- The Washington Times - Friday, November 25, 2005

Though abortion has dominated the early politicking over Judge Samuel A. Alito Jr.’s Supreme Court nomination, another hot-button issue — religion — has cheered conservatives and worried liberals.

In his rulings while on the 3rd U.S. Circuit Court of Appeals, Judge Alito has shown a deference toward religious interests that liberals see as allowing unwarranted government support for faith. Supporters portray him as a champion of groups’ and individuals’ right to religious expression under the Constitution.

Oddly, both sides in the debate say they are defending religious liberty.

The liberal Alliance for Justice says that, as a federal appeals judge, Judge Alito has “tried to weaken church-state separation.” Meanwhile, Bruce Hausknecht of the conservative Focus on the Family finds Judge Alito “very supportive” of free speech, a highlight of White House talking points backing the judge.

Mr. Hausknecht cites Alito opinions that allowed Child Evangelism Fellowship to provide information on after-school meetings on the same terms as secular groups, and that saw violation of a kindergartner’s speech rights when a school removed his Thanksgiving poster that was thankful for Jesus Christ.

There are long-running and contentious debates over the Constitution’s requirement that Congress — and by extension all government — “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Judge Alito would succeed Justice Sandra Day O’Connor, who has been keenly interested in religion cases and often provided the majority in 5-4 decisions based on her opposition to government actions that seemed to endorse religion. This year, Justice O’Connor provided the decisive vote when a 5-4 majority outlawed a Kentucky Ten Commandments display (though the court allowed a Texas display, with her dissenting).

As a new justice, Judge Alito could be brought in to decide on whether a small congregation in New Mexico can worship with hallucinogenic tea if there’s a 4-4 deadlock in the case.

Douglas Laycock of the University of Texas Law School said a key overall question will be Judge Alito’s attitude toward the Supreme Court’s 1990 ruling in Employment Division v. Smith.

In that case, the Supreme Court approved denial of unemployment insurance to Oregon members of the Native American Church who used peyote illegally and were subsequently fired from their jobs. The believers had asserted a religious right to ingest peyote in rituals.

The Supreme Court’s factions readily agreed on denying the insurance. But the reasoning behind that result in Justice Antonin Scalia’s majority opinion caused an uproar because it dropped the requirement that government must show a “compelling interest” if it curtails religious freedom. Justice O’Connor objected, saying that meant the government can now override religious groups’ mandated practices without even needing to provide special justification.

Religious groups of all types protested, and Congress and President Clinton approved a law restoring the older rule — but the Supreme Court killed it, with Justice O’Connor again dissenting.

So, will Judge Alito side with Justices O’Connor or Scalia? Nobody knows, Mr. Laycock said, but Judge Alito’s writings at least indicate that he would grant religious groups “the most protective reading” possible under Justice Scalia’s ruling.

An example of Judge Alito’s approach was a case in which Muslim police officers in Newark, N.J., won the right to have beards on religious grounds. The city permitted beards for medical reasons, and Judge Alito ruled that religious claims shouldn’t get worse treatment than medical ones. In other cases, Judge Alito favored religious rights sought by Orthodox Jews and American Indians.

There are limits to Judge Alito’s support of religious interests, however. He supported the right of prisons to clamp down on the Five Percent Nation, a Muslim sect blamed for inmate violence.

Still, liberal groups worry a court with Judge Alito would blur the lines of church-state separation more than they are now.

Liberals are upset, for instance, that Judge Alito allowed a city Nativity display on grounds that it wasn’t totally religious and included secular symbols (Frosty the Snowman, Santa Claus). They also note that Judge Alito joined a dissent that would have legalized high school graduation prayers so long as students initiate and deliver them rather than teachers or clergy.

The Rev. Barry Lynn of Americans United for Separation of Church and State has assailed Judge Alito over such thinking, saying the country deserves a justice who won’t “kowtow to the demands of the religious right.”

On the opposite side, Mr. Hausknecht hopes a Justice Alito might reconsider the Supreme Court’s long string of pro-separation rulings since 1947. Mr. Hausknecht argues that the “establishment of religion” clause was intended only to forbid the kind of official state church that existed in England when the Constitution was written.

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