A number of state Supreme Court and federal circuit court cases--including Arnold v. Tennessee Board of Paroles (1997), Griffin v. Coughlin (New York, 1996), Warner v. Orange County Dep't. of Probation (2nd Cir. 1997), Rauser v. Horn (3rd Cir. 2001), and Kerr v. Farrey (7th Cir. 1996)-- have defined Alcoholics Anonymous (AA) and other treatment programs based on AA's 12 steps as religious in nature.
In all the cases, state agencies (either courts or corrections) sentenced or otherwise compelled probationers or inmates to participate in such programs, thereby, according to the case decisions, violating the First Amendment's separation of church and state (the Establishment Clause). AA requires that participants turn themselves over to a "higher power" as part of their recovery. AA advocates typically indicate that a higher power may be anything--including, according to former Oklahoma Governor Frank Keating, "a dead ancestor, a tall tree or the group itself."
But courts disagree with his analysis, finding that the reference to God or a higher power in six of the 12 steps is, in fact, religious. The courts have also found that it is not only that many meetings begin and end with prayers, but that the fundamental nature of turning oneself over to a higher power is a religious conception.
Because of actions in New York by both its highest court (in Griffin) and the federal appeals court governing the state (in Warner), the state has most clearly indicated that state-funded programs may not compel AA attendance. The 2nd Circuit (the federal appeals court that covers New York, Vermont and Connecticut) extended rulings against mandated AA participation in DeStephano v. Emergency Housing Group et al (2001). Joseph DeStefano, mayor of Middletown, originally brought the action in the Southern District Court of New York against a private alcohol treatment facility that received state funding. The lower court granted a summary judgment in favor of the defendant, Middletown Alcohol Crisis Center.
The 2nd Circuit appeals court vacated the decision and remanded the case. Although the program did not officially require clients to attend AA, the appeals court decided that supervision of AA meetings by program staff and reliance on AA literature was sufficient to evoke the Establishment Clause. Based on DeStefano, New York's Office of Alcohol and Substance Abuse Services issued a bulletin to all government-funded providers stating that AA attendance could not be compulsory, treatment staff must not supervise AA meetings and programs could not require use of AA materials.
Yet standard treatment programs, even in New York, have been slow to adopt the law enunciated in Griffin and Warner. AA and its 12 steps are such a fundamental part of American substance abuse treatment that many programs and counselors cannot imagine alternatives.
The recent line of legal rulings brings significant consequences for psychologists. While many psychologists practice 12-step approaches, psychology as a field and many of its addiction specialists (like Alan Marlatt, William Miller and myself) have pioneered and promoted non 12-step approaches.
Motivational interviewing, brief interventions, relapse prevention, the community reinforcement approach and the perspective of harm reduction are some of the more prominent, and effective, examples. Thomas Horvath, a former president of APA's Div. 50 (Addictions), heads SMART Recovery, a non12-step support group, and Moderation Management is a support group whose board includes a number of psychologists.
Nonetheless, it is standard for courts to refer people convicted of driving under the influence or defendants in state family court actions or drug courts to 12-step programs.
Yet legal decisions involving mandatory AA and 12-step program referrals indicate the need for such sentencing to include programs that do not rely on AA's 12 steps. Along with awareness of these legal issues, courts also need a better understanding of evidence-based psychological approaches to alcohol and drug problems.
The court decisions described in this article make clear that there is a legal--as well as ethical and scientific--basis for expanding this understanding.