Choice In Recovery and The First Amendment
Claire J. Saenz, Esq., SMART Recovery Board of Directors
At SMART Recovery, we believe that there is no right or wrong path to recovery, and that individuals seeking recovery have the highest chance of success when they have the opportunity to choose the pathway (or combination of pathways) that best suits them.
Therefore, it is a secondary mission of SMART Recovery to support choice in recovery, and we are devoted to getting the word out about the variety of recovery options that exist today. As part of that mission, we want individuals in the judicial system and other government systems to be informed not only about the existence of a variety of recovery paths, but of their legal obligation to offer options to those they serve.
One important and ongoing development in this area is the growing number of courts which have declared that mandated attendance at 12 step programs (such as Alcoholics Anonymous (AA) and Narcotics Anonymous (NA), without providing the option of a non-faith-based alternative, violates the First Amendment of the U.S. Constitution.
The First Amendment is part of the Bill of Rights, and 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 is sometimes referred to as the doctrine of separation of church and state.
The Establishment Clause has been interpreted by the U.S. Supreme Court to mean that governmental bodies cannot establish a religion, prefer one religion over another, prefer religion over non-religion or prefer non-religion over religion. The second part of the statement is called the “Free Exercise Clause” and is sometimes referred to as the doctrine of freedom of religion. The Free Exercise Clause protects the individual’s right to freedom of conscience and free expression of religious beliefs.
Over the last 15 years, a number of appellate courts at the state and federal level have considered cases in which correctional departments and institutions, drug courts, probation officers and other state actors have required attendance at 12 step meetings. In these cases, failure to comply with such mandatory attendance carried serious penalties such as being sent or returned to prison, loss of parole opportunities, and loss of prison privileges such as family visitation.
Although not every court in the land has heard such a case (and, to date, the Supreme Court has not spoken on the issue), courts which have considered the constitutionality of mandated 12 step attendance have almost universally declared the practice unconstitutional, particularly where no non-faith-based option has been made available. Most cases are decided under the Establishment Clause, but a few have been brought under the Free Exercise Clause. In general, although the courts have not declared 12 step programs to be formal religions, they have recognized that the programs are based on belief in a Higher Power, involve prayer, and contain sufficient religious components for mandatory attendance to give rise to a First Amendment violation.
In our efforts to make SMART Recovery available to individuals involved in the criminal justice system, we discovered that a significant number of justice system personnel, from judges to prison administrators to probation officers, were unaware of the constitutional issues involved in mandatory 12 step attendance without choice. This was particularly troubling to us since at least one federal appellate jurisdiction—the 9th Circuit, by far the largest of the 13 federal courts of appeal, comprising the states of Alaska, Arizona, California, Guam, Hawaii, Idaho, the Northern Mariana Islands, Montana, Nevada, Oregon and Washington, has declared the law on the matter so well established that parole officers should be aware of it and can be sued for monetary damages for ignoring it.
Therefore, in an effort to provide a resource for criminal justice personnel, individuals involved in the criminal justice system, and other interested parties, we have put together a list of a number of First Amendment/12 Step cases, including a brief synopsis of each and, where available, a link to a copy of the court decision. The list is available on the SMART Recovery website and will be updated on an ongoing basis. The list does not constitute legal advice, but we hope it will serve as a convenient resource for those interested in this issue.
This article first appeared in the 2012 Winter Edition of SMART Recovery News & Views.