Contributor, The Volokh Conspiracy

May the government require a massage therapist, as condition of probationary license, to attend religiously-based Alcoholics Anonymous services? No, said the district court in Sundquist v. Nebraska (decided in August, but just posted on Westlaw):

In December 2012, the Nebraska Department of Health and Human Services (“NDHHS”) offered [Marvin] Sundquist a probationary massage license. As part of that offer, NDHHS required Sundquist to comply with the recommendations of an alcohol assessment completed in October 2012. In particular, it required Sundquist to: “Develop a sober support system such as attending twelve step meetings such as Alcoholics Anonymous. To comply with this recommendation, you must attend a minimum of 1 Alcoholics Anonymous meeting per week.”

Apparently Sundquist accepted the offer of a probationary license. However, Sundquist alleges that he objected to the requirement that he attend A.A. meetings, based upon his (unspecified) “religious objections.” In October 2013, the Nebraska Attorney General’s Office . . . filed a motion with the NDHHS’s Division of Public Health to revoke Sundquist’s license, based on his failure to attend A.A. meetings. The Attorney General’s Office also made Sundquist a settlement offer, but the offer required Sundquist to attend A.A. meetings. Sundquist alleges that he . . .  informed [the AG’s office] that he objected to attending A.A. but that the remainder of the settlement was acceptable. The Attorney General’s Office declined to remove that requirement.


(Bigstock)

Sundquist also alleges that he proposed a secular alternative: treatment by the same licensed alcohol and drug counselor who had provided the October 2012 evaluation the State had relied upon in imposing probation. But, Sundquist alleges, his licensing probation compliance monitor, defendant Ruth Schuldt, rejected this alternative and insisted that Sundquist attend A.A. . . .

Both sides have focused their arguments on cases where an unwilling prisoner, parolee, or (criminal) probationer has been forced to participate in A.A. (or a similar program). Due to the A.A.’s program’s religious content, such conduct has been held to be coerced religious participation, in violation of the Establishment Clause. See, e.g., Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir .2014); Inouye v. Kemna, 504 F.3d 705, 711–12 (9th Cir.2007); Warner v. Orange Cnty. Dep’t of Prob., 115 F.3d 1068, 1074–75 (2d Cir.1997); Kerr v. Farrey, 95 F.3d 472, 479–80 (7th Cir.1996). That is to say, if a court or corrections official specifically orders a person to attend A.A., over their objections and without offering a meaningful choice, then an Establishment Clause violation has occurred. . . .

[T]he Establishment Clause is [likewise] violated when coercion is exerted by placing a public employee’s job at stake. . . . “. . . [T]he type of coercion that violates the Establishment Clause need not involve either the forcible subjection of a person to religious exercises or the conditioning of relief from punishment on attendance at church services.” “Coercion is also impermissible when it takes the form of ‘subtle coercive pressure’ that interferes with an individual’s ‘real choice’ about whether to participate in worship or prayer.” . . .

[T]he government [may] not condition public employment on participation in religious activity. And it is equally clear that the government may not place such a condition on an individual’s ability to practice a private, but regulated, occupation. There is no meaningful distinction in the coercive pressure exerted …. When the right to earn a living in one’s chosen profession is at stake, the government has interfered with the right to make a real choice about whether or not to participate in religious activity.

[T]he Court finds that Sundquist has alleged a plausible claim under the Establishment Clause. There is no dispute that the state has acted. Nor do defendants dispute Sundquist’s allegations that the A.A. program contained substantial religious components. Indeed, it is clearly established that the typical A.A. program involves substantial religious components, such that it falls within the sphere of the Establishment Clause. Finally, the Court finds that Sundquist has plausibly alleged that he was subjected to impermissible coercion: he was forced to choose between participation in a program he objected to or continuing to earn a living in his chosen profession.

Sundquist may have agreed to participate in A.A. as a term of his probationary license. But that choice — to participate in A.A. or lose his livelihood — may have been the result of state-sponsored coercion rather than a voluntary choice. At this stage of litigation, it is too early to say that by agreeing, Sundquist has forfeited his claim.

In sum, the Court finds that Sundquist has alleged a plausible claim under the Establishment Clause, and that defendants . . . are not entitled to qualified immunity. It remains to be seen, of course, whether Sundquist can actually prove his claim and prove that he suffered actual damages — but he should have the opportunity to do so.

Sounds quite right to me. Alcoholics Anonymous may do great work, but it is indeed in substantial measure religious (see the 12 steps, of which six require some acknowledgment of God, though in a rather ecumenical way). And the government can’t require people to participate in religious programs as a condition of getting a government license, even when the programs provide secular benefits — this prohibition on coercion of religious activity is a core element of Establishment Clause case law. (Indeed, where the coercion is through the threat of legal sanctions, conservative as well as liberal Justices agree that such coercion is forbidden.) The government may in some situations require that a person go through some kind of alcohol treatment program, but it can’t require that it be A.A.