Samuel Alito’s confirmation hearing is going to start in January and one area he is sure to be questioned about is his legal views on the separation of church and state.
Unlike the failed nomination of Harriet Miers, Alito has a judical history to look at to see if he may be a friend of real religious liberty – one that supports the separation of church and state.
According to an AP report this weekend, Alito’s record on religious cases is all over the spectrum.
During his 15 years as an appellate judge, President Bush’s Supreme Court nominee has written decisions in favor of Muslim police officers in Newark, N.J., who wore beards; a Native American from Pennsylvania who raised sacred black bears; and a Jewish professor who said she was pushed out of her job for refusing to attend faculty events on Friday evenings and Saturdays, her Sabbath.
“Intentionally pressuring a person to choose between faith and a career … by manipulating the job requirements” is a form of illegal discrimination based on religion, Alito wrote in ruling for Gertrude W. Abramson, the professor.
He also upheld the holiday display in Jersey City, N.J., that featured a creche, a menorah, a Christmas tree and a plastic Frosty the Snowman. In doing so, he rejected the complaint filed by the American Civil Liberties Union that the display in front of City Hall promoted an official religion. Last year, Alito held that an evangelical Christian group had a free-speech right to pass out fliers on school property to invite students to attend Bible study meetings.
In dissents, Alito said he would have allowed high school seniors to elect one of their own to deliver a graduation prayer.
And he would have allowed a mother to sue a school principal for damages because her kindergartner’s drawing of Jesus had been temporarily removed from its prime place in a hallway. “Discriminatory treatment of the poster because of its religious theme would violate the 1st Amendment,” he wrote.
Alito, unlike the court’s current conservative wing, also has supported the rights of religious minorities. In the beard case and the case of the Native Americans raising Black Bears, he said the Constitution’s protection for the “free exercise” of religion required the government to bend its rules for religion if other exceptions were permitted.
Newark allowed exceptions to their beard rule for medical reasons and Pennsylvania had wild animal exemptions for zoos and circuses.
However Alito has written in support of religion in the schools as a case of free speech:
In 1996, Alito joined a dissent saying that students at a New Jersey high school had a free speech and freedom of religion right to deliver a prayer at graduation. Under a policy adopted by the Black Horse Pike Regional School District in New Jersey, seniors voted and the prayer option won, 128 to 120.
Four years ago, the Supreme Court struck down as unconstitutional a similar policy adopted by a Texas school board. In a 6-3 decision, the court said a religious message should not be broadcast at school-sponsored events. The justices also said they were troubled by the notion of holding a school election to decide a question of religion.
Then-Chief Justice William H. Rehnquist and Justices Scalia and Clarence Thomas dissented. Like Alito, they said the free speech rights of the majority should prevail.
In a lawsuit from New Jersey, a boy in school had his Thanksgiving poster removed from display at school because it thanked Jesus then put back up by the teacher but in a less prominent place, then the next year the child wanted to read from his Bible during story time and the teacher refused to let him. The mother sued but lost in the appeals court. Alito wrote a strong dissent describing how the plaintiff should have won the case.
“Public school authorities may not discriminate against student speech based on its religious content,” he wrote. Zachary’s “poster was given less favorable treatment than it would have received had its content been secular rather religious.”
Alito’s view would cause issues for schools across the country:
Julie Underwood, the former general counsel for the National School Boards Assn., said Alito’s view would put schools in an untenable position.
“If you allow the religious speech from the podium or in the classroom, you can be accused of promoting religion,” said Underwood, now dean of education at the University of Wisconsin in Madison. “If you don’t, you can be sued for discriminating against religion.
“This issue comes up in all kinds of contexts. Whether there can be prayer at school board meetings or at graduation. Or evolution versus intelligent design.”
Unlike Christian conservatives, Alito supports religious freedom for all, but his views on religion in the schools are an issue that is of great concern.
We’ll see more when his hearings start.