Resisting 12-Step Coercion The Courts and Coerced 12-Step Attendance

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The Courts and Coerced 12-Step Attendance
by by Stanton Peele

Four higher courts have evaluated cases in which corrections departments/institutions or conditions of probation have required attendance at Alcoholics Anonymous, Narcotics Anonymous, or therapy based on AA's 12 steps. In these cases, failure to comply entailed serious penalties (return to prison, loss of parole opportunities, or major benefits such as family visits). All of these cases have been decided since 1996. Uniformly, the courts have ruled that mandated 12-step attendance violates the First Amendment of the U.S. Constitution. The Bill of Rights begins with the statement that "Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof. . . ." The first part of this statement is called the "Establishment Clause" and has been interpreted by the U.S. Supreme Court to mean that no government body can require or encourage religious observance of any type. (This is also known as the separation of church and state.) Two Federal circuit courts (the appeals courts just below the U.S. Supreme Court) and two state high courts (Tennessee and New York) have found that prisons or courts violate this clause when they require that inmates or probationers undergo 12 step therapy or participate in 12-step support groups.

The 12 Steps

The 12 steps, written by AA co-founder Bill Wilson, are a fundamental part of the AA recovery program. These 12 steps now form the basis of most alcohol and drug treatment in the U.S., and are central to Establishment Clause cases involving mandated treatment. (They are used in 93% of alcoholism treatment programs, according to Roman and Blum, 1997). For a thorough discussion of the religious nature of the 12 steps, see Chapter 3. The 12 steps (this is the Narcotics Anonymous version) are as follows:

  1. We admitted that we were powerless over our addiction, that our lives had become unmanageable.
  2. We came to believe that a power greater than ourselves could restore us to sanity.
  3. We made a decision to turn our will and our lives over to the care of God as we understood Him.
  4. We made a searching and fearless moral inventory of ourselves.
  5. We admitted to God, to ourselves, and to another human being the exact nature of our wrongs.
  6. We were entirely ready to have God remove all these defects of character.
  7. We humbly asked Him to remove our shortcomings.
  8. We made a list of all persons we had harmed, and became willing to make amends to them all.
  9. We made direct amends to such people wherever possible, except when to do so would injure them or others.
  10. We continued to take personal inventory, and when we were wrong promptly admitted it.
  11. We 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 a result of those steps, we tried to carry this message to addicts and to practice these principles in all our affairs.

Resolved and Unresolved Issues

Decisions Affecting State Actions and 12-Step Programs

The 12 steps are religious/Christian. Although 12-step advocates, prison administrators, and lower courts have argued, based on the third step's phrase, "God as we understood Him," that AA's 12 steps are universal and do not refer to a particular religion, all higher court rulings have held that both the internal content of the 12 steps and the accompanying rituals of 12-step groups, such as regular prayers, imply a traditional religious concept of God. Moreover, in their submissions in such cases, Jewish advocacy groups have argued that the 12 steps are specifically Christian in nature.

Coercion means being subjected to serious penalties for not attending 12-step therapies for which there are no alternatives. Coercion is determined to exist when an inmate, defendant, or probationer cannot realistically reject AA without suffering adverse consequences. Coercion has not been found to occur when courts and prisons offer nontheistic alternative therapy options along with the choice of 12- step treatment.

The Supreme Court has not ruled on the 12 steps. Despite these higher court rulings, the U.S. Supreme Court has not yet ruled on whether compelling people to participate in AA and other 12-step programs violates the First Amendment. On the one hand, this means that the Supreme Court may someday either uphold or reverse circuit and state supreme court rulings. On the other hand, the Supreme Court in December of 1996 declined to hear an appeal of Griffin v. Coughlin, and in November of 1997 declined to hear an appeal of Warner v. Orange County Department of Probation, leaving those decisions intact meaning that any Supreme Court ruling on this subject is likely at least several years off.

Private Employers and 12-Step Programs

The extent to which private organizations may require 12-step treatment has not yet been limited in line with the "Free Exercise Clause." Private employers and other nongovernmental organizations have greater freedom to require that employees undergo 12-step treatment, since the Establishment Clause refers only to governmental actions. But the second clause of the portion of the First Amendment dealing with freedom of religion, called the "Free Exercise Clause," means that all Americans can personally choose to observe or not to observe any religion. Title 9 of federal law, for example, forbids religious tests for employment. Thus, private organizations may not require people to be religious or to follow a specific religion. However, to date, no court has ruled against an employer's forcing an employee to attend AA or 12-step therapy.

Employers can fire employees for simple use or intoxication, even off duty. Employers generally have wide latitude in terminating employees. Thus, showing up to work drunk, even once, or any use of illegal drugs, is sufficient for discharge. In such circumstances, employers can present employees with the choice of AA attendance or being fired, since employers are completely within their legal rights to fire employees rather than allow participation in some alternative program. Even being charged with an off-duty drug or DUI offense may trigger the employer's right to terminate an employee.

Especially sensitive jobs. Groups that are especially likely to be subjected to compulsory treatment on penalty of loss of license are health professionals (doctors and nurses) and transport workers. Individuals in these categories are deemed to be in especially sensitive positions due to the effect of their physical and emotional condition on public safety, according to the Federal Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA). This was the basis of the Supreme Court's decision in Skinner v. Railway Labor Executives (1989) permitting drug testing of railroad employees following accidents (see Husak & Peele, 1998).

A Georgia Superior Court (Masters v. Talbott, 1999) has now found a prominent treatment provider liable for forcing treatment on a physician on the basis of an inaccurate diagnosis of alcohol dependence, and for the damages he suffered from loss of employment (see Chapter 6). But this decision was not based on either informed consent or violation of the First Amendment due to the religious nature of the treatment program and required AA meetings. Nor was the suit directed at the employer or licensing body for requiring or compelling the treatment; rather, it was directed at the treatment provider for misdiagnosis and coercion.

U.S. Court Rulings Against Mandated AA/12-Step Program Participation

Griffin v. Coughlin (1996)

New York's highest court, the Court of Appeals, prohibited (in a 5-2 decision) the Corrections Department from making a prisoner's participation in the Family Reunion Program conditional on his attendance in the prison's Alcohol and Substance Abuse Treatment (ASAT) Program. The court ruled that such participation violated the Establishment Clause. This ban would apply to any compulsion to participate in "a curriculum which adopts in major part the religious- oriented practices and precepts of Alcoholics Anonymous." The decision emphasized the "proven effectiveness of the A.A. approach to alcoholism or drug addiction rehabilitation" and the acceptability of "a noncoercive use of A.A.'s 12-step regimen as part of an alternative prisoner drug and alcohol abuse treatment effort . . . , providing it offered a secular alternative to the A.A. component." The American Jewish Congress filed a friend-of-the-court brief in support of the inmate's claims.


In 1991, David Griffin, an inmate in the New York State penal system, had qualified for the Family Reunion Program. However, because he had used heroin from 1955 to 1968, his participation in the family program was conditioned on his participation in the ASAT Program at the facility. Griffin, who was on record as an atheist, objected to the 12-step program on the grounds of the Establishment Clause (the requirement of a separation between church and state), but his objection was denied.

The Corrections Department argued that ASAT's major emphasis was participation in AA and NA, which "have proven to be the most effective method for preventing relapse of the recovering alcoholic or chemical substance abuser" and were the "'state of the art' major component of any addiction program. Pointing to A.A. literature, respondents averred that the references to God actually mean some 'higher power as the individual may understand such higher power,' not as the concept would be known by 'organized religions.'"

Lower Courts

"The Supreme Court [NY's trial court] dismissed the petition without affording petitioner a hearing to develop a record of the facts underlying his complaint. The Appellate Division" found (211 AD2d 187), citing AA's Big Book and 12 steps, "that, despite the repeated references to 'God' in the Twelve Steps and Twelve Traditions, A.A. does not 'demand' adherence to any particular faith but to 'spirituality' and 'open-mindedness.' The court also found quite significant that A.A. allows participants to select their own conception of God, as shown by the reference in Step 3 to 'God as we understood Him.'"

Court's Analysis

The court agreed that the ASAT program was built fundamentally on AA's 12 steps. The New York Court of Appeals then conducted the most thorough judicial review on record of the religious nature of AA and its philosophy and practices. "Concededly, there are passages in A.A. literature, relied upon heavily by respondents, the Appellate Division and the dissent here, which, in stressing the openness and inclusiveness of the A.A. movement, eschew any intent to impose a particular sectarian set of beliefs or a particular concept of God upon participants. However, a fair reading of the fundamental A.A. doctrinal writings discloses that their dominant theme is unequivocally religious, certainly in the broad definitional sense as 'manifesting faithful devotion to an acknowledged ultimate reality or deity' (Webster's 9th New Collegiate Dictionary 995 [9th ed 1990]). Indeed, the A.A. basic literature most reasonably would be characterized as reflecting the traditional elements common to most theistic religions."

In addition to the 12 steps, "the 12 Traditions include a profession of belief that 'there is one ultimate authority a loving God as He may express Himself in our group conscience.' While A.A. literature declares an openness and tolerance for each participant's personal vision of God . . . , the writings demonstrably express an aspiration that each member of the movement will ultimately commit to a belief in the existence of a Supreme Being of independent higher reality than humankind. Thus, in the A.A. Big Book . . . , Chapter l, 'Bill's Story,' describes the spiritual transformation of one of the co- founders of A.A., in which he finally achieved salvation from his alcoholism: by 'enter[ing] upon a new relationship with my Creator. . . . I must turn in all things to the Father of Light who presides over us all.' In Chapter 4, entitled 'We Agnostics,' the theme is unambiguously proselytizing of unenlightened, self-centered atheists." Reviewing the corpus of AA, the court noted that "followers are urged to accept the existence of God as a Supreme Being, Creator, Father of Light and Spirit of the Universe. In 'working' the 12 steps, participants become actively involved in seeking such a God through prayer, confessing wrongs and asking for removal of shortcomings. These expressions and practices constitute, as a matter of law, religious exercise for Establishment Clause purposes, no less than the non- denominational prayer in Engel v. Vitale (370 US 421) [school prayer]."

The Court spent considerable time contesting the minority opinion in this decision, which discounted the religious roots and bases of AA: "In an effort to downplay the religiosity of the foregoing A.A. tenets, the dissent suggests, without verification from actual source materials, that the unequivocally proselytizing themes of early A.A. texts have implicitly been superseded by later more secular A.A. writings into which A.A. doctrine has evolved . . . . Even if the dissent's disavowal of A.A.'s religiosity is found not compelling, the dissenters suggest that the A.A. component of the ASAT Program (l) is essentially insignificant or 'attenuated,' albeit requiring at least weekly attendance at A.A. operated group meetings for 26 weeks and constant working of the Twelve Steps in all other parts of the ASAT curriculum; and (2) is readily severable from the predominantly secular ASAT Program (Dissent, Slip Opn, at 22), although the ASAT Program Manual itself states that participation in the A.A. group meetings is 'essential to the fulfillment of program goals.' These alternative arguments are therefore also unpersuasive."

Even if the religious principles of AA were somehow separable from ASAT's therapeutic program, "the A.A. volunteers who are invited to conduct the prison self-help group meetings of inmates in the ASAT Program, where the 12 steps are worked, can reasonably be expected to be wholeheartedly imbued with and committed to the religious precepts predominating in the A.A. basic texts. . . . Exactly that result was proved at trial before the United States District Court in Warner v. Orange County Dept of Probation (870 F Supp 69 [SDNY]). . . . In O'Connor v. State of California (855 F Supp 303, 306 [D Cal]), virtually identical findings were made on the religiously- oriented conduct of A.A. meetings, attendance at which had been imposed as an alternate condition of probation."

"The Appellate Division committed a second error by disregarding application of the second prong of the three-part test (the purpose- effect-entanglement test) for primary Establishment Clause analysis articulated in Lemon v. Kurtzman (403 US 602). . . . State-coerced adherence to a religious sect is not necessary to prove an Establishment Clause violation under any portion of the Lemon test. Specifically, under the second prong of the Lemon test, State action is invalid if its 'primary effect' is to advance or promote religion (Lemon v. Kurtzman, 403 US, at 612). . . . 'Our cases simply do not support the notion that a law found to have a primary effect to promote some legitimate end under the State's police power is immune from further examination to ascertain whether it also has the direct and immediate effect of advancing religion' (Committees for Public Education and Religious Liberty v. Nyquist, 413 US 756, 783 n 39). A violation also is established if the State action's 'inevitable effect is to aid and advance' religion (id., at 793)."

"That inmates who choose not to follow the 12 steps through the ASAT program thereby lose important benefits clearly violates U.S. Supreme Court outlined restrictions since, in the words of constitutional law scholar Laurence Tribe (Tribe, American Constitutional Law [2d ed], at 1173), the prison has 'apparently employed the machinery of the state to gather an [involuntary] audience for religion.'"

The court concluded that the "dissent's criticisms of our holding . . . misread(s) our decision in persistently characterizing it as hostilely 'root[ed] in a proposition' that A.A. itself and its religious practices and precepts are constitutionally 'objectionable'. . . . To the contrary, we have repeatedly indicated throughout the decision that the decisive factor in our analysis was not the incorporation of A.A. doctrine and practices into the ASAT Program, but the facility's application of coercive pressure to participate in an exclusive inmate drug and alcohol treatment program having that component. Rather than condemning A.A. and its practices we specifically acknowledged A.A.'s 'proven effectiveness.' Our decree specifically prohibits only the coercive aspects of conditioning petitioner's eligibility for the Family Reunion Program on attendance in the ASAT Program as presently constituted."

Kerr v. Farrey (1996)

The United States Court of Appeals For the Seventh Circuit (Wisconsin, Illinois, and Indiana), reversing a district court decision, unanimously held "that the state . . . impermissibly coerced inmates to participate in a religious program, thus violating the Establishment Clause." In this case, an inmate was threatened with being sent to a higher security prison and with rejection of his parole applications for refusing to attend Narcotics Anonymous meetings.


James Kerr, an inmate at Oakhill Correctional Institution in Wisconsin, was required to attend Narcotics Anonymous meetings or face negative consequences. NA was the only substance abuse program offered in the prison. Kerr contended that he "didn't have a choice in the matter; that attendance was mandatory; that if [he] didn't go, [he] would most likely be shipped off to a medium (i.e., higher security) prison, and denied the hope of parole," and that other negative inferences stemming from his refusal might appear in his prison record.

Kerr pointed out that the Oakhill NA meetings began with a prayer invoking the Lord and that the NA "Basic Text" book (like AA's Big Book) contained innumerable references to spirituality and God. Kerr "objected to dragging God's name into 'this messy business of addictions,'" while finding that NA's view of God conflicted with his beliefs about free will. Thus, he claimed, NA attendance violated both the Establishment and Free Exercise clauses of the First Amendment. Prison Warden Catherine Farrey claimed that inmates were required only to observe NA meetings and that, moreover, the concept of a "higher being" invoked by NA "was viewed as a very personal matter and could range from a religious concept of God to the non-religious concept of individual willpower."

Lower Court

The district court held that the NA requirement "neither advanced nor inhibited religion, and that there was no state entanglement 'in terms of economic support.'" The court also held that the NA requirement did not "impermissibly burden" Kerr's religious freedom.

Court's Analysis

The Court of Appeals wrote: "The Supreme Court put it this way in the leading case of Everson v. Board of Education, 330 U.S. 1, 15-16 (1947): [t]he 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non- attendance."

The Supreme Court has long debated the Establishment Clause. In cases "dealing with government efforts to 'coerce anyone to support or participate in religion or its exercise,'" having as their essence "that the state is somehow forcing a person who does not subscribe to the religious tenets at issue to support them or to participate in observing them," the Court has ruled squarely against the religious rule or regulation. These include the Court's school prayer cases, in which the Court "struck down the practice of beginning the school day with a prayer, scripture readings, or the Lord's Prayer, where some students (or their families) did not subscribe to the religious beliefs expressed therein. See Engel v. Vitale, 370 U.S. 421 (1962) (official prayer); School District of Abington Township v. Schempp, 374 U.S. 203 (1963) (Bible reading and Lord's Prayer). . . . The fact that the prayers and morning exercise sessions were technically voluntary did not dispel the inherently coercive nature of the setting for impressionable children, compelled by law to attend the school."

"The second group of cases has inspired more controversy within the Supreme Court itself. These are the cases in which existing religious groups seek some benefit from the state," such as using publicly funded transportation for parochial school students. Lemon v. Kurtzman 403 U.S. 602 (1971) is the seminal case of this sort, in which states provided financial aid to parochial schools. Also in this category are use of public spaces by religious groups or for religious displays. This type of case has produced the three part "Lemon test," which asks; 1) whether the statute has a secular legislative purpose; 2) whether its principal or primary effect is one that neither advances nor inhibits religion; and 3) whether it avoids excessive entanglement with religion. 403 U.S. at 612-13.

"In our view, when a plaintiff claims that the state is coercing him or her to subscribe to religion generally, or to a particular religion, only three points are crucial: first, has the state acted; second, does the action amount to coercion; and third, is the object of the coercion religious or secular? In Kerr's case, the first two criteria are satisfied easily. There is no question that the prison authorities act for the State of Wisconsin in these circumstances. The fact that NA ran the treatment program is of no moment, since it is clear that the prison officials required inmates to attend NA meetings (at the very least, to observe). On the record as it comes to us, it is also undisputed that Kerr was subject to significant penalties if he refused to attend the NA [meetings] . . . . The final element requires somewhat more discussion."

Is AA religious? "The district court thought that the NA program escaped the 'religious' label because the twelve steps used phrases like 'God, as we understood Him,' and because the warden indicated that the concept of God could include the non-religious idea of willpower within the individual." The Seventh Circuit rejected this interpretation, since "a straightforward reading of the twelve steps shows clearly that the steps are based on the monotheistic idea of a single God or Supreme Being. . . . Kerr alleged, furthermore, that the meetings were permeated with explicit religious content. This was therefore not a case . . . where the only religious note was struck by the insertion of the words 'under God' in the Pledge of Allegiance. . . . [Thus] the program runs afoul of the prohibition against the state's favoring religion in general over non-religion." The Court further noted that, unlike in O'Connor v. California, 855 F. Supp. 303 (C.D. Cal. 1994), where the court found no violation of the Establishment Clause, Oakdale offered no alternatives to NA or AA.

Qualified immunity of officials. The prison officials involved in the case could have been liable for depriving Kerr of his rights, despite the limited immunity from such liability granted to public officials in some cases, if they should have been aware that their actions were illegal. The Seventh Circuit concluded that the prison officials qualified for immunity in this case because they could reasonably not have known about recent decisions forbidding coercion into 12-step pro- grams. However, one could infer that it would be harder for other officials to qualify for such limited immunity in the future.

Free exercise claim. The Seventh Circuit rejected Kerr's claim that NA attendance "impeded his ability to practice his own personal religion" since the argument he presented in his appeal that NA opposed his belief in free will did not represent a sufficient development of this issue.

Practical Result

James Kerr received no monetary damages (due to the immunity found to hold for prison officials) and had long since been released from prison. He was entitled to expungement of any references in his records to adverse consequences he suffered from his objections to NA. Assistant Warden Jeff Wydeven said he had not read the court's ruling but said he could not imagine "what changes, if any, might have to be made in the Oakhill treatment programs to comply with the ruling" (Rinard, 1996).

Aftermath Brainwashing Claim

Kerr attempted to tackle the immunity issue again in order to gain a damages award by accusing the prison drug rehabilitation programs administered by the Wisconsin prison system of brainwashing, which he claimed constituted cruel and unusual punishment, in violation of the Eighth Amendment. The specific parts of the program that comprised brainwashing were its attacks on "criminal thinking." Kerr noted the following elements of this approach to changing inmates' attitudes:

  1. He was required to write and then read publicly to the program group confessions of his alleged "criminal thinking errors."
  2. He was required to write an autobiography which was then used against him by the social workers running the program.
  3. He and others in the program were required to inform on each other five times a day about violating rules.
  4. The social workers in the program used intimidation by screaming at Mr. Kerr at length.
  5. Mr. Kerr was punished for a "criminal thinking error" by being required to scrub walls with a toothbrush for hours.

The Federal District Court for Eastern Wisconsin ruled that the defendants were immune from liability and that action was barred by Prison Litigation Reform Act (PLRA), Kerr v. Puckett, F. Supp. 354 (E.D. Wisconsin 1997), and the decision was upheld by the United States Court of Appeals for the Seventh Circuit. Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998). The Circuit Court indicated that this type of approach was common to AA, boot camp, and other rehabilitative programs. The Court ruled that "states are free to approach matters otherwise, and to seek rehabilitation even if that entails programs that prisoners find unpleasant" (meaning that the program did not constitute cruel and unusual punishment). The Court was particularly unsympathetic to Kerr's aversion to AA and similar programs in this decision: "Many prisoners, of whom Kerr apparently was one, leap at the chance to get out early by participating in substance-abuse-control programs. They learn that there is no gain without pain. Imprisonment is not a kind way to produce either rehabilitation or specific deterrence; 'tough love' may be the best medicine."

Warner v. Orange County Department of Probation (1999)

The United States Court of Appeals for the Second Circuit affirmed 2-1 a district court ruling that recommending an inmate plaintiff's participation in Alcoholics Anonymous as a condition of probation violated the Establishment Clause. 95 F.3d 202 (2nd Cir. 1996). The plaintiff received nominal monetary damages (one dollar). A dissenting judge stated that the Free Exercise Clause was a better basis for Warner's cause, and warned of the great possibilities for finding liability created by a decision that mandatory AA sentences without alternatives violate the Constitution.


Robert Warner pled guilty to driving drunk and without a license, his third alcohol-related driving violation in little more than a year. A municipal judge ordered the Orange County (NY) Department of Probation (OCDP) to prepare a presentence report, which included the conditions that the probationer "totally abstain from the use of intoxicating beverages," avoid "establishment[s] where the primary business is the sale or consumption of alcohol," and "attend Alcoholics Anonymous at the direction of [his] probation officer." The judge sentenced Warner to three years of probation with these conditions. After almost two years of attendance, Warner objected as an atheist to the AA meetings. His probation officer decided that Warner lacked sufficient commitment to the program and ordered continued AA attendance, and even greater AA involvement, on Warner's part. Group prayer was common at the meetings Warner attended. Warner filed a claim that requiring him to attend AA meetings forced him to participate in religious activity in violation of the First Amendment's Establishment Clause, and that OCDP was responsible because it recommended participation in AA to the sentencing court as a condition of probation. OCDP argued that: 1) "the determination of probation conditions is solely the responsibility of the sentencing judge"; 2) OCDP "is protected from any damages judgment by a quasi-judicial absolute immunity"; and 3) requiring Warner to attend AA did not violate the Establishment Clause.

Lower Court

The federal district court of Southern New York found that the 12 steps as stated "involved a substantial religious component" and that OCDP was responsible for Warner's attendance at AA. The religious component in AA was amplified by meetings that began with a religious invocation and always ended with a Christian prayer. The district court found that the program "placed a heavy emphasis on spirituality and prayer, in both conception and in practice."

Court's Analysis

OCDP's responsibility. The Court of Appeals wrote that in order to establish OCDP's liability, "Warner must first demonstrate that his injury resulted from a custom or policy of Orange County, as opposed to an isolated instance of conduct. The OCDP's recommendation that Warner be required to participate in A.A. therapy was unquestionably made pursuant to a general policy. This was one of six standard special conditions, set forth on a form captioned 'Additional Conditions of Probation Pertaining to Alcohol,' which OCDP routinely submitted to sentencing judges in alcohol cases." The general rule of tort (civil) responsibility is that actors "be held liable for 'those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties.'" Moreover, the court noted, a probation official is supposedly a neutral advisor on whose objective opinion the trial judge will usually rely, "particularly . . . when the recommendation deals with a provider of therapy since Judges are unlikely to possess particularized information about the relative characteristics and merits of different providers of therapy."

Warner's consent. "Warner following the advice of his attorney sampled A.A. sessions prior to sentence and made no objection to their religious content at the time of sentence . . . ." But "it was not clear that Warner was aware at the time that the religious content gave him any legal basis to object. . . . Furthermore, even if aware of his rights, he might well have been afraid to annoy the sentencing judge by objecting to the standard recommendation of the probation department. In short, for several reasons, it was entirely foreseeable at the time probation made its recommendation that Warner might not object. For the same reasons and others, Warner's conduct did not constitute consent." That Warner would foreseeably not object to his sentence is a novel approach to overcoming the defense that Warner's failure to object initially to a probationary recommendation constituted consent.

OCDP's immunity. The circuit court upheld OCDP's liability. "OCDP, when it formulated its policy of recommending A.A., was aware of the program's Twelve Steps and of their deeply religious character. Accordingly, there can be no question as to the reasonable foreseeability of the religious nature of the program OCDP was recommending for Warner. . . ." OCDP did not gain the immunity associated with prosecutors and court officers (such as judges) involved in the judicial process. Municipalities (including counties) do not enjoy immunity from suits.

AA and the Establishment Clause. "The Supreme Court has repeatedly made clear that 'at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise. . .' Lee v. Weisman, 112 S. Ct. 2649, 2655 (1992) (quoting Lynch v. Donnelly, 465 U.S. 668, 678 (1984)). . . . The A.A. program to which Warner was exposed had a substantial religious component. Participants were told to pray to God for help in overcoming their affliction. Meetings opened and closed with group prayer. The trial judge reasonably found that it 'placed a heavy emphasis on spirituality and prayer, in both conception and in practice.' We have no doubt that the meetings Warner attended were intensely religious events. . . .

"There can be no doubt, furthermore, that Warner was coerced into participating in these religious exercises by virtue of his probation sentence. Neither the probation recommendation, nor the court's sentence, offered Warner any choice among therapy programs. The probation department's policy, its recommendation, and its printed form all directly recommended A.A. therapy to the sentencing judge, without suggesting that the probationer might have any option to select another therapy program, free of religious content. Once sentenced, Warner had little choice but to attend the A.A. sessions. If Warner had failed to attend A.A., he would have been subject to imprisonment for violation of probation. (references omitted) Had Warner been offered a reasonable choice of therapy providers, so that he was not compelled by the state's judicial power to enter a religious program, the considerations would be altogether different." (Griffin v. Coughlin cited without full citation in the original, see above.)

"Orange County argues that even if Warner was forced to attend the meetings, he was not required to participate in the religious exercises that took place. The County argues that, as a mature adult, Warner was less susceptible to such pressure than the children who were required to stand in respectful silence during a school prayer. . . . We do not find Orange County's argument convincing. Although it is true Warner was more mature, his exposure was more coercive than the school prayer in Lee. The plaintiff in Lee was subjected only to a brief two minutes of prayer on a single occasion. Warner, in contrast, was required to participate in a long-term program of group therapy that repeatedly turned to religion as the basis of motivation. . . . Warner was also paired with another member of A.A. as a method of enhancing his indoctrination into the group's approach to recovery from alcoholism. Most importantly, failure to cooperate could lead to incarceration. . . . [That] Warner managed to avoid indoctrination despite the pressure he faced does not make the County's program any less coercive, nor nullify the County's liability.

"The County argues further that the non-sectarian nature of the A.A. experience immunizes its use of religious symbolism and practices from Establishment Clause scrutiny. The argument is at the very least factually misleading, for the evidence showed that every meeting included at least one explicitly Christian prayer. Furthermore, the claim that non-sectarian religious exercise falls outside the First Amendment's scrutiny has been repeatedly rejected by the Supreme Court," notwithstanding the Supreme Court's acceptance of religious prayers to begin legislative sessions.

Judge R.K. Winter's dissent. "My dissent is based on two of the available grounds. First, Warner waived his claim . . . . Second, the invocation of the Establishment Clause, rather than the Free Exercise Clause, puts into play a principle that portends changes in our penal system that are not required, in my view, by the Constitution."

1) Consent. "This lawsuit is an instance of remarkable gall. Warner voluntarily selected and began attendance at A.A. meetings on the advice of counsel in order to impress the sentencing court with his determination to overcome his alcoholism. Now he complains that a subsequent recommendation of a probation officer that he attend such meetings entitles him to monetary damages." Instead, according to Judge Winter, this constitutes voluntary acceptance of the sentenced therapy and a waiver of any claims.

2) AA and the Establishment Clause. The dissent emphasized that OCDP's action violated the Free Exercise Clause rather than the Establishment Clause. To find the latter, Judge Winter opined, "would endanger any number of ubiquitous penal programs that are, in my view, clearly permissible," such as prison chaplains or sentences to community services (like soup kitchens) which may involve prayers. "None of the programs described above violate the Establishment Clause in my view" according to the three-part test in Lemon, because "each has a secular purpose in that they all further rehabilitation in one way or another. None have as a principal or primary effect the advancement or inhibition of religion. Any such effect is incidental. Finally, they do not lead to excessive entanglement of the government in religion," since prison religious programs are commonplace. "I . . . see no difference between the penal programs described above and Warner's sentence so far as the Establishment Clause in contrast to the Free Exercise Clause is concerned. . . . [Nonetheless] I do not view compulsory activity with a substantial religious component as a valid penal measure, at least where equally effective secular rehabilitative programs are available . . . . [but rather] [c]ompulsory attendance at religious ceremonies as part of a penal sentence surely raises serious issues under the Free Exercise Clause and might well require the provision of a choice between secular and sectarian programs. . . . This is a decision with important ramifications. . . . At a practical level, my colleagues' decision exposes every probation authority in this circuit to suits for damages and attorney's fees in virtually every case in which a recommendation of attendance at A.A. meetings has been made and accepted within the statute of limitations period, if no available alternative was offered and such recommendations were commonly made."

Rehearing of Appeal

After the original Second Circuit decision in 1996, U.S. Senator Orrin Hatch of Utah called the ruling one of the worst instances of "judicial activism" by Clinton judicial appointees. In May 1997, the original appeals panel amended its opinion. 115 F.3d 1068 (2nd Cir. 1997). It continued to uphold the original trial ruling, but also vacated that opinion to remand the case for additional fact-finding in regards to the issue of waiver (did Warner's failure to raise the issue of AA attendance at his original probation hearing waive his right to do so later?). In June 1997, the original trial judge ruled that Warner's failure to object to the imposition of AA attendance did not comprise a waiver. 968 F.Supp. 917 (S.D. NY 1997). In April 1999, the same 2-1 majority on the Second Circuit appeals panel that did so originally upheld this ruling, but reiterated the award of nominal damages on the grounds that they did not want to penalize a public agency that was trying to "require an alcoholic to deal with his addiction." 173 F.3d 120 (2nd Cir. 1999).

Following the initial decision, the attorney for New York's Orange County, Richard B. Golden, noted, "There are alternatives out there. Do the probation officials think they are satisfactory? Absolutely not." For Golden, the issue is one of national importance. "Throughout New York state and, I believe, throughout the country, it is a standard condition that probationers in DWI cases attend AA. There is no other suitable alternative that comes anywhere close to the effectiveness of AA" (Murray, 1996).

Orange County applied for certiorari that is, appealed to the U.S. Supreme Court on June 30, 1999. In November 1999, the Supreme Court denied certiorari.

Evans v. Tennessee Board of Paroles (1997)

The Supreme Court of Tennessee, responding to petitions from two inmates regarding their failed parole hearings, found unanimously that the trial court erred in dismissing one of the inmates' Anthony Evans' claim for injunctive relief as to the Board's requirement that he participate in Alcoholics Anonymous. The court remanded the case to the trial court to determine whether AA was religious in nature, while citing case evidence that this was indeed the case.


Two Tennessee inmates claimed that the parole board, in rejecting parole for each, had not conducted open hearings as required by law, while claiming that one (Arnold) was illegitimately required to continue in a sex offender treatment program and the other (Evans) in AA. The court rejected both inmates' claims that their parole decisions required a public hearing. Also, noting that parole was a privilege and not a right, the court denied Arnold's claim that he not be required to continue in the sex offenders' program. But the court held that the trial court erred in dismissing Evans' claim for injunctive relief against the Board's requirement that he continue to participate in AA.

Evans contended that AA was a religious program and that the Board of Paroles' requirement that he continue in the program violated the Establishment Clause. Evans noted that the Tennessee Department of Correction administered a single alcohol program centered around AA's 12 steps. Evans cited the emphasis in the 12 steps on reliance on a higher power in the third edition of AA's basic text, its Big Book which he claimed "is used as an all-purpose guide for anyone having difficulty in working the twelve (12) steps." He furthermore pointed to the group prayers at the meetings, which started with the nondenominational Serenity Prayer and closed with the Christian Lord's Prayer.

Lower Courts

The trial court dismissed each petition for failure to state a claim upon which relief could be granted, and the Court of Appeals affirmed the trial court's judgment.

Court's Analysis

The Tennessee Supreme Court noted that, "While the Supreme Court has wrestled with questions of whether a certain policy or practice favors or establishes a religion, there is no debate that a government policy that requires participation in a religious activity violates the Establishment Clause:

[I]t [is] 'beyond dispute' that the Constitution guarantees that the government may not coerce anyone to support or participate in religion or its exercise. Individuals may disagree in a particular case over other issues, such as whether it is the state who acted, or whether coercion is present, or whether religion or something else is the aim of the coercion. But in general, a coercion-based claim indisputably raises an Establishment Clause question. Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996) (quoting Lee v. Weisman, 505 U.S. at 587, 112 S.Ct. at 2655)."

While not granting Evans parole, the court found his request that the Board of Paroles omit consideration of his continued participation in AA in future decisions was a potentially meritorious claim which the trial court had erred in failing to consider. "If, on remand, the trial court finds that the treatment program at issue is a religious one and that there are no alternative secular treatment programs offered, then to require a prisoner to attend or participate in such a treatment program would constitute a violation of the Establishment Clause. Attending or failing to attend such religious meetings can not be considered in a decision whether to grant or deny parole."


In the highest courts at which the issue has been decided, 12-step treatment programs and groups, including AA, NA, et al., have been determined to be religious activities that the state cannot legally compel individuals to attend. These decisions are based on the First Amendment of the Constitution, and in particular its Establishment Clause barring the state from supporting, and especially from compelling, religious activities. Compulsion in this instance means merely the provision of desired benefits for attending, or the infliction of real penalties for not attending, 12-step groups or treatment. In general, the courts have decided that simply offering a non- religious alternative to 12-step programs removes the onus from offering such programs. Notwithstanding this unanimity, the issue remains unsettled in the sense that the U.S. Supreme Court has not ruled on this issue and has specifically declined to do so by failing to take up the opportunity to review appeals of two of these decisions (Griffin v. Coughlin and Warner v. OCDP).

More fundamentally, even in states and jurisdictions even in the very institutions covered by these decisions, authorities seem reluctant to accept them and to cease forcing individuals (namely probationers and prison inmates) into 12-step groups and treatment programs. So, it's quite hard for inmates and others involved in the penal system to rely on these rulings for protection. Even though inmates are among those with the time to attempt such cases, suing for a remedy for forced participation in a 12-step group is an arduous and time-consuming procedure. Prison inmates must first exhaust so- called administrative remedies that is, they must first appeal to the institution and corrections system before resorting to the courts (although they can ask for a restraining order or other injunctive relief). In many instances, inmates will be released from prison before a timely court decision can be obtained. At the same time, there is little direct precedent for resisting 12-step program assignments by private employers.

How, then, is one to use the precedents reviewed in this chapter? For the most part, an individual concerned about these issues either due to direct involvement or out of a concern for reform will usually be better off trying to approach those in charge, or those with legal responsibilities in the system, with the information in this chapter and book. In many cases, making responsible individuals aware of what the law has to say about the need to provide people with alternatives to 12-step groups rather than to coerce them to attend such groups as well as making them aware of practical alternatives for meeting legal requirements should stimulate a willingness to explore change. The alternative, to attempt legally to compel such change, is a last resort.

For example, the author has assisted Rich Dowling, of SMART Recovery, in presenting information about AA alternatives to prison officials in New Jersey and instituting SMART Recovery groups and other treatment alternatives in a number of penal institutions in the state. We have found that most reasonable prison officials and others in the penal system respond to the simple logic that different people respond to different kinds of programs. They see the appeal of the idea that a person's "buying into" a treatment program is critical to their succeeding at it. Providing additional options, when properly presented, simply seems like good business.

n requesting changes to broaden alternatives, remember that you need only point out the legal rulings. If the case concerns you, you can say that the religious element in AA and like programs that is, asking God or a higher power to assist your sobriety violates your beliefs or convictions. It is better not to detail your religious beliefs and, actually, it is a violation of your privacy to be asked to do so. Whether you are Jewish, atheist, agnostic, or Buddhist is your privilege and is not to be questioned. The requirement that your request be honored, strictly speaking, is limited to state agencies, including penal and court agencies, but also government employers such as the military and other federal agencies (e.g., the Federal Aviation Administration).

Even so, those who stand in for the government including those who report compliance with 12-step attendance requirements to the state, or arguably state medical licensing authorities are likewise obligated to observe these court rulings. "Whenever a state, formally or informally, delegates to private persons functions that have traditionally been the exclusive prerogatives of the state, those persons become state actors for the limited purpose of performing these functions." Granberg v. Ashland County, 590 F.Supp. 1005, 1008 (W.D. Wisc. 1984), citing Terry v. Adams, 345 U.S. 461 (1953). Thus, you can argue to a state medical board that it is obligated to follow court rulings applicable to government agencies since, on behalf of the state, it is licensing people to practice medicine.

If any agency refuses to honor your request, ask for its decision in writing. Alternately, or in addition, ask for the exact regulation compelling you to attend a 12-step group. You might say, "If I am obligated to attend one type of meeting, please show me where this requirement is described." At the same time, keep notes identifying your requests, responses to them, and the dates and persons involved perhaps their exact words in these rejections. Likewise, note the religious and other elements you find offensive in these programs. Also note penalties or sanctions you experience due to your questioning of the offensive elements. If you should be forced to take legal action, such information can be critically helpful.

In granting qualified immunity to prison officials, the court in Kerr v. Farrey ruled that the officials could not reasonably have known of recent decisions indicating that their conduct in compelling people to attend 12-step programs was illegal. This is obviously less true today and cannot be true if the complainant has presented an official or his or her representative with notice of these decisions (as provided, for example, by this book).

You may also reach out to people and groups concerned about these matters, including Rational Recovery and SMART Recovery representatives, for advice about alternatives and how to make use of them. Hiring a lawyer is an expensive proposition. You may seek the assistance of the American Civil Liberties Union (ACLU) or other concerned civil rights attorneys. (When approaching the ACLU, it might be helpful to remind them of the four appeal-level court decisions ruling that coerced 12-step attendance is a violation of the Establishment Clause.) If a civil rights violation can be established, there are provisions in the federal law for payment to be made to attorneys who represent plaintiffs in such cases.

For many civil libertarians (including, one would hope, those who comprise the ACLU), the decisions reviewed in this chapter, although hard won, are fairly pale guarantees of individual rights. For example, as the dissent in Warner indicated, why should the state be supporting AA and similar programs, with their religious premises, at all? In this view, providing an alternative nonreligious program would still not rescue the corrections department or related agency from a violation of the Establishment Clause.

Alternately, one could argue, why is it the state's business to sentence people to treatment of any kind? Of course, the penal system has the upper hand in that such sentencing is in lieu of imprisonment or other criminal sanctions which people prefer to avoid. In this case (as has occurred in at least some lower courts), individuals could be asked to design their own plan to avoid drugs, alcohol, or intoxicated misbehavior. Just as a probationer or parolee can be reimprisoned for failure to attend AA, the individual could then be held accountable for his or her own relapse prevention program.

Above all, keep in mind that the state does not have the right to tamper with your inner beliefs and feelings about yourself in relation to the universe. At least up to the present, this has remained the province of the individual, the family, and the church.