dissenting:
I respectfully dissent.
The pertinent facts concerning Warner’s plea and sentencing are not in dispute. He was arrested and pled guilty to his third alcohol-related driving offense in a year. Prior to meeting with the probation officer who would recommend a sentence, Warner voluntarily began to attend Alcoholics Anonymous meetings. This was on the advice of his lawyer, who, according to Warner’s testimony, believed “that the court would look upon me more favorably in the sentencing procedure if I can show that I was pursuing a program of rehabilitation.” The probation officer subsequently recommended to the sentencing court that Warner continue his ongoing attendance at AA. meetings as a special condition of probation. The sentencing judge, who is obliged by state law to make an independent sentencing decision, imposed that condition. Warner registered no objection at the sentencing hearing and took no appeal. Later, he moved the sentencing court to relieve him of any obligation to attend meetings with a religious component and was quickly accommodated with a nonreligious counseling program. Based on these facts, my colleagues hold that the county probation authority may be sued for damages under Section 1983 for violating the Establishment Clause.
My dissent is based on two of the available grounds. First, Warner forfeited or waived his claim or, applying tort law, consented to the probation officer’s alleged intentional tort of recommending to the court attendance at AA meetings as a condition of probation. Indeed, Warner voluntarily began attendance at AA. meetings before any involvement by the probation office in order to convince the sentencing judge that his voluntary selection of this particular rehabilitative program obvi*1078ated the need for a stiffer sentence. Moreover, the judge exercised his exclusive authority to determine what sentence should be imposed. The imposition of the sentence by the court was, therefore, an independent cause that superseded the recommendation of the probation officer in causing the injuries. Second, the invocation of the Establishment Clause, rather than the Free Exercise Clause, puts into play a principle that portends changes in our penal system that are not required, in my view, by the Constitution.
I
I turn first to the consent and causation issues.
This lawsuit is an instance of remarkable gall. Warner voluntarily selected and began attendance at A.A. meetings on the advice of counsel in order to impress the sentencing court with his determination to overcome his alcoholism. Now he complains that a subsequent recommendation of a probation officer that he attend such meetings entitles him to monetary damages.
Although we do not have the minutes of the sentencing hearing, Warner’s testimony in the district court stated that his ostensible desire to attend A.A. meetings was to be used as a plus in his favor in persuading the sentencing court to be lenient. The judge thus imposed a condition of probation embraced by Warner on his own initiative. Warner never indicated to the sentencing court his view that a condition of probation requiring attendance at A.A. meetings rendered the proposed sentence unconstitutional. Nor did Warner appeal from the sentence imposed.
By any measure known to me, Warner’s conduct was a forfeiture or waiver, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (objection waived absent showing of cause), just as the County’s failure to assert the defense of immunity waived that issue. Even if we apply common law tort doctrine, Warner’s conduct constituted consent to an intentional tort, a full defense under New York law. See Van Vooren v. Cook, 273 A.D. 88, 75 N.Y.S.2d 362 (1947); see also Prosser and Keeton on the Law of Torts § 18. I would hold, therefore, that his claim for damages is barred.
Even if the principles relating to injuries caused by negligence relied upon by my colleagues are applied, Warner’s claim fails. Warner’s initiative in voluntarily selecting and attending A.A. meetings and his failure to bring his present claim to the court’s attention were the cause of whatever constitutional harm he suffered from the recommendation of the probation officer.1 As his successful petition for state collateral review under N.Y.Crim. Proc. L. § 440.20(1) and the recent decision in the New York Court of Appeals in Griffin v. Coughlin, 88 N.Y.2d 674, 649 N.Y.S.2d 903, 673 N.E.2d 98 (1996), demonstrate, relief was his for the asking.
I also cannot agree with the “finding” that the sentencing judge did not make the independent judgment required of him by state law, see People ex rel. Perry v. Cassidy, 23 A.D.2d 706, 257 N.Y.S.2d 228, 229 (1965), and that that judgment was not, in the jargon of negligence law, a superseding cause of Warner’s injuries. In my view and that of others, see People ex rel. Brown v. La Vallee, 13 A.D.2d 556, 211 N.Y.S.2d 728, 729 (1961); Honeycutt v. Ward, 612 F.2d 36, 41 (2d Cir.1979), cert. denied, 446 U.S. 985, 100 S.Ct. 2969, 64 L.Ed.2d 843 (1980), a heavy presumption of correctness attends proceedings such as the one before us where no error was brought to the attention of the sentencing judge.2 My colleagues, and the district judge, indulge in the contrary pre*1079sumption, namely, that acceptance of the sentencing recommendation of a probation officer as to sources of treatment is merely “rubberstamping.” They do this notwithstanding testimony that New York judges frequently reject special conditions of probation recommended by probation authorities.3 They also ignore the possibility that recommendations of probation officers may be tailored to the known views of judges, creating a false appearance of rubberstamping.4
Moreover, as noted, the record is not silent as to whether the particular sentencing judge would have imposed the requirement of attendance at A.A. meetings had Warner indicated his concerns about the religious aspects of A.A. In fact, it fairly shouts that the judge would have rejected the condition. After sentencing, Warner complained to the probation officer about the religious aspects of A.A. At this point, of course, the officer lacked power to alter the sentence.5 Warner then, for the first time, challenged the sentence by filing a petition under N.Y.Crim. Proe. L. § 440.20(1) (McKinney 1995) to set aside the pertinent part of his sentence on the ground that it was invalid. The court ruled that Warner could comply with the conditions of probation by going to a nonreligious alcohol counseling program and denied the petition as moot. Indeed, Warner’s complaint alleged that “[a]s a result of the Town of Woodbury Justice Court’s Decision and Order, plaintiff is currently no longer required by his probation officer to participate in Alcoholics Anonymous but is, instead, required to attend an alternative program.” In short, Warner’s own papers indicate that as soon as the judge was alerted to Warner’s distaste for the religious aspects of A.A., the judge immediately altered that condition of probation. That being the case, the record support for the finding that the judge merely rubberstamped the recommendation of the probation officer is not apparent to me.
Furthermore, another finding, not made by my colleagues, is necessary to establish the recommendation of the probation officer as the legal cause of Warner’s injuries. To reach my colleagues’ conclusion, we would also have to find that an appeal from the sentence would have been fruitless because the New York appellate courts would simply not have given any consideration whatsoever to Warner’s constitutional challenge out of blind and unhesitating deference to the recommendation of the Orange County probation officer. Quite the contrary, we now know that relief was available. See Griffin.
Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), works against Warner. The procuring of a search warrant is not an adversary proceeding, much less one like sentencing, in which the subject has a constitutional right to counsel and a hearing on the merits. Because the magistrate issuing a warrant is not subject to adversary argument revealing flaws in the application and affidavit, the magistrate’s intervening decision does not immunize the officer’s unreasonable conduct. Malley simply has no application to a proceeding that is adversary and subject to immediate appellate review.
II
*1080I now turn6 to the use of the Establishment Clause to invalidate a condition of probation that requires attendance at A.A. meetings. I will assume that the religious aspects of A.A. are sufficient to trigger a violation of either the Establishment or Free Exercise Clause if the other requisites of such claims are met. Nevertheless, I do not agree that the Establishment Clause provides a basis for relief to Warner.
In finding an Establishment Clause violation, my colleagues rely heavily upon the fact the probation authority did not recommend to the sentencing court that Warner have a choice between A.A. and a non-religious rehabilitation program. As a result, he was, in their view, coerced into participation in A.A. (In my view, of course, he freely chose A.A.) Although, as my colleagues point out, coerced participation in religious ceremonies may be a factor in finding an Establishment Clause violation, see Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), it is not a necessary element of such a claim, and a choice among all available options is not a remedy for a valid Establishment Clause claim.
Relevant Establishment Clause precedent bars governmental endorsement and support of religion even in contexts in which no coercion exists. The “preservation and transmission of religious beliefs and worship is ... committed to private sphere,” Lee at 589, 112 S.Ct. at 2656, and government may not support religious practices even when those engaged in them have freely chosen to do so. Government may not aid “a single religion or religion generally,” School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 382, 105 S.Ct. 3216, 3221, 87 L.Ed.2d 267 (1985), but must “maintain a course of neutrality among religions, and between religion and nonreligion.” Id. A law that merely facilitates citizens in the practice of their religion may, therefore, be invalid even though no non-believer is negatively affected — even as a taxpayer. See Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994).
If attendance at A.A. meetings as a condition of probation violates the Establishment Clause, it is because such a condition entails governmental sponsorship of religion over nonreligion. Following the logic of Establishment Clause jurisprudence, it would seem to me that such a condition is a violation whether or not the only person directly affected, the probationer, preferred a religiously oriented program over a secular one. The lack of governmental neutrality is precisely what caused the Supreme Court in Grumet to strike down a state law establishing a school district for the Village of Kiryas Joel, which was populated only by persons with a common religion. And, in Lee, surely the plaintiffs constitutional claim could not be satisfied by an offer of an additional ceremony at the high school graduation allowing speakers of her choice to express whatever spiritual or atheistic views — or disagreements with the spiritual or atheistic views of others — that were congenial to her.
Establishment Clause logic, if followed, therefore, would endanger any number of ubiquitous penal programs that are, in my view, clearly permissible. To take just two common examples, prisons may have chaplains, who systematically offer religious counseling, services, and other programs to prisoners. They may be selected, paid, and even monitored by state officials. Also, sentences to community service may involve service at soup kitchens, many of which are operated by churches where a meal begins with a prayer and religious tracts are distributed.
None of the programs described above violate the Establishment Clause in my view. Applying the three-part test established in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), each has a secular purpose in that they all further rehabilitation in one way or another. None have as a principal or primary effect the advancement or inhibition of religion. *1081Any such effect is incidental. Finally, they do not lead to excessive entanglement of the government in religion. I very much doubt that substantial disagreement exists over this point. The state’s control over the lives and activities of prisoners certainly justifies its making religious programs available to them. Indeed, under our caselaw, a state must offer some congregate programs of a sectarian nature. See Salahuddin v. Coughlin, 993 F.2d 306 (2d Cir.1993); Young v. Coughlin, 866 F.2d 567, 570 (2d Cir.), cert. denied, 492 U.S. 909, 109 S.Ct. 3224, 106 L.Ed.2d 573 (1989). However, I also see no difference between the penal programs described above and Warner’s sentence so far as the Establishment Clause — in contrast to the Free Exercise Clause — is concerned.
To be sure, my colleagues do not hold that attendance at A.A meetings can never be a condition of probation. Indeed, they expressly state that Warner should have been given a choice, a statement I take to mean that persons facing a sentence for alcohol-related offenses may constitutionally be offered a choice between A.A. meetings (or other religiously-based rehabilitation programs) and alternative secular programs as a condition of probation. My disagreement is simply over whether such a choice is required, or even permitted, by the Establishment Clause.
I hasten to add that I do not view compulsory activity with a substantial religious component as a valid penal measure, at least where equally effective secular rehabilitative programs are available.7 See O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (restriction on free exercise rights must be reasonably related to valid penalogical interest). Compulsory attendance at religious ceremonies as part of a penal sentence surely raises serious issues under the Free Exercise Clause and might well require the provision of a choice between secular and sectarian programs. Warner makes no Free Exercise claim, however.
III
This is a decision with important ramifications. It transports tort doctrine of proximate cause and foreseeability drawn from the law of negligence to the judicial process. In so doing, it fails to give any recognition to the more appropriate rules governing intentional torts, to the power of a party to a court proceeding to avoid harm by raising objections and taking appeals, or to the role of the judge as an independent decisionmaker. It thus may have implications for advocates as well as for those who advise judges. See Note 6, supra. It also brings to sentencing, probation, and penal institutions Establishment Clause doctrine that may not be easily cabined.
At a practical level, my colleagues’ decision exposes every probation authority in this circuit to suits for damages and attorney’s fees in virtually every case in which a recommendation of attendance at A.A. meetings has been made and accepted within the statute of limitations period, if no available alternative was offered and such recommendations were commonly made. Liability will follow no matter whether the defendant ever brought the constitutional issue to the attention of the sentencing court. Other claims of unconstitutional recommendations under Section 1983 will follow notwithstanding failure to make objections to sentencing courts.
I therefore respectfully dissent.
ORDER OF REMAND
The district court found that Orange County had infringed Warner’s rights under the First Amendment when the County’s probation department, in accordance with its policy, recommended that Warner attend Alcoholics Anonymous as a condition of his probation. In so doing, the court made no findings as to whether Warner, by failing to object at the time of his sentence or to appeal, had consented, waived or forfeited objection to the religious nature of the A.A. program. Nor was the issue raised by the County in its appeal. The dissenting opinion in the appeal argued that Warner’s voluntary *1082presentence attendance at A.A. meetings gave him sufficient awareness of the extent of their religious content that his failure to object at the time of sentencing or to appeal should be construed as a consent or waiver. On petition for rehearing (with suggestion for rehearing in banc), judges of this court have expressed an interest in whether Warner, by failing to appeal his sentence, waived or forfeited the right to seek damages under § 1983, and in whether the County raised the issue at trial.
Although we have found no indication in the record on appeal that the County sought a determination of these questions at trial,1 that record may be incomplete. (A record on appeal does not necessarily show all argument before the district court.) We accordingly remand to the district court for consideration of the following questions:
1. Whether the County asserted at trial the contention that Warner’s failure to object at sentencing or appeal from his sentence constituted consent to the religious content of the Alcoholics Anonymous program, or effective waiver or forfeiture of his claim in this action.
2. Whether Warner was sufficiently aware at the time of his sentence of the extent of the religious practices of the A.A. meetings that his failure to object to, or appeal from, his sentence should be deemed a consent, or a waiver or forfeiture of his claim under § 1983. (Even if the County did not raise this contention at trial, the court should conduct a hearing on it so as to insure that both parties have an adequate opportunity to present evidence on the question, following which the court should make findings.)
The opinion of this court filed on September 9, 1996, as amended on May 14, 1997 is vacated.
The district court’s findings may or may not lead it to amend its judgment. If the district court does not modify the judgment, then upon the filing of its findings, either party may restore the case to this court’s jurisdiction by a letter to the Clerk of the court, submitted within twenty days of the district court’s filing of its findings. See United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.1994)(appellate court may seek supplementation of the record from the district court by issuing a mandate stating conditions that will restore appellate jurisdiction). If the district court does enter a modified judgment, a party seeking appellate review of the modified judgment should proceed by notice of appeal. In either event, the ease shall be referred to this panel upon its return to this court’s jurisdiction.
Judge WINTER has asked us to state that for reasons set forth in his dissent he sees no reason for a remand and does not concur in this order.
. I do not mean to suggest that, if the constitutional challenge were unsuccessfully brought to the court's attention, Warner’s suit against the probation authority would have merit. Rather, an appeal — to the United States Supreme Court if necessary — would have been in order.
. I need not reach the issue given the facts of this case, but there is a strong argument to be made that, where the sentencing judge cannot under state law delegate the power to determine a sentence to probation officers — as in New York— an illegal delegation is itself a superseding cause and a defendant’s remedy is an appeal rather than a Section 1983 action.
. My colleagues rely upon N.Y. Penal Law § 65.10(2)(e) regarding the requirement that a court consult with the local probation authority regarding selection of an alcohol abuse program. Because this provision requires that the consultation be with the probation authority "or ... other public or private agency,” it does not give any special status to probation authorities over other sources of information.
. I believe this presumption to be rather unfair to state court judges. They lack any practical method of responding to the conclusion that they abdicated responsibility, at least short of asking to testify in the federal proceeding that "I was indeed following the law, just as the record indicates.”
.One of Warner's original theories was that the sentence vested discretion in the probation officer to vitiate the requirement of A.A. attendance and that the probation officer’s exercise of discretion in requiring continued attendance, rather than the original recommendation, was the basis of liability. The district court and my colleagues focus instead on the recommendation. Because I read the sentence to vest discretion to excuse further A.A. attendance only upon a completed rehabilitation and not for other reasons, such as a probationer’s distaste for the religious aspects *1080of the program, I agree that the focus should be on the recommendation.
. I do not reach the immunity issues. I do note, however, that the immunity of probation officers is generally believed to be derived from judicial immunity. See Dorman v. Higgins, 821 F.2d 133, 136-37 (2d Cir.1987).
. It is conceivable that in some areas the only rehabilitative program available, e.g., A.A., has some religious content.
. By its pleadings and by motion for summary judgment, the Counly did raise a different question — whether Warner's § 1983 claim is barred by collateral estoppel because he had previously attacked the legality of his sentence in his state court motion to be relieved of attendance at A.A.