CONSTITUTIONAL LAW - ESTABLISHMENT CLAUSE - ALCOHOLICS ANONYMOUS

AN INMATE'S EXPANDED VISITATION PRIVILEGES MAY NOT BE CONDITIONED UPON HIS MANDATORY PARTICIPATION IN A SUBSTANCE ABUSE REHABILITATION PROGRAM THAT IS BASED ON THE RELIGIOUS-ORIENTED PRACTICES OF ALCOHOLICS ANONYMOUS.

SUMMARY

Petitioner then brought a N.Y. Civ. Prac. L. & R. 78 (McKinney 1995) proceeding to annul the prison officials' determination and to remove participation in the ASAT program as the contingency for his participation in the Family Reunion Program. The Supreme Court dismissed Petitioner's complaint without holding a hearing to develop a factual record. In affirming the Supreme Court's decision, the Appellate Division noted that the A.A. portions of the ASAT Program do not "demand" any particular religious belief, but only require a level of "spirituality" and "open-mindedness." Griffin v. Coughlin, 211 A.D.2d 187, 190 (N.Y. App. Div. 1995). Thus, the Appellate Division determined that the Establishment Clause was not violated where the ASAT Program lacked an actual sectarian practice.

ISSUE & DISPOSITION

Issue

Disposition

AUTHORITIES CITED

Cases Cited by the Court

Other Sources Cited by the Court

Lawrence Tribe, American Constitutional Law (1988).

John Witte, Jr., The Essential Rights and Liberties of Religion in the American Constitutional Experiment, 71 Notre Dame L. Rev. 372 (1996).

4 Ronald D. Rotunda, John E. Nowak & J. Nelson Young, Treatise on Constitutional Law: Substance and Procedure § 21.3 (1992).

Cases Relied on by the Dissent

County of Allegheny v. American Civil Liberties Union (Greater Pittsburgh Chapter), 492 U.S. 573 (1989).

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).

Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973).

Wisconsin v. Yoder, 406 U.S. 205 (1972).

Walz v. Tax Comm'n of New York, 397 U.S. 664 (1970).

Zorach v. Clauson, 343 U.S. 306 (1952).

Price v. Johnston, 334 U.S. 266 (1948).

Boyd v. Coughlin, 914 F. Supp. 828 (N.D.N.Y. 1996).

New York State Sch. Bds. Ass'n v. Sobol, 79 N.Y.2d 333 (1992).

Matter of Doe v. Coughlin, 71 N.Y.2d 501 (1987).

Other Sources Cited by the Dissent

Stephen L. Carter, The Resurrection of Relgious Freedom?, 107 Harv. L. Rev. 118 (1993).

Frederick Mark Gedicks, Public Life and Hostility to Religion, 78 Va. L. Rev. 671 (1992).

Mary Ann Glendon, Law, Communities, and the Religious Freedom Language of the Constitution, 60 Geo. Wash. L. Rev. 672 (1992).

N.Y. Comp. Codes R. & Regs. tit. 7 § 220.1 (1995).

N.Y. Comp. Codes R. & Regs. tit. 7 § 220.2(a) & (b) (1995).

N.Y. Comp. Codes R. & Regs. tit. 7 § 220.2(3)(ii) (1995).

N.Y. Comp. Codes R. & Regs. tit. 7 § 220.8 (1995).

COMMENTARY

State of the Law Before Griffin v. Coughlin

Under the Lemon test, the Court first evaluates the secular purpose of the statute to determine whether the statute violates the neutrality principles of the Establishment Clause . Second, the Court determines whether the primary effect of the statute is to advance or promote religion. A statute promotes religion if it conveys a symbol of endorsement. Grand Rapids Sch. Dist. v. Ball , 473 U.S. 373, 389 (1984). The test is whether there is " a symbolic union of church and state . . . likely to be perceived by adherents of the controlling denominations as an endorsement, and by non-adherents as a disapproval, of their individual religious choices. . . ." Id. at 390. The Court uses context to determine "whether particular governmental action is likely to be perceived as an endorsement of religion . . . ." Id. For example, governmental actions that favor, prefer, or promote religion have been found to be endorsements of religion. Id. Finally, the court will determine whether the statute "fosters an excessive government entanglement with religion." Lemon at 613.

Effect of Griffin v. Coughlinon Current Law

In defense of the ASAT Program, the correctional department argued that references to God actually mean some higher power as the individual may understand such a higher power and not as the concept would be known by any particular organized religion. Thus, individuals would be free to consider God as some abstract higher power within themselves rather than as a being whom individuals are required to believe in, give thanks to, worship, or praise. Indeed, ASAT's Twelve Steps repeatedly state, "God as we [the participants] understand Him." 1996 N.Y. Int. 137 at para. 8.

Although the Court recognizes that the ASAT Program does not appear to have any intent to impose a particular set of religious beliefs or a particular concept of God upon participants, the Court rejects this lack of intent as enough to satisfy the Establishment Clause . Terms such as "God" and "prayer" are so imbued with religious meaning that they undeniably favor a religious interpretation regardless of the fact that the ASAT Program allows for a secular interpretation of its doctrines and practices.

The Court failed to find the ASAT Program unconstitutional on the basis of its doctrines and practices. Instead, the Court holds that the conditioning of special privileges upon participation in such a program is unconstitutional. Consequently, the Court advances two approaches State correctional authorities could adopt. First, the State could continue the current ASAT Program if it is conducted on a voluntary basis. Second, the State could condition special privileges on mandatory participation in the ASAT Program provided it offered a secular alternative to the religious components. In either situation, the State would maintain the neutrality required by the Establishment Clause.

Dissent

Applying the tripartite Constitutional test for Establishment Clause violations set forth in Lemon v. Kurtzman, 403 U.S. 602, 612 (1971), the dissent discusses several reasons why the ASAT program does not breach Constitutional boundaries.

First, the dissent emphasizes that the principle or primary effect of the A.A. program neither advances nor inhibits religion. The dissent emphatically declares that the limited religious content of the A.A. literature should not be considered a violation of the Establishment Clause . "Focusing exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause." Lynch v. Donnelly, 465 U.S. 668, 680 (1984). The dissent concludes that the perceived religious aspects of the A.A. Twelve Step program that were transmuted into ASAT are "indirect, remote and incidental." 1996 N.Y. Int. 137 dissent at para. 8.

Second, in direct contrast to the majority, the dissent determines that there are no compulsory religious commandments or tenants embodied in the A.A. literature. Furthermore, the dissent notes that the literature used by A.A."[s]ubstantially, if not overwhelmingly, suggest[s] secular and spiritual guideposts" which A.A. members may follow. Id.. dissent at para. 7.

Unlike the majority, the Dissent does not give literal meaning to the deistic language contained in the Twelve Steps. For example, in analyzing Step Three of the Twelve Steps, the dissent found language like "explore the concepts and barriers in accepting a power beyond self," "exploration of self-centeredness," "barriers to faith," and "prayer and meditation" to be nothing more than "suggested discussion topics". Id. dissent at para. 30. The Dissent does not find references made to "contact with God" and "prayer and meditation" indicative of religious proselytizing. Instead, the dissent, determines that Step Eleven is mainly about the "goals" of "assisting in understanding the relationship between disease and its effects on the next generation" and "viewing parenting in terms of recovery behavior," finds those religious references to be meaningless. Id. dissent at para. 31. The Dissent similarly reasons that Step Twelve's reference to "spiritual awakening" has "no formalized religious significance or content." Quoting Step Twelve, the dissent concludes that the goal of Step Twelve is the "personal exploration of the feelings related to leaving treatment (and prison)." Id. dissent at para. 31.

Third, the dissent strongly disagrees with the majority over the coercive aspect of the ASAT program and does not believe that coercion alone "could transform the incidents of religion found in the ASAT program into an Establishment Clause violation." Granting the petitioner relief, they argued, would be tantamount to allowing Petitioner to tailor the ASAT curriculum to his particular non-religious preferences. The dissent believes Petitioner was ineligible for relief because he voluntarily chose to participate in the ASAT program. Id. dissent at para. 41. They further argue that the prison officials' wide discretion as to who would be permitted to participate in the program militated against granting relief because inmates had no guarantee that they would be afforded visits. Id. dissent at para. 42.

Finally, the dissent rejects the idea that the ASAT program is similar to those school programs requiring students to pray. Id. dissent at para. 47. The dissent notes that the petitioner was not required, urged or asked by ASAT program officials to pray. Id. dissent at para. 47. The dissent believes the facts in petitioner's case were more analogous to Zorach v. Clauson, 1996 N.Y. Int. 137 dissent at para. 48 (citing 343 U.S. 306 (1965) (upholding New York's released time program allowing students to attend religious instruction)). The dissent believes that the Supreme Court drew a distinction between imposing religion on children and offering religion as a choice open to adults. Id. dissent at para. 50.

Unanswered Questions

A related and perhaps more important question is whether attendance at a voluntary program (if it has analagous aspects and is the only program offered) may be considered in parole decisions. It would seem that in light of the courts decision such considerations would necessarily limit the rights of individuals who did not wish to be subjected to the religious training contained in the A.A. program. Following the logic of this case, the Court would appear to have answered this question, ruling out the possibility of a voluntary program with no secular alternative. However, the Court holds that this is a viable alternative for the State. Therefore, this question remains open.

At various points in the decision the Court seems to state different standards to determine if a program is violative of the Establishment Clause . For instance, early in the opinion, the Court holds that the Establishment Clause is violated where "the program necessarily entails mandatory attendance at and participation in a curriculum which adopts in major part the religious oriented practices and precepts of Alcoholics Anonymous. . . ." 1996 N.Y. Int. 137 at para. 1. Later, the Court states that it is the "mandatory and exclusive incorporation of A.A. doctrine and practices" which are offensive under the Establishment Clause. Id. at para. 9. While in paragraph fifteen the court indicates that it is the requirements of a number of the steps of the Twelve Step process which are violative of the petitioners rights. Id. at para. 15. Still later, the Court notes that it is the complete failure to offer an alternative program which is in error. Id. at para. 22. Consequently, the question remains at what point do the practices of the A.A. program predominate creating an infringement under the Establishment Clause?

Survey of the Law in Other Jurisdictions

In Youle v. Edgar, the Illinois court held that conditioning the reinstatement of the plaintiff's driver's license on participation in A.A. or an ongoing support program is constitutional. 526 N.E.2d 894 (Ill. App. Ct. 1988). The court pointed out that the primary function of A.A. is to cope with alcoholism and that the plaintiff had the opportunity to attend an alternative program.

A number of federal courts have recently handed down decisions on situations very similar to Griffin's. In Kerr v. Farrey, the State of Wisconsin required the plaintiff to participate in Narcotics Anonymous (A.A.'s drug dependency counterpart) as part of his incarceration. No. 94-C-942, 1996 WL 482133 (7th Cir. Aug. 27, 1996). The Seventh Circuit found that the state had "impermissibly coerced inmates to participate in a religious program" and thus violated the Establishment Clause . Id. at 1. In Warner v. Orange County Dep't of Probation, the State of New York ordered the plaintiff to attend A.A. as a condition of his probation. No. 1760, 95-7055, 1996 WL 507172 (2nd Cir. Sept. 9, 1996). The Second Circuit found that there was "no doubt . . . that Warner was coerced into participating in these religious exercises by virtue of his probation sentence."Id. at 9. Both the Kerr and Warner courts noted that the Griffin court reached the same conclusion.

Several federal district courts have held that requiring participation in A.A. to be constitutional. In O'Connor v. California, the court held that requiring O'Connor to attend A.A. or another self-help group as a condition of his probation was constitutional. 855 F. Supp. 303 (C.D. Cal. 1994). However, the court noted that "[s]ignificant to [its] decision is that the individual has a choice over what program to attend." Id. at 308. O'Connor could have attended alternative programs, without religious overtones.

Boyd, cited by the Griffindissent, upheld the same requirement of attendance of Alcoholics Anonymous that was at issue in Griffin. Boyd, 914 F. Supp. 828 (N.D.N.Y. 1996). However, the Second Circuit's holding in Warner leaves Boyd with only questionable precedential value. The court in Stafford v. Harrison, found that an inmate's required participation in an A.A.-type program does not violate the Establishment Clause . 766 F. Supp. 1014 (D.Kan. 1991). However, the Warner court criticized Stafford as misapplying constitutional law.

The limited amount of case law on this issue indicates that the requirement of mandatory attendance at A.A. meetings as a condition of a criminal sentence or as a prison requirement is likely to be found unconstitutional. However, if A.A. is merely one option among several available, the courts are likely to find the program constitutional.

Further information on Twelve Step programs and Alcoholics Anonymous may be found at the Alcoholics AnonymousWWW site.

Further Information on Narcotics Anonymous may be found at the Narcotics Anonymous site on the WWW.

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