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Judge Alito's Controversial Ruling on a NJ Nativity Scene Case.. .

This is a partial transcript from "Hannity & Colmes," November 1, 2005, that has been edited for clarity.

SEAN HANNITY, CO-HOST: And welcome back to "Hannity & Colmes." I'm Sean Hannity.

In a controversial 1999 case, the ACLU vs. Schundler, the federal circuit court of appeals, well, Judge Samuel Alito (search), he wrote the majority opinion approving a holiday display in front of city hall in Jersey City, New Jersey.

The city's display contained religious and nonreligious artifacts, including a menorah, a red sleigh, Kwanza (search) symbols. And, of course, you had to have a plastic Frosty the Snowman.

In the minds of the liberals, it was, well, one of Judge Alito's most controversial rulings. Joining us now in a "Hannity & Colmes" exclusive, former Jersey City (search) Mayor Bret Schundler. How are you?

BRET SCHUNDLER (R), FORMER MAYOR OF JERSEY CITY, NEW JERSEY: I'm doing great. Good to be here.

HANNITY: Is Doug Forrester (search) going to win in a week in New Jersey?

SCHUNDLER: Well, I hope so.

HANNITY: I do, too. I do, too.

All right, you were involved in this case with the ACLU (search). If I'm wrong, almost every religion was represented here.

SCHUNDLER: Yes, you know, we have, all throughout the year, we had displays celebrating all the different elements of our peoples' heritage. So both secular and nonreligious holidays and also religious holidays.

Now, in this particular December, you had Ramadan, which is the Muslim holiday...

HANNITY: Right.

SCHUNDLER: ... and Chanukah, and Christmas, all falling at the same time. And we had a Kwanza bush out there. And we had some secular symbols there, too.

And in this particular instance, we had the ACLU sue. I would say the ACLU was trying to move the bar. They, in my opinion, would like to try to purge any recognition of religion from the public square.

In this particular case, we defended our displays, which we've been having for decades. And we won the case ultimately. It went all the way up to the United States Court of Appeals, which is one step short of the Supreme Court.

HANNITY: That's Alito's.

SCHUNDLER: And Alito wrote the decision. And I would say, what this decision says about Alito is that he is an anti-activist. What he did there was very much apply the law. And he simply said, you know, "We have precedence on this. There's nothing in the Constitution which says this is improper."

And so upheld common sense and the law. And what the ACLU was trying to do, in a very activistic way, was trying to take us a step farther towards removing any recognition of faith...

(CROSSTALK)

HANNITY: I think this is a good sign for conservatives who do not believe in judicial activism, do not believe that these guys ought to rule by judicial fiat. He didn't impose his own rules.

SCHUNDLER: Right.

HANNITY: He used common sense precedent to apply the law as it's currently written. But there is a level of intolerance out there. There are people that don't want "One nation under God" in the pledge and "God we Trust" off U.S. coins. And if they could go back, they'd take "endowed by their creator" out of declaration.

SCHUNDLER: That's right. And, again, it's the ACLU which is bringing these particular suits. And the thing that's important to recognize is that they are a radical organization.

They are not saying, "Let's, you know, uphold the writers of the Constitution (search), the founders' vision of the Constitution," and they're not saying, "Let's uphold prior Supreme Court decisions," because prior Supreme Court decisions had upheld these elements of, let's say, having, you know, the Ten Commandments in the Supreme Court chamber itself.

COLMES: You know what's interesting...

SCHUNDLER: That's already gone before the court.

COLMES: Mayor, good to have you back on the show, by the way. You know what's interesting is that everything was — they couldn't have the menorah until you add Frosty the Snowman and a Christmas tree. Aren't you then denigrating religion by saying, well, if you're surrounded by these secular symbols, then it's OK?

SCHUNDLER: Well, it's not me denigrating religion.

(CROSSTALK)

SCHUNDLER: It's interesting, Alito, in his decision, said that he thinks it would have probably been constitutional without the Frosty the Snowman also.

COLMES: Yes.

SCHUNDLER: But that wasn't what the case was about.

COLMES: But the precedent was, if you add these other elements, then it's OK. The dissenting opinion, U.S. Circuit Court Judge Richard Nygaard (search) said, "Simply adding secular elements disrespects the earlier court decision and violates the establishment clause." That was the dissenting opinion in that case.

SCHUNDLER: There was actually an earlier court decision which would have gone our way without Frosty the Snowman also. There was a case where they said the municipality couldn't have the display in city hall itself on the steps of city hall, but they had ruled that, you know, if you had it outside, it's fine.

So it had more to do with the place than some of these elements. But I guess I would argue that almost all of this represents an attack both on what the founders themselves intended, but also on decisions that have been rendered through the centuries.

And so what you have here is the ACLU, which is trying to change law through the courts, where they want a judge to impose a ruling they seek and change the law without going through the legislature.

COLMES: Don't have you have to either all religions or none? And, if you have all, then do you include the church of Satan, for example, and would accept that as a mayor on city property?

SCHUNDLER: The question is, constitutionally, do we have to have a display of, you know, do we have to have a display of all different — constitutionally, you would not have to.

COLMES: Then who gets to choose?

(CROSSTALK)

SCHUNDLER: But the point, I guess, I would make, is that we got pretty close to having just about everybody in this particular display.

COLMES: But somebody's got to decide what religions are acceptable.

SCHUNDLER: But here's the thing to note. The ACLU wanted to white it out, even with everybody being recognized in this particular display.

HANNITY: It's the intolerant left. Good for you. That's a big victory.

SCHUNDLER: Yes, thanks.

HANNITY: And thanks for being with us. Thanks for enlightening us on a little bit more about Judge Alito.

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