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IN THE MATTER OF DAVID GRIFFIN, APPELLANT, v. THOMAS A. COUGHLINIII, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,ET AL., RESPONDENTS.
1996 N.Y. Int. 137.
June 11, 1996
3 No. 73 [1996 NY Int. 137]
Decided June 11, 1996
This opinion is uncorrected and subject to revision before publicationin the New York Reports.
Robert N. Isseks, for Appellant.
Julie S. Mereson, for Respondents.
American Jewish Congress, amicus curiae.
LEVINE, J.:
On this appeal we hold that, under the Establishment Clause of the UnitedStates Constitution's First Amendment, an atheist or agnostic inmate maynot be deprived of eligibility for expanded family visitation privilegesfor refusing to participate in the sole alcohol and drug addiction programat his State correctional facility when the program necessarily entailsmandatory attendance at and participation in a curriculum which adoptsin major part the religious-oriented practices and precepts of AlcoholicsAnonymous (hereinafter A.A.). Thus, we reverse the order of the AppellateDivision and grant judgment in favor of petitioner prohibiting respondentsfrom conditioning petitioner's participation in the Family Reunion Programon attendance in the subject Alcohol and Substance Abuse Treatment Program(hereinafter ASAT Program) as presently constituted.
In so holding, we in no way denigrate the proven effectiveness of theA.A. approach to alcoholism or drug addiction rehabilitation, nor do weimply that State correctional authorities must discontinue the presentASAT Program if it were conducted on a voluntary basis, or that they couldnot include a noncoercive use of A.A.'s 12-step regimen as part of an alternativeprisoner drug and alcohol abuse treatment effort. Likewise, we have nodoubt that the Department of Correctional Services could validly constructa rehabilitation model containing incentives and penalties, as in the ASATProgram, providing it offered a secular alternative to the A.A. component.In that way, the State could maintain the neutrality required by the EstablishmentClause (see, Walz v Tax Commn. of New York City, 397 US 664, 673;see also, Bowen v Kendrick, 487 US 589, 606-608).
Facts
Petitioner, an inmate serving a sentence of imprisonment in the Statecorrectional system, was transferred to the Shawangunk Correctional Facility,Ulster County, in May 1991. In his petition in this CPLR article 78 proceeding,he alleged that, prior to this transfer, he had been approved for participationin the Family Reunion Program. Upon arrival at the Shawangunk Facility,he was told that because his criminal history revealed his use of heroinbetween 1955 and 1968, his continued eligibility for the Family ReunionProgram would be contingent on his participation in the ASAT Program atthe facility.
After attendance at the ASAT Program for several months, petitionersubmitted a grievance requesting that he be excused from further involvementin ASAT without forfeiting his right to participate in the Family ReunionProgram. Petitioner had a long time documented history of having declaredhimself an atheist or agnostic to correctional authorities. He complainedthat the ASAT Program he had been attending was based upon religious principlesembodied in the "Twelve Steps" and "Twelve Traditions"credos of Alcoholics Anonymous, thereby violating "the portion ofthe First Amendment of the U.S. Constitution that requires a separationbetween Church and State." He attached both manifestos to his grievance.
A member of the facility's grievance committee initially responded topetitioner's grievance that "[a]t this time the facility does notoffer a substance abuse program (therapeutic) without a religious background."He later averred that, at that time, he was unfamiliar with the actualworkings of the ASAT Program and based his conclusion that it was religion-oriented solely upon his reading the "Twelve Steps" and "TwelveTraditions" submitted with petitioner's grievance.
Petitioner's grievance was denied. After exhausting all administrativeopportunities for relief, he brought this CPLR article 78 proceeding seekinga judgment annulling the determination and requiring respondents to discontinuethe requirement of petitioner's attendance in the "religious"program in order to remain eligible for participation in the Family ReunionProgram. Petitioner also alleged that, at a hearing with Shawangunk Facilityauthorities, both staff and inmate representatives acknowledged that theASAT Program at the facility was a religious program.
Respondents' answering papers conceded that a major emphasis of theASAT Program was the inmate's participation in self-help groups conductedby A.A. or Narcotics Anonymous (N.A.) volunteers pursuant to A.A.'s TwelveSteps and fully employing the A.A. meeting methodology. Respondents averredthat the A.A. practices and precepts have proven to be the most effectivemethod for preventing relapse of the recovering alcoholic or chemical substanceabuser. The answering papers characterized the utilization of A.A. andN.A. group practices as a "state of the art" major componentof any addiction program. Pointing to A.A. literature, respondents averredthat the references to God actually mean some "higher power as theindividual may understand such higher power," not as the concept wouldbe known by "organized religions." Thus, respondents claimedthat the A.A. component of the ASAT Program "does not make specificreferences to God as an institutional religion would wherein the individualis required to worship, praise, give thanks or petition to a Creator"(Affdvt of Lorraine Cohen, Senior Correctional Counselor for ASAT, NewYork State Department of Correctional Services).
Supreme Court dismissed the petition without affording petitioner ahearing to develop a record of the facts underlying his complaint. TheAppellate Division affirmed (211 AD2d 187). As previously noted, the AppellateDivision relied upon the A.A. Big Book and the A.A. Twelve Steps/TwelveTraditions texts to find that, despite the repeated references to "God"in the Twelve Steps and Twelve Traditions, A.A. does not "'demand'"adherence to any particular faith but to "'spirituality'" and"'open-mindedness'" (id., at 190, [quoting the A.A. Big Bookand A.A. Twelve Steps/Twelve Traditions]). The court also found quite significantthat A.A. allows participants to select their own conception of God, asshown by the reference in Step 3 to "God as we understood Him."
On the foregoing basis, the Appellate Division concluded that petitioner'sdocumentary evidence did not establish that the A.A. component of the ASATProgram was a religious exercise violating the Establishment Clause. Absentproof of a more sectarian actual practice at the A.A. meetings petitionerwas required to attend, the Court held that his petition was properly dismissed.We granted petitioner leave to appeal the Appellate Division's ruling andnow reverse.
Analysis
In our view, the Appellate Division erred in rejecting the petitionin this case by applying too narrow a concept of religion or religiousactivity for Establishment Clause analysis and disregarding the compulsionused to induce petitioner to attend and participate in A.A. meetings heavilylaced with at least general religious content. Moreover, even if we wereto agree with the Appellate Division's holding that the governing principlesand practices of A.A., as incorporated in the ASAT Program, do not necessarilyrequire an atheist participant to accept the existence of God in the religioussense, or to engage in religious activity, we would, nonetheless, findthat the mandatory and exclusive incorporation of A.A. doctrine and practicesin the ASAT program violates Establishment Clause principles requiringgovernmental neutrality with respect to religion (see, Board of Educ.of Kiryas Joel Vill. Sch. Dist. v Grumet, 512 US __, __, 114 S Ct 2481,__, 129 L Ed 2d 546, 556-557; School Dist. of Abington Twp. v Schempp,374 US 203, 222), and prohibiting governmental endorsem*nt of religion(Board of Educ. of Kiryas Joel Vill. Sch. Dist. v Grumet, supra;County of Allegheny v American Civil Liberties Union, 492 US 573,592- 593; Lemon v Kurtzman, 403 US 602, 612).
I
A reading of the ASAT Program Operations Manual reveals -- and respondentsdo not dispute -- that essential major components, indeed, the heart ofthe program, are the A.A. Twelve Step manifesto itself and inmate participationin the group sessions conducted by A.A. and N.A. volunteers utilizing theA.A. modus operandi. Thus, the ASAT Program Manual lists in its "MissionStatement" its purpose to prepare addicted inmates to return to thecommunity and to reduce recividism "by providing education and counselingon continued abstinence * * * and participation in self-help groups basedon the '12-step' approach." The Manual designates as the first elementof the "philosophy" of the ASAT Program the "12-step approach,"i.e., "a set of principles which teach an individual how to builda life based on sobriety." Adopting the basic A.A. methodology, theASAT Program's "Philosophy" declares the effectiveness of "workingthe 12 suggested steps [which] act as a guide * * * to build a new wayof life without the use of alcohol and/or drugs, one day at a time"(emphasis supplied). The Manual describes the ASAT Program content as includingeducation and counseling with a curriculum based upon the "'12- step'approach to recovery."
Concededly, there are passages in A.A. literature, relied upon heavilyby respondents, the Appellate Division and the dissent here, which, instressing the openness and inclusiveness of the A.A. movement, eschew anyintent to impose a particular sectarian set of beliefs or a particularconcept of God upon participants. However, a fair reading of the fundamentalA.A. doctrinal writings discloses that their dominant theme is unequivocallyreligious, certainly in the broad definitional sense as "manifestingfaithful devotion to an acknowledged ultimate reality or deity" (Webster's9th New Collegiate Dictionary 995 [9th ed 1990]). Indeed, the A.A. basicl*terature most reasonably would be characterized as reflecting the traditionalelements common to most theistic religions. Thus, God is named or referredto in five of the 12 steps. "Working" the 12 steps includes confessingto God the "nature of our wrongs" (Step 5), appealing to God"to remove our shortcomings" (Step 7) and seeking "throughprayer and meditation" to make "contact" with God and achieve"knowledge of His Will" (Step 11 [emphasis supplied]). The 12Traditions include a profession of belief that "there is one ultimateauthority -- a loving God as He may express Himself in our group conscience."
While A.A. literature declares an openness and tolerance for each participant'spersonal vision of God ("as we understood Him" [Steps 3 and 11][emphasis in the original]), the writings demonstrably express an aspirationthat each member of the movement will ultimately commit to a belief inthe existence of a Supreme Being of independent higher reality than humankind.Thus, in the A.A. Big Book -- the basic text of A.A. -- Chapter l, "Bill'sStory," describes the spiritual transformation of one of the co-foundersof A.A., in which he finally achieved salvation from his alcoholism: by"enter[ing] upon a new relationship with my Creator * * * it meantdestruction of self-centeredness. I must turn in all things to the Fatherof Light who presides over us all" (A.A. Big Book, at 13-14). In Chapter4, entitled "We Agnostics" the theme is unambiguously proselytizing:
As soon as we admitted the possible existence of a Creative Intelligence,a Spirit of the Universe underlying the totality of things, we began tobe possessed of a new sense of power and direction, provided we took othersimple steps. We found that God does not make too hard terms with thosewho seek Him (id., at 46).
Instead of regarding ourselves as intelligent agents, spearheads ofGod's ever advancing creation, we agnostics and atheists chose to believethat our human intelligence was the last word, the alpha and the omega,the beginning and end of all. Rather vain of us, wasn't it?
We, who have traveled this dubious path, beg you to lay aside prejudice,even against organized religion. We have learned that whatever the humanfrailties of various faiths may be, those faiths have given purpose anddirection to millions. People of faith have a logical idea of what lifeis all about" (id., at 49).
A.A.'s Twelve Steps/Twelve Traditions volume, describing the spiritualevolution of atheists and agnostics through working the 12 steps, states:
Consequently, in Step Three, we turned our will and our lives over tothe care of God as we understood Him. For the time being, we who were atheistsor agnostics discovered that our own group, or A.A. as a whole, would sufficeas a higher power. Beginning with Step Four, we commenced to search outthe things in ourselves which had brought us to physical, moral, and spiritualbankruptcy (A.A. Twelve Steps/Twelve Traditions, at 107)
* * *
So, practicing these Steps, we had spiritual awakening about which finallythere was no question. Looking at those who were only beginning and stilldoubted themselves, the rest of us were able to see the change settingin. From great numbers of such experiences, we could predict that the doubterwho still claimed that he hadn't got the "spiritual angle," andwho still considered his well-loved A.A. group the higher power, wouldpresently love God and call Him by name (id., at 109 [emphasis supplied]).
The foregoing demonstrates beyond peradventure that doctrinally andas actually practiced in the 12-step methodology, adherence to the A.A.fellowship entails engagement in religious activity and religious proselytization.Followers are urged to accept the existence of God as a Supreme Being,Creator, Father of Light and Spirit of the Universe. In "working"the 12 steps, participants become actively involved in seeking such a Godthrough prayer, confessing wrongs and asking for removal of shortcomings.These expressions and practices constitute, as a matter of law, religiousexercise for Establishment Clause purposes, no less than the nondenominationalprayer in Engel v Vitale (370 US 421), that is, "a solemn avowalof divine faith and a supplication for the blessings of the Almighty. Thenature of such a prayer has always been religious" (id., at 424 [emphasissupplied]; see also, Lee v Weisman, 505 US __, __, 112 S Ct 2649,2664 [Blackmun, J., concurring]).
The ASAT Manual not only fails to disclaim and disassociate the prisonsystem's drug and alcohol addiction treatment program from A.A.'s religiousapproach to combatting these afflictions, but actually embraces and reinforcesworship in the A.A. mold. Thus, the ASAT Manual includes as part of itscurriculum, group discussions of "[w]hat it means to work the 12 steps;"exploration of "issues of higher power," with use of a suggestedaudio entitled "The Will of God;" and prayer and meditation inconjunction with a suggested video entitled "Our Father."
The dissent does not dispute the accuracy of our documentation of thecontent of A.A. doctrinal texts. Instead, the dissent disavows the significanceof the repeated "deistic symbols and allusions" (Dissent, SlipOpn, at l) in fundamental A.A. doctrine, that is, to God as a Supreme Beingwith whom contact through prayer is exhorted, and the like, although, undeniably,the words used "ha[ve] always been religious" (Engel v Vitale,supra). We have purposely quoted at length from the A.A. doctrinal textsto eliminate any doubt but that the references to God and prayer in theTwelve Steps were intended in their "conventional sense" (Welshv United States, 398 US 333, 352 [Harlan, J., concurring]). That is,the A.A. basic doctrinal writings clearly express a preference for anda conviction favoring a concept of God and prayer which is not merely "aconscientious social belief, or a sincere devotion to a high moralisticphilosophy [but] one based upon a person's belief in his responsibilityto an authority higher and beyond any worldly one" (id., at 348).
In an effort to downplay the religiosity of the foregoing A.A. tenets,the dissent suggests, without verification from actual source materials,that the unequivocally proselytizing themes of early A.A. texts have implicitlybeen superseded by later more secular A.A. writings into which A.A. doctrinehas evolved, which will become apparent if one would only examine all ofthe A.A. doctrinal materials in their historical contexts (see, Dissent,Slip Opn, at 5). In this fashion, the dissent discounts entirely, the A.A.Big Book, first written in 1939, instead relying exclusively (id., at 8,9) on the Twelve Traditions portion of the A.A. Twelve Steps/Twelve Traditionsvolume published in 1952, particularly because it declares "againstsectarian preference" (id., at 8), as though the Establishment Clauseonly bars State preferences for a particular sect or sects.
The dissent's thesis that there was an historical evolution of A.A.doctrine and therapeutic/rehabilitative methodology from the initial, morereligious A.A. Big Book to the later, ssentially secular, Twelve Traditions(see, Dissent, Slip Opn, at 5-6, 9-10), is refuted by the writings themselves.Thus, the 1952 A.A. Twelve Steps/Twelve Traditions volume itself statesunequivocally in its Foreword that "[t]he book 'Alcoholics Anonymous'[the 1939 A.A. Big Book] became the basic text of the Fellowship, and stillis" (A.A. Twelve Steps/Twelve Traditions, at 17 [emphasis supplied]).The Foreword to the 1952 volume also explains the differing roles of theTwelve Steps and the Twelve Traditions. "A.A.'s Twelve Steps are agroup of principles, spiritual in nature, which, if practiced, as a wayof life, can expel the obsession to drink and enable the sufferer to becomehappily and usefully whole" (A.A. Twelve Steps/Twelve Traditions,at 15 [emphasis supplied]). "[T]he spiritual ideas of the Societywere codified for the first time in the Twelve Steps" (id., at 17[emphasis supplied]).
The Foreword to the A.A. Twelve Steps/Twelve Traditions also articulatesthe function and origin of the Twelve Traditions, that "[t]hey outlinethe means by which A.A. maintains its unity and relates itself to the worldabout it" (id., at 15 [emphasis supplied]). The Twelve Traditionswere developed as the A.A. movement began to achieve widespread acceptance,in response to "threatening questions of membership, money, personalrelations, public relations, management of groups, clubs, and scores ofother perplexities" (id., at 18).
Thus, the 1952 volume, a portion of which the dissent relies upon asdemonstrating a basic A.A. doctrinal shift to the secular, itself explainsthe dichotomy of roles between the A.A. Big Book and Twelve Steps on theone hand, and the Twelve Traditions on the other. The former writings containA.A.'s spiritual doctrines and therapeutic, rehabilitative modalities,to be "practiced as a way of life" (id., at 17). As we have demonstrated,these texts are unequivocally religious in theme and proselytizing in content.
Conversely, the Twelve Traditions essentially deal with the nondoctrinal,secular problems which can be expected to arise and challenge any popularmovement -- organizational structure, finances, membership eligibility,management authority and the like. It should come as no surprise, therefore,that the content of the Twelve Traditions is more secular and less religiousin tone than its Twelve Steps companion piece in the same volume. Thatis because it was designed not to supersede the reverent doctrines andpractices of the A.A. literature which we have already quoted, but to addressthe essentially secular issues the A.A. movement confronted as it achievedpublic acceptance. Even then, the Twelve Traditions portion of A.A. TwelveSteps/Twelve Traditions reaffirms the essential religious convictions ofthe A.A. society. In the "long form" Twelve Traditions, TraditionThree contains a parable concerning an atheist, "Ed", who, afterjoining A.A. protested all of the "God stuff" of practicing theTwelve Steps. Then, as expected, Ed lapsed from sobriety, until, aloneand "holed up in a cheap hotel * * * [a]s he tossed in bed, his handbrushed the bureau nearby, touching a book. Opening the book, he read.It was a Gideon Bible. * * * It was the year 1938. He hasn't had a drinksince" (A.A. Twelve Steps/Twelve Traditions, at 143-145). Thus, whileit is of course true that the primary objective of A.A. is to enable itsadherents to achieve sobriety, its doctrine unmistakably urges that thepath to staying sober and to becoming "happily and usefully whole,"is by wholeheartedly embracing traditional theistic beliefs.
Even if the dissent's disavowal of A.A.'s religiosity is found not compelling,the dissenters suggest that the A.A. component of the ASAT Program (l)is essentially insignificant or "attenuated" (see, Dissent, SlipOpn, at 4), albeit requiring at least weekly attendance at A.A. operatedgroup meetings for 26 weeks and constant working of the Twelve Steps inall other parts of the ASAT curriculum; and (2) is readily severable fromthe predominantly secular ASAT Program (Dissent, Slip Opn, at 22), althoughthe ASAT Program Manual itself states that participation in the A.A. groupmeetings is "essential to the fulfillment of program goals" (emphasissupplied). These alternative arguments are therefore also unpersuasive.
II
Once, thus, it has been demonstrated that A.A. tenets and practicesnecessarily entail religious exercise, the conclusion appears unavoidablethat its use by the State correctional system as an essential componentof an exclusive, compulsory attendance ASAT Program violates the EstablishmentClause. Here, the State, through its correctional authorities at the Shawangunkfacility, has exercised coercive power to advance religion by denying benefitsof eligibility for the Family Reunion Program to atheist and agnostic inmateswho object and refuse to participate in religious activity which is aninextricable part of the ASAT Program. No secular drug and alcohol addictiontreatment program devoid of A.A.'s practices and doctrines, which wouldqualify an inmate for eligibility to participate in the Family ReunionProgram, is offered as a substitute.
A.
There is no firmer or more settled principle of Establishment Clausejurisprudence than that prohibiting the use of the State's power to forceone to profess a religious belief or participate in a religious activity.As Justice Black explained in the first case applying the EstablishmentClause to the States, "'the establishment of religion' clause of theFirst Amendment means at least this: Neither a state nor the Federal Governmentcan set up a church. * * * Neither can force nor influence a person togo to or remain away from church against his will or force him to professa belief or disbelief in any religion. No person can be punished for entertainingor professing religious beliefs or disbeliefs * * *" (Everson vBoard of Educ., 330 US 1, 15-16 [emphasis supplied]).
The court in Torcaso v Watkins (367 US 488) struck a provisionof a State constitution conditioning the right to hold public office ona declaration of belief in God, holding:
"we repeat and again reaffirm that neither a State nor the FederalGovernment can constitutionally force a person 'to profess a belief ordisbelief in any religion.' Neither can constitutionally pass laws or imposerequirements which aid all religions as against all nonbelievers, and neithercan aid those religions based on a belief in the existence of God as againstthose religions founded on different beliefs" (id., at 495 [emphasissupplied]).
Indeed, in Lee v Weisman (505 US __, 122 S Ct 2649, supra), althoughthe Supreme Court split on whether a junior high school's inclusion ofa nondenominational prayer at its graduation exercises was coercive, theCourt was unanimous in condemning State compulsion to attend or participatein a religious practice. Justice Kennedy, writing for the majority, stated(505 US, at ___, 112 S Ct, at 2660): "it is a tenet of the First Amendmentthat the State cannot require one of its citizens to forfeit his or herrights and benefits as a price of resisting conformance to a State-sponsoredreligious practice." Concurring in Lee v Weisman, Justice Blackmunopined that coerced attendance at a religious exercise is invariably sufficientto establish an Establishment Clause violation (505 US, at __, 112 S Ct,at 2664, supra): "although our precedents make clear that proof ofgovernment coercion is not necessary to prove an Establishment Clause violation,it is sufficient. Government pressure to participate in a religious activityis an obvious indication that the government is endorsing or promotingreligion" [emphasis supplied]. And Justice Scalia for the four dissentingJustices agreed that the Establishment Clause bars coercion by "forceof law and threat of penalty" (emphasis in the original) to engagein a religious activity, such as requiring a person to "attend churchand observe the Sabbath" (505 US, at ___, 112 S Ct, at 2683, supra).
Thus, it follows that the Shawangunk Correctional Facility may not constitutionallyrequire petitioner "to forfeit his * * * benefits [eligibility forthe Family Reunion Program] at the price of resisting conformance to astate-sponsored religious practice" (Lee v Weisman, supra,505 US, at __, 112 S Ct, at 2660). The enforced attendance at A.A. meetingsas part of the ASAT Program violates the Establishment Clause in that "anaudience gathered by State Power is lent * * * to a religious cause"(Tribe, American Constitutional Law [2d ed], at 1170 [emphasis supplied]).In that way the Shawangunk facility has "apparently employed the machineryof the state to gather an [involuntary] audience for religion" (id.,at 1173).
B.
Despite the overwhelmingly religious tone of the A.A. basic texts asquoted above, literally urging performance of quite traditional religiousdevotional exercises in working the 12 steps, and the pressure put on petitionerto attend A.A. sessions at pain of losing family contacts, the AppellateDivision apparently accepted respondents' position that the EstablishmentClause was not violated because other A.A. writings suggest a tolerationof belief in a "God" as merely some "Higher Power"without any religious content (see, 211 AD2d, at 189-190). Therefore, theAppellate Division concluded, the petition fails even at the pleading stage,in the absence of some extrinsic evidence of religious coercive techniquesused in actual practice at A.A. meetings in the Shawangunk facility (211AD2d, at 194). Aside from the obvious difficulty in conceptualizing howone could perform a confessional of "wrongs" (Step 5) or seek,through "prayer," "contact" (Step 11) with a God devoidof religious content, the Appellate Division's rationale for upholdingthe A.A. component of the ASAT program is erroneous in two respects. First,even if respondents are correct that A.A. permits a secular interpretationof its doctrines and practices, undeniably its paramount theme, as we havedemonstrated, favors a religious interpretation. Therefore, respondents'defense fails under the "'wholesome neutrality'" requirementof the Establishment Clause (see, School Dist. of Abington Twp. v Schempp,374 US 203, 222, supra [emphasis supplied]).
The A.A. volunteers who are invited to conduct the prison self-helpgroup meetings of inmates in the ASAT Program, where the 12 steps are worked,can reasonably be expected to be wholeheartedly imbued with and committedto the religious precepts predominating in the A.A. basic texts. It, therefore,is highly unlikely that the religious indoctrination of A.A. volunteerleaders would not affect the tone and content of A.A. sessions for inmates.Exactly that result was proved at trial before the United States DistrictCourt in Warner v Orange County Dept of Probation (870 F Supp 69[SDNY]). There, the plaintiff was required to participate in A.A. meetingsas a condition of probation upon his state conviction for drunken driving.The U.S. District Court found that "[g]roup prayer was common at theA.A. meetings plaintiff attended. Many of the meetings began with a non-denominational'Serenity Prayer' * * * and all of the meetings ended with the Lord's prayer,which is a specifically Christian prayer. In addition, those attendingthe meetings were strongly encouraged to pray" (id., at 71). In O'Connorv State of California (855 F Supp 303, 306 [D Cal]), virtually identicalfindings were made on the religiously-oriented conduct of A.A. meetings,attendance at which had been imposed as an alternate condition of probation.
Infringement of the neutrality principle underlying the EstablishmentClause is readily apparent here. The State, through its ASAT Program, delegatesto A.A. volunteers a crucial part of the State's discretionary authorityto conduct mandatory treatment programs for alcohol and drug addicted inmatesin the State's prison system. Inmates are pressured to participate in theprogram by the State's conditioning eligibility for the Family ReunionProgram on attendance. Yet correctional authorities have not incorporatedinto the ASAT Program any effective means to insure that A.A. meetingsfor inmates are free of religious content and that rehabilitation and treatmentare performed by purely secular means, rather than the unequivocally proselytizingmessages of the A.A. Big Book and A.A. Twelve Steps\Twelve Traditions wehave previously quoted.
In the foregoing respects, the State-adopted exclusive but mandatoryASAT Program fails to pass Establishment Clause muster for the same reasonthat the Supreme Court affirmed this Court's invalidation of the New Yorkstatute creating a special school district in Board of Educ. of KiryasJoel Vill. Sch. Dist. v Grumet (512 US ___, 114 S Ct 2481, 129 L Ed2d 546, supra). Here, as in Kiryas Joel, the State "departsfrom [the constitutional command of neutrality] by delegating the State'sdiscretionary authority over [a required rehabilitation program for prisoninmate addicts] to a group defined" by its literature and governingprecepts as committed to encouraging acceptance of religious doctrine;yet the State "gives no assurance that [such] governmental power hasbeen or will be exercised neutrally" (id., at ___, 114 S Ct, at 2487).
C.
In apparently concluding that no Establishment Clause violation occurredhere because A.A. does not require a participant to adhere to a sectarianbelief in God, but permits one to entertain a secular concept of a HigherPower devoid of religious content, the Appellate Division committed a seconderror by disregarding application of the second prong of the three-parttest (the purpose-effect-entanglement test) for primary Establishment Clauseanalysis articulated in Lemon v Kurtzman (403 US 602, supra). Contraryto the implicit rationale of the Appellate Division, State-coerced adherenceto a religious sect is not necessary to prove an Establishment Clause violationunder any portion of the Lemon test (id.; see also, Lee v Weisman,supra, 505 US, at __, 112 S Ct, at 2664 [Blackmun, J., concurring]). Specifically,under the second prong of the Lemon test, State action is invalidif its "primary effect" is to advance or promote religion (Lemonv Kurtzman, 403 US, at 612, supra).
Since its articulation as the second prong of the Lemon testin Establishment Clause jurisprudence, there have been several importantrefinements to the "primary effect" test. First, a "primary"effect of advancing religion does not connote that the religious consequencesof the State action must predominate over any secular objective or consequence.No measurement or weighing of the respective secular and religious effectsis required. "We do not think that such metaphysical judgments areeither possible or necessary. Our cases simply do not support the notionthat a law found to have a 'primary' effect to promote some legitimateend under the State's police power is immune from further examination toascertain whether it also has the direct and immediate effect of advancingreligion" (Committees for Public Education and Religious Libertyv Nyquist, 413 US 756, 783 n 39 [emphasis supplied]). A violation alsois established if the State action's "inevitable effect is to aidand advance" religion (id., at 793 [emphasis supplied]).
In addition, later decisions construing the second prong of Lemon"have refined the definition of governmental action that unconstitutionallyadvances religion * * * * [by] pay[ing] particularly close attention towhether the challenged governmental practice has the purpose or effectof 'endorsing' religion" (County of Allegheny v American CivilLiberties Union, 492 US 573, 592). That concept "'preclude[s]government from conveying or attempting to convey a message that religionor a particular religious belief is favored or preferred'" (id., at593 [quoting Wallace v Jaffree, 472 US 38, 70 (O'Connor, J., concurring)]).The prohibition against governmental endorsem*nt of religion means "atthe very least, [that government is barred] from appearing to take a positionon questions of religious belief 'making adherence to a religion relevantin any way to a person's standing in the political community'" (Countyof Allegheny v American Civil Liberties Union, supra, 492 US, at 594[quoting Lynch v Donnelly, 465 US 668, 687 (O'Connor, J., concurring)]).An endorsem*nt violating the Establishment Clause can be determined byexamining whether the message that the government's practice communicatesmay be fairly understood as favoring or promoting religion (id., at 595).That is, it must be ascertained whether "the challenged governmentalaction is sufficiently likely to be perceived by adherents of the controllingdenominations as an endorsem*nt, and by the nonadherents as a disapproval,of their individual religious choices" (School Dist. of Grand Rapidsv Bell, 473 US 373, 390).
Applying the foregoing criteria we conclude that the inclusion of theA.A. 12 steps and other doctrines and meeting practices in a mandated,exclusive drug addiction and alcoholism rehabilitation program at the ShawangunkCorrectional Facility constitutes the prohibited endorsem*nt of religionviolating the Establishment Clause. It is simply unimaginable that inmatesin the inherently authoritarian atmosphere of a prison would not perceivethat such a mandatory, exclusive program, facially containing expressionsand practices that "ha[ve] always been religious" (Engel vVitale, 370 US, at 424, supra), favors inmates who adhere to thosebeliefs, and symbolically condones the religious proselytizing those expressionsliterally reflect (School Dist. of Grand Rapids v Bell, supra, 473US, at 390-391). Indeed, this very perception of the A.A. component ofthe ASAT program was what prompted the initial written response of a facilityofficial to petitioner's grievance, stating upon reading the Twelve Stepsand Twelve Traditions, that the facility did not offer a "program(therapeutic) without a religious background."
For all the foregoing reasons, a mandatory, exclusive ASAT addictiontreatment program at the Shawangunk Correctional Facility incorporatingthe A.A. Twelve Steps methodology, credo and meeting practices, violatesthe Establishment Clause.
III
Before concluding this Opinion, we find it necessary to respond to someof the dissent's criticisms of our holding. First, the dissent misreadsour decision in persistently characterizing it (a) as hostilely "root[ed]in a proposition" that A.A. itself and its religious practices andprecepts are constitutionally "objectionable" (Dissent, SlipOpn, at 4; see also, id., at 7, 15, 17); and (2) as implicitly holdingthat the Establishment Clause was violated merely by the "importation"(Dissent, Slip Opn, at 16), "permeation" (id., at 15), "religiousalchemy" and "profound absorption" (id., at 29) of the incorporationof A.A. materials into the ASAT curriculum. The latter interpretation ofour holding appears to underlie the dissent's criticism that we have foundthe ASAT curriculum to be "a dominating form of religious coercion"(Dissent, Slip Opn, at 19), and the dissent's suggestion that we have empoweredpetitioner to dictate the content of the ASAT curriculum "'to [his]individual preferences'" (id., at 16). This also appears to accountfor the dissenters' "puzzle[ment]" (id., at 12) respecting ourposition that incorporation of A.A. components into a truly voluntary inmatedrug rehabilitation program could validly be accomplished.
Neither of these two characterizations of our holding finds even inferentialsupport, let alone express substantiation in the majority writing. To thecontrary, we have repeatedly indicated throughout the decision that thedecisive factor in our analysis was not the incorporation of A.A. doctrineand practices into the ASAT Program, but the facility's application ofcoercive pressure to participate in an exclusive inmate drug and alcoholtreatment program having that component (see, infra, at 17-20, 22-23, 26,32-34). Rather than condemning A.A. and its practices we specifically acknowledgedA.A.'s "proven effectiveness" (infra, at 2). Our decree specificallyprohibits only the coercive aspects of conditioning petitioner's eligibilityfor the Family Reunion Program on attendance in the ASAT Program as presentlyconstituted.
Second, pointing to the commendable secular purposes and effects ofboth the ASAT program and A.A. in the battle against alcohol and drug addiction,the dissent appears to conclude that any religious aspects of the incorporationof mandated A.A. devotional materials and practices are outweighed by thesecular purposes and effects of ASAT and A.A. Thus, the dissenters listas "key" to their vote to affirm their evaluation that the ASATProgram and A.A. remain "overwhelmingly secular" (Dissent, SlipOpn, at 2 [emphasis supplied]); and repeatedly stress the "predominantlysecular" "goals", "aims" and "purposes"of ASAT and A.A. (see, id., at 2, 8, 17, 20, 21, 22, 24). The teachingof the Supreme Court decisions, as we have already noted, rejects subjectiveassessments purporting to quantify the respective religious and secularpurposes and effects of governmental action (see, Committee For PublicEducation and Religious Liberty v Nyquist, 413 US 756, 783 n 39, supra["Our cases simply do not support the notion that a law found to havea 'primary' effect to promote some legitimate end under the State's policepower is immune from further examination to ascertain whether it also hasthe direct and immediate effect of advancing religion"]).
Alternatively, the dissent argues that we have too rigorously appliedthe reach of the Establishment Clause (Dissent, Slip Opn, at 6-7) and,relying upon Justice Brennan's concurring opinion in McDaniel v Paty(435 US 618, 638-639, 641) (Dissent, Slip Opn, at 15), attempts to bringthis case within the rubric of precedents more loosely applying the EstablishmentClause when strict enforcement would conflict with the values reflectedin the Free Exercise Clause or the Free Speech Clause of the First Amendment.Thus, the dissent gives special emphasis to the portion of Justice Brennan'sMcDaniel opinion stating that the Establishment Clause "may not beused as a sword to justify repression of religion or its adherents fromany aspect of public life" (435 US, at 641, supra [Dissent, Slip Opn,at 15]). These precedents are entirely inapposite to the instant case,or to our ruling in it. Our holding does not interfere with any inmate'sfree choice to avail him or herself of A.A. religious practices in a prisonsetting to combat alcohol or drug addiction, or freely to enter into thepresent ASAT program. Rather, our ruling identifies as the critically objectionableaspect of respondent's correctional policy here, the application of coercivepressure upon petitioner to attend and participate in a religious exerciseat penalty of losing any possibility for cherished, expanded family contacts.Thus, we think more fitting to the issues here are the following excerptsfrom Justice Brennan's concurrence in McDaniel v Paty:
Beyond these limited situations in which government may take cognizanceof religion for purposes of accommodating our traditions of religious liberty,government may not use religion as a basis of classification for the impositionof duties, penalties, privileges or benefits.
* * *
Fundamental to the concept of religious liberty protected by the ReligionClauses is the idea that religious beliefs are a matter of voluntary choiceby individuals and their associations * * * (McDaniel v Paty, 435US, at 639-640, supra [Brennan, J., concurring] [emphasis supplied]).
Indeed, where we particularly part company with the dissent is in therespective responses to the coercive aspect of correction facility policyregarding the ASAT Program and inmate/family visitation. As we have alreadyquoted, the core principle of the Establishment Clause is that religiousobservance must be "a matter of voluntary choice" (id., at 340),and that the State may not "force nor influence a person to go to* * * church against his will or force him to profess a belief" (Eversonv Board of Education, supra, 330 US, at 15-16).
Even those scholars who urge a shift to a more flexible, accommodatingapproach to Establishment Clause jurisprudence than the present SupremeCourt decisions would dictate, recognize the need for retaining the vitalityof that principle. Thus, Professor Witte, in the same article relied uponby the dissent (see, Dissent, Slip Opn, at 13, 14), would continue to condemnaccommodations of religion which "effectively coerce public participationin religious exercises such as prayer" (Witte, The Essential Rightsand Liberties of Religion in the American Constitutional Experiment, 71Notre Dame L Rev 371, 428 [emphasis supplied]). Nor would Witte limit theprohibition to school prayer cases, which the dissent suggests are suigeneris and totally inapplicable here (Dissent, Slip Opn, at 27-29). Rather,Witte applies a universal, enduring principle of voluntarism as the centralmeaning of the Establishment Clause, that to "effectively coerce"a person to attend religious exercises such as prayer violates the Constitutionbecause "[p]arties will choose to participate in the prayer * * *not out of voluntary conviction, but because of the civil and social advantagesattached to [it]" (Witte, supra, at 428 [emphasis supplied]; see also,Welsh v United States, 398 US 333, 356-357, supra [Harlan, J., concurring];Torcaso v Watkins, 367 US 488, 495, supra).
The dissent, however, denies that conditioning eligibility for the FamilyReunion Program on full attendance and participation in ASAT, includingits A.A. component, was coercive, since petitioner "voluntarily chosethe course of action that placed his agnosticism" above his desireto achieve extended family contacts and because the facility retained discretionto exclude him from the Family Reunion Program in any event (Dissent, SlipOpn, at 24- 26). Such a narrow, grudging application of the anti-coercivecore of the Establishment Clause is inconsistent with the case law, barringeven State "influence" to attend a religious exercise (Everson,supra).
Likewise, in Zorach v Clauson (343 US 306) -- a case invokedby the dissent (Dissent, Slip Opn, at 14, 23, 27) for the proposition thatpetitioner was not coerced by the threat of lost eligibility for the FRPProgram -- Justice Douglas, in rejecting the Establishment Clause claim,expressly relied upon the total absence of any influence by school authoritieson a student's election to take religious instruction:
The present record indeed tells us that the school authorities are neutralin this regard and do no more than release students whose parents so request.If in fact coercion were used, if it were established that any one or moreteachers were using their office to persuade or force students to takethe religious instruction, a wholly different case would be presented (id.,at 3ll [emphasis supplied]).
The dissent's "voluntary choice" regarding a "discretionary"family visitation program rationalization is identical to the MarylandCourt of Appeals' theory for upholding its State Constitution's test oathfor eligibility for elective or appointive public office in Torcasov Watkins (supra), that is, that the petitioner was not under "'compulsion'"[to believe in God because] he is not compelled to hold [public office]'"(367 US, at 495). The Supreme Court rejected that rationale, holding that,while a person may neither be compelled to hold nor have an abstract rightto public office, that "cannot possibly be an excuse for barring himfrom office by state-imposed criteria forbidden by the Constitution"(id., at 495-496).
Nor is the dissent's position consistent with the constitutional historyof the Establishment Clause, which demonstrates an intention to protectreligious voluntarism against even subtle governmental pressure. Thus,Justice Brennan in School District of Abington Township (supra),in interpreting the Clause as a mandate to leave religious matters completelyto the free conscience of the citizen, quoted the following from the Congressionaldebates on the Bill of Rights: "'the rights of conscience are, intheir nature, of peculiar delicacy, and will little bear the gentlest touchof governmental hand . . .'" (374 US, at 231 [quoting RepresentativeDaniel Carroll of Maryland during the debate upon the proposed Bill ofRights in the First Congress, August 15, 1789, I Annals of Cong 730] [emphasissupplied]).
Indubitably, the State through its Shawangunk Correctional Facilityofficials have applied far more than the "gentlest touch" tomake petitioner violate his personal conscience by depriving him of opportunitiesfor increased family visits because he refused to attend and participatein A.A. activities heavily imbued with religious content. Therefore, theState's requirement that petitioner fully participate in the present ASATProgram in order to qualify for the Family Reunion Program violates theEstablishment Clause, and cannot be permitted to stand.
Accordingly, the order of the Appellate Division should be reversed,without costs, and judgment granted in favor of petitioner prohibitingrespondents from conditioning petitioner's participation in the FamilyReunion Program on attendance in the subject Alcohol and Substance AbuseTreatment Program, as presently constituted.
F O O T N O T E S
1. The "Twelve Steps" are as follows:
"l. We admitted we were powerless over alcohol -- that our liveshad become unmanageable.
"2. Came to believe that Power greater than ourselves could restoreus to sanity.
"3. Made a decision to turn our will and our lives over to thecare of God as we understood Him.
"4. Made a searching and fearless moral inventory of ourselves.
"5. Admitted to God, to ourselves, and to another human being theexact nature of our wrongs.
"6. Were entirely ready to have God remove all these defects ofcharacter.
"7. Humbly asked Him to remove our shortcomings.
"8. Made a list of all persons we had harmed, and became willingto make amends to them all.
"9. Made direct amends to such people wherever possible, exceptwhen to do so would injure them or others.
"10. Continued to take personal inventory and when we were wrongpromptly admitted it.
"11. Sought through prayer and meditation to improve our consciouscontact with God as we understood Him, praying only for knowledge of Hiswill for us and the power to carry that out.
"12. Having had a spiritual awakening as the result of these steps,we tried to carry this message to alcoholics, and to practice these principlesin all our affairs" (Alcoholics Anonymous, Alcoholics Anonymous WorldServices Inc., at 59-60 [3d ed 1976] [emphasis in original]).
2. The parties agree that Narcotics Anonymous has adopted the TwelveSteps of A.A. as its guiding principle and that its beliefs and practicesdo not vary in any significant way from A.A.
3. It is evident that respondents were relying primarily on a book entitled"Alcoholics Anonymous," subtitled as the "Third Editionof the Big Book, The Basic Text For Alcoholics Anonymous" (AlcoholicsAnonymous World Services, Inc. [3d Edition, 1976]) (hereinafter, A.A. BigBook), and a text entitled "Twelve Steps and Twelve Traditions"(Alcoholics Anonymous World Services, Inc. [13th ed 1983]) (hereinafterA.A. Twelve Steps/Twelve Traditions). Although neither of these works werepart of the record in the courts below, apparently they were handed upby respondents and they are referred to at length in the Appellate Division'sdecision (see, 211 AD2d 187, at 189-190).
4. The dissent's criticism of our "inordinate * * * inflation"of A.A. writings because they are "not documented by a customary ** * record basis" (Dissent, Slip Opn, at 19) is unwarranted. It wasrespondents, in all courts throughout this proceeding, who have invokedand cited to these A.A. basic doctrinal texts, ostensibly to show thatall references to God and prayer in the Twelve Steps were secular. Noteven respondents now claim that these writings are not properly beforethis Court to explain the A.A. 12-steps credo and methodology incorporatedin the ASAT Program.
5. Both the dissent and the Appellate Division rely heavily on A.A.'s"explicit declaration against sectarian preference" as beingdispositive (see, Dissent, Slip Opn, at 8; 211 AD2d, at 190). Torcasoclearly interdicts governmental pressure favoring religion generally --not merely favoring a particular religious sect or sects. This view ofthe reach of the Establishment Clause is supported by respected constitutionallaw scholars (see, 4 Rotunda and Nowak, Treatise on Constitutional Law§ 21.3, at 435; see also, School Dist. of Abington Twp v Schempp,374 US 203, 216-217, supra).
6. The foregoing opinions of all nine of the Justices in Lee v Weismandealing with anticoercion as a settled precept of the Establishment Clauseeither independently or as a prohibited governmental endorsem*nt of religionin violation of the second prong of the three-part Establishment Clausetest of Lemon v Kurtzman, supra), effectively dispose of the dissent'scriticism that we have wrongfully interjected a "dominant" coercionelement (id., at 12; see also, id., at 11), in a "novel" (id.,at 11) or "tenuous" manner (id., at 1) unsupported by precedent,to Establishment Clause jurisprudence. See also the views of constitutionalscholar Laurence Tribe, quoted infra. Our Court also recognized that anticoercionwas an essential precept of the Establishment Clause in New York SchoolBoards Assn. v Sobol (79 NY2d 333, 337).
7. The dissent also invokes language in O'Lane v Estate of Shabazz(482 US 342, 349) (Dissent, Slip Opn, at 23), and relies upon it and otherprison inmate cases (id., at 26, 29) in which some limitations on FreeExercise and Free Speech rights of inmates have been upheld in balancingthose interests against legitimate State penological interests. Moreover,the dissent also cites (id., at l6-l7) with approval Boyd v Coughlin(9l4 F Supp 828) wherein the U.S. District Court did apply a balancingtest to an inmate's Establishment Clause claim (see, id., at 831-832).Such balancing has never been applied by the Supreme Court in an EstablishmentClause case. Adopting a balancing approach here would be unprecedentedand raise serious implications beyond the prison context.
BELLACOSA, J. (dissenting):
Judge Ciparick and I would affirm the lower courts' rejection of petitioner'slawsuit. The Majority centers its reversal and grant of relief in thiscase on coercion. That must, however, be coupled with a finding that theAlcohol and Substance Abuse Treatment Program ("ASAT") of theNew York State Department of Correctional Services fosters a religiouspractice in the first place. The building blocks rest also on the attributionto the ASAT Program of a predicate of "religious-oriented practicesand precepts" (Majority opn, at 2, et seq.) culled together from theAlcoholics Anonymous ("A.A.") Twelve Step paradigm. The combination,tied together by a tenuous application of a coercion concept, producesa declaration that the Establishment of Religion Clause of the United StatesConstitution has been violated (US Const, 1st Amend).
We conclude that the allegedly compelled religious root -- the deisticsymbols and allusions selected principally from A.A. literature concerningits Twelve Step Program -- does not justify the judicial relief that ultimatelyexcuses petitioner-appellant-inmate on First Amendment grounds from thebenefits of the ASAT Program, when he wishes to avail himself of the CorrectionalDepartment's Family Reunion (expanded visitation) Program. The key premisesof our votes to affirm include:
§ The ASAT Program and this case, analyzed within the three-prongedcriteria of Establishment Clause review (see, Lemon v Kurtzman,403 US 602) and recent, relevant authorities, do not breach constitutionalboundaries;
§ The ASAT Program is inappropriately analogized to the uniquelysensitive public school settings under First Amendment jurisprudence;
§ The ASAT Program is a rationally justified and voluntary meansof serving the important and predominantly secular State goal of treatingand reducing inmate substance abuse;
§ The ASAT Program, to the extent that it incorporates suggestedaspects of the A.A. Twelve Step Program that some may perceive as somewhatreligious, remains overwhelmingly secular in philosophy, objective andoperation;
§ Petitioner-appellant's challenge and proffered record lack thequality and quantum necessary to justify this first impression holding.
I.
ASAT is the primary umbrella program operated by the New York StateDepartment of Correctional Services to provide treatment options for chemicallydependent inmates. Not all of the substance abuse programs offered by theDepartment are considered to be ASAT Programs; only those operated or overseenby ASAT staff and complying with program standards are treated as such.According to the ASAT Program Operations Manual, the primary mission ofASAT is "[t]o prepare chemically dependent inmates for return to thecommunity and to reduce recidivism * * * by providing education and counselingfocused on continued abstinence from all mood altering substances and participationin self-help groups based on the 'Twelve Step' approach." The ASATphilosophy declares that it uses the "12-Step approach to recovery"and that "[b]y working the 12 suggested steps" a person achieves"a realistic understanding of himself/herself" (emphasis added).It continues: "The 12 steps of AA act as a guide which provide thetools to build a new way of life without the use of alcohol and/or drugs,one day at a time" to prevent relapses upon release (emphasis added).
The services offered through ASAT involve three main components. First,treatment, education and family counseling services are formally part ofthe ASAT Program. Second, participants are urged to use other academic,vocational, and social or medical services made available to them althoughnot part of the formal ASAT Program. Third, enrollees are required to participatein independent, volunteer-led self-help groups. The self-help group componentprovides the sole and slender nexus for the controversy here and declarationof unconstitutionality. In that respect, the ASAT Program Manual statesthat "[i]t should be noted that self-help groups such as A.A. andN.A. are not part of the formal ASAT Program but are an important adjunctto it. The groups must be separated from the ASAT Program and not supervisedor chaired by ASAT staff. Affiliation and employee involvement is counterto self-help group traditions" (emphasis added).
The basic ASAT treatment method encompasses approximately 330 hoursof counseling and therapy spread over a 26-week period. This includes mostlylectures, seminars, group discussions, and counseling focused on addictionand recovery. Self-help group participation is not a predominant part and,indeed, constitutes an attenuated feature of the total ASAT experience,consisting of only 26 hours of the total program period. The ASAT Program,rather than commanding some doctrinal hegemony, is thus notable for itsdiversity, variety, voluntariness and nuanced interplay of various components.
The center of gravity for the resolution of this lawsuit is a findingthat the ASAT Program unconstitutionally compels petitioner to join inreligious practices as a condition to his receiving the discretionary benefitof the Correctional Department's extra visitation program. The ASAT Programis thus charged with imposing a State endorsem*nt of and entanglement withpractices of A.A. deemed religiously intrusive and objectionable. The analysisexpressly refers to deistic expressions from A.A.'s Twelve Step modality.Our interpretation of this integral dispositive rationale specificallyand fairly identifies its root in a proposition that A.A. advances "religious-orientedpractices and precepts" that urge "performance of quite traditionalreligious devotional exercises" (Majority opn, at 2, 21).
A brief overview of A.A. history and its operating principles contradictsthe predicate assumptions that drive petitioner's tenuous theory. A.A.was founded in 1935 as a general concept under which community groups ofindependent individuals voluntarily join together in common experienceand discipline to try to stay sober. The two basic texts of A.A. are AlcoholicsAnonymous (Alcoholics Anonymous World Services, Inc. [3d Edition, 1976]["The Big Book, The Basic Text for Alcoholics Anonymous"]) andTwelve Steps and Twelve Traditions (Alcoholics Anonymous World Services,Inc. [3d Edition, 1981]), which were originally published in 1939 and 1952,respectively. Substantially, if not overwhelmingly, they reflect suggestedsecular and spiritual guideposts, not compulsory religious commandmentsor tenets of some New-Age or even Old-Time religion.
As the preface to the "Big Book" states, "[b]ecause thisbook has become the basic text for our Society and has helped such largenumbers of alcoholic men and women to recovery, there exists a sentimentagainst any radical changes being made in it. Therefore, the first portionof this volume, describing the A.A. recovery program, has been left untouchedin the course of revisions made for both the second and the third editions."A.A. has thus refrained from revising its founding texts to conform topolitically correct themes and times or to excise expressions objectionableto the school of "secular individualism" (Dent, Book Review,46 J of Legal Educ. 130, 131-134 [1996]).
The United States Supreme Court has itself observed that in consideringthe principles underlying the Establishment Clause, there may be a "'tendencyof a principle to expand itself to the limit of its logic'; such expansionmust always be contained by the historical frame of reference of the principle'spurpose, and there is no lack of vigilance on this score by those who fearreligious entanglement in government" (Walz v Tax Commn. of theCity of New York, 397 US 664, 678-679, quoting Cardozo, The Natureof the Judicial Process, reprinted in Selected Writings of Benjamin NathanCardozo [Hall ed. 1947], at 127). Thus, "the Court consistently hasdeclined to take a rigid, absolutist view of the Establishment Clause.We have refused 'to construe the Religion Clauses with a literalness thatwould undermine the ultimate constitutional objective as illuminated byhistory' [emphasis in original]. * * * In our modern, complex society,whose traditions and constitutional underpinnings rest on and encouragediversity and pluralism in all areas, an absolutist approach in applyingthe Establishment Clause is simplistic and has been uniformly rejectedby the Court" (Lynch v Donnelly, 465 US 668, 678 [emphasisadded]; see also, Walz v Tax Commn. of New York City, 397 US 664,671, supra; 4 Rotunda and Nowak, Constitutional Law: Substance and Procedure§ 21.3, at 459 [2d ed 1992]; Kurland, Religion and the Law Of Churchand State and the Supreme Court, at 111 [1961]).
Rigidity is eschewed because "[f]ocus[ing] exclusively on the religiouscomponent of any activity would inevitably lead to its invalidation underthe Establishment Clause" (Lynch v Donnelly, 465 US 668, 680,supra). The Supreme Court has thus stated that "our precedents plainlycontemplate that on occasion some advancement of religion will result fromgovernmental action" (Lynch v Donnelly, supra, at 683). TheCourt has made it abundantly clear, however, that "'not every lawthat confers an 'indirect,' 'remote,' or 'incidental' benefit upon [religion]is, for that reason alone, constitutionally invalid'" (Lynch vDonnelly, supra, at 683, quoting Committee for Public Education& Religious Liberty v Nyquist, 413 US 756, 771). We are satisfiedthat perceived religious aspects of A.A. transmuted into ASAT are indirect,remote and incidental, and neither compulsory nor mandatory (see, Lynchv Donnelly, supra). Yet, the Majority rules that the United StatesConstitution and Supreme Court precedents demand a virtually pure secularity(Majority opn, at 2, 18, 23). In any event, coercion alone cannot transformsuch incidentalism into an Establishment Clause violation. There is notheory, case or authority that we know of for a theory with that kind oftrumping quality (see generally, Glendon, Law, Communities, and the ReligiousFreedom Language of the Constitution, 60 Geo Wash L Rev 672, 679 [1992];see also, Gedicks, The Rhetoric of Church and State, at 63-65, 72, 82,120-121 [1995]).
When A.A.'s Twelve Steps are drawn across the Establishment Clause divide,a challenger must bear a very high burden of demonstrating unconstitutionalitybeyond a reasonable doubt. The objectant must present more than superficialanalysis of the operating principles of the challenged State exertion.
A fair review of the totality of the A.A. message and mission reasonablysupports our acceptance of its published and principled representationthat its renowned singular aim is simply to help people help themselvesin attaining and maintaining sobriety -- a salutary public objective pursuedthrough personal, voluntary and secular means. Empirical data makes thisgoal an especially demonstrable imperative for a rehabilitative correctionalfacility population. Our examination of the deistic references and semanticalicons from the A.A. Twelve Steps discloses a concededly spiritually-accentedlandscape, but not a constitutionally objectionable religious core.
The A.A. Traditions helpfully illustrate the primary and principal effectof the ASAT Program. Tradition Six states, "An A.A. group ought neverendorse, finance or lend the A.A. name to any related facility or outsideenterprise, lest problems of money, property and prestige divert us fromour primary purpose." The "Long Form" of Tradition Ten continuesthis theme, stating: "No A.A. group or member should ever, in sucha way as to implicate A.A., express any opinion on outside controversialissues -- particularly those of politics, alcohol reform, or sectarianreligion. The Alcoholics Anonymous groups oppose no one. Concerning suchmatters they can express no views whatever" (emphasis added). Theseexplicit declarations against sectarian preference or promotion are disdainedas irrelevancies in the Majority's dispositional analysis (Majority opn,at 9, 19 n5) and turned into a distortion of our dissenting viewpoint (Majorityopn, at 14).
Notably, too, the reliance upon speculative assertions of some prisonstaff that ASAT might harbor some religious features based on their personalreading of some of the literature is misplaced and does not materiallyaid in the resolution of this case. Unfounded, ambiguous and unofficialconclusions provide no basis for arriving at definitive findings regardingState action, with the dispositional and precedential consequences of thisruling.
II.
Our differences, however, must stay focused on the Establishment Clauseand the constitutional issue, not on the whole or even selected excerptsof the A.A. message and literature, or A.A. projected into ASAT throughA.A.'s original, historical, evolving or modern visage or operational reality.The Supreme Court has stated that "a determination of what is a 'religious'belief or practice" under the Constitution "may present a mostdelicate question," but that if the belief turned on the "subjectiveevaluation and rejection of the contemporary secular values," suchbeliefs would not rest on a religious basis because the choice made bythe individual would then be "philosophical and personal rather thanreligious" (Wisconsin v Yoder, 406 US 205, 215-216; see also,Tribe, American Constitutional Law § 14-6, at 1183 [2d ed, 1988]).
A.A. principles unquestionably arise from a secular philosophy and psychology,which espouse a fellowship of different individuals sharing their experiencesin a confidential and voluntary manner that can mutually reinforce theindividual desire and effort to overcome a terrible addiction and propensitymore readily than if people tried to survive and conquer the disablingdisease alone. The transcendent, human, spiritual qualities of this commitmentand endeavor do not thrust the experience into a religious realm. Nor doesthe recognition and acceptance of some "Higher Power," outsideof the "Ego," constitutionally connote a theistic ontology (see,Glendon, op. cit., at 679).
Professor Stephen Carter has noted that the religious characterizationwith which A.A. is sometimes cloaked does not come from its throngs ofparticipants and beneficiaries, and that constitutional hostility to religionmay be lessening (see, Carter, The Culture of Disbelief [1993], at 121n*, and in context at 120-123; Carter, The Resurrection of Religious Freedom?,107 Harv L Rev 118, 119, 130-132, 142; see also, County of Alleghenyv American Civil Liberties Union, Greater Pittsburgh Chapter, 492 US573; School Dist. of Abington Twp., Pennsylvania v Schempp, 374US 203, 205; Gedicks, Public Life and Hostility to Religion, 78 Va L Rev671; Gedicks, The Rhetoric of Church and State [1995]). Professor PhilipKurland, in a seminal work, urged "neutral principles" of adjudicationin such controversies and offered these insights:
[T]he wisdom of the framers of the first amendment [is] in their objectivesof keeping the church free from domination by government and the statefree from alliance with religion. * * * The freedom and separation clausesshould be read as stating a single precept: that government cannot utilizereligion as a standard for action or inaction because these clauses, readtogether as they should be, prohibit classification in terms of religioneither to confer a benefit or to impose a burden. This test is meant toprovide a starting point for the solution to problems brought before theCourt, not a mechanical answer to them (Kurland, op. cit., at 111-112 [emphasisadded]).
Despite the competition of vocabulary and classifications between secularismversus communitarianism and neutrality versus accommodation, no one shouldlose sight of the relevant analytic framework and fact that this petitioner'sentire claim is predicated on the Establishment of Religion Clause. Hemakes no complaint whatsoever of restriction of his Freedom to Exercisereligion or nonreligion. Yet, the Majority's vital building block is acoercion element, applied in a novel fashion as a matter of law that echoesbetween the twin chords of the First Amendment's religion clauses. Thisis far beyond the coerced formal prayer in a school setting in Lee vWeisman (505 US 577) relied on so heavily by the Majority (Majorityopn, at 20, n6; contrast, Zorach v Clauson, 343 US 306).
We join, nevertheless, in the Majority's hope for no broader precedentialand practical sweep than necessary, and that public officials will continueto recognize and utilize valuable treatment modalities offered throughinstrumentalities like ASAT and A.A. At the same time, we remain legitimatelyconcerned about how they do so in light of the reasoning that leads tothe precise holding. For example, if purely voluntary, unconditional participationin an ASAT-A.A. Program satisfies all the Lemon prongs and, thus,would not constitute an Establishment Clause violation in that universeand fact pattern, how and why does the addition of a dominant coercionelement transcend and neutralize the satisfaction of the core criteriaon Establishment grounds? Stated conversely, if coercion of the distinctivekind asserted here is not present, how and why, then, would the same ASAT-A.A.Program, in a purely voluntary regimen, escape the Establishment Clausecloud engendered by the whole of the rationale of this case? The answersto these troublesome queries, for us at least, are elusive, unpersuasiveand puzzling.
III.
The Establishment Clause in ten words declares that "Congress shallmake no law respecting an establishment of religion" and is applicableto the States through the Fourteenth Amendment (US Const, 1st, 14th Amends;School Dist. of Abington Twp., Pennsylvania v Schempp, 374 US 203,205, supra). The Supreme Court realistically recognizes that total separationof religion and state in a pluralistic society with this Nation's historyand traditions is not possible or even desirable.
Towards the preservation and recognition of renowned laudatory endsand multifaceted protections, the Supreme Court has stood by a test todetermine whether particular government endorsem*nts or entanglements withreligion are prohibited by analyzing "the character and purposes ofthe institutions that are benefited, the nature of the aid that the Stateprovides, and the resulting relationship between the government and thereligious authority" (Lemon v Kurtzman, 403 US 602, 615, supra).In Lemon, the Supreme Court declared the well-known tripartite test:"First, the statute must have a secular legislative purpose; second,its principal or primary effect must be one that neither advances nor inhibitsreligion; finally, the statute must not foster 'an excessive governmentalentanglement with religion'" (id., at 612-613 [citations omitted]).
Individual Justices of the Supreme Court have expressed varying qualmsabout the continued usefulness and viability of Lemon (see, Countyof Allegheny v American Civil Liberties Union, Greater Pittsburgh Chapter,492 US 573, 655 [Kennedy, J., concurring in part and dissenting in part],supra; Edwards v Aguillard, 482 US 578, 636-640 [Scalia, J., dissenting];Lynch v Donnelly, 465 US 668, 688-689, supra [O'Connor, J., concurring]).The evident unevenness generated by the Lemon approach, as reflectedin the Supreme Court's latest cases, may be rectified someday and, in itsplace, a less separationist and more communitarian and beneficial approachmay emerge (see especially, Witte, The Essential Rights and Liberties ofReligion in the American Constitutional Experiment, 71 Notre Dame L Rev371, 425-430 [1996]; see e.g., Rosenberger v Rectors and Visitors ofthe University of Virginia, __ US __, 115 S Ct 2510, 2522- 2523; CapitolSquare Review & Advisory Board v Pinette, __ US __, 115 S Ct 2440;Bowen v Kendrick, 487 US 589). The Supreme Court, however, has forthe most part held onto the Lemon set of guideposts for EstablishmentClause jurisprudence, analysis and application (see, Lamb's Chapel vCenter Moriches Union Free School Dist., __ US __, 113 S Ct 2141, 2148n7).
The Majority's overriding emphasis on a coercion prong, however, isdisconcerting, especially when applied in this dispositional setting (Majorityopn, at 7 and 17; compare, Zorach v Clauson, 343 US 306, 311-312,supra; Grumet v Board of Educ., 81 NY2d 518, 527, affd ___ US ___,114 S Ct 2481; New York State School Bds. Assn. v Sobol, 79 NY2d333, 339; Matter of Klein [Harnett], 78 NY2d 662, 666; see also,Witte, op. cit., at 426-427). Indeed, the primary-and-principal-effectsprong of Lemon seems to be altered and diluted in a way that mayjeopardize other State actions under Lemon (Majority opn, at 2,17; Gedicks, op. cit., at 72- 73).
All experts, scholars and commentary aside, in any event, the FirstAmendment and the Supreme Court cases dominate. Petitioner's core claimthus ought to be meticulously examined to see how it measures up againstthe existing array of authorities -- not petitioner's theoretical construct.His complaint centrally relies upon the importation into the ASAT Programof assertedly objectionable religious symbols from the A.A. Twelve Stepmethod. That is his lawsuit, not our characterization of it.
Notwithstanding the Majority's objections to our dissenting viewpointthat analyzes the case as it comes to us, coercion -- without a linkedreligious nucleus that emerges as constitutionally offensive -- cannotalone justify the reversal in this case. After all, everything this appellant-petitioner-prisonerdoes or does not do is largely governed by the innately coercive atmosphereof his incarceration. He is in a correctional facility. He should not beallowed in the circ*mstances of this case to wield the Establishment Clause"as a sword to justify repression of religion or its adherents fromany aspect of public life" (McDaniel v Paty, 435 US 618, 641;see generally, Carter, The Culture of Disbelief, op. cit.). Yet, petitioneris allowed to do just that when he asserts, and the Majority agrees, thatthe Twelve Steps of A.A. unconstitutionally compel him to participate ina collection of content-based, "religious-oriented practices and precepts,"that by permeation into ASAT are together deemed to violate Lemon,solely because he wishes and chooses to apply for privileges permittedunder a discretionary expanded visitation regulation.
Petitioner, it should be noted, concedes that ASAT's overriding purposeto treat and reduce substance abuse among prison inmates is secular and,therefore, satisfies Lemon's first criterion (see, Boyd v Coughlin,914 F Supp 828, 832 [NDNY 1996]). Thus, petitioner's claim, taken in theterms of his own argument, rises or falls under Lemon's second andthird criteria, that is, whether ASAT, through A.A., principally or primarilyadvances religion or impermissibly entangles government with religion.
Whether the primary effect of a governmental policy advances or inhibitsreligion, in turn, depends on whether the "challenged governmentalaction is sufficiently likely to be perceived by adherents of the controllingdenominations as an endorsem*nt, and by the nonadherents as a disapproval,of their individual religious choices" (School Dist. of the Cityof Grand Rapids v Ball, 473 US 373, 390). Mere exposure to religiousideas or pure personal subjectivity do not breach the constitutional "blurred,indistinct and variable barrier" (Lemon v Kurtzman, 403 US602, 614, supra), nor do individuals possess constitutional rights andpower to force government "to tailor public school programs [or theASAT curriculum, we would respectfully submit] to individual preferences,including religious [or nonreligious] preferences" (see, Ware vValley Stream High School Dist., 75 NY2d 114, 125, supra). This isprecisely what petitioner succeeds in doing by this case. Indeed, not "everystate action impacting religion is invalid if one or a few citizens findit offensive. People may take offense at all manner of religious as wellas nonreligious messages, but offense alone does not in every case showa violation" (Lee v Weisman, 505 US 577, 597, supra [emphasisadded]).
The only references in the ASAT materials to the actual text of theA.A. Twelve Steps -- which we believe do not constitute an unconstitutionalState-compelled participation in religious practices -- are found in AttachmentE to the Operations Manual, entitled "ASAT Program Curriculum."The implementation and underlying focus of the counseling provided pursuantto these steps, however, is functionally and decidedly nonreligious (sofar as we know on this record), no matter what the incorporated deisticreferences semantically purport to invoke, suggest and portray.
The petitioner objects particularly to the incorporation by referenceof A.A. Steps Three, Five, Six, Seven, Eleven and Twelve into the ASATcurriculum, claiming that parts of their text foster or force a theisticpoint of view upon his agnostic beliefs. Though the Majority agrees withpetitioner's argument, we disagree; finer line-drawing is the more progressiveand enlightened trend and task (see, Rosenberger v Rectors and Visitorsof the University of Virginia, __ US __, 115 S Ct 2510, 2526 [O'Connor,J., concurring], supra). Thus, petitioner's claims are not supportablein this case and should not be remediable by the constitutionally-rootedrelief granted here.
The ASAT curriculum states that the goal of Step Three is "[t]oexplore the concepts and barriers in accepting a power beyond self"as well as "[e]xploration of self- centeredness," and that thegroup counseling focus is to "explore issues of fear (feelings) andits relationship to chemical use." Although the list of suggesteddiscussion topics includes "barriers to faith" and "prayerand meditation," no documentation by the party bearing the heavy burdenof proof in such a case is presented that these are anything more thantalking points and topics. It cannot be overlooked that, in this groupsetting, counselors must be prepared to handle inquiries from and concernsof all members of the group, religious and nonreligious alike, and thatinhibiting individual inmates from expressing personal views in a secularprogram may impinge upon their free exercise, free speech and free associationrights (see, Rosenberger v Rectors and Visitors of the University ofVirginia, supra, at 2513, 2520, 2523; Capitol Square Review &Advisory Board v Pinette, __ US __, 115 S Ct 2440, 2448-2449, supra).In a diverse and pluralistic universe, including a prison environment,a curriculum's identification of faith and neutrally described feelingsof hope, fear, and trust do not dissipate or override the significantlysecular quality within the overall treatment regimen. Nor do they projectreligiosity. Moreover, spirituality is not synonymous with religion generallyor constitutionally, no matter what Webster's dictionary may acontextuallyassemble as a general definition (Majority opn, at 9).
Steps Eleven and Twelve focus on discussions of the effect of addictionon others and continue to maintain a sense of momentum towards the freedomfrom dependency developed with the help of the program and its participants.Step Eleven does refer to "prayer and meditation" and "contactwith God," but then identifies the goal as: "[A]ssist[ing] inunderstanding the relationship between disease and its effects on the nextgeneration" and "viewing parenting in terms of recovery behavior."Step Twelve refers to a "spiritual awakening," but rather thanhaving any formalized religious significance or content, the goal of thisstep is a "[p]ersonal exploration of the feelings related to leavingtreatment (and prison)." ASAT is, thus, thoroughly free of religiousorganization, theses, ritual or doctrine, as expressly ordained by itscurriculum. The group discussions are cued to family and recovery issuesin a therapeutic and nonreligious manner. The talking points accompanyingthese A.A. Steps do not implicate religious proselytization or preference,except by petitioner's ingenuously subjective attenuation in this case-- and that does not rise to the level of a constitutionally-coerced religiousentrapment of this petitioner.
In sum, the Majority finds that the ASAT "curriculum" suffersfrom a dominating form of religious coercion and, thus, declares it constitutionallyencumbered, sufficiently to justify the final decree of this case. Thecurriculum focuses principally on assisting inmates on their voyages ofself-discovery away from addiction to self-awareness and recovery, andthe personal, psychological, social and spiritual means to maintain thatstate of sobriety or avoidance of dependency once outside the prison walls.Yet, the evidence submitted by petitioner to the courts below to supportthe constitutional nullification consists principally of the A.A. TwelveSteps sheet distributed as a "suggested handout" to ASAT participatinginmates in an attempt to explain non-ASAT self-help group dynamics. Thus,the inordinate constitutional inflation of A.A. texts, pamphlets and personalparables to superimpose an assertedly compulsory religious exertion ontopetitioner's participation in ASAT (the only Program at issue in this lawsuit,in which A.A. is not a party) is seriously flawed because it is not documentedby a customary and expected as-applied record basis.
Persuasively, other courts have concluded that A.A. practices are notconstitutionally religious, although they may partake of a blend of secularand spiritual qualities (see, O'Connor v State of California, 855F Supp 303; Stafford v Harrison, 766 F Supp 1014, 1016; Feaselv Willis, 904 F Supp 582, 586). The District Court in O'Connorfound that it was "undisputed that the primary purpose of requiringattendance at self-help meetings such as A.A. is to prevent drunk drivingand the tragic injuries and deaths that result from it, while at the sametime providing treatment for individuals with substance abuse problems.The 'principal and primary effect' of encouraging participation in A.A.is not to advance religious belief but to treat substance abuse" (O'Connorv State of California, supra, at 307 [emphasis added]).
Similar reasoning was employed in the recent decision of Boyd v Coughlin(914 F Supp 828 [NDNY 1996], supra), which dismissed an inmate's complaintalleging that the ASAT program violated both the Establishment and FreeExercise components of the Religious Clause. The court noted that "theexpressly stated principal and primary goal of the [ASAT] program is thepreparation of chemically dependent inmates for return to the communityand to reduce recidivism" (id., at 833). In dismissing the plaintiff'sclaim, the court "determine[d] that there is no material questionof fact as to whether the principal and primary purpose of [ASAT] programis to promote or inhibit religion" (id.).
Petitioner and the Majority instead misdirect Warner v Orange CountyDepartment of Probation (870 F Supp 69). In examining that plaintiff'sEstablishment Clause claim, the District Court stated that its inquirywas limited to "whether the A.A. program as plaintiff experiencedit was essentially religious in nature" (id., at 70 [emphasis added]).It found that the plaintiff had established that "[g]roup prayer wascommon at the A.A. meetings plaintiff attended" and that "thoseattending the meeting were strongly encouraged to pray," and thereforeconcluded that "the A.A. program that plaintiff experienced placeda heavy emphasis on spirituality and prayer, in both conception and inpractice" (id., at 71 [emphasis added]). In finding that the A.A.program as applied in that case had a direct religious essence and particularizedexperience, the District Court limited its ruling, stating, "the testimonyand evidence in this case support the finding that the A.A. meetings theplaintiff attended were the functional equivalent of religious exercise"(id., at 72 [emphasis added]). Additionally, Warner expressly declinedto apply the Lemon test (id., at 73 n2). Thus, it is of no valuebecause it avoided the Lemon test and was decided on the uniqueas-applied facts evidenced in a Federal trial court.
When a "program or regulation has a sufficiently secular effect"and the "secular impact is sufficiently separable" from any conceivablereligious impact, no Establishment Clause violation is presented (see,Tribe, op. cit., § 14-10, at 1216). In this case, petitioner has failedeven minimally to demonstrate that the primary and principal purpose ofthe ASAT Program is to compel advancement of constitutionally implicatedreligious practices or to stifle agnostic or atheistic preferences.
IV.
Petitioner also argues, and the Majority singularly accepts, that thepetitioner is "compelled" to attend the ASAT Program, and thatthis by itself shows that the primary purpose and effect of ASAT becomesone of advancement of religious practices that violates Establishment ofReligion strictures. This argument and analysis are factually and legallyincorrect and inapplicable to this case. First, coercion is not an abstractionand must be particularized. Second, the ASAT Program is initially voluntaryand intrinsically discretionary.
This situation is not at all appropriately analogized to school prayersettings (see, infra Part V). The Supreme Court has stated that "whileproof of coercion might provide a basis for a claim under the Free ExerciseClause, it [is] not a necessary element of any claim under the EstablishmentClause" (Committees for Public Education & Religious Libertyv Nyquist, 413 US 756, 786, supra; see also, School Dist. of AbingtonTwp., Pennsylvania v Schempp, 374 US 203, 223, supra; County ofAllegheny v American Civil Liberties Union, Greater Pittsburgh Chapter,492 US 573, 597 n 47, supra; Engel v Vitale, 370 US 421, 430; compare,Zorach v Clauson, 343 US 306, 311-312, supra). Indeed, the specialcirc*mstances of prison settings prompted the Supreme Court to hold andpointedly observe:
"Lawful incarceration brings about the necessary withdrawal orlimitation of many privileges and rights, a retraction justified by theconsiderations underlying our penal system." Price v Johnston,334 U.S. 266, 285 (1948). The limitations on the exercise of constitutionalrights arise both from the fact of incarceration and from valid penologicalobjectives -- including deterrence of crime, rehabilitation of prisoners,and institutional security (citations omitted). * * * "[W]hen a prisonregulation impinges on inmates' constitutional rights, the regulation isvalid if it is reasonably related to legitimate penological interests."Turner v Safley, ante, at 89. This approach ensures the abilityof corrections officials "to anticipate security problems and to adoptinnovative solutions to the intractable problems of prison administration,"ibid., and avoids unnecessary intrusion of the judiciary into problemsparticularly ill suited to "resolution by decree" (O'Lonev Estate of Shabazz, 482 US 342, 348-350 [emphasis added]).
Petitioner admitted in his original grievance (before a lawsuit andthis appeal ensued) that he was not "being forced to attend the [ASAT]program, but my attendance is required if I intend to continue participationin the FRP program." Thus, the institutional and constitutional compulsionof which petitioner now complains must be considered within the qualifyingcriteria for the discretionary expanded visitation program. This crucialconstitutional distinction -- the prisoner has an initial choice whetherto participate at all in the extended visitation program and the prisonofficials correspondingly have wide discretion to regulate the participants-- is disregarded in the resolution of this key aspect of this appeal.
The Family Reunion Program grants some inmates the opportunity to receiveselected visitors for extended time periods (7 NYCRR 220.1). Eligibilityis dependent on satisfying specified criteria, including a minimum lengthof stay at a correctional facility and a clean disciplinary record (7 NYCRR220.2[a] & [b]). A relevant feature in this case is attendance by inmatesat therapeutic treatment programs related to their particular offensesor overall histories (7 NYCRR 220.2[3][ii]). Because of appellant's admittedheroin use, correctional authorities properly invoked this regulation torequire his participation in ASAT for treatment of his addiction (see,7 NYCRR 220.2[3][ii]; 7 NYCRR 220.8).
Appellant's claim that this requirement legally converts his attendanceand participation in the ASAT Program into a compulsory religious exercise,with Establishment Clause implications and consequences, does not withstandscrutiny. He voluntarily chose the course of action that placed his agnosticismand nonbeliefs at risk because he wished to receive something he is notunqualifiedly entitled to from the State. Yet, he wins this lawsuit andthe State is charged with compromising his First Amendment EstablishmentClause rights.
In Matter of Doe v Coughlin (71 NY2d 48), this Court stated that:
Given the present regulatory scheme of the Family Reunion Program, [inmates]could have no legitimate expectation that they would be afforded [visits].* * * Although the regulations establish guidelines, the guidelines donot create an entitlement of [visits] because the review system is heavilydiscretionary and holds out no more than the possibility of [visits]. ** * Moreover, even though an inmate has previously been approved and participatedin the program, there can be no legitimate expectation of continued participationbecause the regulations provide that inmates must reapply each time theyseek a visit, and each application is subject to a new discretionary review"(id., at 55-56 [emphasis added]).
This significant precedent from this Court bearing directly on the partof the analysis that the Majority self-describes as the dispositive featureof its rationale -- coercion -- is left entirely unanswered and substantiallydeflected.
Contrary to petitioner's present coercion claim, he suffers no subjugationto unconstitutionally offensive religious practices or influences, evenif ASAT and A.A. were deemed to harbor proscribed religious attributesin some constitutionally cognizable sense. The correctional officials exercisedappropriate regulatory authority over petitioner's participation in a discretionaryvisitation program, so long as he also availed himself of a therapeuticprogram to treat his undeniable substance abuse history that might thenearn him the privilege of such extra visitations. This is an appropriate,not "narrow" or "grudging" limitation on petitioner'sexpectations and entitlements, because the privilege of special visitationsis necessarily circ*mscribed by the threshold circ*mstance of his incarceration,the nature of the visitation program and the individualized discretionaryassessment (Majority opn, at 33; see, Matter of Doe v Coughlin,71 NY2d, supra, at 58, supra; see also, Matter of Rivera v Smith,63 NY2d 501, 510; O'Lone v Estate of Shabazz, 482 US 342, 348, supra).
A keen parallel for this aspect of the case may be drawn from Hamiltonv Regents of the Univ. of California (293 US 245). The Supreme Courtfound no privileges and immunities or due process violations predicatedon plaintiffs' objection on religious and conscientious grounds to a Californiastatute requiring enrollment and completion of a military science and tacticscourse as a condition to attending the State's university. Justice Cardozoaptly added his "extra word" to the Court's holding in his inimitablevoice:
Manifestly a different doctrine would carry us to lengths that havenever yet been dreamed of. * * * The right of private judgment has neveryet been so exalted above the powers and the compulsion of the agenciesof government. One who is a martyr to a principle -- which may turn outin the end to be a delusion or an error -- does not prove by his martyrdomthat he has kept within the law (id., at 268 [Cardozo, J., concurring][emphasis added]).
V.
Petitioner also presses that the ASAT Program violates the EstablishmentClause in that it is similar to requiring public school students to participatein mandatory prayer. This argument, expressly endorsed by the Majority,should be flatly rejected. Initially, it must be noted that the petitionerhas never claimed that he was required or even urged as part of the ASATProgram to pray or even privately meditate in some religious mode. Thus,at the outset, the ASAT Program can by no stretch of the argumentativemethod be analogized to the sectarian prayer setting and activity whichthe Supreme Court condemned as a "state-sponsored religious exercise"in Lee v Weisman (505 US 577, 592, supra) and Engel v Vitale(370 US 421, 424, supra). The Majority's transference of these two casesconcerning formal prayer in public school settings into this case is particularlyunpersuasive.
This should be contrasted to Zorach v Clauson (343 US 306, supra),for example, where New York's released time program was upheld. It allowedpupils to leave their public schools during school hours, but only on conditionand for compulsory attendance at religious instruction. The Opinion ofthe Court repelled the Establishment Clause challenge and explicitly rejectedthe argued "coercion" element as irrelevant. Its analysis iseven more pertinent to this case, because neither formal public schoolprayer nor public financial aid to secular religious schools is implicatedhere. Those features make the instant case exceptionally different fromthe authorities so intensely relied on by the Majority.
The Supreme Court has stated that "there are heightened concernswith protecting freedom of conscience from subtle coercive pressure inthe elementary and secondary public schools. Our decisions * * * recognize,among other things, that prayer exercises in public schools carry a particularrisk of indirect coercion. The concern may not be limited to the contextof schools, but it is most pronounced there" (Lee v Weisman,supra, at 592 [citations omitted]). In Lee, the Court even drewthe ironically apt distinction between imposing religion on children andthe choices open to adults, adding that it did "not address whether[the] choice is acceptable if the affected citizens are mature adults,but we think the State may not, consistent with the Establishment Clause,place primary and secondary school children in this position" (id.,at 593).
The reasoning that likens a prison environment to a school's "inherentlyauthoritarian atmosphere" and prisoners to pupils is wrong. Fundamentally,among other considerations, this ignores the maxim that heightened constitutionalanalysis governs the protected enclave of students in schools, in contradistinctionto the differentiated constitutional protections preserved for mature adultsin prisons (see, O'Lone v Estate of Shabazz, 482 US 342, 349, supra;see also, Pell v Procunier, 417 US 817).
The ASAT Program finally suffers no excessive entanglement between Stateand religion under Lemon's third prong. The assertion of a "delegat[ion]of the State's discretionary authority" (Majority opn, at 24) is factuallyunsupportable on this record. Also, Board of Educ. v Grumet (___US ___, 114 S Ct 2481, supra) is totally inapposite in that regard. Here,the State has by no means authorized some religious sect or its functionariesto carry out a public function. Indeed, the Majority's expectation thatA.A. volunteers working in the ASAT Program will "wholeheartedly"engage in proselytization and religious indoctrination (Majority opn, at22) is gratuitous and finds no support in the record or in empirical data.
VI.
Many people may believe that A.A. is an entity of spiritual essenceor experience. Referenced incorporation of its literature into ASAT toforge a religious alchemy that implicates the Establishment Clause of theFirst Amendment by some foreboding compulsion feature, however, is notjustified or proven. Greater quantum and quality should be required tocross that constitutionally blurred barrier. Indeed, the repeated evocationof a generalized deity figure and symbol or some nondenominational, secularalternative "Higher Power" fail to support this profound absorptionof A.A. and ASAT into the territory of a compulsory, constitutionally-forbiddenreligious encounter. We reiterate, in summary, the cogent resolution ofthis case by the unanimous Appellate Division:
[I]t is our conclusion that petitioner has failed to make an adequaterecord to state a claim for an Establishment Clause violation. The petitioncites nothing of a religious nature about this particular ASAT programor its practices other than the fact that it is modeled after the principlesof AA which make references to "God" and a "Higher Power".We hold that under the facts and limited record in this case, the inclusionof the 12-step AA component into the ASAT program did not make the programa religious exercise and, therefore, did not violate petitioner's rightsunder the Establishment Clause of the 1st Amendment (211 AD2d 187, 194[Spain, J.]).
Nevertheless, this case is now concluded by this Court with a torrentof competing words and interpretations of the record, relevant authoritiesand constitutional analysis. In the end, Judge Ciparick and I agree withthe lower courts and disagree with the reversal decree here because ASATand A.A., in their essences and practices, have not been shown to compelor proselytize a State-imposed religious activity and participation generallyor as to petitioner that violate the precepts of the Establishment Clauseof the First Amendment of the United States Constitution.
* * * * * * * * * * * * * * * * *
Order reversed, without costs, and judgment granted prohibiting respondentsfrom conditioning petitioner's participation in the Family Reunion Programon petitioner's attendance in the subject Alcohol and Substance Abuse TreatmentProgram. Opinion by Judge Levine. Chief Judge Kaye and Judges Simons, Titoneheight=6and Smith concur. Judge Bellacosa dissents and votes to affirm in an opinionin which Judge Ciparick concurs.
