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When tax dollars are given to substance abuse programs that inculcate religion under the guise of teaching the 12 steps, some would say the First Amendment limitation on the taxing power is being overstepped. Virtually all of the tristate area’s substance abuse programs indoctrinate clients in the Twelve Steps of Alcoholics Anonymous. For example, the Steps Recovery Program at Muhlenberg Regional Medical Center of Plainfield “integrates the 12-step philosophy of Alcoholics and Narcotics Anonymous.” See www.muhlenberg.com. Similarly, Eva’s Recovery Center for Men of Paterson, in describing its nine-month residential treatment program on its Web site, www.evaskitchen.org, states: “Alcoholics Anonymous meetings are held on the premises and are an essential part of the program.” As every Seinfeldfan knows, the 12 steps teach that the solution to alcoholism lies in religion � namely, reliance on “God as we understand him,” confession and amends. State and federal agencies fund these programs under legislation requiring that substance abusers be provided a continuum of treatment. (See www.state.nj.us/health/as/directory, New Jersey Department of Health and Senior Services list of substance abuse programs and federal, state and county funding sources.) The New Jersey Department of Community Affairs, through its Shelter Support Program, provides additional funds. Therein lies the constitutional problem. IS IT RELIGION? Preliminarily, are the 12 steps of Alcoholics Anonymous religious? For purposes of the First and 14th Amendments, the answer is yes. See Warner v. Orange County Dep’t. of Probation, 115 F.3d 1068 (2d Cir. 1997) and DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397 (2d Cir. 2001). The earliest cases construing A.A. as religion involved jail and halfway-house issues, such as whether a drunk driver could be compelled to attend A.A. meetings as a condition of probation. These cases did not address the more difficult issue, that is, whether, consistent with the First Amendment limitation on the taxing power, public funds can be used to inculcate the 12 steps. This issue has the potential of eviscerating the budgets of the major hospitals, rehabs and freestanding substance abuse programs. SUPPORT AND PARTICIPATION The First Amendment provides that Congress shall make no law respecting an establishment of religion or prohibiting its free exercise. At a minimum, this prohibits (a) compelling participation in religion (for example, A.A. meetings), and (b) compelling support of religion by taxation. Substance abuse programs may run afoul of one or both of these prohibitions. The substance abuse program that accepts public funds and compels clients to attend 12-step activities is the most egregious example. In such cases, the public funds and religious inculcation are inextricably intertwined. A potential client cannot avail himself or herself of the program without concomitantly being subjected to religious indoctrination. In other cases, the substance abuse program includes activities that inculcate the 12 steps, but those activities are offered without compulsion. Additional analysis is required to determine the extent, if any, to which public funds can be appropriated for those programs. STANDING TO CHALLENGE PUBLIC FUNDING The principle obstacle to challenging program funding has been standing. A second obstacle lies in showing that public funds are in fact being spent in indoctrinating the 12 steps as opposed to only providing therapy. Standing is a relatively well-developed body of law. In all cases, plaintiffs must demonstrate that (1) they personally suffered some actual or threatened injury, (2) the injury can be traced to the action and (3) the injury will be redressed by a favorable decision. Where a plaintiff challenges governmental action as being an unconstitutional exercise of power, the plaintiff must show (1) a logical link between his status and the governmental action and (2) a nexus between his status and the nature of the unconstitutional exercise of power. And where the plaintiff is a taxpayer and his challenge is based on the Establishment Clause, only the first element need be demonstrated. Thus, to establish standing in an Establishment Clause case brought by a taxpayer, the plaintiff must show only that he or she pays taxes to the relevant entity, and that tax revenues are spent on the disputed practice. See ACLU-NJ v. Township of Wall, 246 F.3d 258 (3d Cir. 2001). INCIDENTAL EXPENDITURES The expenditure � large or small � must be more than incidental to the administration of a regulatory scheme. For example, it is doubtful whether a plaintiff would have taxpayer standing to challenge municipal expenditures for posting a safety officer in front of a church on Sunday morning � unless the safety officer taught Psalms as children crossed the street. The term incidental refers to the purpose for which it is spent, not the amount thereof. See Everson v. Board of Educ., 330 U.S. 1, (1947)(“[N]o tax in any amount, large or small, can be levied to support any religious activities.”) In Doe v. Duncanville Indep. Sch. Dist.,70 F.3d 402 (5th Cir 1995), the plaintiff did not have taxpayer standing where he failed to show that a school district spent any money on the distribution of Bibles in public schools. All that was shown was that Gideons bought Bibles and placed them on a table in the school’s foyer. In First Amendment jargon, there was no “pocketbook injury.” Where a substance abuse program embraces the 12 steps without coercing or compelling participation, the incidental expenditure defense to a First Amendment lawsuit can be daunting to plaintiff’s counsel. Showing that any funds were spent for inculcating the 12 steps is, at best, difficult. This is because the 12 steps are inexpensive to teach and expenses related thereto are difficult to detect and audit. For example, plaintiff’s counsel should not expect to discover budget items titled “12 Step indoctrination” or “A.A. dues” among the substance abuse program’s accounting records or grant proposals. Often, tainted 12 step expenses are buried under misleading labels, such as “therapeutic community model expenses.” To make matters more difficult for a plaintiff, instructions on 12-step matters are routinely provided at little or no identifiable cost to the substance abuse program. Active A.A. members supply 12-step indoctrination services to substance abuse programs for free. This is not surprising, since the 12th step mandates proselytizing to uninitiated alcoholics. Remember, however, that the incidental issue is only important where there are no allegations of compulsion. Where there is coercion by threat of eviction, the earlier cases remain wholly authoritative, and a substance abuse program that requires clients to participate in religious activities cannot receive public funds of any sort. ‘DESTEFANO’ In 2001, in DeStefano,the 2nd U.S. Circuit Court of Appeals set forth a guide for plaintiffs desirous of challenging publicly funded substance abuse programs on First Amendment grounds, especially programs that inculcate the 12 steps without coercion. In DeStefano, the plaintiff, a taxpayer (the mayor of Middletown), sued a local residential substance abuse program under the Civil Rights Act, 42 U.S.C. 1983, claiming that tax dollars were funding the facility in violation of the Establishment Clause. Typically, clients arrived at the facility intoxicated and resided there for three to five days for “detox.” For those wishing to go on to the next level of care, the stay could be extended for two weeks. All clients were there of their own volition � no placements were made. Approximately 95 percent of the programs funds originated from the state of New York, through its Office of Alcoholism and Substance Abuse Services, an agency similar to New Jersey’s Department of Health and Senior Services. All parties agreed that the 12 steps played a central role in the program’s treatment approach. The plaintiff claimed that clients were coerced into participating in A.A. activities. While the facility denied coercing the clients, staff members supervised A.A. meetings, discussed A.A. literature in therapy sessions and initiated screenings of videotapes. One videotape showed a priest advising the audience that “the prayer of the drunk is the prayer of a soul in pain, and those are the souls that God loves best.” Another explained how the speaker’s sobriety was made possible by recognition of “the sure and certain evidence of God’s grace.” In the district court, the plaintiff argued that: (1) funding the program was a per se violation of the First Amendment since it enlisted A.A. participation; (2) funding violated the First Amendment to the extent that program staff members inculcated religious beliefs; and (3) the program could not be funded at all since it involved coercion. Following discovery, the district court indicated to plaintiff’s counsel that the only triable issue of fact was whether staff members coerced clients to attend A.A. activities, and suggested that it could or might find in the plaintiff’s favor on the basis of coercion without deciding the broader issues. Fearing that the broader issues would be mooted by a decision in plaintiff’s favor on the ground of coercion, plaintiff’s counsel withdrew his coercion-based argument. (Clever!) Thus, the issues before the district court became (a) whether a substance abuse program that enlists A.A.’s involvement could be publicly funded even if clients were free to decline to participate therein and (b) whether the active participation by staff members in teaching A.A. principles crossed the “incidental expense” line of defense. The court, relying on Bowen v. Kendrick, 487 U.S. 589 (1988), ruled against the plaintiff, holding that there was nothing inherently unconstitutional about involving a religious organization in a government-funded substance abuse program as long as the program does not coerce clients to participate. On appeal, the 2nd Circuit agreed with the district court to the extent that Bowenprecludes a facial attack on a program merely because it enlists the aid of A.A. without coercing clients’ participation. However, surprise of surprises, the 2nd Circuit ruled that the plaintiff had standing to challenge the funding provided for staff members who participated in teaching the 12 steps and that these were not incidental expenses: Direct state funding of persons who actively inculcate religious beliefs crosses the vague but palpable line between permissible and impermissible government action under the First Amendment. The 2nd Circuit remanded the case to the district court to determine the extent of the unlawful expenditures. In so doing, the 2nd Circuit invited the district court to revisit the previously withdrawn issue of coercion. We wait for that ruling. The handwriting is on the wall. It is far too late in the day for New Jersey’s substance abuse programs to pretend that the 12 steps are philosophical or moral considerations. It is also far too late for the responsible departments and divisions of the state of New Jersey to ignore the issue. It may become necessary for the federal courts to intercede on behalf of taxpayers who refuse to pay taxes to support religion. Time is short, and the class action rosters are already being circulated. Rosenblatt, a solo practitioner in Elizabeth concentrating in tax litigation matters, he is a former assistant U.S. attorney.

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