not comment on pending litigation.

Sam Grover, a staff attorney with the Freedom from Religion Foundation in Madison, Wisconsin, said that most federal courts that have ruled on the matter have found that Alcoholics Anonymous is a religious program that invokes a higher power, “and in that sense one can’t be forced to participate.”

“The government needs to provide a secular alternative,” he said.

Grover’s organization, which promotes the separation of church and state, filed a case similar to Jackson’s in 2000, arguing that a taxpayer-funded faith-based treatment program in Wisconsin was unconstitutional. A federal appeals court, however, rejected the foundation's argument and upheld the program’s constitutionality.

In an email, Grover noted that while Gaitan found that Jackson is no longer in a position to challenge MDOC’s practices because he’s out of prison, that doesn’t mean the practices are legal.

Grover said other state corrections departments have begun to include nonreligious identification options. He pointed to a 2015 settlement in which the Federal Bureau of Prisons recognized “humanism” as a religious identification. And the Virginia Department of Corrections, he said, recently adopted a similar policy.

“Unfortunately religious promotion within state prisons is all too common and goes largely unchecked,” Grover said. “The power dynamic between prison officials and inmates makes it easy for inmates to be coerced into participating in religious programing that does not conform with their personal religious or nonreligious beliefs.”

Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR. You can reach him on Twitter @DanMargolies.