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?