Alito Often Ruled for Religious Expression
By NEIL A. LEWIS, THE NEW YORK TIMES, November 21, 2005.

WASHINGTON, Nov. 20 – Judge Samuel A. Alito Jr. has compiled a brief but unmistakable record, lawyers and analysts say, that makes him a leader in the camp of conservative theorists and judges who believe federal courts have been too quick to limit religious activities in public life.

During his 15 years sitting in Newark as a member of a federal appeals court, Judge Alito has sided almost uniformly with those who have complained vigorously in recent years that zealousness in enforcing the Constitution’s separation of church and state has unfairly inhibited religious practices.

Judge Alito, President Bush’s nominee for the Supreme Court, has ruled in favor of allowing local governments to set up Nativity scenes alongside nonreligious symbols and ruled against a school district that wanted to prevent an evangelical group from sending home fliers to elementary school children. He has also ruled in favor of Muslim police officers in Newark who said the department’s policy against wearing beards violated their religious rights. Both supporters and opponents say he has the potential to become the most aggressive supporter of religious liberty on the court, moving it toward greater deference to religious practices.

“He is inclined to the view of the First Amendment that the government is not intended to be hostile to religion,” said Douglas W. Kmiec, a law professor at Pepperdine University in California. “It is intended to be accommodating when it can.”

Professor Kmiec, a former Justice Department colleague of Judge Alito’s, is a leading proponent of the “religious liberty” argument pressed by social conservatives, which advances the view that the Constitution allows for a greater presence of religion in the public sphere than courts have previously allowed. This stream of argument has largely involved issues like prayer at school functions, the display of religious symbols at Christmastime and public financing of programs run by religious groups.

Judge Alito has not had an opportunity to rule on a case involving the use of public money by religious organizations, an area of contention in recent years. The debate about the separation of church and state is sometimes organized along two distinct phrases in the First Amendment, which says that Congress “shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” The first phrase is known as the Establishment Clause, while the second is called the Free Exercise Clause.

One case involving Judge Alito that illustrates the potential tension between the two clauses occurred in 1996 when a New Jersey school board sought to have students vote on whether to have a prayer at the high school graduation. The Black Horse Pike Regional Board of Education had previously allowed prayers at the high school graduation, but the policy had to be changed after the Supreme Court ruled in 1992 that prayers by a rabbi at a Rhode Island middle school graduation violated the First Amendment.

The New Jersey board members hoped that by putting the issue to a student vote, the courts would find any prayers did not violate the Establishment Clause because they were not mandatory. In an 11-to-4 ruling, the full United States Court of Appeals for the Third Circuit ruled against the school board. Judge Alito joined the dissent that asserted the court majority was improperly infringing on the rights of students to exercise their religion.

Eliot Mincberg, the legal director of People for the American Way, a liberal advocacy group, said Judge Alito’s record demonstrates that he was “very solicitous when it comes to protecting the right of an individual to practice his religion, but not so solicitous of the right of people to be free of government-supported religion.”

In 2000, the Supreme Court revisited the issue in a Texas case, Santa Fe v. Doe, and rejected, 6 to 3, a similar plan in which the students voted on whether to have prayers during football games. Justice Sandra Day O’Connor, whose seat Judge Alito would fill, voted with the majority. The dissenters in that case whose reasoning paralleled Judge Alito’s were William H. Rehnquist, the chief justice at the time, and Justices Antonin Scalia and Clarence Thomas.

Last year, in writing an opinion upholding the right of an evangelical organization to distribute its materials in some New Jersey elementary schools, Judge Alito sought to distinguish the Santa Fe case. He said the Supreme Court’s six-member majority had ruled that some students, like players and cheerleaders, were required to attend the games while others may have felt peer pressure to participate in the prayers.

But he said that distribution of religious fliers by the Child Evangelism Fellowship of New Jersey urging students to attend Good News Club meetings “would not result in any similar pressure to participate in a religious activity.” Judge Alito said in his ruling that the school board had engaged in impermissible “viewpoint discrimination” in banning the evangelical literature because it allowed pamphlets from other groups like the Boy Scouts. He said that if the school board worried that people might think it had endorsed the religious fliers, “teachers could explain the point to the students.”

In another case involving the Free Exercise Clause, Judge Alito wrote in 1999 that the Newark Police Department could not prohibit two Muslim officers from having beards for religious reasons because it had made exceptions to its appearance code by allowing some officers with skin problems to have beards. Lawyers said that Judge Alito also ruled against a Pennsylvania statute requiring hunting fees as it applied to an American Indian who said it was part of his religion.

Judge Alito’s most widely cited Establishment Clause ruling was his 1999 decision rejecting a challenge by the American Civil Liberties Union to a holiday display of a Nativity scene and a menorah mounted by Jersey City officials. The issue was whether the inclusion of plastic replicas of Santa Claus and Frosty the Snowman in the display had satisfied a Supreme Court opinion that such displays could be legal if they were not centered on religion.

In a 2-to-1 decision, which he wrote, Judge Alito rejected the argument that including the nonreligious statues was a ploy to win acceptance and cited in great detail the size and relative prominence of those statues.

Nathan J. Diament, the public affairs director for the Union of Orthodox Jewish Congregations, said Judge Alito’s record demonstrated “a deep understanding” of the Free Exercise Clause. Mr. Diament mentioned Judge Alito’s concurrence in a ruling allowing a Jewish teacher at William Paterson College in New Jersey to go forward with a lawsuit accusing the school administration of trying to force her out by scheduling events on Friday evenings. “He didn’t just agree that the suit should go forward,” Mr. Diament said. “He went out of his way to express his philosophy on the need to accommodate religious individuals.”

THE NEW YORK TIMES