More Than Another Scalia
BY NATHAN DIAMENT
November 1, 2005
URL: http://www.nysun.com/article/22376

Even before Samuel Alito was nominated yesterday by President Bush to take Sandra Day O’Connor’s seat on the Supreme Court, published lists of those rumored to be under consideration tagged him as a favorite of conservatives on the theory that he was sure to follow the legal thinking of a current high court conservative also of Italian descent.

The philosophical similarity was allegedly so pronounced that Judge Alito was even known as “Scalito.” But in at least one hot-button area of constitutional jurisprudence it seems that Judge Alito may well be more like Justice O’Connor, and in a surprisingly good way.

In 1990, Justice Scalia severely curtailed the protection given to every American’s First Amendment right to the “free exercise of religion.” In Oregon v. Smith, the court considered the Native American use of peyote (a marijuana-like substance) as part of religious worship and a state’s decision to criminalize peyote with no exception for religious use. The Native Americans challenged the lack of such an exemption as a violation of their free exercise rights. Under then-governing Supreme Court precedents, Oregon would have to meet the highest standard of constitutional proof, akin to what is required in a case challenging the restriction of free speech or any other fundamental right, by proving that their denial of an exemption for religious use was necessary to serve a “compelling governmental interest” and that this interest would be undermined by any exemption.

Writing for a divided court (with Justice O’Connor taking strong exception), Justice Scalia overturned the precedents and lowered the level of protection for free exercise so that the government had to show only that it had a “rational basis” for denying the religious exemption.
Religious liberty has been the neglected stepchild of the First Amendment ever since. Bipartisan efforts to fully reverse Smith legislatively have been rebuffed by the high court.

Now, unlike President Bush’s previous nominee to succeed Justice O’Connor, Harriet Miers, or even John Roberts, Judge Alito has a significant track record on religious liberty. That record indicates he has not only a sensitivity for the position and needs of religious minorities, but also a vigorous view of free exercise rights.

Judge Alito has ruled in favor of adherents to a remarkable array of faiths. In 1999, he ruled against the Newark Police Department when it sought to ban Muslim officers from wearing beards even though the department allowed beards to be worn for health reasons. In 2000, he chastised his judicial colleagues for avoiding, on procedural grounds, ruling on a kindergartener’s free speech rights to have a Thanksgiving picture he drew posted in his public school because it had a “religious theme.” In 2001, he wrote a strong concurrence in support of a Sabbath-observant Orthodox Jew whose supervisors at a local college deliberately scheduled faculty meetings for late-Friday afternoons in order to force a conflict between her career and religion. In 2004, he ruled that the imposition of fees and filing requirements on a Native American in order for him to possess certain animals for religious purposes was an unconstitutional burden on his religious liberty. He also ruled in 2004 that a public school could not exclude a religious Evangelical after school club from its premises when it allowed a wide array of secular groups such access.

Throughout these opinions – in their reasoning and their rhetoric – one sees that Judge Alito possesses not only an appropriate level of sensitivity to people of many different faiths, but a recognition that seems to have eluded Justice Scalia fifteen years ago: The first clauses of the First Amendment are meant to be a bulwark against the infringements by government, or other powerful entities, upon an individual’s religious conscience and practices. It is not enough to allow Americans to believe as we wish. We must be able, generally, to act in conformity with those beliefs without interference.
Accommodations for religious observance are welcome from the legislative or executive branches, but the Framers put freedom of religion in the Bill of Rights to ensure that the religious freedom of people of faith, especially minority faiths, is not contingent upon political power.

In oral arguments today, the Supreme Court is revisiting the Smith opinion and what it wrought in yet another case involving a religious sect using a “controlled substance” as part of its worship. The Justice Department is arguing against granting an exemption for religious use.
Whether Judge Alito will be on the Court and able to vote in the case, Gonzales v. O Centro Espirito, and how exactly he would vote, remains to be seen. But Judge Alito’s record initially suggests is that those who care about undoing Justice Scalia’s legacy on religious liberty may want to pray that Judge Alito takes his seat soon.

Mr. Diament is the director of public policy of the Union of Orthodox Jewish Congregations of America, which does not, as a matter of policy, endorse judicial nominees.