Is Mandated 12-Step Attendance A Violation Of Your Constitutional Rights?

Posted on January 10, 2012

Choice In Recovery & The First Amendment:
A Resource For Criminal Justice Personnel And Other Stakeholders
by Claire Johnson Saénz, Esq.

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Many Paths To Recovery

At SMART Recovery®, we believe that there is no right or wrong path to recovery, and that individuals seeking recovery have the highest chance of success when they have the opportunity to choose the pathway (or combination of pathways) that best suits them.

Therefore, it is a secondary mission of SMART Recovery® to support choice in recovery, and we are devoted to getting the word out about the variety of recovery options that exist today. As part of that mission, we want individuals in the judicial system and other government systems to be informed not only about the existence of a variety of recovery paths, but of their legal obligation to offer options to those they serve.

One important and ongoing development in this area is the growing number of courts which have declared that mandated attendance at 12-step programs (such as AA-Alcoholics Anonymous and NA-Narcotics Anonymous ), without providing the option of a non-faith-based alternative, violates the First Amendment of the U.S. Constitution

The Constitution Says…..

The First Amendment is part of the Bill of Rights, and begins with the statement that, “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof…” The first part of this statement is called the “Establishment Clause” and is sometimes referred to as the doctrine of separation of church and state. The Establishment Clause has been interpreted by the U.S. Supreme Court to mean that governmental bodies cannot establish a religion, prefer one religion over another, prefer religion over non-religion or prefer non-religion over religion. The second part of the statement is called the “Free Exercise Clause” and is sometimes referred to as the doctrine of freedom of religion. The Free Exercise Clause protects the individual’s right to freedom of conscience and free expression of religious beliefs.


Courts Have Said….

Over the last 15 years, a number of courts at the state and federal level have considered cases in which correctional departments and institutions, drug courts, probation officers and other state actors have required attendance at 12-step meetings. In these cases, failure to comply with such mandatory attendance carried serious penalties such as being sent or returned to prison, loss of parole opportunities, and loss of prison privileges such as family visitation.

Although not every court in the land has heard such a case (and, to date, the Supreme Court has not spoken on the issue), courts which have considered the constitutionality of mandated 12-step attendance have almost universally declared the practice unconstitutional, particularly where no non-faith-based option has been made available. Most cases are decided under the Establishment Clause, but a few have been brought under the Free Exercise Clause. In general, although the courts have not declared 12-step programs to be formal religions, they have recognized that the programs are based on belief in a Higher Power, involve prayer, and contain sufficient religious components for mandatory attendance to give rise to a First Amendment violation.

SMART Offers Resources For Criminal Justice Personnel:

In our efforts to make SMART Recovery® available to individuals involved in the criminal justice system, we discovered that a significant number of justice system personnel, from judges to prison administrators to probation officers, were unaware of the constitutional issues involved in mandatory 12-step attendance without choice. This was particularly troubling to us since at least one federal appellate jurisdiction—the 9th Circuit, by far the largest of the 13 federal courts of appeal, comprising the states of Alaska, Arizona, California, Guam, Hawaii, Idaho, the Northern Mariana Islands, Montana, Nevada, Oregon and Washington—has declared the law on the matter so well established that parole officers should be aware of it and can be sued for monetary damages for ignoring it.

Therefore, in an effort to provide a resource for criminal justice personnel, individuals involved in the criminal justice system, and other interested parties, we have put together a list of a number of First Amendment/12-Step cases, including a brief synopsis of each and, where available, a link to a copy of the court decision.

The list is available on the SMART Recovery website at this link: http://goo.gl/LmlzC, and will be updated on an ongoing basis.

The list does not constitute legal advice, but we hope it will serve as a convenient resource for those interested in this issue.

Claire Johnson Saénz, Esq. is a Member of the
SMART Recovery® Board of Directors and the
SMART Recovery® Court Team

5 thoughts on “Is Mandated 12-Step Attendance A Violation Of Your Constitutional Rights?

  1. Shep

    I am a former addict who got arrested and got clean without N.A. or any other program. However, I have attended a view N.A. meetings and my friend who used to be addicted to oxycotin is now attending regularly. The meetings are quite good, in my opinion, as they encourage people to be self-reflective of their rationalizations. They tend to emphasize that more than “God.” That being said, they are spiritual and not religious, and encourage participants to “rely on something more powerful than them.” That something bigger than them could simply be the group itself. God is however the individual defines it- “God” could simply be the power of conscience, the higher self, and teamwork; it’s really up to the individual. Therefore I do not believe it is a violation of first amendment rights.

    N.A. is definitely not for everyone. I am very individualistic and I encourage SMART to push for other avenues for people like me. I would have enjoyed Cognitive-Behavior Therapy, had I been given the chance to try it (now I am moving into the addictions field as a social worker, and wish to study and use CBT). However, I don’t think the 1st Amendment approach is the way to go. All you need to do is say “Everybody’s Different.” There’s no one single path. Enough said.

  2. Claire Johnson Saenz

    I haven’t done any research regarding the laws on mandated 12 step attendance in Canada, but this is certainly an interesting question. Canada’s constitution does embody the principle of religious freedom, but I do not know whether the applicability of that principle to mandated 12 step attendance has been addressed by Canadian courts.

  3. Iain

    I am curious as to the laws regarding mandatory 12 step attendance in Canada. We also have workplace drug and alcohol monitoring organizations that insist those with a history of either drug or alcohol abuse attend AA/NA or risk losing their job.

  4. Joel

    I cannot understand why we are not baffled, amazed or outraged that the US government would coerce tens of thousands of people to submit to a Supernatural-based treatment for a medical/psychological/behavioral condition in the 21st century.

    Can you imagine the courts requiring obsessive-compulsives, depressed people, or cancer sufferers to attend daily Faith-Healing and Quasi-Religious Indoctrination sessions, with the alternative being jail time?

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