Choice of Support Groups: It’s the Law

Choice of Support Groups:Choice of Support Groups:It’s the LawIt’s the Law

Treatment Referral Practice in Treatment Referral Practice in the Aftermath of the Aftermath of Inouye v. Inouye v.

Kemna Kemna

By Martin Nicolaus, M.A., J.D.By Martin Nicolaus, M.A., J.D.Attorney at LawAttorney at LawCEO of LifeRing Secular Recovery CEO of LifeRing Secular Recovery Author of:Author of:

Recovery by ChoiceRecovery by Choice, Living and Enjoying Life Free , Living and Enjoying Life Free of Alcohol and Drugs, a Workbook of Alcohol and Drugs, a Workbook How Was Your Week?How Was Your Week? Bringing People Together in Bringing People Together in Recovery the LifeRing Way -- A Handbook. Recovery the LifeRing Way -- A Handbook. Empowering Your Sober Self:Empowering Your Sober Self: The LifeRing The LifeRing Approach to Addiction Recovery (Jossey-Bass, Approach to Addiction Recovery (Jossey-Bass, forthcoming April 2009)forthcoming April 2009)

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Choice is the Law Choice is the Law – Introduction (1) – Introduction (1)

Ricky Inouye, a resident of Ricky Inouye, a resident of Honolulu, was addicted to Honolulu, was addicted to methamphetamine and was methamphetamine and was convicted of possession and convicted of possession and related drug crimes.related drug crimes.

When he was released from When he was released from prison, he became a client of prison, he became a client of Mark Nanamori, his parole Mark Nanamori, his parole officer.officer.

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Choice is the Law – Choice is the Law – Introduction (2)Introduction (2)

Nanamori knew that Nanamori knew that Inouye was a Buddhist and Inouye was a Buddhist and had objected to had objected to participating in a “religion-participating in a “religion-based” treatment program based” treatment program while in prison. while in prison.

Inouye had already filed a suit Inouye had already filed a suit about the issue while in prison. about the issue while in prison. (That suit ultimately settled.)(That suit ultimately settled.)

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Choice is the Law – Choice is the Law – Introduction (3)Introduction (3)

Nanamori also knew that Ricky Nanamori also knew that Ricky continued to object to “religion-continued to object to “religion-based” treatment after his release.based” treatment after his release.

Ricky’s lawyer sent Nanamori a Ricky’s lawyer sent Nanamori a letter, which said:letter, which said:

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Inouye’s LetterInouye’s Letter

““Mr. Inouye is a Buddhist. As such, he objects on grounds of the Mr. Inouye is a Buddhist. As such, he objects on grounds of the Establishment and Free Exercise Clauses of the First Establishment and Free Exercise Clauses of the First Amendment of the United States Constitution to any state Amendment of the United States Constitution to any state imposed religious practice as a condition of his parole. imposed religious practice as a condition of his parole.

Enclosed is a copy of the decision in Enclosed is a copy of the decision in Kerr v. FarreyKerr v. Farrey, 95 F.3d 472 , 95 F.3d 472 (7th Cir. 1996), which holds that the Alcoholics Anonymous 12 (7th Cir. 1996), which holds that the Alcoholics Anonymous 12 step program cannot be imposed by the state as a requirement step program cannot be imposed by the state as a requirement for eligibility for parole. for eligibility for parole.

Mr. Inouye does not object to participating in a substance abuse Mr. Inouye does not object to participating in a substance abuse treatment program. However, he does object to any program treatment program. However, he does object to any program that has explicit religious content. This includes, but is not that has explicit religious content. This includes, but is not limited to, the recitation of prayers at meetings, whether or not limited to, the recitation of prayers at meetings, whether or not Mr. Inouye is required to participate in the prayer. Mr. Inouye is required to participate in the prayer.

Please assure that there is no religious content in any substance Please assure that there is no religious content in any substance abuse program that is imposed as a requirement of Mr. abuse program that is imposed as a requirement of Mr. Inouye's parole.”Inouye's parole.”

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Despite this knowledge, Nanamori Despite this knowledge, Nanamori assigned Inouye to participate in a assigned Inouye to participate in a treatment program run by the treatment program run by the Salvation Army.Salvation Army.

The Salvation Army program requires The Salvation Army program requires attendance at meetings of Alcoholics attendance at meetings of Alcoholics Anonymous and/or Narcotics Anonymous and/or Narcotics Anonymous.Anonymous.

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Ricky attended a few sessions of the Ricky attended a few sessions of the S.A. program and NA meetings and S.A. program and NA meetings and then stopped going.then stopped going.

Because Ricky did not comply with Because Ricky did not comply with the program, Nanamori moved to the program, Nanamori moved to revoke his parole.revoke his parole.

Ricky was sent back to prison.Ricky was sent back to prison.

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After Ricky was released, he filed a After Ricky was released, he filed a new lawsuit.new lawsuit.

He sued Nanamori, Nanamori’s He sued Nanamori, Nanamori’s superiors, county officials, and the superiors, county officials, and the officer who arrested him (Kemna) for officer who arrested him (Kemna) for violating his constitutional rights.violating his constitutional rights.

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His suit was based His suit was based on 42 U.S.C. on 42 U.S.C. §§1983, 1983, a federal law that a federal law that provides for provides for monetary damages monetary damages to a plaintiff who to a plaintiff who proves a violation of proves a violation of his or her his or her constitutional rights.constitutional rights.

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The specific constitutional right which The specific constitutional right which he claimed was violated was the he claimed was violated was the Establishment Clause of the First Establishment Clause of the First Amendment to the U.S. Constitution, Amendment to the U.S. Constitution, which says:which says:

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““Congress shall make Congress shall make no law respecting an no law respecting an establishment of establishment of religionreligion, or , or prohibiting the free prohibiting the free exercise thereof.”exercise thereof.” Thomas Jefferson

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The case was heard in the federal The case was heard in the federal district court in Honolulu.district court in Honolulu.

Nanamori and the other defendants Nanamori and the other defendants agreed that the 12-step program was agreed that the 12-step program was “religious.”“religious.”

They agreed that sending Ricky to They agreed that sending Ricky to 12-step groups may have violated his 12-step groups may have violated his constitutional rights.constitutional rights.

ButBut::

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Nanamori claimed that the law on Nanamori claimed that the law on this issue was unclear and unsettled, this issue was unclear and unsettled, so that he should not be held liable so that he should not be held liable for breaking it.for breaking it.

This is known as the defense of This is known as the defense of “qualified immunity,” “qualified immunity,” available only available only to government officials. to government officials.

In other words, “My mistake about In other words, “My mistake about the law was reasonable under the the law was reasonable under the circumstances.” circumstances.”

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The federal district court in Honolulu The federal district court in Honolulu agreed with Nanamori.agreed with Nanamori.

Ricky lost at that level.Ricky lost at that level. But Ricky appealed the case to the But Ricky appealed the case to the

next higher level, the Ninth Circuit next higher level, the Ninth Circuit Court of Appeals in San Francisco. Court of Appeals in San Francisco.

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On Sept. 7, 2007, the Ninth On Sept. 7, 2007, the Ninth Circuit reversed the lower Circuit reversed the lower court’s decision and ruled in court’s decision and ruled in favor of Ricky. favor of Ricky.

Judge Marsha Berzon wrote Judge Marsha Berzon wrote the decision for a unanimous the decision for a unanimous three-judge panel.three-judge panel.

The official citation is The official citation is Inouye Inouye v. Kemna, v. Kemna, 504 F.3d 705 (9th 504 F.3d 705 (9th Cir. 2007) Cir. 2007)

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Focus on the DecisionFocus on the Decision

Let’s take Let’s take a closer a closer look at the look at the court’s court’s decision in decision in this case.this case.

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Inouye v. Kemna – Issues (1)Inouye v. Kemna – Issues (1)

Because Nanamori admitted that Because Nanamori admitted that “reverence for ‘a higher power’ is a “reverence for ‘a higher power’ is a substantial component of the AA/NA substantial component of the AA/NA program,” the court spent very little program,” the court spent very little time on the issue whether the AA/NA time on the issue whether the AA/NA program was substantially “religious” program was substantially “religious” in nature. Both sides agreed that it in nature. Both sides agreed that it was.was.

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Because Nanamori also admitted Because Nanamori also admitted that “that “requiring a parolee to attend requiring a parolee to attend religion-based treatment programs religion-based treatment programs violates the First Amendmentviolates the First Amendment,” the ,” the court also spent very little time on court also spent very little time on the constitutional issue. the constitutional issue.

It merely touched on the basics: It merely touched on the basics:

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The court used a The court used a three-part testthree-part test to to determine whether Ricky Inouye’s determine whether Ricky Inouye’s constitutional rights had been constitutional rights had been violated:violated:

1.1. Has the state acted?Has the state acted?

2.2. Was there coercion?Was there coercion?

3.3. Was the object of the coercion Was the object of the coercion religious rather than secular?religious rather than secular?

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(1) Has the state acted?(1) Has the state acted?

Answer: Yes. Nanamori was a Answer: Yes. Nanamori was a state employee acting in his official state employee acting in his official capacity.capacity.

(It doesn’t matter that the state didn’t (It doesn’t matter that the state didn’t run the treatment program or the run the treatment program or the support groups. It was enough that the support groups. It was enough that the state sent him there.)state sent him there.)

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(2) Was there coercion?(2) Was there coercion?

Answer: Yes. Ricky had to Answer: Yes. Ricky had to participate as a condition of his participate as a condition of his parole, and was jailed when he parole, and was jailed when he refused.refused.

(Under some circumstances, (Under some circumstances, psychological or emotional coercion is psychological or emotional coercion is sufficient to make out a violation.)sufficient to make out a violation.)

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(3) Was the object of the coercion (3) Was the object of the coercion religious rather than secular?religious rather than secular?Answer: Yes. Both sides agreed Answer: Yes. Both sides agreed that the AA/NA program “is based in that the AA/NA program “is based in a higher power” and is a higher power” and is “substantially based on religion.” “substantially based on religion.”

(A little later, the court reviews prior case (A little later, the court reviews prior case law on this issue.)law on this issue.)

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In sum, In sum, Nanamori “Nanamori “required Inouye to required Inouye to attend a program rooted in religious attend a program rooted in religious faith and then recommended revoking faith and then recommended revoking his parole because he refused to his parole because he refused to participateparticipate” – and this is clearly ” – and this is clearly unconstitutional. unconstitutional.

““For the government to coerce For the government to coerce someone to participate in religious someone to participate in religious activities strikes at the core of the activities strikes at the core of the Establishment Clause of the First Establishment Clause of the First AmendmentAmendment…”…”

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Again: Again: ““While we in no way denigrate the While we in no way denigrate the fine work of AA/NA, attendance in fine work of AA/NA, attendance in their programs may not be coerced their programs may not be coerced by the state. The Hobson's choice by the state. The Hobson's choice Nanamori offered Inouye — to be Nanamori offered Inouye — to be imprisoned or to renounce his own imprisoned or to renounce his own religious beliefs — offends the core religious beliefs — offends the core of Establishment Clause of Establishment Clause jurisprudencejurisprudence.” .”

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Having disposed of these Having disposed of these preliminaries, the Court got down to preliminaries, the Court got down to the central issue in the case, the central issue in the case, whether the law on this point was whether the law on this point was clear and settled at the time of clear and settled at the time of Nanamori’s actions, so that he Nanamori’s actions, so that he reasonably should have knownreasonably should have known that that sending Ricky to AA/NA was sending Ricky to AA/NA was unconstitutional. unconstitutional.

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To resolve this question, the Court To resolve this question, the Court reviewed all the known prior reviewed all the known prior decisions on this issue, and decisions on this issue, and concluded:concluded:

““The vastly overwhelming weight of The vastly overwhelming weight of authority on the precise question in authority on the precise question in this case held at the time of this case held at the time of Nanamori's actions that coercing Nanamori's actions that coercing participation in programs of this participation in programs of this kind is unconstitutional.”kind is unconstitutional.”

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Choice is the Law: Prior CasesChoice is the Law: Prior Cases

Review of Prior Cases

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Choice is the Law: Prior Cases (1)Choice is the Law: Prior Cases (1)

Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996)

Requiring a state prisoner to attend a substance abuse counseling program with explicit religious content, on pain of being rated a higher security risk and losing eligibility for parole, violates the Establishment Clause.

In Kerr, the court spent considerable time deciding whether the 12-step program is “religious” for purposes of the Establishment Clause. It considered but rejected the argument that the program was “spiritual not religious.” It concluded:

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Choice is the Law: Prior Cases (2)Choice is the Law: Prior Cases (2)(Kerr, continued)(Kerr, continued)

“A straightforward reading of the twelve steps shows clearly that the steps are based on the monotheistic idea of a single God or Supreme Being. True, that God might be known as Allah to some, or YHWH to others, or the Holy Trinity to still others, but the twelve steps consistently refer to ‘God, as we understood Him.’ Even if we expanded the steps to include polytheistic ideals, or animistic philosophies, they are still fundamentally based on a religious concept of a Higher Power. Kerr alleged, furthermore, that the meetings were permeated with explicit religious content.”

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Choice is the Law: Prior Cases (3)Choice is the Law: Prior Cases (3)

Warner v. Orange Cty Dept of Probation, 115 F.3d 1068 (2 (2ndnd Cir. Cir. 1997)1997)

Probation officer who recommended Probation officer who recommended to judge that DUI offender be to judge that DUI offender be required as part of his sentence to required as part of his sentence to attend AA meetings, over offender’s attend AA meetings, over offender’s religious objections, violated the religious objections, violated the First Amendment's Establishment First Amendment's Establishment Clause. Clause.

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Choice is the Law: Prior Cases (4)Choice is the Law: Prior Cases (4)(Warner, continued)(Warner, continued)

““[T]he program Warner was required to attend [T]he program Warner was required to attend involved a substantial religious component. For involved a substantial religious component. For example, the ‘Twelve Steps’ included example, the ‘Twelve Steps’ included instruction that participants should ‘believe that instruction that participants should ‘believe that a Power greater than ourselves could restore a Power greater than ourselves could restore us’; ‘[make] a decision to turn our will and our us’; ‘[make] a decision to turn our will and our lives over to the care of God as we [understand] lives over to the care of God as we [understand] Him’; ‘[a]dmit[ ] to God ... the exact nature of Him’; ‘[a]dmit[ ] to God ... the exact nature of our wrongs’; be ‘entirely ready to have God our wrongs’; be ‘entirely ready to have God remove all these defects ... [and] ask Him to remove all these defects ... [and] ask Him to remove our shortcomings’; and ‘[seek] through remove our shortcomings’; and ‘[seek] through prayer and meditation to improve our conscious prayer and meditation to improve our conscious contact with God, as we [understand] Him.’"contact with God, as we [understand] Him.’"

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Also, as in Also, as in KerrKerr, the court took note , the court took note of the practice of opening and of the practice of opening and closing meetings with prayer:closing meetings with prayer:

““Group prayer was a common Group prayer was a common occurrence at the meetings Warner occurrence at the meetings Warner attended. They frequently began attended. They frequently began with a religious invocation, and with a religious invocation, and always ended with a Christian always ended with a Christian prayer.”prayer.”

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The court found that the AA meetingsThe court found that the AA meetings ““Had a substantial religious Had a substantial religious

component”component” Contained Contained “religious exercises”“religious exercises” Were Were “religion-infused”“religion-infused” Were Were “intensely religious events.”“intensely religious events.” AA was AA was “a long-term program of “a long-term program of

group therapy that repeatedly turned group therapy that repeatedly turned to religion as the basis of motivation.”to religion as the basis of motivation.”

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And Warner was not given a choice:And Warner was not given a choice:““Neither the probation recommendation, Neither the probation recommendation, nor the court's sentence, offered Warner nor the court's sentence, offered Warner any choice among therapy programs. any choice among therapy programs. The probation department's policy, its The probation department's policy, its recommendation, and its printed form all recommendation, and its printed form all directly recommended A.A. therapy to directly recommended A.A. therapy to the sentencing judge, without suggesting the sentencing judge, without suggesting that the probationer might have any that the probationer might have any option to select another therapy option to select another therapy program, free of religious content.”program, free of religious content.”

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The county probation department The county probation department appealed the Second Circuit Court appealed the Second Circuit Court of Appeals decision in of Appeals decision in WarnerWarner to the to the U.S. Supreme Court.U.S. Supreme Court.

The Supreme Court declined to hear The Supreme Court declined to hear the appeal.the appeal.

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Choice is the Law: Prior Cases (9)Choice is the Law: Prior Cases (9)Preliminary SummaryPreliminary Summary

Thus the Ninth Circuit decision in Thus the Ninth Circuit decision in InouyeInouye joined in and followed the joined in and followed the almost exactly identical decisions almost exactly identical decisions reached by the conservative 7reached by the conservative 7thth Circuit (Chicago) and the moderate Circuit (Chicago) and the moderate 22ndnd Circuit (New York), and left Circuit (New York), and left undisturbed by the U.S. Supreme undisturbed by the U.S. Supreme Court for more than ten years. Court for more than ten years.

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Choice is the Law: Prior Cases (10)Choice is the Law: Prior Cases (10)Other Prior Cases in Lower CourtsOther Prior Cases in Lower Courts

Alexander v. Schenk,Alexander v. Schenk, 118 F.Supp.2d 298, 301- 118 F.Supp.2d 298, 301-02 (N.D.N.Y.2000) (probationer)02 (N.D.N.Y.2000) (probationer)

Warburton v. Underwood,Warburton v. Underwood, 2 F.Supp.2d 306, 318 2 F.Supp.2d 306, 318 (W.D.N.Y.1998) (same); (W.D.N.Y.1998) (same);

Ross v. Keelings,Ross v. Keelings, 2 F.Supp.2d 810, 817-18 2 F.Supp.2d 810, 817-18 (E.D.Va.1998) (same); (E.D.Va.1998) (same);

Arnold v. Tennessee Board of Paroles,Arnold v. Tennessee Board of Paroles, 956 956 S.W.2d 478, 483-84 (Tenn.1997) (AA/NA S.W.2d 478, 483-84 (Tenn.1997) (AA/NA imposition unconstitutional as a parole imposition unconstitutional as a parole condition); condition);

In the Matter of David Griffin v. Coughlin,In the Matter of David Griffin v. Coughlin, 88 88 N.Y.2d 674, 691-92, 649 N.Y.S.2d 903, 673 N.Y.2d 674, 691-92, 649 N.Y.S.2d 903, 673 N.E.2d 98 (1996) (prisoner). N.E.2d 98 (1996) (prisoner).

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Choice is the Law: Prior Cases (11)Choice is the Law: Prior Cases (11)Other Cases after 2001Other Cases after 2001

After reviewing these decisions that After reviewing these decisions that came out before Nanamori sent Ricky came out before Nanamori sent Ricky Inouye to AA/NA, the court wrote:Inouye to AA/NA, the court wrote:

““We note that this march of We note that this march of unanimity has continued well past unanimity has continued well past March, 2001, when Nanamori acted.”March, 2001, when Nanamori acted.”

The court cited the following newer The court cited the following newer cases:cases:

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Choice is the Law: Prior Cases (12)Choice is the Law: Prior Cases (12)Cases after 2001Cases after 2001

Bausch v. Sumiec,Bausch v. Sumiec, 139 F.Supp.2d 1029, 1037, 139 F.Supp.2d 1029, 1037, 1039 (E.D.Wis.2001). 1039 (E.D.Wis.2001).

Armstrong v. Beauclair,Armstrong v. Beauclair, 2007 WL 1381790, 12- 2007 WL 1381790, 12-13 (slip op.) (D.Idaho Mar. 29, 2007) 13 (slip op.) (D.Idaho Mar. 29, 2007)

Turner v. Hickman,Turner v. Hickman, 342 F.Supp.2d 887, 895-97 342 F.Supp.2d 887, 895-97 (E.D.Cal.2004) (E.D.Cal.2004)

Nusbaum v. Terrangi,Nusbaum v. Terrangi, 210 F.Supp.2d 784, 789- 210 F.Supp.2d 784, 789-91 (E.D.Va.2002) 91 (E.D.Va.2002)

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Choice is the Law: Prior Cases (13)Choice is the Law: Prior Cases (13)Cases after 2001Cases after 2001

New cases decided after Inouye v. Kemna:New cases decided after Inouye v. Kemna: Hanas v. Inter-City Christian OutreachHanas v. Inter-City Christian Outreach, __ , __

F.Supp.2d __, E.D. Mich 2/29/08 (Drug court F.Supp.2d __, E.D. Mich 2/29/08 (Drug court manager liable for coercing Catholic to attend manager liable for coercing Catholic to attend faith-based program run by Protestants.)faith-based program run by Protestants.)

Americans United v. Prison Fellowship, __ F.3d Americans United v. Prison Fellowship, __ F.3d __ (8__ (8thth Cir. 12/3/07) State funding of faith-based Cir. 12/3/07) State funding of faith-based prison program unconstitutional.prison program unconstitutional.

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Choice is the Law: Prior Cases (14)Choice is the Law: Prior Cases (14)Bottom Line in InouyeBottom Line in Inouye

Bottom line: A reasonable person in Bottom line: A reasonable person in Nanamori’s position should have Nanamori’s position should have known in 2001 already that known in 2001 already that coercing a parolee to attend AA/NA coercing a parolee to attend AA/NA meetings was unconstitutional.meetings was unconstitutional.

Therefore Nanamori does not have Therefore Nanamori does not have “qualified immunity.”“qualified immunity.”

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Choice is the Law: Prior Cases (15)Choice is the Law: Prior Cases (15)Future of Inouye caseFuture of Inouye case

The Ninth Circuit sent the case back to Hawaii The Ninth Circuit sent the case back to Hawaii for further proceedings.for further proceedings.

The case is set for trial this coming November.The case is set for trial this coming November. The main issue remaining is the amount of $ The main issue remaining is the amount of $

damages to be awarded.damages to be awarded. Ricky Inouye died while the appeal was Ricky Inouye died while the appeal was

pending, but his son Zenn continues with the pending, but his son Zenn continues with the case.case.

Even if the court awards Inouye only $1, the Even if the court awards Inouye only $1, the attorney is entitled to fees, probably in the tens attorney is entitled to fees, probably in the tens of thousands. of thousands.

No appeal to the U.S. Supreme Court was filed.No appeal to the U.S. Supreme Court was filed.

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Choice is the Law: Prior Cases (15)Choice is the Law: Prior Cases (15)Scope of CoverageScope of Coverage

States States coveredcovered by the decisions to date: by the decisions to date:

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Choice is the Law: What it MeansChoice is the Law: What it Means

Now let’s look Now let’s look at what the at what the Inouye case Inouye case means for the means for the addiction addiction professional’s professional’s referral referral practice.practice.

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Choice is the Law: What it Means (1)Choice is the Law: What it Means (1)

What it What it doesn’tdoesn’t mean: mean: The court did not say that AA is a The court did not say that AA is a

“religion.” “religion.” ““We do not hold that AA/NA is itself a We do not hold that AA/NA is itself a

religion. We hold only that … the religion. We hold only that … the AA/NA program involved here has such AA/NA program involved here has such substantial religious components that substantial religious components that governmentally compelled governmentally compelled participation in it violated the participation in it violated the Establishment Clause.” (fn 9) Establishment Clause.” (fn 9)

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What it What it doesn’tdoesn’t mean: mean: It does It does notnot mean that referral to AA/NA mean that referral to AA/NA

is forbidden. is forbidden. The decision cites AA/NA for “fine work” The decision cites AA/NA for “fine work”

– – But adds a lukewarm footnote 10:But adds a lukewarm footnote 10:

““The confidential nature of AA/NA The confidential nature of AA/NA treatment makes testing efficacy treatment makes testing efficacy difficult. There is, however, some data to difficult. There is, however, some data to suggest that the programs, as part of a suggest that the programs, as part of a larger treatment strategy, have helped larger treatment strategy, have helped many people maintain their sobriety, at many people maintain their sobriety, at least for a period of time.”least for a period of time.”

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What it What it doesn’tdoesn’t mean: mean: It isn’t necessary for the client to file a It isn’t necessary for the client to file a

lawsuit or even write a letter before lawsuit or even write a letter before the law applies.the law applies.

Nanamori should have known the law Nanamori should have known the law without Ricky Inouye’s prior lawsuit or without Ricky Inouye’s prior lawsuit or the letter, but those documents the letter, but those documents undercut Nanamori’s protestations of undercut Nanamori’s protestations of reasonable confusion. reasonable confusion.

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What it What it doesdoes mean: mean: The decision applies to “state actors.”The decision applies to “state actors.”

Definitely: criminal justice officials at all levelsDefinitely: criminal justice officials at all levels Definitely: Counselors in other government Definitely: Counselors in other government

agencies (E.g. Prop 36 … State Bar … Medical agencies (E.g. Prop 36 … State Bar … Medical Board?)Board?)

Probably: employees of private programs Probably: employees of private programs operated with substantial government fundingoperated with substantial government funding

Definitely not: Private programs 100% privately Definitely not: Private programs 100% privately funded funded

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The essence of the law is The essence of the law is choice.choice. What is forbidden is What is forbidden is coercioncoercion.. ““The The Hobson's choiceHobson's choice Nanamori Nanamori

offered Inouye — to be imprisoned offered Inouye — to be imprisoned or to renounce his own religious or to renounce his own religious beliefs — offends the core of beliefs — offends the core of Establishment Clause Establishment Clause jurisprudence.”jurisprudence.”

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Similarly in Similarly in WarnerWarner:: ““Neither the probation recommendation, Neither the probation recommendation,

nor the court's sentence, offered Warner nor the court's sentence, offered Warner any choice among therapy programs. … any choice among therapy programs. … Had Warner been offered a reasonable Had Warner been offered a reasonable choice of therapy providers,choice of therapy providers, so that he so that he was not compelled by the state's judicial was not compelled by the state's judicial power to enter a religious program, power to enter a religious program, the the considerations would be altogether considerations would be altogether different.”different.”

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The same in The same in KerrKerr::

““The only choice available to Kerr The only choice available to Kerr was the NA program.”was the NA program.”

In one case where a secular In one case where a secular alternative alternative waswas available, no available, no constitutional violation was found.constitutional violation was found.

O'Connor v. CaliforniaO'Connor v. California, 855 F.Supp. , 855 F.Supp. 303 (C.D.Cal.1994)303 (C.D.Cal.1994)

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Bottom line:Bottom line: If you are a state actor, and if If you are a state actor, and if

you require clients to attend you require clients to attend treatment or support groups, treatment or support groups, you must offer not only 12-step you must offer not only 12-step but also secular alternatives.but also secular alternatives.

OrOr you and your agency may be sued for you and your agency may be sued for monetary damages. monetary damages.

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But where are the secular support But where are the secular support groups?groups?

LifeRing Secular Recovery LifeRing Secular Recovery www.lifering.orgwww.lifering.org, ,

www.unhooked.comwww.unhooked.com SMART RecoverySMART Recovery

www.smartrecovery.orgwww.smartrecovery.org Women for SobrietyWomen for Sobriety

http://http://www.womenforsobriety.orgwww.womenforsobriety.org// Secular Organizations for SobrietySecular Organizations for Sobriety

http://http://www.secularsobriety.orgwww.secularsobriety.org//

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If no secular alternative is available, If no secular alternative is available, you can organize one. You need:you can organize one. You need:

A convenor (meeting facilitator)A convenor (meeting facilitator) A roomA room A format -- e.g., “How was your A format -- e.g., “How was your

week?”week?” A structure – e.g., A structure – e.g., Recovery by Recovery by

Choice Choice workbookworkbook

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Choice is the Law: Final WordsChoice is the Law: Final Words

Some Some Final Final WordsWords

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Choice is the Law: Conclusion (1)Choice is the Law: Conclusion (1)

Choice is not only the law, choice is good Choice is not only the law, choice is good therapeutic practice.therapeutic practice.

"A strong and consistent finding in "A strong and consistent finding in research on motivation is that people research on motivation is that people are most likely to undertake and are most likely to undertake and persist in an action when they persist in an action when they perceive that they have personally perceive that they have personally chosen to do so."-- Reid K. Hester, chosen to do so."-- Reid K. Hester, William R. Miller, in : William R. Miller, in : Handbook of Alcoholism Treatment ApproaHandbook of Alcoholism Treatment Approachesches: Effective Alternatives. 2nd Ed, 1995.: Effective Alternatives. 2nd Ed, 1995.

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Choice is fundamental to modern Choice is fundamental to modern addiction treatment practice:addiction treatment practice:"It is time that the recognition of "It is time that the recognition of multiple pathways and styles of multiple pathways and styles of recovery fully permeated the recovery fully permeated the philosophies and clinical protocols philosophies and clinical protocols of all organizations providing of all organizations providing addiction treatment and recovery addiction treatment and recovery support services." -- support services." -- William White, MA William White, MA and Ernest Kurtz, PhD, and Ernest Kurtz, PhD, "The Varieties of Recovery Experience: A "The Varieties of Recovery Experience: A Primer for Addiction Treatment ProfessioPrimer for Addiction Treatment Professionals and Recovery Advocates"nals and Recovery Advocates" (2005)(2005)

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What the court is telling the What the court is telling the profession it must do as a matter of profession it must do as a matter of law, leading professionals have law, leading professionals have already been doing voluntarily, and already been doing voluntarily, and continue to do as a matter of continue to do as a matter of professional ethics and therapeutic professional ethics and therapeutic effectiveness.effectiveness.

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Choice of Support Groups: It’s the Law

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