Come To Jesus; He’s At Drug Court

My old prosecutor pal, Ken Lammers, explains why he thinks concerns about religious freedom, à la the First Amendment type, is overblown when it comes to the benefits offered by trend toward redemption in drug courts.

Religious organizations put a lot of work into helping their fellow man. Any drug court out there would be insane to ignore the resources provided by groups such as Catholic Charities or The Salvation Army. Even groups which are not specifically attached to a religion use faith as a tool (AA/NA).  However, in the modern world, with its veto of one, it’s difficult for a drug court to use any of these programs unless it wants to risk being sued out of existence.

Indeed, religious groups have done an excellent job of offering means to beat the addiction to drugs and alcohol.  They should be commended for putting the effort, and indeed, the money, into making programs available to help people.  But as Ken notes, part of their methodology is to use “faith as a tool.”

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

And that includes the imposition of a sentence that requires a person to participate in a faith-based program.  Whether it’s one that proselytizes Christianity, like the Salvation Army, or merely one that demands an acceptance of a deity by any name, it’s the government requiring someone to believe.

The general reaction to all of this is to make sure that both religious and secular programs are options. Of course, this leads to at least two problems. The first is that in areas with smaller populations and low economic viability secular options are not likely to be available and drug court programs cannot carve out an individualized program for one or two individuals. Second, if pre-existing programs are supported by a religious group or have a religious component then requiring the creation of competing secular programs is “making a law respecting an establishment of religion.”

The majority never sees itself as tyrannical.  After all, they’re good with their way of life, and why shouldn’t everyone else be too?  The fact that low population jurisdictions may lack secular programs, whether for financial or pragmatic reasons (it’s hard to hold a meeting of just one), is a very practical concern.  The legal system is nothing if not about money.

Ken’s second reason, that requiring the creation of secular programs is “making a law respecting an establishment of religion,” is a bit less clear.  It would appear that his point is that the government would be creating a program that mandated it have no faith-based component, which would be to preclude anyone who wants faith-based piece from participating.

But that doesn’t follow easily.  Secular doesn’t require participants to shed whatever beliefs they have. Just to engage in them elsewhere.

But consider whether the same support for faith-based programs would exist in areas where Christianity wasn’t the predominant religion.  Would a Baptist be required to attend a Chabad-run program in Williamsburg, Brooklyn as a condition of not going to jail?  What about a program run by an Imam?  Even more to the point, say a Wican program?  That the programs tend to be run by Christian faith-based groups tends to obscure the problem, because they reflect the faith of the majority, and it’s hard for many people to get too bent out of shape about it.

The reality is that drug courts will muddle through using whatever programs are available.  If that means in order to be viable the drug court has to use the six religion-attached treatment programs (no secular ones being available) then the drug court will do so or it will shut down. After all, sending someone to jail – without offering any treatment program – is always going to be constitutional.

And there lies the core problem with offering the alternative remedy of treatment.  If there is no secular option, the alternative is jail.  Not just jail, but jail without treatment.  And as options go, this one really sucks.

There are structural solutions, such as sending defendants from low population areas without secular options to distant jurisdictions where more options exist, but that carries its own boatload of concerns, ranging from the loss of jobs to removal from families and, on a more basic level, the right to live where you want to live.

The demand that courts just require the government to spend more money, create secular programs, is neither feasible nor, frankly, within the court’s power.  It’s not that the court has no alternative to a faith-based program. Indeed, that’s what jails are for.  There is no constitutional entitlement to a better option than jail.

Nor can a court order a religious group to take the Christ out of Christmas.  The Salvation Army can run its program any damn way it sees fit. That First Amendment protects its right to do so, and that right must be as scrupulously protected as any other.

But when Ken calls the problem a “veto of one,” it makes me shiver.  One of the most important protections the Constitution offers is the veto of one, our individual rights protected despite what the majority prefers.  Rather than denigrate an individual’s right to believe in God or not, and to pick his preferred flavor, it’s critical that we remember that this is precisely what the Constitution was meant to protect.

The majority is a fine concept for the election of representatives and the enactment of laws. The tyranny of the majority is a fine concept when it comes to requiring the individual to pray.  We each get to believe what we prefer, no matter what the majority says. And it’s got to stay that way.

18 thoughts on “Come To Jesus; He’s At Drug Court

          1. Jim Majkowski

            While post hoc isn’t necessarily propter hoc, I’m gonna keep complimenting so long as I keep enjoying reading.

      1. Beth Clarkson

        I was going to post something similar after I finished reading this but no only did Peter beat me too it, but turns out you don’t want compliments anyway. So I’ll wait till I disagree with you to post again 🙂

      2. Wheeze the People™

        Do you really expect us to believe that deep inside the barnacle-encrusted thick outer curmudgeon shell that is SHG, there isn’t a teeny tiny wafer of humanity that enjoys its soft white underbelly to be tickled, at least once in awhile?? Really?? . . .

  1. Patrick Maupin

    It’s a difficult problem. I am not religious, yet I sometimes give money to the Salvation Army, and never, for example, to the Red Cross. I volunteered with the Red Cross after Katrina (Austin had a lot of refugees, although I understand that that is now a politically incorrect term), and that was a major clusterfuck.

    I guess organized religion has the benefit of actually being organized, and we haven’t evolved to the point of having well-organized agnostics.

    So when I give money to the Salvation Army, it is with the knowledge that someone will have to pay for his warm bed and bowl of soup by listening to a sermon, but I rationalize it by telling myself there are worse things, and that at least the bed and soup will be provided.

  2. Marc

    I’ve run into similar problems in our administrative court – the state agency I practice against the most is totally enamored with AA/NA despite the lack of objective evidence that it works for the entire population. It is so ingrained in the system that the agency has admitted in discovery in cases that they have NEVER recognized another program when requiring a license holder to attend a number of support group meetings as a stipulation of keeping the license holders professional license (I know that the liberty concern is a little bit greater than the property right concern attached to a professional license, but it is often intrinsically tied up in the identity of the people that I represent).

    And I have had a client who have objected to AA/NA because of what they see as a “faux” faith basis in AA/NA – they cited his experience in having people in AA/NA meetings express a belief that Bugs Bunny was their deity to support that objection and requested to do individual counseling with their pastor instead. But the ALJ rejected my arguments that it was a religious liberty issue and recommended the agency order the AA/NA meetings that they wanted to order anyway, even though we were offering a viable alternative.

    The government is good at pushing square pegs into round holes, often using the hammer of the courts. And I think there is a bit of a “recovery-industrial complex” that has grown up around these type of programs that are seeking to protect their turf, so protestations like Mr. Lammers ring a little hollow to me as I think the establishment clause issue comes if there are NO secular alternatives that the courts are able to use (and that means sending all from the drug courts to a faith-infused recovery program), rather than if the government is forced to create one, as he seems to argue.

    1. SHG Post author

      But the ALJ rejected my arguments that it was a religious liberty issue . . .

      Because they are good, helpful Christian programs. It’s like this idiots who argue that Christmas trees have anything to do with Christmas, when we all know they’re just fun Christmas decorations.

      1. Marc

        But that was what was odd about it – my client wanted to go to a much more overtly Christian pastor for “support and counseling” (which given the complete absurdity of the issue we were dealing with – client was convicted of DWI >10years ago, went through treatment and had not had a “relapse” – would have been vastly more appropriate), rather than the nominally religious AA/NA meetings. We weren’t even dealing with a request to go to a secular program!

        And on the issue of Christmas trees (because you brought it up), the freedom from religion issue is what causes problems for me – I wouldn’t have any problems with Christmas trees in public spaces around Christmas and I also wouldn’t have a problem with the symbols of other religions in public spaces during any other appropriate time period (as defined by someone of that religion). But that does not respect the right of the one to be free from religion as well. A sticky wicket, indeed.

        1. SHG Post author

          I am a very strong believer that without a clear secular wall around government, we end up in an uncontrollable morass. Everyone should be able to be as religious (or not) as they wish to be. Just not in government.

  3. Marc R

    Had a client kicked out of drug court (here, the state will often offer it for any first time offender charged with a misdemeanor or 3rd degree drug felony) for attacking the “higher power” concept and refusing to do the closing “lord’s prayer.” She spent the night a jail and went before the judge who offered her another chance. It just would have set her up to fail as she was a very vocal atheist. I brought statistics in that Rational Recovery or 1-on-1 meetings with a licensed psychologist are just as less likely to succeed as NA meetings. The problem is that none of those programs existed here; there’s one program that’s affiliated with the drug courts. Fortunately for her, though she was banned from drug court, the state dropped the underlying charges for an unrelated reason. But as a constitutional matter I couldn’t believe how the judge refused to acknowledge any 1st amendment infringement .

    I know above you said there’s the constitutional alternative of jail. But I don’t see an exemption from due process; if there is a drug court alternative then it must comport with the 1st amendment otherwise non-believers are discriminated against. It seems the option isn’t a religious drug court or jail but it should be just jail or a secular drug court. Even in larger cities, the “approved” drug programs are all AA/NA based and they all entail a requirement of affirming a higher power and the reading of New Testament prayers.

    1. SHG Post author

      The difference between what should be and is can be insurmountable. If it’s an ideal, it can be spanned. When it’s money and logistics, no so much. It doesn’t make it right. It just is.

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