Rulings Reveal Alito Sees Role for Religion in the Public Square

BY ROBERT SCHWANEBERG                                                                                              © 2005 Religion News Service

zachary Hood made a poster of Jesus for a kindergarten assignment, only to see public school officials take it down. Dennis Blackhawk used two black bears in his Lakota Indian ceremonies and was fined $6,442. Newark, N.J., police officers Faruq Abdul-Aziz and Shakoor Mustafa grew beards in accordance with their Sunni Muslim beliefs and were threatened with dismissal.

All of them found a sympathetic judge in Samuel Alito Jr., President Bush's nominee for a seat on the Supreme Court.

A review of Alito's rulings as a federal appeals judge shows he is a vigorous defender of the right to practice one's religion, even if that requires moving the wall separating church and state a few feet to the right.

And while such an approach heartens those who feel that public squares and schools have become virtual religion-free zones, it alarms groups dedicated to keeping government away from matters of faith.

"Our main concern is he would join the bloc run by Justice (Antonin)Scalia and joined by Justice (Clarence) Thomas. They believe in a much lower wall of separation," said Robert Boston, a spokesman for Americans United for Separation of Church and State.

Elliot Mincburg, senior vice president of People for the American Way, said Alito's arrival could make "a huge difference" on a Supreme Court that is already divided on matters of religion and likely to confront disputes over government funding of faith-based organizations.

Groups with more conservative leanings expect Alito to bring to the high court a welcome new emphasis on the rights of people to worship as they choose.

"Judge Alito is very respectful of religious liberty," said Kevin Hasson, chairman of the Becket Fund for Religious Liberty.

The First Amendment of the U.S. Constitution contains two guarantees of religious freedom. The first erects the proverbial wall between church and state; the second protects "the free exercise" of religion.

Those two guarantees can collide when the government runs the show, as it does in the public schools and prisons. In such cases, Alito "would probably reconcile it more on the side of free exercise" than maintaining the wall of separation, according to Ronald Chen, who teaches church-state relations at Rutgers School of Law in Newark.

American Civil Liberties Union of New Jersey vs. Black Horse Pike Regional Board of Education was just such a case. The school board allowed the senior class at Highland High School in Camden County, N.J., to vote on what it wanted at its 1993 graduation ceremony. A prayer won by 128 votes, followed by 120 votes for a moment of silence and 20 for neither.

Two judges of the 3rd Circuit Court of Appeals in Philadelphia blocked the graduation prayer. In a 9-4 decision, the full court ruled an unconstitutional school prayer could not be made constitutional simply by having the students take a vote.

Alito joined Judge Carol Mansmann's dissenting opinion that public schools may not "discriminate against student religious activity."

"The government practice at issue here is the highly democratic one of allowing the graduating class to vote on the issue of graduation prayer while maintaining an official stance of strict neutrality throughout the entire process," Mansmann wrote in her 1995 opinion.

Five years later, the U.S. Supreme Court ruled 6-3 that a Texas school district's practice of allowing a high school student to lead stadium crowds in prayer before football games was unconstitutional. Both the decision to say the prayer and the choice of the student to give it had been determined by student elections.

The ruling disappointed President Bush, then governor of Texas, who had filed legal papers supporting the students.

A similar dispute arose when, as part of a kindergarten Thanksgiving display, Zachary Hood of Medford, N.J., created a poster saying he was thankful for Jesus. School officials concerned about its religious theme took it down, then put it back up in a less prominent place.

Aided by the Becket Fund, Zachary and his mother sued. By a vote of 10-2, the appeals court ruled it was not clear who, if anyone, might have infringed Zachary's rights. Alito wrote the dissenting opinion accusing his fellow judges of ducking an important First Amendment issue.

"I would hold that discriminatory treatment of the poster because of its `religious theme' would violate the First Amendment," Alito wrote, joined by Mansmann. "School officials are not permitted to discriminate against student expression because of its religious character."

The case did not end there. The Becket Fund refiled its lawsuit and won a $35,000 settlement for Zachary and his mother in 2002. The following year the U.S. Department of Education promulgated guidelines allowing students to "express their beliefs about religion in homework, artwork and other written and oral assignments."

"We like to call them Zach's Regs," Hasson said. "We consider that a great victory."

 


 
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