WASHINGTON – Though abortion has dominated the early politicking over Samuel Alito's Supreme Court nomination, another hot-button issue — religion — has cheered conservatives and worried liberals.
In his 3rd U.S. Circuit Court of Appeals rulings, Alito has shown a deference toward religious interests that some liberal groups think has allowed unwarranted government support for faith. Supporters portray him as a champion for the right to religious expression under the Constitution.
Oddly, both sides in the debate say they're defending religious liberty.
The Alliance for Justice says that as a federal appeals judge, Alito has "tried to weaken church-state separation." Meanwhile, Bruce Hausknecht of the conservative Focus on the Family finds Alito "very supportive" of free speech, a point made in White House talking points.
Hausknecht cites, for instance, 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 rights when a school removed his Thanksgiving poster that was thankful for Jesus.
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."
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 seem to endorse religion. That was so this year when a 5-4 majority outlawed a Kentucky Ten Commandments display (though the court allowed a Texas display, with O'Connor dissenting).
Douglas Laycock of the University of Texas Law School, a leading theorist who favors both religious liberty and church-state separation, said a key question will be 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. The believers had claimed the 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 by dropping the requirement that government must show a "compelling interest" if it curtails religious freedom. O'Connor objected that the state can now override religious groups' mandated practices without even needing to provide special justification.
Religious groups of all types protested and got Congress and President Clinton to approve a law restoring the older rule but the Supreme Court killed it — with O'Connor again dissenting.
So, will Alito side with O'Connor or Scalia? Nobody knows, Laycock said, but Alito's writings at least indicate that he'd grant religious groups "the most protective reading" possible under Scalia's ruling.
An example of Alito's approach was a case where Muslim police officers won the right to wear beards on religious grounds. The city permitted beards worn for medical reasons, and Alito ruled that religious claims shouldn't get worse treatment than medical ones. In other cases, Alito favored religious rights sought by Orthodox Jews and Native Americans.
There are limits to Alito's support of religious interests. He supported the right of prisons to clamp down on the Five Percent Nation, a Muslim sect blamed for inmate violence.
Liberal groups are especially worried about the "establishment of religion" clause, the basis on which they argue for the strictest possible separation of church and state.
On the opposite side, Hausknecht hopes Alito would reconsider the Supreme Court's long string of pro- separation rulings since 1947. Hausknecht argues that the "establishment" clause was intended only to forbid an official state church of the sort that existed in England when the Constitution was written.
Liberal groups are upset that 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 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 Alito over such thinking, saying the country deserves a justice who won't "kowtow to the demands of the religious right."