The Wall of Separation in Jeopardy

Alito’s Views on Religious Liberty to be Scrutinized at Confirmation Hearings

By Keith Perine, CQ Staff
Congressional Quarterly TODAY – LEGAL AFFAIRS
Nov. 10, 2005 – 6:27 p.m.

When Samuel A. Alito Jr. appears before the Senate Judiciary Committee in January, lawmakers will question him closely about his views on religious liberty.

Next to abortion rights, Supreme Court cases that interpret First Amendment clauses barring governmental establishment of religion and guaranteeing its free exercise have spawned some of the most bitter fights in the culture wars over school prayer, displays of the Ten Commandments and the public celebration of Christmas.

Legal experts say that the high court has been more accommodating of religious interests in recent years in cases involving school vouchers and the use of public facilities such as school auditoriums for religious meetings.

But in cases involving displays of religious symbols and official prayers at government-sponsored events, such as high school graduations, the justices have been less willing to interpret the Establishment Clause to lower the legal wall between church and state.

Wild Cards

Nobody pretends to know with certainty how Alito would rule on such cases as a justice. And Chief Justice John G. Roberts Jr., who has only recently joined the court, is another wild card. But opinions that Alito has written or joined during his 15 years on the U.S. Court of Appeals for the 3rd Circuit suggest he would be much more willing to support religious groups in cases involving symbols or prayers.

And because Alito would replace Sandra Day O’Connor, a pivotal vote on religious liberty issues, his critics are already focusing attention on his record.

In a 1999 case, ACLU of New Jersey v. Schundler, Alito ruled that a Jersey City, N.J., holiday display of a creche, a menorah and a Christmas tree did not violate the Establishment Clause after the city added a Santa Claus, Frosty the Snowman and Kwanzaa symbols to the display.

In a 1992 Supreme Court case, Lee v. Weisman, the justices ruled 5-4, with O’Connor in the majority, that prayer at school graduations was unconstitutional, rejecting an argument made that students could choose not to attend the ceremony.

Nearly four years later, Alito joined a dissenting opinion in a 3rd Circuit case, ACLU of New Jersey v. Black Horse Pike Regional Board of Education, that argued prayer at high school graduations did not violate the Establishment Clause if students voted to have a prayer and conducted it themselves.

Liberal activists say they are troubled by Alito’s record on religious liberty cases.

“Initially, what we’ve found does concern us and causes us to worry that he could join with [Justices Antonin] Scalia and [Clarence] Thomas in further narrowing the separation of church and state,” said Jeremy Leaming, a spokesman for Americans United for Separation of Church and State.

A senior Justice Department official said Alito has narrowly interpreted Supreme Court precedents as a federal appellate judge. The official pointed to Alito’s opinions in cases involving the Free Exercise Clause, including a 1999 case, Fraternal Order of Police v. Newark, in which Alito wrote an opinion holding that the Newark, N.J., police department’s refusal to allow Muslim officers to wear beards for religious reasons was unconstitutional.

Some Senate Satisfaction

Senators from both parties have raised the subject of religious liberty in private meetings with Alito, and have liked what they heard.

“With regard to religious expression, I have, for a long time, felt that the courts give too much weight to the first part of the First Amendment [the Establishment Clause] and not enough weight to the [Free Exercise] clause,” Sen. Robert C. Byrd, D-W.Va., said after meeting with Alito.

“I was very satisfied with what Judge Alito had to say about that First Amendment. He indicated that he felt that the people have a very distinct right to express their religious views.”

Socially conservative Republican senators declined to predict how Alito might rule on religious liberty cases on the Supreme Court. But they are confident Alito will help untangle some confusing high court jurisprudence on the subject.

Last June, the high court ruled 5-4 in Van Orden v. Perry that a display of the Ten Commandments on the grounds of the Texas State Capitol did not violate the Establishment Clause. In another case, McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, the court held that Ten Commandments displays in two Kentucky courthouses did violate the Establishment Clause.

Consistency Quest

Justice Stephen G. Breyer was the swing vote in the two cases — O’Connor sided with the court’s liberal bloc, which felt the Texas and Kentucky displays all ran afoul of the Establishment Clause, in both cases.

“I think [Alito] agrees that the court’s jurisprudence is less than clear,” said Sen. John Cornyn, R-Texas, who has met privately with Alito. “I think he’ll try to make it more coherent.”

Sen. Charles E. Schumer, D-N.Y., has already informed Alito that he intends to ask him about the pair of Ten Commandments cases and whether, in Alito’s view, the decisions are consistent.

Schumer also plans to ask Alito for his view on the Supreme Court’s decision in a 2000 case, Santa Fe Independent School District v. Doe, in which the court ruled 6-3, with O’Connor in the majority, that prayers initiated and led by students at high school football games were unconstitutional.