# Opposition Brief — Coughlin v. Griffin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1419%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1997 - **Citation:** 519 U.S. 1054 ## Text No. 96-372 IN THE Supreme Court of the United States he October Term, 1996 THOMAS A. COUGHLIN, III, Commissioner, N.Y.S. Department of Correctional Services; LOUIS F. MANN, Superintendent, Shawangunk Correctional Facility, Petitioners, against DAVID GRIFFIN, Respondent ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI ROBERT N., ISSEKS Counsel of Record 37 North Street Middletown, NY 10940 (914) 344-4322 Attorney for Respondent Of Counsel: ALEX SMITH THE REPORTER CO., INC.-Walton, NY 13856 - 800-252-7181 Syracuse Office, University Building. Syracuse, NY 13202 - 315-426-1235 NYC Office - 30 Vesey St.. New York, NY 10007 - 212-732-6978 - 800-800-4264 (2709 — 1996) Printed on Recycled Paper This is so even though DOCS admitted in the courts below that references are made to God when they are "necessary to explain the Higher Power concept.” (Petitioner's Appendix, page 89a) 4 treatment program based upon the religious Twelve Steps of Alcoholics Anonymous violates the Establishment Clause of the First Amendment to the United States Constitution. It is not disputed that: (1) participation in the ASAT program was a prerequisite to respondent's participation in the Family Reunion Program, (2) the entire ASAT curriculum was based upon the Twelve Steps of Alcoholics Anonymous which is spiritual in nature, (3) as of June, 1993, the ASAT program provided treatment services in 62 New York State correctional facilities and 11,480 inmates were in treatment, and (4) DOCS did not provide any secular alternative to the ASAT Twelve Step program—ASAT was DOCS' exclusive addiction program throughout the State's prison system. The religiously indoctrinating nature of the Twelve Step program is explained in the two basic Alcoholics Anonymous publications, 7welve Steps and Twelve Traditions, and Alcohol- ics Anonymous, commonly referred to as the "Big Book". Although neither of these publications was included in the trial court's record, petitioners, in their opposing briefs to New York's Appellate Division and Court of Appeals, acknowledged both of these books as authoritative by explicitly utilizing excerpts from them in their arguments. Petitioners continue to acknowledge the authority of these texts by relying upon them in their petition to this Court. Petition, pages 12, 13, 14. Twelve Steps and Twelve Traditions ("TSTT") "presents an explicit view of the principles by which A.A. members recover and by which their Society functions." (Preface TSTT 15) “It is hoped," write the authors, "that this volume will afford all who read it a close-up view of the principles and forces which have made Alcoholics Anonymous what it is." (Preface TSTT 18) The book elaborates, chapter by chapter, upon each of the RP le a a ee 5 Twelve Steps. The following are some of the statements contained in these chapters: Some of us won't believe in God, others can't, and still others who do believe that God exists have no faith whatever He will perform this miracle [of removing our obsession] . . . Let's look first at the case of the one who says he won't believe—the belligerent one. He is in a state of mind which can be described only as savage. (Step Two TSTT 25) Whether agnostic, atheist, or former believer, we can stand together on . . . Step [Two]. True humility and an open mind can lead us to faith, and every A.A. meeting is an assurance that God will restore us to sanity if we rightly relate ourselves to Him. (Step Two TSTT 33) Like all the remaining Steps, Step Three calls for affirmative action, for it is only by action that we can cut away the self-will which has always blocked the entry of God—or, if you like, a Higher Power—into our lives. Faith, to be sure, is necessary, but faith alone can avail nothing. We can have faith, yet keep God out of our lives. Therefore our problem now becomes just how and by what specific means shall we be able to let Him in? Step Three represents our first attempt to do this. In fact, the effectiveness of the whole A.A. program will rest upon how well and earnestly we have tried to come to a ‘decision to turn our will and our lives to the care of God as we understood Him.' (Step Three TSTT 34-35) All of the Twelve Steps require sustained and personal exertion to conform to their principles and so, we trust, to God's will. (Step Three TSTT 40) 6 It is when we try to make our will conform with God's that we begin to use it rightly. To all of us, this was a most wonderful revelation. Our whole trouble had been the misuse of willpower. We had tried to bombard our problems with it instead of attempting to bring it into agreement with God's intention for us. To make this increasingly possible is the purpose of A.A.'s Twelve Steps, and Step Three opens the door. (Step Three TSTT 40) Step Five is 'the beginning of a true kinship with man and God.’ (Step Five TSTT 57) Many an A.A., once agnostic or atheistic, tells us that it was during this stage of Step Five that he first actually felt the presence of God. And even those who had faith already often become conscious of God as they never were before. (Step Five TSTT 62) This feeling of being at one with God and man, this emerging from isolation through the open and honest sharing of our terrible burden of guilt, brings us to a resting place where we may prepare ourselves for the following Steps toward a full and meaningful sobriety. Step Five TSTT 62) Of course, the often disputed question of whether God can—and will, under certain conditions—remove defects of character will be answered with a prompt affirmative by almost any A.A. member. To him, this proposition will be no theory at all; it will be just about the largest fact in his life. (Step Six TSTT 63) [I}n a very complete and literal way, all A.A.'s have ‘become entirely ready' to have God remove the mania ab et I ita " a i Al ll, Ain a sn te 7 for alcohol from their lives. And God has proceeded to do exactly that. (Step Six TSTT 64) If we ask, God will certainly forgive our derelictions. (Step Six TSTT 65) So Step Six—'Were entirely ready tc have God remove all these defects of character'—is A.A.'s way of stating the best possible attitude one can take in order to make a beginning on this lifetime job. (Step Six TSTT 65) No matter how far we have progressed, desires will always be found which oppose the grace of God. (Step Six TSTT 66) [T]he difference between ‘the boys and the men! is the difference between striving for a self-determined objec- tive and for the perfect objective which is of God. (Step Six TSTT 68) The moment we say, "No, never!' our minds close against the grace of God. Delay is dangerous, and rebellion may be fatal. This is the exact point at which we abandon limited objectives, and move toward God's will for us. (Step Six TSTT 69) For just so long as we were convinced that we could live exclusively by our own individual strength and intelli- gence, for just that long was a working faith in a Higher Power impossible. This was true even when we believed that God existed. We could actually have earnest reli- gious beliefs which remained barren because we were still trying to play God ourselves. As long as we placed self-reliance first, a genuine reliance upon a Higher Power was out of the question. That basic ingredient of all humility, a desire to seek and do God's will, was missing. (Step Seven TSTT 73) Refusing to place God first, we had deprived ourselves of His help. But now the words 'Of myself I am nothing, the Father doeth the works’ began to carry bright prom- ise and meaning. (Step Seven TSTT 75) The Seventh Step is where we make the change in our attitude which permits us, with humility as our guide, to move out from ourselves toward others and toward God. (Step Seven TSTT 76) Whenever our pencil falters, we can fortify and cheer ourselves by remembering what A.A. experience in this Step has meant to others. It is the beginning of the end of isolation from our fellows and from God. (Step Eight TSTT 82) As an insurance against ‘big-shot-ism' we can often check ourselves by remembering that we are today sober only by the grace of God and that any success we may be having is far more His success than ours. (Step Ten TSTT 92) Prayer and meditation are our principal means of con- scious contact with God. (Step Eleven TSTT 96) It has been well said that ‘almost the only scoffers at prayer are those who never tried it enough.’ (Step Eleven TSTT 97) 9 We all need the light of God's reality, the nourishment of His strength, and the atmosphere of His grace. To an amazing extent the facts of A.A. life confirm this ageless truth. (Step Eleven TSTT 98) Now and then we may be granted a glimpse of that ultimate reality which is God's kingdom. And we will be comforted and assured that our own destiny in that realm will be secure for so long as we try, however falteringly, to find and do the will of our own Creator. (Step Eleven TSTT 98) The object of meditation "is always the same: to im- prove our conscious contact with God, with His grace, wisdom, and love." (Step Eleven TSTT 100) Now what of prayer? Prayer is the raising of the heart and mind to God—and in this sense it includes medita- tion. How may we go about it? And how does it fit in with meditation? Prayer, as commonly understood, is a petition to God. Having opened our channel as best we can, we try to ask for those right things of which we and others are in the greatest need. And we think that the ~ whole range of our needs is well defined by that part of Step Eleven which says: '. . . knowledge of His will for us and the power to carry that out.’ A request for this fits in any part of our day. (Step Eleven TSTT 102) ... when making specific requests, it will be well to add to each one of them this qualification: '. . . if it be Thy will.' We ask simply that throughout the day God plac«. in us the best understanding of His will that we can have for that day, and that we be given the grace by which we may carry it out. (Step Eleven TSTT 102) 10 In A.A. we have found that the actual good results of prayer are beyond question. They are matters of knowl- edge and experience . .. Almost any experienced A.A. will tell how his affairs have taken remarkable and unexpected turns for the better as he tried to improve his conscious contact with God . . . All of us, without exception, pass through times when we can pray only with the greatest exertion of will. Occasionally we go even further than this. We are seized with a rebellion so sickening that we simply won't pray. When these things happen we should not think too ill of ourselves. We should simply resume prayer as soon as we can, doing what we know to be good for us. (Step Eleven TSTT 104-105) We know that God lovingly watches over us. We know that when we turn to Him, all will be well with us, here and hereafter. (Step Eleven TSTT 105) Reviewing the first eleven Steps it is observed that "in Step Three we turned our will and our lives over to the care of God as we understood Him. For the time being, we who were atheist or agnostic discovered that our own group, or A.A. as a whole, would suffice as a higher power. . . [P]racticing these Steps, we had a spiritual awakening about which finally there was no question. Looking at those who were only beginning and still doubted themselves, the rest of us were able to see the change setting in. From great numbers of such experi- ences, we could predict that the doubter who still claimed that he hadn't got the ‘spiritual angle,’ and who still considered his well-loved A.A. group the higher power, would presently love God and call Him by name. (Step Twelve TSTT 107-109) 1] Practically every A.A. member declares that no satisfac- tion has been deeper and no joy greater than in a Twelfth Step job well done. To watch the eyes of men and women open with wonder as they move from darkness into light, to see their lives quickly fill with new purpose and meaning, to see whole families reassembled, to see the alcoholic outcast received back into his community in full citizenship, and above all to watch these people awaken to the presence of a loving God in their lives —these things are the substance of what we receive as we carry A.A.'s message to the next alcoholic. (Step Twelve TSTT 110) When we developed still more, we discovered the best possible source of emotional stability to be God himself. We found that dependence upon His perfect justice, forgiveness, and love was healthy, and that it would work where nothing else would. (Step Twelve TSTT 116) Service, gladly rendered, obligations squarely met, troubles well accepted or solved with God's help, the knowledge that at home or in the world outside we are partners in a common effort, the well-understood fact that in God's sight all human beings are important, the proof that love freely given surely brings a full return, the certainty that we are no longer isolated and alone in self-constructed prisons, the surety that we need no longer be square pegs in round holes but can fit and belong in God's scheme of things—these are the perma- nent and legitimate satisfactions of right living for which no amount of pomp and circumstance, no heap of material possessions, could possibly be substitutes. True ambition is not what we thought it was. True ambition 12 is the deep desire to live usefully and walk humbly under the grace of God. (Step Twelve TSTT 124-125) With each passing day of our lives, may every one of us sense more deeply the inner meaning of A.A.'s simple prayer: God grant us the serenity to accept the things we cannot change. Courage to change the things we can, And wisdom to know the difference." (Step Twelve TSTT 125) Alcoholics Anonymous (the "Big Book") is "A.A.'s basic text" and its "central theme" is the "emphasis on a higher power". As "an all-purpose guide for anyone having problems working the Twelve Steps", the Big Book's main object is ‘to enable [the reader] to find a Power greater than [himself] which will solve [his] problem," and that it is "spiritual as well as moral." (Big Book, page 45) Chapter Four of the "Big Book", entitled "We Agnostics," provides: ... If, when you honestly want to, you find you cannot quit entirely, or if when drinking, you have little control over the amount you take, you are probably an alcoholic. If that be the case, you may be suffering from an illness which only a spiritual experience will conquer. To one who feels he is an atheist or agnostic such an experience seems impossible, but to continue as he is means disaster, especially if he is an alcoholic of the hopeless variety. To be doomed to an alcoholic death or to live on a spiritual basis are not always easy alterna- tives to face. 13 But it isn't so difficult. About half our original fellow- ship were exactly of that type. At first some of us tried to avoid the issue, hoping against hope we were not true alcoholics. But after a while we had to face the fact that we must find a spiritual basis of life—or else. Perhaps it is going to be that way with you. But cheer up, some- thing like half of us thought we were atheists or agnos- tics. Our experience shows that you need not be discon- certed. A preliminary step in the A.A. program requires the partici- pant to admit the existence "of a Creative Intelligence, a Spirit of the Universe underlying the totality of things. . ." (Big Book, page 46). Once this step is taken, the participant is to be possessed with a new sense of "power and direction." The program provides that "[a]t the start, this was all [the partici- pant] needed to commence spiritual growth, to effect [his] first conscious relation with God as [he] understood Him." (Big Book, page 47) As soon as the participant can say that "he does believe, or is willing to believe, . . .[the program] emphatically assures him that he is on his way" and that a "wonderfully effective spiritual structure can be built." (Big Book, page 47) The ASAT Program Operations Manual sets forth in detail the role that the Twelve Steps plays in the entire ASAT curriculum administered throughout the State's prison system, including respondent's prison. The Manual's statement of the ASAT "philosophy" begins: The 12-Step approach to recovery is a set of principles which teach an individual how to build a life based on sobriety. By working the 12 suggested steps, a person achieves a clear, honest view of relationships with others and a realistic understanding of himself/herself. The 12 14 Steps of A.A. act as a guide which provide the tools to build a new way of life without the use of alcohol and/or drugs, one day at a time. An outline of these steps is provided in the ASAT Curriculum, Attachment E.* (ASAT Program Operations Manual, page 6—Respondent's Appendix, page 2a) Section VIII of the ASAT Manual, entitled, "Program Concept", describes the "Treatment Services". Under the subheading, "Alcohol and Drug Education and Counseling", there appears the following: ASAT staff will develop a curriculum reflecting week, topic, and educational information that will be delivered. Audio/visual material, lectures, and group discussions will be used. The curriculum will be based on the "Twelve Step" approach to recovery. (ASAT Program Operations Manual, page 25—Respondent's Appendix, page 4a, emphasis added) DOCS' statement of the ASAT "Goals and Objectives" begins by setting forth its "Mission Statement" which includes focusing on the prisoner's continued participation in self-help groups based on the Twelve-Step approach. (ASAT Program Opera- tions Manual, page 4—Respondent's Appendix, page 1a) The Manual states that weekly participation in self-help groups such as A.A. is mandatory in the formal ASAT program. (ASAT Program Operations Manual, page 27—-Respondent's Appendix, “The "ASAT Program Curriculum" ("Attachment E" of the Manual) outlines all of the Twelve Steps. 15 page 6a) Under the Manual's "Overview of the Self-Help Programs" there is a section which reads, "Group counseling focus: Continued exploration of feelings regarding disease concept and self-help programs." Under this heading there is a list which contains, among others, the topics, "Review of the 12 steps", "what it means to work the steps", "Treatment emphasis - Steps 1, 2, 3", and "Ongoing stepwork - disease concept". (Attachment "E" of the ASAT Program Operations Manual, pages 2-3—Respondent's Appendix, pages 9a) The curriculum portion of the ASAT Manual explains that the group counseling sessions focus on such topics as "Surrender to powerlessness", "Seeking and finding your higher power", "Barriers to faith", "From fear to faith" and "Prayer and medita- tion". (Attachment "E" of the ASAT Program Operations Manual, pages 4-17—Respondent's Appendix, pages 10a-24a) The audio-visual aids and handouts given to ASAT participants include such titles as "Accepting Powerlessness", "What is Spirituality?", "Step Two: A Promise of Hope", "The Will of God" and "Our Father". Thus the New York Court of Appeals had ample basis for finding that "[t]he ASAT Manual not only fails to disclaim and disassociate the prison system's drug and alcohol addiction treatment program from A.A.'s religious approach to combating these afflictions, but actually embraces and reinforces worship in the A.A. mold." Petitioners’ Appendix, page 12a. The ASAT program itself, and not just the AA self-help groups that the 16 participating prisoners are required to attend, is grounded in the Twelve Steps’—a process to sobriety that is explicitly guided by traditionally religious concepts and explicitly directed toward a conversion of the participant to a reliance upon God. REASONS FOR DENYING THE WRIT NEW YORK'S REQUIREMENT THAT PRISONERS PARTICIPATE IN THE TWELVE STEP PROGRAM CONSTITUTES GOVERNMENT MANDATED RELI- GIOUS PRACTICE IN VIOLATION OF THE ESTAB- LISHMENT CLAUSE OF THE FIRST AMENDMENT I "Whether the key word is ‘endorsement’, ‘favoritism’ or ‘promotion’, the essential principle remains the same. The Establishment Clause at the very least prohibits government from appearing to take a position on questions of religious belief . . ." County of Allegheny v American Civil Liberties Union, 492 U.S. 573, 593-594 (1989)(emphasis added). Petitioners’ exclusive employment of its Twelve Step ASAT program, coupled with their conditioning of prison opportuni- ties, such as conjugal visits, upon an inmate's participation in * Petitioners make a perplexing attempt to rewrite the decision below as though it only pertains to ASAT's requiring inmates to participate in AA self- help groups. Petition, page 3 n. 2. Whatever "portion of the program" might be petitioners’ "focus here", and whatever might be their present "periodic review and revision" of the ASAT program, /d., the fact remains that it was the ASAT program as it existed, and the fact that it was the State's exclusive treatment program, which formed the basis of the Court of Appeals’ decision. 17 that program, makes it appear, "at the very least," that the State has "take[n] a position on questions of religious belief." Jd. There is no intellectually honest way to deny this fact.° Indeed, the New York Court of Appeals observed that the A.A. literature "demonstrates beyond peradventure that doctrinally and as actually practiced in the 12-step methodology, adherence to the A.A. fellowship entail: engagement in religious activity and religious proselytization." Petitioner's Appendix, 11la-12a. As long as the State relies exclusively upon religiously proselytiz- ing language, the objective appearance of government-endorsed religiosity will be undeniable. Even if this Court were to go so far as to accept petitioners’ Suggestion that words like "God" and "prayer" and "Him" and "Higher Power" and "spirituality" can be given a neutral or secular "spin" (which, of course, they really can't), the Establish- ment Clause would still be violated. This is because the First Amendment "forbids" even "subtle departures from neutrality," Gillette v United States, 401 U.S. 437, 452 (1971) ..." quoted. in Church of Lukumi Babalu Aye v Hialeah, 113 S8.Ct. 2217, 2227 (1993), and there is nothing at all subtle about the State's departure from neutrality in this record. The religious indoctri- nation inherent in a departmental policy of using the Twelve Steps is not erased, or even minimized, simply by labeling it "spiritual" or "therapeutic". * Ironically, petitioners’ own counselor, Robert Cunningham, admitted that a fair reading of the 12-Steps leads to the conclusion that it is religious: “Based solely on my reading of the 12 Steps as well as the other materials submitted by Mr. Griffin in support of his grievance, I concluded that the program had a religious foundation." (Cunningham Affidavit, par. 11 —Respondent's Appendix, page 27a) 18 Il Petitioners’ heavy reliance upon A.A.'s conclusory, self- serving disclaimer that the Twelve Step process is not “reli- gious",’ not only has been rejected by the New York Court of Appeals, it is presently being uniformly rejected in the federal courts. In Kerr v Farrey, 95 F.3d 472, 497-480 (7th Cir. 1996) the Seventh Circuit Court of Appeals, which stated its agreement with the Opinion below, rejected the argument that the "program escaped the ‘religious’ label because the twelve steps used phrases like ‘God, as we understood Him,' and because the warden indicated that the concept of God could include the non- religious idea of willpower within the individual." The Seventh Circuit observed that "[a] straightforward reading of the twelve steps shows clearly that the steps are based on the monotheistic ” Petitioners also suggest that because A.A. purportedly does not embrace one particular religion it does not violate the First Amendment. But even assuming that the A.A. requirement does include the principle of non- affiliation, this still would not remove it from the scope of the Establishment Clause. In Abington v Schempp, 374 U.S. at 216, the Supreme Court observed how it "has rejected unequivocally the contention that the Establish- ment Clause forbids only governmental preference of one religion over another." Abington, 374 U.S. at 216. See, also, Grand Rapids School Dist. v Ball, 473 US 373, 382, where this Court observed that the government must “maintain a course of neutrality among religions, and between religion and nonreligion. . . " 19 idea of a single God or Supreme Being."* /d. See, also, O'Connor v State of Cal., 855 F.Supp. 303, 307-308 (C.D.Cal. 1994) which, prior to Kerr, drew the same conclusion that A.A., for purposes of First Amendment analysis, is not only religious, but specifically "monotheistic" in its basic principles: Spirituality is a central part of the Alcoholics Anony- mous philosophy, and the program contains religious overtones. While A.A. is not a "religion"—various faiths may all participate without renouncing their religious convictions—a review of the "Big Book of Alcoholics Anonymous" reveals that it is founded on monotheistic principles. The Second Circuit Court of Appeals in Warner v Orange County Department of Probation, 95 F.3d 202, 213 (2nd Cir. 1996), as did the Seventh Circuit in Kerr, expressed its agree- ment with the Opinion below and stated that it had "little difficulty concluding that the constitutional line was crossed" by the government's endorsement of, and requirement of participa- tion in, the Twelve Step program. Addressing the disclaimer argument now being propounded to this Court by petitioners, and specifically that argument's reliance upon Stafford v * The Seventh Circuit went on to point out that the phrase "God, as we understood Him," stressed by petitioners to show the so-called flexibility of the "God" concept, really works against the State, since the phrase refers to God as "Him". Kerr, 95 F.3d at 480. Thus it is no longer true, as petitioners originally asserted, that no court other than the Court below has held that the 12 Steps method is religious on its face. See, Petition, 8, 10. 20 Harrison, 766 F.Supp. 1014 (D.Kan. 1991),’ the Second Circuit in Warner stated that Stafford involved a mandatory prison-based substance abuse program, structured around the principles of A.A. The court upheld the program, arguing that A.A.'s notions of a "higher power" and "God" were sufficiently flexible and non-denominational that the program could not be said to constitute a "religion." This is a misappli- cation of First Amendment doctrine, which prohibits coerced participation in religious exercise of any variety for its favoritism of religion over non-religion. We decline to follow that case, which has been criticized for misreading relevant Supreme Court precedent." *The Stafford Court, pointing to the disclaimer in the "Big Book", held that "[w]hile the spiritual nature of Alcoholics Anonymous cannot be denied, the court is not persuaded this program is a religion." 766 F.Supp. at 1016. The holding in Jones v Smid, (4-89-CV-20857), the unpublished 1993 Southern District of lowa decision also cited in the instant petition, expressly adopted the reasoning in Stafford. ‘In the Warner District Court decision, the reasoning in Stafford was found faulty and rejected as follows: The case upon which Defendant relies for the proposition that A.A. is not a religious organization, Stafford v Harrison, 766 F.Supp. 1014 (D.Kan. 1991), draws its legal justification from a misapplication of Justice Douglas’ concurring opinion in U.S. v. Seeger, 380 U.S. 163 (1965). Stafford finds that “the belief in a Supreme Being ‘cannot be sustained as a distinguishing characteristic of religion." Staffi rd, 766 F.Supp. at 1017. The passage from Seeger cited by the Stafford court stands not for the proposition that reference to a Supreme Being does not make something a ‘religion’, but for the proposition that belief in a Supreme Being is not a (continued...) 21 Stafford was also rejected in Scarpino v Grosshiem, 852 F.Supp. 798, 804 (S.D.lowa 1994) which described the reliance upon A.A.'s disclaimer as "dubious." Also refusing to follow Stafford and adopt the sort of selec- tive and misleading references to the A.A. literature that can be found in the instant petition, the District Court in O'Connor took the following quote as revealing: This is the how and why of it. First of all, we had to quit playing God. It didn't work. Next, we decided that hereafter in this drama of life, God was going to be our Director. He is the Principal; we are His agents. He is the Father, and we are His children. Most good ideas are simple, and his concept was the keystone of the new and triumphant arch through which we passed to freedom... O'Connor, 855 F.Supp. at 307, n. 6. Ill The primary problem with petitioners’ argument is that it would guarantee the State's ability to circumvent the Establish- ment Clause in every challenge to state-endorsed religious (...continued) prerequisite for a religion. In fact, Douglas specifically notes Hinduism and Buddhism as religions which do not include a concept of a Supreme Being. As a result, we base our analysis upon decisions of the Supreme Court rather than upon Stafford. Warner v Orange County Department of Probation, 827 F.Supp. at 267. 22 indoctrination. If States were permitted to use traditionally religious terms simply on their claim that such terms are not to be taken literally, but as mere metaphorical tokens, then accountability under the First Amendment would be impossible. See, e.g., Robinson v City of Edmond, 68 F.3d 1226 (10th Cir. 1995), which rejected a request to go behind the objective'' significance of a traditionally religious symbol. The Tenth Circuit rightly observed that an argument which would discard the objective standard "could always ‘trump’ the Establishment Clause." /d. Petitioners' argument, with its proffered interpretation of "God" and "prayer" as state-of-the-art terms within the treatment industry, similarly asks that the objective standard be discarded and that plairily religious language not be taken at face value. At the very least, however, the First Amendment must forbid government from using language conventionally understood as religious as a tool for social engineering. Otherwise, any governmental entity, such as New York's DOCS, which has created and now operates a religiously proselytizing program, always would be able to "trump" the Establishment Clause by simply saying that when it uses the word "God" it doesn't mean God, and when it tells people to "pray to God" it really is telling them to do something non-religious. "Instead, the Tenth Circuit applied the objective standard enunciated in County of Allegheny v American Civil Liberties Union (492 U.S. 573) and looked "only to the average receiver of the government communication or average observer of the government action." Robinson v City of Edmond, supra. 23 This is also why petitioners’ "secular purpose" argument fails. If this Court were to approve the State's exclusive endorsement of the Twelve Steps on the theory that working them is good for certain types of people because "God" has a therapeutic, non- religious significance, the variety of opportunities to “trump the Establishment Clause" would be virtually limitless. Nothing then could stop the State from requiring the working of the Twelve Steps as a condition of, say, child visitation, or public or government-regulated employment, or even a student's right