Court-ordered 12-step Attendance is Illegal

This article is not intended to convey legal advice, which can only be provided by an attorney licensed in your state. What follows is an addiction psychologist’s summary of a legal issue he has been following for over a decade.

The “establishment” and “free exercise” clauses of the US Constitution’s 1st Amendment state that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In everyday speech we say that there is “separation of church and state” in the US. Our religious or spiritual beliefs (or lack of them) are our personal business, and not something the government is allowed to interfere with.

If you have been convicted of a crime, the judge when sentencing you has much freedom to order you to do various things: go to prison, pick up trash on highways, attend classes, etc. If you have been convicted of an offense related to addiction, it is common to be ordered to attend support groups, treatment, or both. It has also been common that you would be ordered, not just to a support group, but to Alcoholics Anonymous (AA) specifically, or to another 12-step based group.

Based on recent court decisions, if you have been ordered to attend a 12-step group or 12-step based treatment by the government (the order could be coming from a court, prison officer, probation or parole officer, licensing board or licensing board diversion program, or anyone authorized to act on behalf of the government), you have the right not to attend them. However, you can still be required to attend some form of support group, and some type of treatment.

These court decisions are based on the finding that AA is religious enough that being required to attend it would be similar to requiring someone to attend a specific church.
Five US Circuit Courts of Appeal (the 2nd, 3rd, 7th, 8th, and 9th) have made similar rulings. The most recent of these decisions is Inouye vs. Kemna, Case No. 06-15474, filed 9/7/07 (and an amendment 10/3/2007), at

http://www.ca9.uscourts.gov/

For a technical legal review of this issue, published in the Duke Law Journal, see:

http://www.law.duke.edu/shell/cite.pl?47+Duke+L.+J.+785

If AA is a religion, then it easily follows that the government may not order you to attend it. But is AA really a religion? The 2nd Circuit Court decision states that AA "placed a heavy emphasis on spirituality and prayer, in both conception and in practice," that participants were told to "pray to God," and that meetings began and adjourned with "group prayer." The court therefore had "no doubt" that AA meetings were "intensely religious events." Although some have suggested that AA is spiritual but not religious, the court found AA to be religious.

It may not be practical to enforce the right that the First Amendment identifies and these court decisions clarify. You might find yourself with no allies at hand, a local ACLU which will support you in spirit but won’t have the resources to support you in action, or not enough money to hire the legal support you would need. Fighting back under these circumstances may not be realistic. You may also prefer to get your matter resolved relatively quickly, rather than taking what might be years to change the system you are caught up in. Furthermore, you won’t actually get out of attending a support group or treatment, you’ll just be able to avoid 12-step if you want to. Should you choose to fight, however, you can make a very strong case!