A Federal appeals court rules that judges and probation departments may not compel Atheists to submit to religion-based recovery programs.

obert Warner had his constitutional rights violated when a judge and the Orange County Department of Probation required him to attend meetings of the religion-based Alcoholics Anonymous program. But in upholding a lower ruling, the 2nd U.S. Court of Appeals agreed with a District Judge that Warner suffered no substantial damages, and gave him $1 as compensation.

   In Monday's ruling, Justices noted that the AA meetings had "a substantial religious component" which included prayers, stipulations that inmates had to pray to God in order to successfully deal with personal problems, and the requirement that they participate in other religious exercises. The ruling also noted that Mr. Warner, who pleaded guilty to drunk driving and driving without a license in November, 1990, was not offered an alternative secular program. An Atheist, Warner initially attending the Alcoholics Anonymous meetings but was insulted by the "religious nature" of the format. Warner -- like a number of Atheists throughout the country -- was compelled to participate in A.A. or A.A.-based programs as a condition for probation or other considerations from the court.

   In an amended complaint to the U.S. Court of Appeals for the Second Circuit (May 13, 1997), Warner's attorneys noted that the Orange County N.Y. Department of Probation used a "standard form" in preparing presentence reports. Warner's case led the department to impose six special conditions which were described as routine. "These included that the probationer 'totally abstain from the use of intoxicating beverages,' avoid 'establishment(s) where the primary business is the sale or consumption of alcohol,' and ... that he 'attend Alcoholics Anonymous at the direction of (his) probation officer.'" The Judge in the drunk driving case sentenced Mr. Warner to three years of probation, and imposed the conditions recommended by the OCDP.

   According to the complaint, Warner attended the Alcoholics Anonymous meetings under the direction of his probation officer, Neal Terwilliger, from November 1990 through September, 1992. It was four months into the program, though, that Mr. Warner complained that, as an Atheist, he found the meetings objectionable due to their religious nature. "Some months later," noted the complaint document, "Terwilliger determined that Warner lacked sufficient commitment to the program..." Warner was order to attend "Step meetings" and enlist an Alcoholics Anonymous member as a "sponsor."

   "The Step meetings were devoted to discussion of A.A. 'Twelve Steps,' which represented the heart of the therapy program."

   The district court agreed with Mr. Warner's argument that these meetings involved a substantial religious element. Participants were told to "believe that a Power greater than ourselves could restore us," and that they must "turn our will and our lives over to the care of God as we understand him." In addition, the "Step" program ordered those participating to "Admit to God ... the exact nature of our wrongs," be "entirely ready to have God remove all these defects ... (and) ask Him to remove our shortcomings," and to seek "through prayer and meditation to improve our conscious contact with God, as we (understand) Him."

   The meetings were also punctuated with frequent prayers of a Christian nature.

   Incredibly, the Orange County Department of Probation claimed that it should not have been a party to Mr. Warner's suit since the determination of probation rests with the sentencing judge. It also argued that the requiring Warner, or anyone else to attend A.A. meetings did not violate the Establishment Clause. The Court of Appeals rejected both parts of the OCDP response, though, and of interest to us here is the determination of the judges in connection with First Amendment violations. Attorneys for Mr. Warner relied on a number of legal precedents, including:

   ¶    LEE v. WEISMAN (1992). Plaintiff's noted that the U.S. Supreme Court has ruled, "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which 'establishes a religion or religious faith, or tends to do so.'" The trial judge in Warner's case had noted this entanglement of church and state, ruling that the Alcoholics Anonymous meetings "placed a heavy emphasis on spirituality and prayer, in both conception and in practice." Plaintiff argued that Warner was not offered any choices for therapy programs, and that the printed "standard" forms routinely used by the Orange County Probation department "recommended A.A. to the sentencing judge, without suggesting that the probationer might have any option to select another therapy program, free of religious content..."

   ¶    GRIFFIN v. COUGHLIN (N.Y. 1996). In this case, the New York court ruled that the visiting privileges of an inmate's family could not depend on the prisoner's participation in treatment programs that adopt the "religion-centered practices and precepts of Alcoholics Anonymous." The court also noted the coercive nature of the A.A. program, that inmates were provided no alternative for a secular rehabilitation regimen. Another case from the Seventh Circuit (KERR v. FARREY, 1996) found that the state had violated the establishment clause of the First Amendment when it compelled inmates to attend substance abuse programs which have explicit religious content, or otherwise be penalized as higher security risks and suffer adverse parole consequences.

   From a separationist perspective, one of the most crucial arguments in this case revolved around the claim by the OCDP that even if Warner had been forced to attend faith-based meetings, he was not required to participate in any religious exercises. Plaintiffs had noted in their amended complaint, "The County argues that, as a mature adult, Warner was less susceptible to such pressure than the children who were required to stand in respectful silence during a school prayer..." That example relied on LEE v. WEISMAN, but its roots go back much further, to MURRAY v. CURLETT (1963). In that case, the U.S. Supreme Court, in striking mandatory prayer and Bible verse recitation, noted that youngsters in a school were a "captive audience," and subject to enormous peer pressure should they opt out of religious exercises.

   This "age" argument has been used to justify a number of suspect practices, including prayers at high school graduation ceremonies, and invocations at comparable collegiate commencement activities. Defenders of the practice insist that mature adults are less susceptible to the prayer or other faith-based activities. Critics charge that this is simply a ruse to explain away or rationalize the fundamental, violative character of prayer and related practices in an official context.

   Warner's attorneys argued that while their client was more mature, "his exposure was more coercive than the school prayer in LEE." LEE v. WEISMAN challenged a graduation ceremony prayer that lasted for approximately two minutes, whereas Mr. Warner was required to participate in a "long-term program of group therapy that repeatedly turned to religion as the basis of motivation..."

   Finally, the county relied on the 1983 ruling in MARSH v. CHAMBERS. There, high court justices had upheld the state of Nebraska in its policy of opening legislative sessions with a sectarian prayer. The ruling in MARSH cited the historical context and long tradition of the prayer, and the fact that adults -- the legislators -- were free to not attend or participate, with little or no stigma. In addition, the Court noted that in the case of a legislative prayer, there was not the powerful emotion compulsion that applies to, say, a graduating high school student who wishes to participate in commencement exercises.

   Warner's attorney's argued, "The differences between the invocation at a session of the state legislature and Warner's compulsory adherence to the A.A. program are even more obvious..."

   MARSH, of course, remains a major setback for strict separation of church and state. It has become the foremost counter to the "Lemon Test" which was enunciated in the historic LEMON v. KURTZMAN (1971) decision. In that ruling, the high court declared that all laws must meet a three-pronged test. "First, the statute must have a secular legislative purpose; second, its principle or primary effect must be one that neither advances nor inhibits religion...; finally, the statute must not foster 'an excessive government entanglement with religion.'"

   While noting the religious and coercive nature of the Alcoholics Anonymous program, both the appellate court and the District Court found no substantial damages; Mr. Warner ends up with a nominal $1 as compensation. The danger here is that the Orange County now has less to lose in filing an appeal. It may be difficult to change the ruling in the damage award, since even the plaintiff's attorney noted that in sending Mr. Warner to A.A., "the department's purpose was not to promote religion but to help free alcoholics from addiction by sending them to a program that has been famously successful." The County's arguments argument in this respect was described as "impressive."

   That renders the Warner decision a mixed-victory, but it uphold a vital part of the current legal system, namely the notion that while defendants may have their rights violated at times, they do not always incur damages. Unfortunately, this does not provide a punishment for the state. Were Orange County to continue the unconstitutional policy of requiring Atheists to attend religion-based programs, though, it could risk fines and other punitive measures.

   But Robert Warner remains one of a series of legal pioneers, defending the rights of Atheists -- even those behind bars, or under the control of the state's criminal justice system. We see a small but increasing number of Atheist "refusniks" who, whether in prison or the parole system, are rejecting the demand that they participate in coercive, faith-based rehabilitation schemes. Last January, for instance, New Hampshire State Prison inmate Bill Yates challenged participation in an A.A. program as a condition for his parole. "Alcoholics Anonymous is religious, and the prison cannot hold anybody back from freedom because they failed to attend an unequivocally religious process."

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