Forcing the Faith
by James Kilpatrick
The Oregonian, Friday, December 27, 1996
© 1996, Universal Press Syndicate
Prison regulation that requires inmates to
violates constitutional guarantee of religious freedom
May the power of the state be invoked to compel a man to go to Church? The immediate and obvious answer to that question is: no way. But in two cases now pending in the federal courts, the power of the state has been sturdily if unconvincingly defended.
Almost everyone would agree that addiction to drugs or alcohol is an evil that ought to be treated. Even so, it's a bad practice to pursue a desirable end through the wrong means. That homely maxim lies at the heart of the cases of David Griffin in New York and James W. Kerr in Wisconsin.
Both cases involve regulations at state prisons. The question is, may inmates be compelled to attend sessions of Alcoholics Anonymous or Narcotics Anonymous under pain of losing prison privileges?
Both Alcoholics Anonymous and Narcotics Anonymous rely, in their highly successful programs, on a 12-step plan of confession and submission. Step 3 requires a participant, having renounced drugs or liquor, to describe the road to recovery: "We made a decision to turn our will and our lives over to the care of God as we understood him."
Step 5: "We admitted to God, to ourselves and to another human being the exact nature of our wrongs."
Step 6: "We were entirely ready to have God remove all these defects of character."
Step 11: "We sought through prayer and meditation to improve our conscious contact with God, as we understood him, praying only for knowledge of his will for us, and the power to carry that out."
At the time the case of James W. Kerr arose, he was an inmate at the Oakhill Correctional Institution in Wisconsin. (He was released on parole in August 1995.) The prison requires inmates with chemical dependence problems to attend meetings of Narcotics Anonymous as part of their rehabilitation program. Penalties await those who fail to attend.
Kerr asserted in an affidavit that the prison social worker assigned to his case told him that "he didn't have a choice in the matter; that attendance was mandatory; that if he didn't go he would most likely be transferred to a higher security prison, and that he would be denied the hope of a pardon." Thus intimidated, Kerr went unwillingly to an NA session where he objected "to dragging God's name into this messy business of addictions."
Subsequently Kerr sued the prison warden in U.S. District Court. The state staunchly defended the prison's requirement, and the state won. The court held, remarkably, that to compel a prisoner to attend at least a quasi-religious service does not violate the Constitution.
Kerr appealed to the U.S. Court of Appeals for the 7th Circuit. There he won. Speaking through Circuit Judge Diane P. Wood, the court held that Wisconsin's mandatory requirement had the effect of advancing religion, which a state may not do. The case has gone back to the District Court, where presumably Kerr's complaint will be formally expunged from his record.
The case of David Griffin was of the same pattern. As an inmate of New York's Shawangunk Correctional Facility, Griffin was ordered to attend a rehabilitation program heavily based on the 12-step treatment plan. Otherwise he would forfeit his permission to participate in the prison's Family Reunion program.
Here, too, the state successfully defended its position in the trial court but lost on appeal. The state's argument was straightforward: The AA program works. In a high percentage of cases, those who regularly attend meetings of AA or NA successfully kick their addiction. The New York Court of Appeals nevertheless ruled that the state's mandatory program violates the Constitution. The program is based on a law "respecting an establishment of religion," and this the Constitution forbids. The state's appeal is now pending in the U.S. Supreme Court on a petition for review.
For reasons not immediately apparent to the layman, neither case turned on the constitutional right to free exercise of one's religion. Surely this is a fundamental right. More than 20 years ago the Supreme Court held that "prison walls do not form a barrier separating prison inmates from the protections of the Constitution." In a Missouri case in 1987, the high court made its ruling explicit: A prison regulation that offends "a fundamental constitutional guarantee" cannot stand.
This is sound doctrine. I can understand the desire of prison wardens to rehabilitate their addicted wards. Splendid! But horses that are led to water cannot be made to drink. Voluntary programs deserve support, but compulsory religion benefits neither the church nor the state, nor the press-ganged prisoner.