Choice of Support Groups:
It’s the Law
Treatment Referral Practice in the
Aftermath of Inouye v. Kemna
By Martin Nicolaus, M.A., J.D.
Attorney
at Law
CEO of LifeRing Secular Recovery
Author of:
Recovery by Choice, Living and Enjoying Life Free of
Alcohol and Drugs, a Workbook
How Was Your Week? Bringing People Together in
Recovery the LifeRing Way -- A Handbook.
Empowering Your Sober Self: The LifeRing Approach to
Addiction Recovery (Jossey-Bass, forthcoming April 2009)

Choice is the Law – Introduction (1)


Ricky Inouye, a resident of Honolulu,
was addicted to methamphetamine
and was convicted of possession and
related drug crimes.
When he was released from prison,
he became a client of Mark
Nanamori, his parole officer.
3
Choice is the Law – Introduction (2)


Nanamori knew that Inouye
was a Buddhist and had
objected to participating in a
“religion-based” treatment
program while in prison.
Inouye had already filed a suit about
the issue while in prison. (That suit
ultimately settled.)
4
Choice is the Law – Introduction (3)


Nanamori also knew that Ricky continued
to object to “religion-based” treatment
after his release.
Ricky’s lawyer sent Nanamori a letter,
which said:
5
Inouye’s Letter
“Mr. Inouye is a Buddhist. As such, he objects on grounds of the
Establishment and Free Exercise Clauses of the First Amendment of the
United States Constitution to any state imposed religious practice as a
condition of his parole.
Enclosed is a copy of the decision in Kerr v. Farrey, 95 F.3d 472 (7th Cir.
1996), which holds that the Alcoholics Anonymous 12 step program
cannot be imposed by the state as a requirement for eligibility for
parole.
Mr. Inouye does not object to participating in a substance abuse treatment
program. However, he does object to any program that has explicit
religious content. This includes, but is not limited to, the recitation of
prayers at meetings, whether or not Mr. Inouye is required to
participate in the prayer.
Please assure that there is no religious content in any substance abuse
program that is imposed as a requirement of Mr. Inouye's parole.”
6
Choice is the Law – Introduction (4)


Despite this knowledge, Nanamori
assigned Inouye to participate in a
treatment program run by the Salvation
Army.
The Salvation Army program requires
attendance at meetings of Alcoholics
Anonymous and/or Narcotics Anonymous.
7
Choice is the Law – Introduction (5)



Ricky attended a few sessions of the S.A.
program and NA meetings and then
stopped going.
Because Ricky did not comply with the
program, Nanamori moved to revoke his
parole.
Ricky was sent back to prison.
8
Choice is the Law – Introduction (6)


After Ricky was released, he filed a new
lawsuit.
He sued Nanamori, Nanamori’s superiors,
county officials, and the officer who
arrested him (Kemna) for violating his
constitutional rights.
9
Choice is the Law – Introduction (7)

His suit was based on
42 U.S.C. §1983, a
federal law that
provides for monetary
damages to a plaintiff
who proves a violation
of his or her
constitutional rights.
10
Choice is the Law – Introduction (8)

The specific constitutional right which he
claimed was violated was the
Establishment Clause of the First
Amendment to the U.S. Constitution, which
says:
11
Choice is the Law – Introduction (9)
“Congress shall make no
law respecting an
establishment of
religion, or prohibiting
the free exercise
thereof.”
Thomas Jefferson
12
Choice is the Law – Introduction (10)




The case was heard in the federal district
court in Honolulu.
Nanamori and the other defendants
agreed that the 12-step program was
“religious.”
They agreed that sending Ricky to 12-step
groups may have violated his
constitutional rights.
But:
13
Choice is the Law – Introduction (11)



Nanamori claimed that the law on this
issue was unclear and unsettled, so that
he should not be held liable for breaking
it.
This is known as the defense of “qualified
immunity,” available only to government
officials.
In other words, “My mistake about the law
was reasonable under the circumstances.”
14
Choice is the Law – Introduction (12)



The federal district court in Honolulu
agreed with Nanamori.
Ricky lost at that level.
But Ricky appealed the case to the next
higher level, the Ninth Circuit Court of
Appeals in San Francisco.
15
Choice is the Law – Introduction (13)



On Sept. 7, 2007, the Ninth
Circuit reversed the lower court’s
decision and ruled in favor of
Ricky.
Judge Marsha Berzon wrote the
decision for a unanimous threejudge panel.
The official citation is Inouye v.
Kemna, 504 F.3d 705 (9th Cir.
2007)
16
Focus on the Decision
 Let’s
take a
closer look
at the
court’s
decision in
this case.
17
Inouye v. Kemna – Issues (1)

Because Nanamori admitted that
“reverence for ‘a higher power’ is a
substantial component of the AA/NA
program,” the court spent very little time
on the issue whether the AA/NA program
was substantially “religious” in nature.
Both sides agreed that it was.
18
Inouye v. Kemna – Issues (2)

Because Nanamori also admitted that
“requiring a parolee to attend religion-
based treatment programs violates the
First Amendment,” the court also spent

very little time on the constitutional issue.
It merely touched on the basics:
19
Inouye v. Kemna – Issues (3)

1.
2.
3.
The court used a three-part test to
determine whether Ricky Inouye’s
constitutional rights had been violated:
Has the state acted?
Was there coercion?
Was the object of the coercion religious
rather than secular?
20
Inouye v. Kemna – Issues (4)
(1) Has the state acted?
Answer: Yes. Nanamori was a state
employee acting in his official capacity.
(It doesn’t matter that the state didn’t run the
treatment program or the support groups. It
was enough that the state sent him there.)
21
Inouye v. Kemna – Issues (5)
(2) Was there coercion?
Answer: Yes. Ricky had to participate
as a condition of his parole, and was
jailed when he refused.
(Under some circumstances, psychological or
emotional coercion is sufficient to make out a
violation.)
22
Inouye v. Kemna – Issues (6)
(3) Was the object of the coercion religious
rather than secular?
Answer: Yes. Both sides agreed that
the AA/NA program “is based in a higher
power” and is “substantially based on
religion.”
(A little later, the court reviews prior case law
on this issue.)
23
Inouye v. Kemna – Issues (7)

In sum, Nanamori “required
Inouye to
attend a program rooted in religious faith
and then recommended revoking his
parole because he refused to participate”

– and this is clearly unconstitutional.
“For the government to coerce someone
to participate in religious activities strikes
at the core of the Establishment Clause
of the First Amendment…”
24
Inouye v. Kemna – Issues (8)

Again:
“While we in no way denigrate the fine
work of AA/NA, attendance in their
programs may not be coerced by the
state. The Hobson's choice Nanamori
offered Inouye — to be imprisoned or to
renounce his own religious beliefs —
offends the core of Establishment Clause
jurisprudence.”
25
Inouye v. Kemna – Issues (9)

Having disposed of these preliminaries,
the Court got down to the central issue
in the case, whether the law on this
point was clear and settled at the time of
Nanamori’s actions, so that he
reasonably should have known that
sending Ricky to AA/NA was
unconstitutional.
26
Inouye v. Kemna – Issues (10)


To resolve this question, the Court
reviewed all the known prior decisions on
this issue, and concluded:
“The vastly overwhelming weight of
authority on the precise question in this
case held at the time of Nanamori's
actions that coercing participation in
programs of this kind is unconstitutional.”
27
Choice is the Law: Prior Cases
Review of
Prior Cases
28
Choice is the Law: Prior Cases (1)



Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996)
Requiring a state prisoner to attend a substance abuse
counseling program with explicit religious content, on
pain of being rated a higher security risk and losing
eligibility for parole, violates the Establishment Clause.
In Kerr, the court spent considerable time deciding
whether the 12-step program is “religious” for
purposes of the Establishment Clause. It considered
but rejected the argument that the program was
“spiritual not religious.” It concluded:
29
Choice is the Law: Prior Cases (2)
(Kerr, continued)
“A straightforward reading of the twelve steps
shows clearly that the steps are based on the
monotheistic idea of a single God or Supreme
Being. True, that God might be known as Allah
to some, or YHWH to others, or the Holy
Trinity to still others, but the twelve steps
consistently refer to ‘God, as we understood
Him.’ Even if we expanded the steps to include
polytheistic ideals, or animistic philosophies,
they are still fundamentally based on a
religious concept of a Higher Power. Kerr
alleged, furthermore, that the meetings were
permeated with explicit religious content.”
30
Choice is the Law: Prior Cases (3)


Warner v. Orange Cty Dept of Probation,
115 F.3d 1068 (2nd Cir. 1997)
Probation officer who recommended to
judge that DUI offender be required as
part of his sentence to attend AA
meetings, over offender’s religious
objections, violated the First
Amendment's Establishment Clause.
31
Choice is the Law: Prior Cases (4)
(Warner, continued)

“[T]he program Warner was required to attend
involved a substantial religious component. For
example, the ‘Twelve Steps’ included instruction that
participants should ‘believe that a Power greater than
ourselves could restore us’; ‘[make] a decision to turn
our will and our lives over to the care of God as we
[understand] Him’; ‘[a]dmit[ ] to God ... the exact
nature of our wrongs’; be ‘entirely ready to have God
remove all these defects ... [and] ask Him to remove
our shortcomings’; and ‘[seek] through prayer and
meditation to improve our conscious contact with God,
as we [understand] Him.’"
32
Choice is the Law: Prior Cases (5)
(Warner, continued)


Also, as in Kerr, the court took note of
the practice of opening and closing
meetings with prayer:
“Group prayer was a common occurrence
at the meetings Warner attended. They
frequently began with a religious
invocation, and always ended with a
Christian prayer.”
33
Choice is the Law: Prior Cases (6)
(Warner, continued)
The court found that the AA meetings





“Had a substantial religious component”
Contained “religious exercises”
Were “religion-infused”
Were “intensely religious events.”
AA was “a long-term program of group
therapy that repeatedly turned to religion
as the basis of motivation.”
34
Choice is the Law: Prior Cases (7)
(Warner, continued)
And Warner was not given a choice:
“Neither the probation recommendation, nor
the court's sentence, offered Warner any
choice among therapy programs. The
probation department's policy, its
recommendation, and its printed form all
directly recommended A.A. therapy to the
sentencing judge, without suggesting that the
probationer might have any option to select
another therapy program, free of religious
content.”
35
Choice is the Law: Prior Cases (8)
(Warner, continued)


The county probation department
appealed the Second Circuit Court of
Appeals decision in Warner to the U.S.
Supreme Court.
The Supreme Court declined to hear the
appeal.
36
Choice is the Law: Prior Cases (9)
Preliminary Summary
Thus the Ninth Circuit decision in Inouye
joined in and followed the almost exactly
identical decisions reached by the
conservative 7th Circuit (Chicago) and the
moderate 2nd Circuit (New York), and left
undisturbed by the U.S. Supreme Court
for more than ten years.
37
Choice is the Law: Prior Cases (10)
Other Prior Cases in Lower Courts





Alexander v. Schenk, 118 F.Supp.2d 298, 301-02
(N.D.N.Y.2000) (probationer)
Warburton v. Underwood, 2 F.Supp.2d 306, 318
(W.D.N.Y.1998) (same);
Ross v. Keelings, 2 F.Supp.2d 810, 817-18
(E.D.Va.1998) (same);
Arnold v. Tennessee Board of Paroles, 956 S.W.2d 478,
483-84 (Tenn.1997) (AA/NA imposition
unconstitutional as a parole condition);
In the Matter of David Griffin v. Coughlin, 88 N.Y.2d
674, 691-92, 649 N.Y.S.2d 903, 673 N.E.2d 98 (1996)
(prisoner).
38
Choice is the Law: Prior Cases (11)
Other Cases after 2001


After reviewing these decisions that
came out before Nanamori sent Ricky
Inouye to AA/NA, the court wrote:
“We note that this march of unanimity
has continued well past March, 2001,
when Nanamori acted.”

The court cited the following newer
cases:
39
Choice is the Law: Prior Cases (12)
Cases after 2001

Bausch v. Sumiec, 139 F.Supp.2d 1029, 1037, 1039
(E.D.Wis.2001).



Armstrong v. Beauclair, 2007 WL 1381790, 12-13 (slip
op.) (D.Idaho Mar. 29, 2007)
Turner v. Hickman, 342 F.Supp.2d 887, 895-97
(E.D.Cal.2004)
Nusbaum v. Terrangi, 210 F.Supp.2d 784, 789-91
(E.D.Va.2002)
40
Choice is the Law: Prior Cases (13)
Cases after 2001



New cases decided after Inouye v. Kemna:
Hanas v. Inter-City Christian Outreach, __ F.Supp.2d
__, E.D. Mich 2/29/08 (Drug court manager liable for
coercing Catholic to attend faith-based program run by
Protestants.)
Americans United v. Prison Fellowship, __ F.3d __ (8th
Cir. 12/3/07) State funding of faith-based prison
program unconstitutional.
41
Choice is the Law: Prior Cases (14)
Bottom Line in Inouye


Bottom line: A reasonable person in
Nanamori’s position should have known
in 2001 already that coercing a parolee
to attend AA/NA meetings was
unconstitutional.
Therefore Nanamori does not have
“qualified immunity.”
42
Choice is the Law: Prior Cases (15)
Future of Inouye case






The Ninth Circuit sent the case back to Hawaii for
further proceedings.
The case is set for trial this coming November.
The main issue remaining is the amount of $ damages
to be awarded.
Ricky Inouye died while the appeal was pending, but
his son Zenn continues with the case.
Even if the court awards Inouye only $1, the attorney
is entitled to fees, probably in the tens of thousands.
No appeal to the U.S. Supreme Court was filed.
43
Choice is the Law: Prior Cases (15)
Scope of Coverage
States covered by the decisions to date:
44
Choice is the Law: What it Means

Now let’s look at
what the Inouye
case means for
the addiction
professional’s
referral practice.
45
Choice is the Law: What it Means (1)

What it doesn’t mean:


The court did not say that AA is a “religion.”
“We do not hold that AA/NA is itself a
religion. We hold only that … the AA/NA
program involved here has such substantial
religious components that governmentally
compelled participation in it violated the
Establishment Clause.” (fn 9)
46
Choice is the Law: What it Means (2)

What it doesn’t mean:



It does not mean that referral to AA/NA is
forbidden.
The decision cites AA/NA for “fine work” –
But adds a lukewarm footnote 10:
“The confidential nature of AA/NA treatment
makes testing efficacy difficult. There is,
however, some data to suggest that the
programs, as part of a larger treatment
strategy, have helped many people maintain
their sobriety, at least for a period of time.”
47
Choice is the Law: What it Means (3)

What it doesn’t mean:


It isn’t necessary for the client to file a
lawsuit or even write a letter before the law
applies.
Nanamori should have known the law
without Ricky Inouye’s prior lawsuit or the
letter, but those documents undercut
Nanamori’s protestations of reasonable
confusion.
48
Choice is the Law: What it Means (4)
What it does mean:

The decision applies to “state actors.”




Definitely: criminal justice officials at all levels
Definitely: Counselors in other government agencies
(E.g. Prop 36 … State Bar … Medical Board?)
Probably: employees of private programs operated
with substantial government funding
Definitely not: Private programs 100% privately
funded
49
Choice is the Law: What it Means (5)



The essence of the law is choice.
What is forbidden is coercion.
“The Hobson's choice Nanamori offered
Inouye — to be imprisoned or to
renounce his own religious beliefs —
offends the core of Establishment Clause
jurisprudence.”
50
Choice is the Law: What it Means (6)


Similarly in Warner:
“Neither the probation recommendation, nor
the court's sentence, offered Warner any
choice among therapy programs. … Had
Warner been offered a reasonable choice of
therapy providers, so that he was not
compelled by the state's judicial power to
enter a religious program, the considerations
would be altogether different.”
51
Choice is the Law: What it Means (7)


The same in Kerr:
“The only choice available to Kerr was
the NA program.”
In one case where a secular alternative
was available, no constitutional violation
was found.
O'Connor v. California, 855 F.Supp. 303
(C.D.Cal.1994)
52
Choice is the Law: What it Means (8)



Bottom line:
If you are a state actor, and if you
require clients to attend treatment
or support groups, you must offer
not only 12-step but also secular
alternatives.
Or you and your agency may be sued for monetary
damages.
53
Choice is the Law: What it Means (9)
But where are the secular support
groups?

LifeRing Secular Recovery

www.lifering.org, www.unhooked.com
SMART Recovery


www.smartrecovery.org
Women for Sobriety


http://www.womenforsobriety.org/
Secular Organizations for Sobriety


http://www.secularsobriety.org/
54
Choice is the Law: What it Means (10)
If no secular alternative is available, you can
organize one. You need:

A convenor (meeting facilitator)

A room

A format -- e.g., “How was your week?”

A structure – e.g., Recovery by Choice
workbook
55
Choice is the Law: Final Words
Some Final
Words
56
Choice is the Law: Conclusion (1)

Choice is not only the law, choice is good
therapeutic practice.
"A strong and consistent finding in
research on motivation is that people are
most likely to undertake and persist in an
action when they perceive that they have
personally chosen to do so."-- Reid K.
Hester, William R. Miller, in : Handbook
of Alcoholism Treatment Approaches:
Effective Alternatives. 2nd Ed, 1995.
57
Choice is the Law: Conclusion (2)

Choice is fundamental to modern addiction
treatment practice:
"It is time that the recognition of
multiple pathways and styles of recovery
fully permeated the philosophies and
clinical protocols of all organizations
providing addiction treatment and
recovery support services." -- William
White, MA and Ernest Kurtz, PhD, "The
Varieties of Recovery Experience: A Primer for
Addiction Treatment Professionals and
Recovery Advocates" (2005)
58
Choice is the Law: Conclusion (3)

What the court is telling the profession it
must do as a matter of law, leading
professionals have already been doing
voluntarily, and continue to do as a
matter of professional ethics and
therapeutic effectiveness.
59
The End