Jendi B. Reiter*

New York Penal Law § 65.10(2)(a) authorizes courts to order offenders to participate in alcohol or substance abuse treatment programs as a condition of probation or parole. Quite recently, this seemingly uncontroversial requirement has been limited by successful Establishment Clause challenges to forced participation in Alcoholics Anonymous programs, which have significant religious content.(1) It has been suggested that providing offenders with a choice among various secular and religious rehabilitation programs would restore the state's constitutionally required neutrality between religion and nonreligion.(2) The cases that found fault with the AA requirement, however, have unwittingly created other difficulties that the "choice" solution does not address. The Establishment Clause is not the only constitutional provision protecting individual freedom of conscience. By treating state-ordered participation in AA as forced affirmance of a creed, these cases implicitly cast doubt on the state's power to require a probationer to participate in any program, secular or religious, with whose tenets he does not agree. This is a serious barrier to effective law enforcement, since obviously the state cannot ensure that there will be available programs to suit the ideological needs of each offender.

Establishment Clause Difficulties

Alcoholics Anonymous ("AA") is a worldwide organization with decades of proven effectiveness at helping alcoholics recover from their addiction. The AA program is centered around the "Twelve Steps," in which participants surrender control over their lives to a "Power greater than ourselves" and promise to reform through soul-searching, restitution to those they have hurt, and prayer to "God, as we understood Him." In all, six of the Steps require the participant to accept a non-denominational transcendent entity and ask for that entity's spiritual help. Moreover, the central text of AA, the "Big Book," contains hundreds of references to God and prayer. Group prayer is often a feature of AA meetings.(3)

The arguably religious (though non-sectarian) nature of AA has led to constitutional challenges when alcoholics convicted of crimes have been required to attend AA as a condition of parole or other privileges. Last year, in Griffin v. Coughlin,(4) the Court of Appeals held that an atheist prisoner could not be deprived of eligibility for expanded family visitation privileges on the basis of his refusal to participate in the prison's only rehabilitation program, where that program used many of AA's religiously-oriented principles and activities.(5) Last month, in Warner v. Orange County Dep't of Probation, the Southern District of New York held that the county could not order a convicted drunk driver to attend AA as a condition of probation.(6)

The courts in the above-mentioned cases were concerned that by offering a religious program like AA as the only option, government impermissibly favors religion over non-religion. under the Supreme Court's test in Lemon v. Kurtzman,(7) to survive an Establishment Clause challenge, the government's action must have a secular purpose, its primary effect must neither advance nor inhibit religion, and it must not foster excessive government entanglement with religion.(8) When the government steers people towards a religious rehabilitation program, it violates the principle of neutral primary effect. Moreover, by coercing offenders to attend AA meetings, government effectively forces them to profess religious beliefs that they did not choose.(9) The Supreme Court's school prayer cases show that this is also forbidden by the Establishment Clause.(10)

While this result is formally correct, the practical outcome defies common sense. Is it better to send a drunk driver to jail than to send him to one of the most effective and widely available rehabilitation programs? Many addicts are in denial and will not go unless coerced. Moreover, unless the addiction is treated, the offender will go on causing more damage to himself and others when released. If a strict approach to the Establishment Clause produces such bad social policies, perhaps our Establishment Clause jurisprudence needs to be reconsidered.

In fact, Judge Goettel, the author of the Warner opinions in 1994 and on remand this past June, seems to have been trying to provoke such a change by following current Establishment Clause logic to an outrageous conclusion, in the manner of Jonathan Swift's "A Modest Proposal."(11) In Warner I, Judge Goettel expressed "some personal doubt that the current appellate interpretation of the Establishment Clause is consistent with the intentions of the Framers," who would not, he felt, have extended the Clause to forbid government preference of religion over nonreligion in general.(12) As if to underscore his point, he added, "We are aware that this holding may be disruptive of the Department of Probation's legitimate and important efforts to rehabilitate those who have committed alcohol-related offenses."(13) Judge Goettel quoted this portion of Warner I in his Warner II opinion, and added, "The dissent [in the Second Circuit's opinion] notes that the Establishment Clause interpretation in our decision, if followed, would endanger a number of penal programs that are commonly practiced, such as having prison chaplains who offer religious counseling and services and community service at soup kitchens operated by churches. We agree with that observation."(14)

Until the law is changed, however, policymakers must take a creative approach to the facts instead. The Central District of California addressed the Warner fact pattern in O'Connor v. State of California(15) and held that the Establishment Clause difficulty can be removed if state neutrality is restored by giving the offender a choice between religious and secular rehabilitation programs.(16) This case was cited with approval by Judge Goettel in Warner I..(17) The result of these decisions is that correctional authorities must ensure that at least one "secular" alternative to AA, such as Rational Recovery, is approved and reasonably accessible for convicted offenders in need of rehabilitation. According to O'Connor, the state need not ensure that both programs are equally accessible; the Establishment Clause is satisfied because the choice of a religious program over a secular one is made by the individual, not by the state.(18) The Supreme Court increasingly relies on the principle that indirect benefit to religion because of state action is permissible when the direct choice of religion over non-religion was made by private parties.(19)

Other First Amendment Issues

Even if the state satisfies the Establishment Clause neutrality requirement by offering both secular and religious programs, the time or location of the secular program may be less convenient for some offenders. In this situation, an offender may argue that the Free Exercise Clause was violated because he has been deprived of effective choice in matters of religion. Even the most fundamental constitutional rights are not absolute, however. When public health and safety are at serious risk, the free exercise of religion may sometimes be curtailed; for instance, the Free Exercise Clause does not require the state to grant religious exemptions from child labor laws,(20) or from laws requiring vaccination against contagious diseases.(21) Preventing repeat offenses by drunk drivers and other alcohol-addicted criminals should qualify as a compelling state interest. In fact, corrections departments' promotion of mandatory rehabilitation would probably be considered a neutral, generally applicable policy, not even subject to the constitutional "compelling state interest" standard now that the Religious Freedom Restoration Act has been overturned.(22)

The implications of the AA cases for freedom of speech are harder to dismiss. The courts characterized mandatory AA attendance as coercing the offender to profess belief in a particular ideology. Yet any secular rehabilitation program which the state selects as an alternative could also be characterized in this way. If neither the secular nor the religious program were compatible with the offender's beliefs, mandatory rehabilitation could be said to violate the offender's free speech rights, at least according to the Supreme Court's absolutist vision of those rights in West Virginia State Bd. of Ed. v. Barnette(23):

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith, therein. If there are any circumstances which permit an exception, they do not now occur to us.(24)

Even in Barnette, however, the court admitted that involuntary affirmations could be commanded in order to prevent "a clear and present danger of action of a kind the State is empowered to prevent and punish.(25) New York courts have upheld viewpoint-based restrictions on a parolee's First Amendment rights in order to rehabilitate him and reduce the danger of future crimes. For instance, in U.S. v. Schiff,(26) where a habitual tax resister was convicted of willful tax evasion, the Second Circuit ruled that it was constitutionally permissible for the state to impose the probation condition that he not participate in or promote meetings of groups which advocated noncompliance with tax laws.(27)

Compelled speech for the purposes of protecting the public is also permissible. In People v. Letterlough(28) as a condition of probation, the offender had to attach to his vehicle a bumper sticker saying "Convicted DWI." While the Court of Appeals vacated this condition as not "reasonably related to defendant's rehabilitation," it held that the legislature could pass a statute specifically authorizing such compelled speech for purposes of public safety.(29)

Thus, the many difficulties presented by the AA cases are capable of creative resolution. Nonetheless, as Judge Goettel might agree, the very fact that literal application of many of our standard First Amendment doctrines makes problems of the sensible, humane, and necessary law enforcement policy of mandatory rehabilitation should spur us to re-examine those doctrines more closely.

*Jendi B. Reiter is a writer and attorney. She is presently a clerk to a justice in the Appellate Division of the First Department in the New York Supreme Court. The views set forth here are her own. Reprinted with permission from the December 20, 1997 issue of the New York Law Journal. Copyright 1998, the New York Law Publishing Company.

All rights reserved.

1. Warner v. Orange County Dep't of Probation ("Warner II"), 93 Civ. 1544, 1997 U.S. Dist. LEXIS 9300 (S.D.N.Y. June 27, 1997); Griffin v. Coughlin, 649 N.Y.S. 903 (1996).
2. Warner v. Orange County Dep't of Probation ("Warner I"), 870 F. Supp. 69, 73 (S.D.N.Y. 1994).
3. Michael J. Honeymar, Jr., "Alcoholics Anonymous as a Condition of Drunk Driving Probation: When Does It Amount to Establishment of Religion?" 97 Colum. L. Rev. 437, 442 (1997).
4. 649 N.Y.S. 903 (1996).
5. Id. at 904.
6. Warner II, 1997 U.S. Dist. LEXIS at *3.
7. 403 U.S. 602 (1971).
8. Id. at 612.
9. Griffin, 649 N.Y.S. at 910-12; Warner 1, 870 F. Supp. at 72.
10. E.g. Lee v. Weisman, 505 U.S. 577 (1992).
11. In this 1729 essay, Swift satirized society's indifference to Irish poverty and starvation by arguing that the poor should sell their own babies as food. Jonathan Swift, A Modest Proposal, in The Writings of Jonathan Swift: Authoritative Texts, Backgrounds, Criticism (R. Greenberg & W. Piper eds. 1973).
12. Warner I, 870 F. Supp. at 73 n.2.
13. Id. at 73.
14. Warner 11, 1997 U.S. Dist. LEXIS at *15 n.9.
15. 855 F. Supp. 303 (C.D. Cal. 1994).
16. Id. at 308.
17. Warner 1, 870 F. Supp. at 73.
18. O'Connor, 855 F. Supp. at 308
19. E.g. Agostini v. Felton, No. 96-552, 1997 U.S. LEXIS 4000 (June 23, 1997) (Title I aid to students at parochial schools was permissible because government made aid available on neutral basis and decision to attend religious school was attributable to students).
20. Prince v. Massachusetts, 321 U.S. 158, 166 (1943).
21. Sherr v. Northport-East Northport Union Free School District, 672 F. Supp. 81, 83 (E.D.N.Y. 1987).
22. City of Boerne v. Flores, No. 95-2074, 1997 U.S. LEXIS 4035 (June 25, 1997). 23 319 U.S. 624 (1943) .
23. 319 U.S. 624 (1943).
24. Id. at 642
25. Id. at 633.
26. 876 F.2d 272 92d Cir. (1989).
27. Id. at 274.
28. 86 N.Y.2d 259 (1995).
29. Id. at 267.