Predicting Alito's feelings on religion cases is a leap of faith
http://www.chillicothegazette.com/apps/pbcs.dll/article?AID=/20051118/OPINION02/511180314/1014
Chillicothe Gazette - Chillicothe,OH,USA
Article published Nov 18, 2005
Predicting Alito's feelings on religion cases is a leap of faith
By Charles C. Haynes Columnist
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 & 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 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. Sc. Dist. (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 it had to remove the poster in order to avoid violating
the establishment clause.
But Alito disagreed, arguing 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 FOP
Newark Lodge No. 12 v. City of Newark (1999),he ruled 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 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 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
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Posting and reading from alt.politics.usa.constitution OR alt.education
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the U.S. and a couple from overseas as well]
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.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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