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Court Mandated Attendance

Court Cases and Mandated 12-Step Attendance

courts and required AACourt cases shown below are pertinent to mandated attendance at support group meetings and an overview of the reach and implications of those decisions for both the layperson and the legal professional.

In the United States, the practice of requiring those involved in the criminal justice system to attend 12 step meetings without the choice of a non-faith-based option stands at best on shaky constitutional ground and at worst can subject court and prison personnel to liability for money damages.

    — Claire J. Saenz, Esq., former SMART Recovery Board Member

First Amendment Cases

First Amendment Cases
Case Name & Citation
Link to Case (if available) Court/Jurisdiction Background of Case Holding
Hazle v. Crofoot, 727 F.3d 983 (9th Cir. 2013) Link Federal Court of Appeals, 9th Circuit In February, 2007, Plaintiff Barry A. Hazle, an atheist, was required by his parole officers to participate in a 12 step based drug rehabilitation program as a condition of his parole.   Hazle made it clear that he was an atheist, objected to participating in the 12 step rehab on religious grounds, and specifically requested a non-religious alternative. He was told that no non-12-step programs were available and that he had to participate in the 12 step rehab or be returned to jail.  He continued to object. Not only was his parole revoked, but he was fined by having another 100 days in jail added to his sentence.  Later in 2007, the Ninth Circuit Court of Appeals decided in another case (Inouye v. Kemna) that under “uncommonly well-settled” law, it is a violation of the First Amendment to the U.S. Constitution for a state to require someone to participate in a religion-based drug or alcohol treatment program as a condition of parole.
Hazle sued California state officials, his parole officer, and a private company named Westcare, which contracted with the California Department of Corrections and Rehabilitations to provide drug treatment programs for parolees with drug-related convictions.  Westcare had a practice of referring parolees only to 12-step programs, and Westcare was apparently the only parolee drug treatment provider with which the state contracted in the relevant part of California.
When Hazle’s case went to trial, the district court judge ruled that, as a matter of law, Hazle’s constitutional rights had indeed been violated by the revocation of his parole and his resulting imprisonment for 100 additional days.  The judge instructed the jury that Hazle’s rights had been violated and that the jury’s job was simply to determine the amount of damages to which Hazle was entitled.  The jury returned with a verdict of no damages for the violation of Hazle’s constitutional rights.
On appeal, the Ninth Circuit ruled that, as a matter of law, the jury was required to award Hazle monetary damages to compensate him for the violation of his constitutional rights and wrongful imprisonment.  Hazle was awarded a new trial to determine the amount of damages, including the possibility of punitive damages.
Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015 (9th Cir. 2010) Link Federal Court of Appeals, 9th Circuit Although not a First Amendment case, this 9th Circuit case is nonetheless of interest.  Here, Pirtle had been jailed following a conviction of 2nd degree murder in 1980.  He had, while intoxicated, killed his wife, who had been unfaithful and with whom he had a turbulent relationship.  The parole board denied parole several times, and in 2002 Pirtle filed a habeas corpus action claiming violation of his due process rights.  In denying parole, the parole board considered extremely important the fact that Pirtle, an atheist, was not attending A.A. meetings because he did not believe in a higher power and therefore, according to him, could not do the steps.  Therefore, despite his 22 year record of continuous abstinence from alcohol, the board deemed Pirtle’s lack of “lifelong commitment to a substance abuse program” extremely troubling and therefore based its denial on a finding that “Pirtle had an unstable social history based principally on alcohol.” In affirming the District Court’s grant of habeas corpus, the Circuit Court noted Pirtle’s long-term abstinence and his insight and awareness of the need for continued abstinence.  It noted Pirtle’s willingness to attend secular substance abuse programs, but that since none were available to him, his failure to attend them could not serve as a basis for denying parole.  Further, the Court observed in a footnote that “although the issue is not before us, it would likely violate Pirtle’s First Amendment rights to require him to attend AA as a condition of parole. See Inouye v. Kemna, 504 F.3d 705, 712-715 (9th Cir. 2007).”
Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007) Link Federal Court of Appeals, 9th Circuit Parolee Inouye, a Buddhist, was required by parole officer Nanomori to attend A.A./N.A. meetings as a condition of parole, despite his objections to the religious content of the meetings. Inouye was not given a choice of alternative programs. Inouye brought suit claiming that this action violated the Establishment Clause.  The District Court granted summary judgment in favor of Nanomori, holding that although Nanomori had violated Inouye’s First Amendment rights, he had qualified immunity from suit. The 9th Circuit reversed and remanded, holding that it is established law that A.A. is religious in nature and that participation in the program cannot be coerced where a parolee objects to its religious content.  Because the law on this point was clearly established, a reasonable parole officer should have known that such coercion was illegal; accordingly qualified immunity was not available. On remand, Inouye argued that punitive damages against Nanomori were warranted, and this argument withheld summary judgment.  See Inouye v. Kemna, CIVIL NO 04-00026 (DC Hawaii 2009).
Munson v. Norris, 435 F.3d 877 (8th Cir. 2006) Link Federal Court of Appeals, 8th Circuit Plaintiff Munson was granted parole in June of 2000 with the condition that he complete a specific one-year sex offenders’ class, the Reduction of Sexual Victimization Program (RSVP), because he had been convicted of a sex crime. He began the class in January of 2001, but was removed from it in September of 2001.  Following his removal, he filed a lawsuit claiming, among other constitutional violations, that his First Amendment rights had been violated when he was required to recite the “Serenity Prayer”, a requirement allegedly approved by various correctional officials and authorities in the program. He further claimed that the refusal to alter the requirements of his parole violated his right to due process. The district court dismissed all of his claims as frivolous. During an evidentiary hearing, only the plaintiff testified, stating that he disliked being required to recite the “Serenity Prayer” during the program’s afternoon meetings, as he did not wish to use the word “God” during the day and preferred to pray only in the evening. He was allegedly told that if he did not say the prayer, he would be expelled from the program. When he skipped the prayer, he was allegedly placed on extra work detail, and dismissed from the program. On a second appeal, the 8th Circuit found that the trial court, by deciding whether the plaintiff’s preference to say “God” only at night was a “serious belief,” wrongly analyzed the claim under the Free Exercise of Religion Clause of the First Amendment rather than the Establishment Clause. The Free Exercise clause protects the right to practice one’s religion, while the Establishment Clause prohibits government from coercing anyone to participate in religion or its exercise. The issue of whether a challenged governmental action infringes upon a sincerely held religious belief is only an issue in a Free Exercise clause claim.  The court ordered further proceedings, therefore, to decide whether requiring the plaintiff at the RSVP meetings to recite the prayer was in violation of the Establishment Clause of the First Amendment.
Freedom From Religion Foundation, Inc. v. McCallum, 324 F.3d 880 (7th Cir.2003) Link Federal Court of Appeals, 7th Circuit A taxpayer group sought to enjoin Milwaukee Wisconsin authorities from funding a halfway house that incorporated Christianity (including programs similar to A.A.) into its treatment program, alleging that such funding constituted establishment of religion. Following a bench trial, the District Court entered judgment in favor of the state officials. The taxpayers appealed. The Circuit Court affirmed, finding that the funding did not violate the Establishment Clause because offenders were free to choose between the halfway house and secular programs, there was no evidence that parole officers were influenced by their own religious beliefs in recommending the halfway house or other programs to offenders, and all the other programs with which the state contracted were secular.
Joseph Destefano v. Emergency Housing Group Inc., 247 F. 3d 397 (2d Cir. 2001) Link Federal Court of Appeals, 2nd Circuit DeStefano, the Mayor of Middletown, NY,  acting as an individual New York State taxpayer, filed suit alleging that the State’s act of approving funding for the Middletown Alcohol Crisis Center (“MACC”) and the manner in which such funds were expended by the program violated the First Amendment’s Establishment Clause.  MACC did NOT coerce A.A. attendance; however, DeStefano argued that (i) the inclusion of A.A. in MACC, (ii) staff encouragement of A.A. attendance, and (iii) staff’s direct participation in the inculcation of MACC attendees into A.A. all violated the Establishment Clause.  The District Court disagreed and granted the defendant’s motion for summary judgment. The 2nd Circuit, using the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), as modified by Agostini v. Felton, 521 U.S. 203 (1997) held that an Establishment Clause violation can exist even where there is no coercion.  While it passed constitutional muster for the state to fund the A.A. based program, and for program employees to encourage program participants to attend A.A., direct involvement by staff in A.A. activities violated the Establishment Clause.
Warner v. Orange County Dept. of Probation, 115 F.3d 1068 (2nd Cir.1997), affirmed, Warner v. Orange County Dept. of Probation, 173 F.3d 20 (2nd Cir.1999), cert. denied sub nom. Orange County
Dept. of Probation v. Warner, 528 U.S. 1003 (1999)
Link Federal Court of Appeals, 2nd Circuit Warner was convicted of 3 DUI offenses over slightly more than a year’s time.  As a condition of his 3-year probation sentence, he was required to attend AA at the direction of his probation officer. The sentencing judge did not offer any alternative rehabilitation programs to Warner, instead following the recommendation of the probation department which specifically recommended AA to the court for DUI cases. Warner, an atheist, filed suit for injunctive relief and compensatory damages under 42 U.S.C. § 1983, claiming that mandatory participation in AA as a probationary condition violated the Establishment Clause.  The district court agreed, relying primarily on the Lee v. Weisman coercion test (“government may not coerce anyone to participate in religion or its exercise.” Lee v. Weisman, 505 U.S. 577, 587 (1992)) and holding that because Warner was faced with incarceration if he did not participate in AA, the probation department’s requirement was a coercive measure and violated the Establishment Clause. The 2nd Circuit affirmed the district court’s finding that Warner’s probationary condition constituted forced participation in a religious activity, stating that it had “no doubt” that the AA meetings Warner attended were “intensely religious events.” Applying the Lee v. Weisman coercion test to Warner’s claim, the court found state coercion, noting that if Warner had failed to attend his AA meetings he would have violated his probation and been subject to incarceration.  The court further noted that Warner was not given the option to use another therapy program that did not have religious content, although it did not state that giving him such a choice would have prevented an Establishment Clause violation.  A dissenting judge, however, opined that Warner had forfeited his Establishment Clause claim by attending AA meetings for 2 years before bringing suit.   On remand, the district court considered the dissent’s argument, and determined that Warner’s failure to object to mandatory AA attendance as a condition of probation did not constitute a forfeiture of his right to bring a § 1983 action. The district court observed that Warner’s inaction may have been “decidedly influenced by the possibility that any objections or non-compliance could lead to a jail sentence or revocation of probation.” In addition, the court recognized that Warner’s failure to commence legal proceedings resulted from the slow realization that mandatory AA participation violated his constitutional rights.
Kerr v. Farrey, 95 F.3d 472 (7th Cir.1996) Link Federal Court of Appeals, 7th Circuit Kerr was incarcerated at the Oakhill Correctional Institution in Oregon, Wisconsin. Inmates at Oakhill with chemical dependence problems were required to attend meetings of N.A., the only drug-abuse program at the prison. Oakhill had a policy of classifying inmates as higher security risks if they failed to attend N.A. after being instructed to do so by prison officials. The elevation of an Oakhill inmate’s security risk rating had the potential to impact negatively on the inmate’s parole eligibility. Kerr objected to what he perceived as N.A.’s deterministic view of God and its association of a belief in God with successful recovery from addiction. Meetings that he attended began with a Christian prayer, and he was encouraged to read the N.A. book, similar in content to the A.A. Big Book. Kerr filed a civil rights action under § 1983, seeking an injunction to prevent prison administrators from compelling him and others to participate in N.A.; he also sought to have any negative references about his reluctance to attend N.A. meetings expunged from his prison records.  The District Court held that the N.A. program was constitutional and granted the prison’s motion for summary judgment. The 7th Circuit reversed, holding that Kerr’s First Amendment rights had been violated.  In so doing, the Court formulated a novel Establishment Clause analysis distilled from the line of Supreme Court cases decided around the principle that the “‘government may not coerce anyone to support or participate in religion or its exercise.'” When a plaintiff claims that the state is coercing him to subscribe to a religious belief or participate in a religious exercise, the Court regarded three points as crucial: “[F]first, has the state acted; second, does the action amount to coercion; and third, is the object of the coercion religious or secular?” The Court answered the first question in the affirmative, since prison officials required Kerr to attend the meetings. Turning to the second prong, the Court deemed this state action coercive as a result of the possible adverse consequences for Kerr’s parole if he did not attend. Lastly, the Court concluded that the object of this coercion — the Oakhill N.A. program — was decidedly religious. Through a “straightforward reading” of the Twelve Steps, the Court determined that Oakhill’s N.A. program is based on monotheistic principles. Thus,  the prison’s policy of compelling Kerr to attend N.A. meetings was unconstitutional.
Stallsworth v. Sisto, No. 2:07-cv-02466-JKS (E.D. Ca. 2011). Link Federal District Court for the Eastern District of California This federal habeas corpus (28 U.S.C. § 2254) action involved a prison inmate (Stallsworth) who claimed that the parole board insisted upon his becoming a “true adherent” to the tenets of A.A., and that this violated his right of religious freedom under the First Amendment. The District Court held in favor of the parole board, holding that the Inouye case did not control because Inouye was a § 1983 civil rights action while this was a § 2254 habeas case.  In a § 1983 civil rights case, the Court said, a federal court is not restricted to decisions of the Supreme Court, but may look to decisions of the Courts of Appeal. On the other hand, in a federal habeas proceeding the law must have been “clearly established” by the Supreme Court.  Since there are no Supreme Court cases on the issue of the constitutionality of mandated A.A., Inouye could not support Stallsworth’s claim.  The Court also held that even if Inouye did apply, the claim failed on its facts because Stallsworth had not terminated his prior participation in the A.A. program on religious grounds but rather because he was attending different programs.
DeLeon v. Hartley, No. 1:10-cv-02250-LJO-SKO-HC (E.D. Ca.2011); Rivera v. Hartley, No. 1:10-cv-01320-LJO-SMS-HC (E.D. Ca. 2011); Williams v. Wong, No. CIV S-09-2933 KJM DAD P (E.D. Ca. 2011) Link Federal District Court for the Eastern District of California Series of habeas corpus cases involving parole denials in which prisoners claimed that their First Amendment rights were violated because their failure to attend A.A. meetings was taken into consideration in the parole denial decision. In each case, Magistrate Judges, while citing Inouye and noting the constitutional precedent involved, denied the habeas corpus petitions on various grounds, including the fact that the prisoner had ceased A.A. attendance on non-religious grounds; that the prisoner had not been required to attend A.A. specifically but merely an unspecified self-help program; and that the prisoner had been involved in A.A. for a long period of time without objections.
Thorne v. Hale,  No. 1:08 cv601
(JCC) (E.D. Va. 2009)
Link Federal District Court for the Eastern District of Virginia Thorne entered into a plea agreement on a possession of a controlled substance charge. As part of the plea deal, he agreed to undergo treatment for drug and alcohol addiction. Pursuant to his plea, the Virginia court in which he pled guilty placed Thorne under the supervision of the Regional Jail/Drug Court, which required him to participate in A.A.and N.A. Had Thorne successfully completed the Regional Jail/Drug Court program, the state would have dropped the charge against him. Thorne did not successfully complete the program and was convicted of the drug offense. Thorne, acting pro se, brought suit against numerous parties on a variety of legal theories, including a § 1983 civil rights claim against the directors of the drug court.  The § 1983 action was a First Amendment Free Exercise allegation that the A.A. and N.A. programs were state-sponsored religions that contravened his religious beliefs. The defendant directors asked the Court to dismiss these claims. The District Court denied the drug court directors’ motions to dismiss the claims against them, noting that although Thorne’s pro se complaint was imperfectly drafted, the directors could indeed have “violated Thorne’s rights by forcing him into a constitutionally-impermissible treatment scheme. … the gist of Thorne’s allegations is that the policies … resulted in religious discrimination. Given Thorne’s status as a pro se litigant and the preliminary nature of the motion to dismiss, the Court finds that Thorne has adequately alleged constitutional violations” by the drug court directors.  The Court further found that the rights Thorne alleged were violated were clearly established at the time the violation occurred.  The Court cited Inyoye v. Kemna with approval, stating that “while no party cited binding Fourth Circuit precedent on this particular Establishment Clause issue, other courts that have analyzed the “clearly established” prong in similar cases have found that coercion into religious drug treatment programs violated “clearly established” constitutional law … the reasoning in Inouye and Hanas [a case involving a Pentecostal drug program] [is] persuasive on the issue of whether the right in question was “clearly established” at the time of the alleged violation. Too many courts have found similar allegations of forced compliance with religious addiction treatment programs constitutionally problematic for [a director] to claim that she was not on notice of a potential constitutional violation.”
Norton v. Kootenai County, No.
CV09-58-N-EJL (D.Idaho 2009)
Link Federal District Court for District of  Idaho Norton, the Plaintiff, was required to attend A.A. meetings as a condition of probation and sued the county probation department and the individual probation officers, arguing that his Establishment Clause rights were violated.  He further argued that the probation officers could not claim qualified immunity because reasonable probation officers would have known that the clearly established law in effect at the time constitutionally prohibited mandatory A.A. attendance.  The defendants argued that Norton was not “compelled” to attend the meetings, and further that he was judicially stopped from claiming that his constitutional rights were violated because he never told his probation officer that he was agonistic or that he had any objections to attending A.A. meetings.  Both parties moved for summary judgment and argued that the 9th Circuit’s decision in Inouye v. Kemna should apply. The District Court held in favor of the defendants on the basis that Norton had not notified his probation officer that he had religious-based objections to being ordered to attend A.A. meetings. In its opinion, the Court stated that: “Inouye is not as broad as Plaintiff argues and that notice of a First Amendment objection is required before a defendant is being “compelled.” Stated another way, Inouye does not stand for the proposition that a Court can never order a defendant to attend AA meetings as a term of their supervision. Rather, Inouye stands for the proposition that compelling a parolee or probationer to attend AA meetings when they have adequately set forth religious-based concerns is unconstitutional behavior.”
Armstrong v. Beauclair, 2007
WL 1381790 (slip op.) (D.Idaho Mar. 29, 2007)
Federal District Court for the District of Idaho Court lists supporting rulings dating back to 1996 and strikes down the imposition of an A.A./N.A. attendance requirement as parole condition.
Messere v. Dennehy, Civil Action No. 06-11158-PBS (D. Mass. 2007)   Federal District Court for the District of Massachusetts Plaintiff Messere was serving a life sentence for 2nd degree murder with parole eligibility.  He brought an action against the Commissioner of Corrections alleging that his constitutional rights were violated by a requirement that he attend 12 step programs, where his failure to do so would not only violate his own beliefs but result in an adverse parole classification precluding his transfer to a lower security facility.  The Defendant moved for summary judgment, arguing that the Plaintiff had not exhausted his administrative remedies because he had filed his grievance under the prison’s normal grievance procedure rather than submit it to the prison’s “Religious Review Committee”. Finding in favor of the Plaintiff, the Magistrate Judge noted that the form for submission to the Religious Review Committee was a request for permission to engage in specific religious practices and did not cover a situation where the prisoner was seeking not to engage in an activity due to religious beliefs.  She then went on to hold that: “Messere’s allegations to the effect that he has suffered adverse classification decisions as a result of his refusal to attend or participate in religiously-oriented programs in prison, was rendered ineligible for a transfer to a lower security prison as a result, and was also thereby hindered in his eligibility for parole, states a claim for relief.”
Turner v. Hickman, 342 F.Supp.2d 887 (E.D.Cal.2004) Link Federal District Court for the Eastern District of California Turner filed a § 1983 civil rights action claiming that corrections officials had established religion in violation of the First Amendment by demanding that he participate in a drug treatment program including NA to be eligible for consideration for parole. The court also reversed a ruling by the district court judge that Westcare was not liable for the violation of Hazle’s constitutional rights even though it referred parolees only to twelve-step programs.  When the case returns to the trial court, Hazle will have another opportunity to show that Westcare is jointly responsible, along with state officials, for the harm that Hazle suffered when he was wrongly imprisoned.
Nusbaum v. Terrangi, 210 F.Supp.2d 784 (E.D.Va.2002) Link Federal District Court for the Eastern District of Virginia Nusbaum was an inmate at the Indian Creek Correctional Center in Chesapeake, Virginia.  Although prison officials had revised the TCP following the decision of the District Court in Ross v. Keelings, attendance remained mandatory and failure to attend still resulted in the loss of “good time”. Nusbaum alleged that the program still contained religious content and continued to violate the First Amendment. The Court agreed with Nusbaum, finding that the TCP continued to violate the Establishment Clause.  The TCP continued to encourage participants to “turn their lives over to their ‘higher power'” and participants were required to view tapes presenting the view that the only viable definition of “higher power” was God.  Prison officials were still entitled to qualified immunity due to their efforts to comply with the Ross ruling; however, they were ordered to further modify the TCP to bring it into constitutional compliance.
The 8th Circuit upheld the dismissal of the due process claim, but ordered further proceedings to determine  whether, among other things, Munson had sufficiently alleged a First Amendment claim based on his required religious participation in the RSVP.  Munson v. Norris, 67 Fed. Appx. 383 (8th Cir. 2003) (unpublished per curiam). The Free Exercise clause protects the right to practice one’s religion, while the Establishment Clause prohibits government from coercing anyone to participate in religion or its exercise. The issue of whether a challenged governmental action infringes upon a sincerely held religious belief is only an issue in a Free Exercise clause claim.  The court ordered further proceedings, therefore, to decide whether requiring the plaintiff at the RSVP meetings to recite the prayer was in violation of the Establishment Clause of the First Amendment.
Bausch v. Sumiec, 139 F.Supp.2d 1029 (E.D.Wis. 2001) Link Federal District Court for the Eastern District of Wisconsin The Plaintiff, Bausch, was paroled from prison after serving two years for a drug offense.  While on parole, he abused drugs and alcohol, thus violating his parole conditions.  His parole officer advised him that as an alternative to parole revocation he could enter a 12 step based residential treatment program.  He was not told of any secular alternative.  Plaintiff agreed to participate in the 12 step based rehab even though he was an atheist and objected to the religious nature of the program, doing so because he believed this was the only way he could avoid having to return to prison.  Plaintiff brought a § 1983 civil rights action against the parole officer for violating his First Amendment rights.  He also sued the Secretary of the Wisconsin Dept. of Corrections for failing to timely implement the 7th Circuit’s decision in Kerr v. Farrey, which was binding precedent and declared mandatory 12 step attendance to be unconstitutional.  Defendants moved for summary judgment attempting to have the lawsuit dismissed.  Among other things, the Defendants argued that Bausch could have objected to the program he was ordered to attend, and would then have been given a secular alternative. It is interesting to note that in the “Background” section of the court’s opinion explaining the facts of the case, the court noted that the recovery center that Westcare subcontracted with “uses a 12-step recovery program, developed by Alcoholics Anonymous and Narcotics Anonymous, that includes references to ‘God’ and to a ‘higher power.’”  Explaining how the court would use the phrase “12-step program” in the rest of the court’s opinion, the court stated: “Hereinafter, a 12-step program will always refer to a religion-based treatment program.”
Alexander v. Schenk, 118 F.Supp.2d 298, 301-02 (N.D.N.Y.2000) Federal District Court for the Northern District of New York Alexander, an inmate at the Cayuga County Correctional Facility, had previously violated rules against the possession and use of drugs while incarcerated at another facility. Because of this violation, his counselor recommended that he join Cayuga’s Alcohol and Substance Abuse Treatment (ASAT) Program. Alexander disagreed with this recommendation, refused to sign the “ASAT Contract,” and never consented to enroll in the program. Nevertheless, he was moved into the ASAT dormitory and was enrolled in the program. During the course of the treatment, Alexander requested several times to leave the program. After a year in the program, he was issued a misbehavior report, charging him with violating prison regulations for sleeping through an ASAT group session. At the disciplinary hearing, Alexander argued that he was excused from participating in the group sessions because the religious nature of ASAT conflicted with his own religious beliefs. Despite this claim, the hearing officer found Alexander guilty of violating two regulations and ordered him to attend all future group sessions. In concluding that Alexander’s First Amendment rights were violated, the Court relied upon the Lee v. Weisman coercion test. Because Alexander objected to attending meetings, refused to sign the enrollment contract and took issue with the program’s religious aspects, yet was still ordered to return to the group sessions, the Court found that he was coerced to attend the ASAT in violation of the Establishment Clause of the First Amendment. The Court also dismissed the defendants’ argument that, pursuant to United States v. Seeger, 380 U.S. 163 (1965), an individual’s beliefs are not entitled to First Amendment protection unless they are “sincerely held.” The Court reasoned that if the protection applied only to sincerely held beliefs, the State could compel any person with loosely held religious beliefs to attend a religious function, “a precedent which this Court is loathe to adopt.”
Warburton v. Underwood, 2 F.Supp.2d 306, 318 (W.D.N.Y.1998) Link Federal District Court for the Western District of NY Warburton, an inmate at the Groveland Correctional Facility in Sonyea, NY (near Rochester) filed a pro se, in forma pauperis complaint alleging that prison officials violated his First Amendment rights by withholding a portion of his earned time allowance (“good time”) and conditioning the restoration of it on attendance of N.A. meetings.  No secular alternative was offered. The District Court found the reasoning of the Griffin and Warner courts persuasive, stating that: “The emphasis placed on God, spirituality and faith in a ‘higher power’ by twelve-step programs such as A.A. or N.A. clearly supports a determination that the underlying basis of these programs is religious and that participation in such programs constitutes a religious exercise. It is an inescapable conclusion that coerced attendance at such programs therefore violates the Establishment Clause.”  Accordingly, the Court found that Warburton had stated a claim on which relief could be granted, and further found that prison officials were not entitled to qualified immunity in this situation:  “This incident occurred in early 1998. At that time, the right to not be coerced to participate in a religious activity had been clearly described by the United States Supreme Court in the Lee and Lynch decisions, and the consequent right of an inmate not to be forced to participate in a program such a A.A. or N.A. without being offered a secular alternative had been clearly defined by the Second Circuit in Warner, the Southern District in Warner, and the New York State Court of Appeals in Griffin. Based on this, the reasonable defendant would have known that coerced participation in N.A. violates the Establishment Clause of the United States Constitution.”
Ross v. Keelings, 2 F.Supp.2d 810 (E.D. Va. 1998)   Federal District Court for the Eastern District of Virginia Ross was an inmate at the Indian Creek Correctional Center in Chesapeake, Virginia.  He was required to participate in a Therapeutic Community Program (“TCP”) including religious content.  Failure to attend this program would result in the loss of “good time” and the inability to earn “good time”. Requirement that prisoner attend a substance abuse program utilizing religion was a violation of the Establishment of Religion clause of the First Amendment; prison officials were entitled to qualified immunity, however, since unconstitutionality of such a program had not previously been clearly established.
Stafford v. Harrison, 766 F.Supp. 1014 (D.Kan.1991) Federal District Court for the District of Kansas One of the few cases finding that AA is not religious.  To support this finding, the Court relied on the fact that the “Higher Power is expressly left to the definition of the individual.”  Note that the Inouye court sharply criticizes this ruling:  “Of the cases that the district court felt could have caused a reasonable parole officer to be confused about the state of the law, this leaves only Stafford v. Harrison, 766 F.Supp. 1014 (D.Kan.1991). This case, a decade old in 2001, applied the Lemon test directly, did not consider the warnings against coercion dating back to Everson, and was decided using Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), deference because it regarded prisoners, not probationers. Stafford, 766 F.Supp. at 1016-17. This factually-distinct case, decided before Lee emphasized the dangers of coercion in the Establishment context, simply is not enough to render the state of the law in 2001 anything less than clear.”
Griffin v. Coughlin, 88 N.Y.2d 674, 649 N.Y.S.2d 903, 673 N.E.2d 98 (N.Y. 1996), cert. denied, 117 S. Ct. 681 (1997) Link NY Court of Appeals (NY State’s highest appellate court) Griffin, an atheist inmate in a state correctional facility in Ulster County, NY, was informed that his eligibility to participate in an expanded family visitation program was contingent on his attendance at the facility’s Alcohol and Substance Abuse Treatment Program (ASAT Program). This was the sole substance abuse program available at Griffin’s correctional facility. The curriculum of the ASAT Program drew many of its principles, including a significant amount of religious-oriented principles, from A.A.. Prior to participating in the ASAT Program, Petitioner had, for an extended period of time, declared himself to be an atheist or agnostic. After attending the ASAT Program for several months, Petitioner asked that he be excused from further ASAT meetings without jeopardizing his participation in the Family Reunion Program, stating that his forced participation in the program violated the Establishment Clause because it was based on religious principles. Prison officials denied Petitioner’s request. The Supreme Court (trial court) for Ulster County dismissed Griffin’s complaint and the Appellate Division (mid-level appellate court) affirmed, relying in large measure on A.A.’s stated policy that it does not promote a particular conception of God. The NY Court of Appeals reversed, finding that the ASAT Program incorporated the practices and precepts of A.A., that A.A. is a religion for constitutional purposes, and that the ASAT Program was unconstitutional under the endorsement of religion test. The Court next considered whether the prison coerced Griffin into participating in ASAT. The Court observed that no secular program was offered to atheists as a substitute for ASAT and that therefore, the state exercised coercive power when it conditioned Griffin’s eligibility for the family visitation program on his participation in the prison’s substance abuse program.
Arnold v. Tennessee Board of Paroles, 956 S.W.2d 478 (Tenn. 1997). Link Tennessee Supreme Court The Petitioner was denied parole and brought suit against the parole board on a number of theories.  Among these was an argument that the parole board’s requirement that he participate in A.A. was a violation of his rights under the Establishment Clause.   In addition to asking that the decision of the parole board be overturned, the Petitioner asked for injunctive relief so that future parole decisions did not consider an inmate’s participation or lack of participation in the A.A. program. Although the Court upheld the parole denial on other grounds, it held that the Petitioner’s request for injunctive relief was viable and remanded it for further consideration:  “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.”

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See Also

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You Can’t Make Me – Or Can You? Mandated AA Attendance and the Law by Anne M. Fletcher


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