Alito is religion-friendly, but how far will he go?

Sunday, November 13, 2005

This article is part of an online symposium on the First Amendment Center Online concerning Judge Samuel Alito’s First Amendment jurisprudence.

Predicting how Supreme Court nominee Samuel Alito will rule on religious-freedom cases is like reading tea leaves: Everyone sees the message he wants to see at the bottom of the cup.

As the confirmation battle heats up, the Alito tea leaves under close scrutiny are his opinions in nine cases involving religion decided during his 15 years on the 3rd U.S. Circuit Court of Appeals. Not surprisingly, people on both sides have read their hopes and fears into every word Alito ever wrote.

On the right, Jay Sekulow of the American Center for Law and Justice tells Pat Robertson in an interview on the Christian Broadcasting Network that Alito has “consistently ruled in our favor.” This nomination, says Sekulow, is a “grand slam” for conservative Christians.

Meanwhile on the left, Barry Lynn of Americans United for Separation of Church and State reads the same opinions and sees disaster for the First Amendment. “The country deserves a Supreme Court justice who will protect the rights of all Americans,” says Lynn, “not kowtow to the demands of the Religious Right.”

Partisans on both sides peer at Alito’s opinions and see the same thing: If elevated to the Supreme Court, he will work to lower the wall between church and state, replacing Justice Sandra Day O’Connor’s swing vote with one far more likely to mix religion and government on such issues as erecting holiday displays or funding social services provided by religious groups.

This portrayal of Alito is scary for some, exhilarating for others. But is it accurate? A close look at what Judge Alito actually wrote in the nine cases suggests that on key church-state issues he is mostly an unknown quantity. Let’s look at what we know — and don’t know.

Start with government funding of religious groups, arguably the most important church-state question that the Roberts Court will have to address over the next decade. None of the Alito opinions in cases involving the religion clauses of the First Amendment are about funding issues. Where does Alito stand? We don’t know.

We have a slightly better picture of how he approaches the perennial fight over government-sponsored holiday displays. In 1999, for example, Alito wrote the majority opinion in ACLU-NJ v. Schundler upholding the constitutionality of Jersey City displays that included a variety of religious and secular symbols celebrating the holiday season. Alito’s decision is consistent with Supreme Court decisions allowing similar displays — decisions in which Justice O’Connor was the key vote for the majority.

Would Alito go further than O’Connor and permit government displays of religious symbols without requiring inclusion of Santa Claus and Frosty the Snowman? Nothing in Alito’s opinions answers that question.

So what does Alito think about “separation of church and state” under the establishment clause? We get our best clues from his opinions in cases involving religious expression by individuals and groups in public schools. Writing for the court in Child Evangelism Fellowship of N.J. Inc., v. Stafford Twp. School District (2004), Alito upheld the order of a lower court to treat Child Evangelism like other community groups “with respect to the distribution and posting of materials and participation in so-called ‘Back-to-School nights.’” In other words, the establishment clause can’t be used to keep religious groups out of school. Under the free-speech clause, they get equal treatment.

Alito reached a similar conclusion in C.H. v. Oliva (2000), another case involving allegations of discrimination against religious viewpoints. Alito wrote a dissent when the court ducked the First Amendment issue and returned the case to the lower court. At issue was the removal by public school officials of a kindergarten student’s poster with a religious theme. The school claimed that it had to remove the poster in order to avoid violating the establishment clause.

But Alito disagreed, arguing that the establishment clause is not violated when the government treats religious speech and other speech equally. “School authorities,” he wrote, “are not permitted to discriminate against student expression simply because of its religious character.”

Although there is some precedent for Alito’s views in past Supreme Court decisions, his strong support for “equal treatment” of religious expression under the free-speech clause could break new ground, especially in cases involving religious expression in public schools.

Alito also appears to take free exercise of religion seriously. In Fraternal Order of Police Newark Lodge No. 12 v. City of Newark (1999), he ruled that the Newark Police Department’s policy prohibiting beards violated the free-exercise clause of the First Amendment because it granted no exemption for religious reasons, even though medical exemptions were allowed. And in Blackhawk v. Pennsylvania (2004), Alito ruled that the state violated a Native American’s free-exercise rights when it denied him a religious exemption from permit fees for the two black bears he kept for religious purposes.

While Alito stays within the limits recent Supreme Court decisions have placed on religious-freedom claims, he clearly argues for the most expansive reading of the free-exercise clause possible under current law. This could be good news for the many religious groups who believe that in the past 15 years the Supreme Court has seriously weakened free-exercise protections.

With all we don’t know about how Alito would decide cases involving religion and government under the establishment clause, we do know that he has consistently defended religious speech and practice under the free-speech and free-exercise clauses. If you agree that religion needs more protection, Samuel Alito may be your cup of tea.

Charles C. Haynes is senior scholar at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail:

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