Does Mandatory AA Violate the Constitution?

Can the state force you to attend AA or similar programs?

Adam Freedman
March 15, 2010

Today’s topic: Can the state force you to attend Alcoholics Anonymous, or similar programs with religious overtones?.

Does AA Violate the Separation of Church and State?

I just got a fascinating question from Alicia, who writes in to say that in her home state of Wisconsin, substance abusers are sometimes required to attend Alcoholics Anonymous by their parole or probation officer. As Alicia observes, AA requires participants to accept a power greater than themselves--in short, God. She asks: “Is it a reasonable separation of church and state to send clients to meetings which discuss a higher power?”

Great question!  I have to confess, my first reaction was “Oh, come on!  AA isn’t a religion!”  But it turns out that Alicia has put her finger on a serious constitutional issue.

Where is Separation of Church and State in the Constitution?

AA members are required to put their trust in God and the government can’t force them to do that.

The relevant part of the First Amendment states that “Congress shall make no law respecting an establishment of religion.”  Those words are known as the “Establishment Clause.” One of the goals of the Founding Fathers was to prevent the federal government from creating an “established church,” as Britain had (and, indeed, still has). Clearly, the Establishment Clause prevents the government from doing that, but over the years, the Supreme Court has held that the clause prevents a wide variety of government actions that support, or might even appear to endorse, religion.

As I discuss in an earlier article, courts have developed a number of tests to determine whether the government is coercing a religious belief or is somehow getting “excessively entangled” in religion--as is sometimes the case with those Christmas/Hannukah displays that go up around City Hall in December. Judges have even held that government cannot appear to endorse religion in general, as distinct from atheism.

Does Mandatory AA Violate the Constitution?

So where does that leave AA, whose members have committed to “turn our will and lives over to the care of God, as we understood Him,” to quote Step #3 of their 12-step program?

Although the Supreme Court has yet to rule on this question, at least three federal courts of appeal have held that requiring a person to attend Alcoholic Anonymous or Narcotics Anonymous (NA) violates the Establishment Clause of the First Amendment.  

Do Buddhists and Atheists Have to Attend AA?

In 2007 the Ninth Circuit Court of Appeals held that a parole officer’s demand that a convicted drug offender attend Narcotics Anonymous violated the First Amendment rights of the offender, who claimed to be a Buddhist. Not only that, but the aggrieved offender was free to sue the parole officer for damages, even though state officials are often immune from such suits.

The upshot is that parole and probation officers must be very careful when ordering treatment for addicts--they might find themselves on the wrong end of a lawsuit.  Having said that, the damages in such a suit may not be very large. In one case, a New York man who claimed to be an atheist sued county probation officials for requiring him to attend AA after his third alcohol-related driving offense. A federal district judge agreed that the officials had violated the Establishment clause--but ordered them to pay just $1, as “symbolic” damages.

Optional Participation in AA is Constitutional

Mind you, in cases like this, the courts found that the government had forced the person to attend AA or NA. In other cases, where state or local officials simply made participation in AA one option for substance abusers, courts have not found any Establishment Clause violation.

AA is Protected by Religious Confidentiality

The basic assumption of all these cases--that AA is a religious organization--can affect other areas of the law. For example, under the laws of evidence, religious communications are considered confidential, much like attorney-client, or doctor-patient communications. In 2001, a federal court overturned the manslaughter conviction of an AA member because the prosecution had relied partly on fellow AA members who testified that the defendant had confessed his crime at AA meetings. The judge noted that if AA is a religion for purposes of the Establishment Clause, then its communications must be treated just as confidentially as those in a church.

As far as I know, nobody in these cases has argued that AA is not an effective program. To the contrary, everyone seems to acknowledge the organization’s strong track record. But AA members are required to put their trust in God and the government can’t force them to do that--even though the government does require that our currency say “in God we trust.”  Hey, I never promised the law would be logical.

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