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State funding of a treatment facility that includes Alcoholics Anonymous sessions does not violate the Establishment Clause as long as clients are not coerced into attending the sessions or inculcated in AA doctrine, the 2nd U.S. Circuit Court of Appeals has ruled. The court, which had already held that AA sessions are “religious” in nature, said a taxpayer-financed substance-abuse program in the City of Middletown, N.Y., may not run afoul of the constitutional prohibition on state-sponsored religious activities if those two criteria are met. The decision in DeStefano v. Emergency Housing Group Inc., 99-9146, arose from a review of Southern District Judge Colleen McMahon’s ruling that a privately run facility in Middletown, although supported by taxpayer dollars, does not violate the Establishment Clause of the First Amendment. While Judge McMahon had granted summary judgment for New York state on the issue, the appeals court vacated her ruling. And because Middletown taxpayer Joseph M. DeStefano conceded that the program was non-coercive, the court remanded the case for a hearing on the sole issue of whether “the staff of the facility inculcates clients in AA doctrine.” The program at issue in the case is the Middletown Alcohol Crisis Center, (MACC), which pays rent to the state for using Wallach Hall, a state-owned building in the Orange County, N.Y., community. MACC receives about $500,000 in state funding each year — almost 95 percent of its funding. MACC strongly encourages people seeking help for substance abuse to enroll in AA’s “12 Step,” program, in which several of the “steps” include references to God. Writing for the 2nd Circuit, Judge Robert D. Sack noted that the court has already found in another case that a government agency violated the Establishment Clause when it conditioned a defendant’s criminal probation on participation in AA. The appeals court found a violation in that case, Warner v. Orange County Department of Probation, 115 F3d 1068, because the sessions “had a substantial religious component,” and attendance in the program was coerced. But in this case, Sack said, “We find no basis on which to distinguish the content of the AA program at the MACC from that which was before us in Warner.” Nonetheless, Sack said, Judge McMahon’s review should have gone beyond the issue of whether participants are coerced into attending the program. Sack then went on analyze DeStefano’s First Amendment arguments as they apply to the way state funds are actually expended at MACC, the use of Wallach Hall for AA meetings and as a library for AA promotional material, and finally, the involvement of MACC staff members. The court first found that the state may fund “the inclusion of AA in the MACC program through the MACC’s employment of a treatment approach in which independently led AA meetings play a substantial role.” Second, the court said the state may also fund the MACC despite the fact that its staff urges and encourages client participation in AA events. Judge Sack said that such encouragement is not an “endorsement” of religion by the state. He also said the Supreme Court has distinguished between the “mere involvement of religious groups in state-sponsored programs on the one hand and the direct public financing of purely sectarian activity using religious material on the other.” INCULCATION OF VIEWS But as to the third category, Sack said state funding runs afoul of the Establishment Clause to the extent that MACC staff directly participates in “the inculcation of AA views through nightly readings of the group’s literature, discussion of AA tenets at MACC events, supervision of AA meetings, and screenings for client audiences of videotapes that focus on the 12 Steps.” “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,” Sack said. Reviewing U.S. Supreme Court cases on the issue, Sack said, “We conclude that the neutral administration of the state aid program at issue in this case is an insufficient constitutional counterweight to the direct public funding of religious activities alleged by DeStefano.” “If the MACC were performing these activities, the state would be directly financing the salaries of employees who daily preside over religious meetings and nightly expound upon religious texts — all with the goal of convincing citizens,” in the words of some of the literature, to turn their will and their lives “over to the care of God,” he said. And because there was a great deal of conflicting testimony about the activities in which MACC is actually engaged, the court remanded the case to Judge McMahon. Senior Judge Joseph M. McLaughlin and Judge Robert Katzmann joined in the opinion. Robert N. Isseks of Middletown represented the city of Middletown. Assistant Solicitor General David Lawrence III, Deputy Solicitor General Edward D. Johnson and Assistant Solicitor General Mark Gimpel represented the state.

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