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
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
All rights reserved.
- 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
- Warner v. Orange County Dep't of Probation
("Warner I"), 870 F. Supp. 69, 73 (S.D.N.Y. 1994).
- 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).
- 649 N.Y.S. 903 (1996).
- Id. at 904.
- Warner II, 1997 U.S. Dist. LEXIS at *3.
- 403 U.S. 602 (1971).
- Id. at 612.
- Griffin, 649 N.Y.S. at 910-12; Warner 1, 870
F. Supp. at 72.
- E.g. Lee v. Weisman, 505 U.S. 577 (1992).
- 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).
- Warner I, 870 F. Supp. at 73 n.2.
- Id. at 73.
- Warner 11, 1997 U.S. Dist. LEXIS at *15 n.9.
- 855 F. Supp. 303 (C.D. Cal. 1994).
- Id. at 308.
- Warner 1, 870 F. Supp. at 73.
- O'Connor, 855 F. Supp. at 308
- 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
- Prince v. Massachusetts, 321 U.S. 158, 166
- Sherr v. Northport-East Northport Union Free
School District, 672 F. Supp. 81, 83 (E.D.N.Y. 1987).
- City of Boerne v. Flores, No. 95-2074, 1997
U.S. LEXIS 4035 (June 25, 1997). 23 319 U.S. 624 (1943) .
- 319 U.S. 624 (1943).
- Id. at 642
- Id. at 633.
- 876 F.2d 272 92d Cir. (1989).
- Id. at 274.
- 86 N.Y.2d 259 (1995).
- Id. at 267.