Clearly, many conservative Christians believe that Justice Alito would be a reliable ally to their social and political causes. The Rev. Jerry Falwell went so far as to say Alito's confirmation would be the biggest victory for conservative Christians in three decades. Others within the religious community, such as the Reverend Barry Lynn, director of Americans United for Separation of Church and State, have expressed alarm that Alito will be inclined to "kowtow" to the desires of religious conservatives.
Is either perception justified? Clearly, as a government attorney in the 1980s, Alito was willing to work to overturn. Roe v. Wade, the landmark 1973 case that protected abortion rights under the constitution. As a federal judge, Alito has consistently voted to give states leeway to place restrictions on abortion rights, and nothing in his record suggests he would change course on the Supreme Court. Of course, all that doesn't necessarily add up to a vote to overturn Roe. Alito has expressed support for upholding past Supreme Court precedents, and seems to accept the existence of some kind of constitutional right to privacy, the bedrock principle upon which Roe is based. In short, there is conflicting evidence on how Alito would rule, and don't look for that to be cleared up in his confirmation hearings this week.
In fact, at the hearings you can expect Alito to side-step all substantive issues regarding religion, other than giving a pro-forma endorsement of the separation of church and state. Beyond that, he'll decline to discuss specific issues or controversies touching on religion, saying they might come before him as a justice.
Fair enough. But unlike some past nominees to the high court, Alito has a fairly large body of judicial writing on the subject. During his 15 years as a federal appeals court judge, Alito personally wrote lead opinions in at least nine cases that focused on religious issues, and dissented or wrote separate opinions on several more. Reviewing those writings, it's possible to get a reasonable fix on how Alito might rule on many religious issues that present themselves to the Supreme Court.
First, in case it's been a while since your last civics class, it's worth briefly looking at how constitutional issues about religion are judged in America. The First Amendment of the Constitution is the legal foundation for freedom of religion. It provides, in relevant part, that Congress "shall make no law respecting the establishment of religion; or prohibiting the free exercise thereof." Broadly speaking, most cases that come before the court on religion today can be classified as either "establishment" cases, ones involving questions about whether the government is using its power to promote or establish a religious belief, or "free-exercise" cases, ones concerning whether the government is using its power to prevent a person or group from practicing religious beliefs.
Alito's for religious expression, with limits
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In the 1999 decision in Fraternal Order of Police v. City of Newark, he ruled that a policy enforced by the Newark Police Department prohibiting facial hair violated the free exercise clause of the constitution because it contained no exemption for religious beliefs. Two Muslim officers objected to the policy on religious grounds and refused to shave their beards. Alito endorsed their stand. Particularly compelling for Alito was that the policy allowed an exception for medical reasons, but not for religious ones.
In the 2004 case, Blackhawk v. Pennsylvania, Alito endorsed a claim by a member of the Blackhawk Indian tribe in Pennsylvania that he should be exempt from paying permit fees to keep two black bears because he was doing so as part of his practice of traditional Native American religion. Pennsylvania denied him an exemption, but Alito ruled against the state, finding that its view of religious practice was too narrow to pass constitutional muster.
While these cases, and others from Alito's tenure, clearly show him having an expansive view of the free exercise of religion, it is not unlimited. In 2002, in Fraise v. Terhune, Alito ruled against a group in a New Jersey prison who claimed that the state was discriminating against their religious beliefs by designating them as a "security threat." Alito endorsed the state's policy, finding that the group had been associated with prison violence and that the state had a legitimate interest in taking special measures against them. Of special significance to Alito was that, though the state banned certain group literature, it allowed group members access to the Bible and Koran.
Much less clear than Alito's record on free-exercise cases are his views on establishment-clause cases. For example, during his time on the court of appeals, Alito never had to rule directly on government funding of religious groups, a central issue in the legal debate surrounding the establishment clause.
Alito did write forcefully that an argument by a New Jersey school board that the establishment clause compelled it to remove a student poster from a Thanksgiving display because of its religious content was bunk and violated the student's free-speech rights. "School authorities," he noted, "are not permitted to discriminate against student expression because of its religious character."
Alito also held in a 2004 case that the government could not use the establishment clause to keep an evangelical group from participating in an after-school event that it invited other outside groups to attend.
On the issue of religious symbols in government-sponsored displays, something the court has wrestled with recently, Alito ruled in 1999 in ACLU-NJ v. Schundler, that the presence of religious symbols in a holiday display does not violate the establishment clause so long as the display contains secular symbols as well and is not meant primarily to promote religious beliefs. This is very close to where the Supreme Court is on the issue, which found in two recent decisions that such religious displays are permissable so long as the intent is not to proselytize.
Though predicting how justices will vote once confirmed on to the court is a notoriously tricky business (as conservatives have found out to their dismay in recent decades), looking at Alito's record on religious questions, it is reasonable to assume he will carve out a wide zone for personal religious liberty and be very suspect of the government treating religious speech or activity differently from other types of speech or activity. Beyond that, it is hard to draw any hard conclusions and it is unlikely that Alito will supply any fresh clues at his hearings this week. Such insights, it seems, will have to be left to a higher authority-or at least wait until after the swearing-in ceremony.
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