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Does Mandatory AA/NA Violate the First Amendment?

October 16th, 2009
By Jamie Markham

The First Amendment says, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” There are two religion clauses in the amendment, the Establishment Clause and the Free Exercise Clause. Lately I’ve been getting a lot of questions about the Free Exercise Clause in relation to G.S. 14-208.18, the law that’s preventing some sex offenders from attending church. Thinking about that issue reminded me of a question I was asked about the Establishment Clause: does it violate the Establishment Clause to require a probationer to attend Alcoholics Anonymous or Narcotics Anonymous?

Three federal circuit courts have held that coerced participation in 12-step programs like AA and NA violates the First Amendment. In Kerr v. Ferry, 95 F.3d 472 (7th Cir. 1996), the Seventh Circuit held that requiring an inmate to attend NA meetings or risk suffering adverse effects for parole eligibility violated the Establishment Clause. The Second Circuit reached a similar conclusion in Warner v. Orange County Department of Probation, 115 F.3d 1068 (2d Cir. 1997), striking a probation condition requiring attendance at AA meetings. And most recently the Ninth Circuit determined that a parolee’s First Amendment rights were violated when his parole officer forced him to attend 12-step meetings as a condition of his parole. Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007). In the latter two cases the courts found the law sufficiently clearly established to abrogate the officers’ qualified immunity. Qualified immunity shields government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 (1982). In other words, Warner and Inouye were able to go forward with lawsuits against their officers for damages for violation of their constitutional rights under 42 U.S.C. 1983. Numerous federal district courts and state supreme courts have reached the same conclusion.

It’s possible that the Fourth Circuit might rule differently. The judges here continue to apply the Lemon test (derived from Lemon v. Kurtzman, 403 U.S. 602 (1971)) in Establishment Clause cases, whereas the circuit courts listed above used a slightly different “coercion test.” Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003); Gray v. Johnson, 436 F. Supp. 2d 795, 800 n. 4 (W.D. Va. 2006) (distinguishing the tests). But given the general march toward unanimity around the country, I generally advise judges (and probation officers, who are really the ones at greatest risk of getting sued) to avoid AA or NA as a mandatory condition of probation. It’s okay to make participation optional. See Gray, 436 F. Supp. 2d at 801 (prison substance abuse program did not run afoul of the Establishment Clause when it made AA and NA participation optional). And it would be permissible to make participation in some type of recovery program mandatory as long as a secular option were available. See O’Connor v. California, 855 F. Supp. 303 (C.D. Cal. 1994) (upholding use of AA/NA as part of a drunk driving sentence when the defendant was given a choice over what program to attend). Examples of secular options include Secular Organizations for Sobriety, LifeRing, Rational Recovery, and SmartRecovery.

Finally, I’ll note that what’s not at issue in these cases is the question of whether AA is, in fact, religion-based. The litigants typically agree that it is, and the courts are unpersuaded by the idea that it’s “spiritual” and not religious. Here are the traditional twelve steps:

1.  We admitted we were powerless over alcohol-that our lives had become unmanageable.

2.  Came to believe that a Power greater than ourselves could restore us to sanity.

3.  Made a decision to turn our will and our lives over to the care of God as we understood Him.

4.  Made a searching and fearless moral inventory of ourselves.

5.  Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.

6.  Were entirely ready to have God remove all these defects of character.

7.  Humbly asked Him to remove our shortcomings.

8.  Made a list of all persons we had harmed, and became willing to make amends to them all.

9.  Made direct amends to such people wherever possible, except when to do so would injure them or others.

10.  Continued to take personal inventory and when we were wrong promptly admitted it.

11.  Sought through prayer and meditation to improve our conscious contact with God as we understood Him, praying only for knowledge of His Will for us and the power to carry that out.

12.  Having had a spiritual awakening as the result of these steps, we tried to carry this message to alcoholics, and to practice these principles in all our affairs.

What do you think?

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37 Responses to “Does Mandatory AA/NA Violate the First Amendment?”

  1. Martha Norman says:

    I would say the vast majority of Judges and/or Probation Officers that require Offenders to attend AA/NA meetings as part of their substance abuse treatment program are unaware of the “spiritual” aspects of the program, but are influenced by it’s long standing reputation as an effective, community based program that is free of charge and available virtually every day of the week at some location that is convenient for the Offender. I would think that as long as Judges and Officers put, “Attend AA/NA or other approved community based substance abuse counseling program.” on the order, this should resolve the issue of liability.

  2. Probation/Parole officers are bound by the courts. So, if the sentencing judge orders that an offender attend AA/NA we as officers are required to send the offender to AA/NA. Some treatment agencies require the offender to attend AA/NA as a condition of the treatment process. Usually as a follow up program. If the Probation officers and Judges are liable and can possibly be sued for requiring an offender to attend AA/NA then what about the treatment agency/agencies. There is so much media and political involvement in DWI issues that we as court personnel are liable if the offender does not attend required treatment. Where do we cut off the treatment process? Do we take God out of the 12 steps process so as not to offend someone or do we require thet offender to attend AA/NA so we can possibly help the offender to stop drinking and endangering the public. Their is a treatment process and if AA/NA is part of it at this time. It is our job to protect the public and if AA/NA is part of the treatment process and aids in public safety and in improving the health of the offender then I do not see where this should be an issue. Do we offend some who do not like this or do we do our our job and protect and assist the offender?

    • I should have said on the last line of my comment “protect the public” and assist the offender.

    • Anonymous says:

      Don’t you take an oath to protect the innocent and uphold the law? Every single state in the country is secular, as is the nation’s federal level. You don’t have to follow orders which are blatantly illegal in the eyes of the constitutions of the state and nation.

    • Pat Roscher says:

      We need to remember that AA/NA meetings are not the same as treatment. There is a difference between treatment and recovery so to put the two in the same sentence is false in itself. One of the basis of your 12 step programs is that is it supposed to be voluntary so by mandating this it violates some of the programs basic fundamentals.

  3. Don Roberson says:

    I spent many years working with a District Court Judge who was a recovering alcoholic and who would frequently attend as many as 4 to 6 AA meetings per week. This judge often mentioned the availability of AA meetings to defendants but never ordered it as a condition of probation. The courts and treatment programs inherently must approach the utilization of AA differently.

  4. Carolina says:

    The Judgement for Impaired Driving Offenses has, #11 in SPECIAL CONDITIONS OF PROBATION, “Obtain a substance abuse assessment and all recommended education or treatment”. I have not left any words out. This does not specify that the assessment has to be a DWI assessment. We know that in order to get the NCDL back, the offender has to complete the DWI “school”. Rarely, do I see a Judge specify a DWI assessment and treatment in the #17 block. As the Judge is not filling out the Judgement him/herself (the deputy clerk is the one listening and writing out the Judgement), many Judgements become a document subject to interpretation. A regular condition of probation is that probationers cooperate with the probation officer by answering reasonable inquiries. Would “voluntarily submitting to AA/NA”, in block #17, be too subjective? I have never seen a treatment program require an offender to attend AA/NA. I have however, seen it recommended as an aftercare program.

  5. Cheri Noto says:

    I agree that as Officers it is our duty to uphold the conditions imposed by the court and agencies (substance abuse, aftercare recommendations) HOWEVER I wish to interject it is ordered that they must ATTEND the program/group. The attendance is what is key and while it is the intent of the court to have the person PARTICIPATE in the group, they are not bound to do so and they are not bound to adopt the principles of the group. As they are not required to speak and/or adopt the principles, I do not believe that the 1st Amendment is applicable here. I believe that as officers, we should be inherently immune from any consequence suffered in enforcing any order of the court. It is our job capacity to enforce ALL the conditions imposed by the court, we do not impose the conditions.

    • Kahn Doltrien says:

      Mr. Noto, I think you are missing a particularly important aspect of the first amendment consideration.
      Let us assume that attendance does not require participation in groups like AA/NA. It is accepted that those organizations are in fact religious in nature as stated above. This does not exactly make them equatable with churches as that label acts as a much larger net. Think, however, of an instance where any other kind of forced religious attendance would be permissible. For one without any belief in a higher power, forced attendance would be tantamount to sending them to a Church Service, albeit one slightly reduced in helpful content. Also one might simply hold a particularly different kind of belief system than the one being offered, that of a singular, powerful, well meaning, basically good deity.
      You can force someone to attend traffic school because it educates them about the laws regarding driving. Nowhere does a higher power enter into that education. Those laws are secular in nature. AA/NA and others mix religion and psychological sciences in a dangerous way that is more about shifted dependency than addressing the underlying issues of chemical dependency.

    • Michael Roberts says:

      For the simple fact that you choose to ignore an individual’s religious beliefs, instead of recognizing that the first amendment inherently provides total and irrevocable relief from said atmosphere, leaves your comment completely devoid of merit. You should excuse yourself from ever participating in a conversation about inalienable rights vs your own personal interpretations of the constitution. Forcing someone to ATTEND A RELIGIOUS PROGRAM is a DIRECT ASSAULT ON THEIR FIRST AMENDMENT RIGHTS. PLAIN AS BLACK AND WHITE. You can twist words as you see fit, you’re still unequivocally WRONG.

  6. Mike says:

    I have recently been ordered to participate in a 12-step program that is based on AA, and as an atheist, I am extremely offended that the judge even considered the idea. I am going to fight this all the way to the supreme court if I have to. What’s extremely important to remember here is that the state CANNOT even SEEM to be endorsing any kind of religious organization, and whether or not individual citizens object on the grounds of a violation of their freedom of religion, there is still a separate and equally valid argument that compelling any person to participate in the activities of a religious organization is a gross violation of the Establishment Clause. I will be seeking an injunction prohibitting judges (in NH, at least) from ordering any individual to participate in AA/NA and all other 12 -step programs based on them. I have the backing of the American Humanist Association, and expect to also have the backing of the American Atheists and the ACLU.

    • Zach says:

      Could you please let me of someone to contact on this matter my PO sent me to see a couselor cause there was alcohol in my home its nits supposed to be here It wasnt mine but he had to do his job and sent me to see a couselor I only have 12 months on federal probation left never had no problems no write ups no dirty uas no run ins with the law nothing in fact I was suppose to be released at my half time due to good behavior but didn’t get the chance like everyone else for unknown reasons anyways the counselor put me in a criminal thinking class and after this last class the person teaching made it mandatory to go to one AA meeting a week or we would flunk the class I tried to protest cause I am an atheist but same if I don’t go I fail if I fail I get arrested if I get arrested I lose my job of almost five years I have a family that depends on me for support and we can’t afford me goin away and to top it off were I work does not hire felons anymore so I would have no chance of getting my job back and I have a good job in the oilfield

    • joe smith says:

      I have recently been kicked out of my treatment because i have refused to attend the mandatory AA meetings. I am expecting to be serving 6 months in jail because of this. how do i go about fighting this?

  7. Ulcaa says:

    I have attended AA for many years and am clean and sober for all those years. The mutual support of other clean and sober people has been very helpful — from emotional support to simple social comeraderie. The 12 steps have been peripheral at best and disturbing at worst, but I have tolerated them in order to enjoy the friendships and support. I have found many people in AA who share my views (for instance, there are several agnostic and atheist AA meetings in larger cities in the U.S.) I strongly believe that the courts have no right to force anyone to attend a 12 step program. As more and more people with various problems, from overeating to adultery, adopt the “12 steps,” a frightening precedent is being set. I would support national legislation to block mandatory attendance at AA meetings or any other 12 step program.

    Mandatory AA meetings not only violate the rights of the person being forced to attend. It violates the rights of people attending an “anonymous” organization who are being required to commit their signatures to a legal document and/or attend meetings with disgruntled individuals. And it violates the most basic tenet of AA that it is for people who desire to be there. The government is simply taking advantage of AA and NA as a way to avoid the costs of treatment programs and/or incarceration. Regretfully AA has been complicit in this in its typical passivity. It is imperative that legal measures are taken to stop the practice of court ordered 12 step program attendance.

  8. [...] Further, every federal court that has looked at the question has also found that mandating AA violates the separation of church and state, making forced 12-step programs not only in violation of the spirit of AA itself but also unconstitutional. [...]

  9. Rex Follett says:

    Problems with Alcoholics Anonymous and all 12-Step Programs

    * Most significantly, the first step, admitting you are powerless in combating your addiction seems to completely undermine the entire rehabilitation process. Addiction is an issue of self control. Overcoming it requires personal will power. Outside/External influences can help and often make the difference but if you don’t change, nothing changes. So the first step sets the stage for not taking responsibility for changing ones’ addiction.

    * Failure is no longer your fault – Because the first step encourages people to admit they’re powerless and subsequent steps demand you ask God to take care of things for you, failure is no longer something you need to accept responsibility for. It’s in God’s hands.

    * The first step sets the stage for steps 2, 3, 6 and 7, where you in essence, pledge to replace one addiction (i.e. alcoholism) with another (the A.A. program itself or religion & dependence upon God to effect positive change in your life).

    * Even after one successfully overcomes their addiction, the 12-step programs encourage people to still consider themselves “addicted” and thus incapable of exercising any self-control or self-determination outside the limitations of the program’s world view which gives all credit to God.

    * Clinical studies have shown that 12 step programs are no more effective than not attending a program at all !

    * 12-Step programs are mandated by law/government/courts in many jurisdictions when these programs are clearly religious in nature and a violation of the Separation of church and state.

    * The “God” of your understanding can not and never will “Cure” you of your Alcoholism; kind of makes it their God that you must have.

  10. Carlos says:

    Am I the only one that understands, that it does not matter whether it is mandated or not. No government agency, with their employees using public funds ought to be allowed to use the 12 Steps as if it was treatment. First I do not think it even meets standards for treatment. Treatment is allway scientificly based and there is as much scince in AA as Vitamin Z in a glass of orange Juice.

  11. Any case updates since Oct. 2009?

  12. Mark Henderson says:

    AA has meetings for atheists as well. I hope more people and judges will be enightened that one is not forced into religion. I’ve always believed too that take what works for you and leave the rest. The only requirement for AA is a desire to stop drinking.

    • Eric says:

      The fact that they mention God directly in AA steps and literature skews it towards believers of in religions that have a “God” and refer to their deity as “God” no matter what they included later. In the United States is prejudice in favor of Christianity, otherwise we would not be having Government-established holidays on Christmas and Easter, we would not have the phrase “In God We Trust” on our currency and would not require Oaths of Office to be taken upon a Bible or sworn with the mention of God and would God would not be referenced in the Pledge of Allegiance.

  13. Constructionist says:

    I believe we are missing the cornerstone of the foundation here. All sentences involving AA or other forms of diversion are by definition alternative sentences. There are no provisions in the penal codes for such programs, only monetary penalties and incarceration. Alternative sentences are in lieu of incarceration, or at least in significant reduction thereof. The convict is within his rights to decline any provisions not set forth within the code and take the jail time. Of course most don’t, and that amounts to their waiver of rights to constitutional challenge.
    Or so it seems.

    • Eric says:

      The judiciary should not provide religious programs as the ONLY available alternative sentence, if any other type exists.

      Not all towns or counties have AA/NA meetings that are friendly to practitioners of non-Christian religions or atheists.

      I also believe that religious organizations that receive federal funding to provide homeless outreach should not be able to require attendance at a sermon or bible study as a precondition of receiving said assistance

  14. stephanie says:

    Hi I would like to know is it legal for my parole officer to notify my job and my school that im on parole? Im not a sex offender nor do I have a violent crime. My parole officer going to my job could cause me to loose it I work with a big company that pays well I did inform them of my felony but not of me still being on parole I don’t feel its their business so do I have any rights in the state of Arizona

  15. Eric says:

    I attended a Veterans Administration dual diagnosis program that did not allow clients to leave the site by themselves and required on-site AA meeting attendance. The did not offer separate meetings for those of other religions or those who are atheists. Clients or ex-clients ran these meetings and there were required prayers specifically from the Bible in addition to the Serenity prayer. If you did not stick to these prayers you would be verbally harassed about your different beliefs. I also had a casework tell me that I would get better if I believed in her God (she considered that I didn’t have any faith at all since I identified my self as a Pagan in my admission papers and the VA doesn’t recognize any Pagan religions in their computerized record keeping except in a specific case note if they consider it relevant for treatment). The only person who felt I had the right not to be subject to this was a therapist who had to butt heads with the rest of the staff so I didn’t have to have that caseworker proselytize to me, but I still had to attend the same meetings, I just didn’t have to say any of the prayers and they had to tell the clients and multiple clients to not harass me about having different beliefs.

  16. patrick says:

    I have been mandated treatment and It is strongly based on the twelve step program admittedly and AA steps and god posters are on the walls i am also required AA meetings i frown upon religion it even offends me i respect others beliefs but i am constantly getting grieve about not having some spiritual or higher power and told without one i will drink again. i find this a direct violation of my rights as a human and citizen im happy to be recovering and improving but there are many quirky things involved. Ive found myself thinking the same as a prior post about the twelve steps being a replacement religion and an excuse to ignore life’s issues, they the counselor and AA people also encourage life long attendance aggressively.

  17. John says:

    I can’t beleive all of the dumb posters on here that can’t figure out the legal trick to getting out of going to ordered meetings. If you can’t figure that out then you’re probably a bad enough drunk that you need to go to a few meetings or at least do some soul searching of some kind which is what the judge is trying to bring about. And I can’t beleive people are hiring lawyers to help them figure it out! A drunk is a lawyers best friend. The other thing I can’t beleive is what a bunch of cry babies the Millennials are. You’re the first generation to get on online forums and go “waaaay, I got sent to AA, my civil rights were violated!” How? ” I had to sit in a seat next to a Christian for an hour, and get a cup of coffe, and they had God written on the wall!” Well they used to just beat you up or put you in the country jail or an asylum where some dude would try to beat you up or worse rape your butt. AA is sure a more pleasant place than that, especially only an hour of it compared to 24/7 confinement. Just remember, though God is on the wall, there’s no requirment that you poor abused Millennials have to look at the wall.

    • John Gibson says:

      Thanks for the post! I don’t consider myself “dumb”, but how exactly does one get out of having to attend court ordered meetings? Attend one online, then sign your own slip? Curious. Thanks..

      John

      • CJ says:

        AA is anonymous, therefore the courts or parole/probation officers can’t go verify that you actually attended a meeting because when they sign off on your attendance sheet they only use their version of “Bill W.”. So, after many torturous AA meetings that thought finally occurred to me and I just started having some friends put their “Bill W.” on my sheet. Worked like a charm.

    • massive says:

      john- you can think AA is better then Jail….but these posters have a right to not like their rights being violated.

  18. Robin says:

    And yet soldiers are forced into treatment in 12 Step programs daily. They have no other option. Their insurance will ONLY cover 12 Step programs. If you want to pay out of pocket to go to a different treatment it’s not going to happen because it’s not DoD approved. Commanders favorite saying for substance abuse users “Complete the 12 Step or you are out!”

    Then again, soldiers don’t have any constitutional rights. They simply defend it for others.

    I’m not a soldier. Just a concerned person that sees this happening to soldiers daily.

  19. Ryan says:

    I personally had to go to AA during probation because of a DWI. I am not religious by any means, but I went anyway. We had to keep a journal of our progress and when I got to the portion about turning my life over to god I simply wrote that this was not possible as I personally do not believe in a higher power, but wrote something along the lines of seeking outlets that might help me make better choices such as friends and family. Probation officers could give a shit whether you believe in god or not, they are just doing there job… with that being said, I do think forcing someone to go to an establishment that prays during every meeting and talks about how god changed their lives is a violation of their rights. But until it is changed..

    side note: i only went to AA a few times and just wrote journal entries based on what the AA book says for 18 months…. so, you can get around it if its that big of a deal to you personally….

  20. todd says:

    I am a homeless veteran who does not have a problem with alcohol. However a veteran service called alpha omega is forcing me to attend AA. Rumor has it these people are getting paid more by the VA for my forced attendance. Help me!

  21. Reese says:

    I am being forced to go to daily AA meetings by the officer in charge of my house arrest program. I have been told that if I do not attend these meetings, I will be back behind bars. Insofar as AA is a religious organization, is it not a direct violation of my civil rights??

    • massive says:

      reese – yes. fight it. Tell them you want to go to SMART reCOVeRY OR SOS OR MODERATION .ORG THEY ARE ALL approved by the courts for years. AT least in LA. I know SOS and Smart are approved Nationally.

  22. John Gibson says:

    I’m on probation and attending treatment in Washington State. How they get around this whole issue here is that you have to follow the recommendations of your treatment center, which include “X” amount of 12 step”SELF HELP” meetings per week. There are a whole gamut of these, and any one of them qualify. I can go to Over Eaters Anonymous if I so choose, although it wouldn’t do me (personally) much good. I’m going to start a “I Hate Miley Cyrus Anonymous” meeting, open and close the meeting myself, sign my own slip, and the treatment center can kiss my ass. :)

  23. John Gibson says:

    Hey, if it’s really an issue…just show up late, get your [expletive deleted by editor] slip signed and then leave. Works every time.

  24. massive says:

    I am reading all your posts and I am so disturbed by all this AA court coercion that is already been fought for you in 25 states. They can not do it, but most people are not aware of their rights. I have been making a Documentary Film about predatory behavior in AA. But over the past few months I have been contacted by Pilots and Doctors who are being FORCED to attend AA or else!!!. It seems these two groups have been taken over by sober AA members and things are very deeply entrenched and corrupt.

    I have decoded to make this a segment in my film The 13th Step the film. If any of you are interested in speaking to me please contact me at singermonica@mac.com

    I think we have to expose this at a very high level. It has to change,.its so very wrong at so many levels as you all know here. Thanks ….

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