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Alito, Church and State

Raymond J. Keating

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On the Church and Society
November 7, 2005

Raymond J. KeatingWho says religion no longer matters in public life? Take a look, for example, at the debates over President George W. Bush's three nominees for the highest court in the land.

In the case of Chief Justice John Roberts, unsavory doubts arose in certain political and media circles that Roberts' Roman Catholic faith might conflict with being a sound justice. During the short-lived nomination of Harriet Miers, the White House winked at disgruntled conservatives, noting that she went to an evangelical church. Conservatives were not impressed.

Now we have the nomination of Judge Samuel A. Alito Jr. Questions swirl regarding some of Alito's church-state decisions. It appears that Alito would be less hostile towards religious liberty than some of the justices serving on the Supreme Court over the past six decades.

Hostile? Isn't everyone, especially on the Supreme Court, for religious liberty?

The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first part is known as the "Establishment Clause" and the second as the "Free Exercise Clause."

Note there is no mention of "a wall of separation between church and state," which actually came from a letter written by President Thomas Jefferson to the Danbury Baptist Association in 1802. Jefferson's rather innocuous correspondence has been transformed into a belief that the religious and the governmental can never mix. But few keep in mind, as noted by historian James H. Hutson, that President Jefferson went to Sunday services held in the U.S. House of Representatives and allowed church services in executive branch buildings.

As the Founders understood, no inherent conflict exists between the Establishment and Free Exercise clauses. The Establishment Clause prohibited a government-established national church, as England had for example, and the Free Exercise Clause barred government discrimination against religion.

Nonetheless, judicial activists over the years have twisted the First Amendment to prohibit prayer in public schools, as well as government-sponsored, stand-alone creches at Christmas time. And whether or not the Ten Commandments can be displayed on government property is now as clear as mud after two Supreme Court decisions handed down in June. A constitutional perversion has crept into our culture and politics that government can in no way promote or embrace religion.

Judge Alito might provide some added restraint on the Court regarding this anti-religion judicial activism. He concurred in opinions allowing a public holiday display that included a creche and menorah, along with secular symbols, and letting a Muslim police officer grow a beard for religious reasons. Alito also wrote a decision that an after-school Bible club be allowed to distribute fliers and permission slips just like secular groups could at a public school. These rulings, though, basically followed Supreme Court precedents.

Perhaps more interesting, Alito dissented in a case where a kindergartner drew a poster of Jesus when asked what he was thankful for in a Thanksgiving assignment. The public school temporarily removed and then relocated the work to a less conspicuous location specifically because of its religious nature. Alito argued: "I would hold that discriminatory treatment of the poster because of its 'religious theme' would violate the First Amendment. Specifically, I would hold that public school students have the right to express religious views in class discussion or in assigned work..." He added: "School authoriities are not permitted to discriminate against student expression simply because of its religious character."

In the same dissent, Alito added: "The Establishment Clause is not violated when the government treats religious speech and other speech equally and a reasonable observer would not view the government practice as endorsing religion."

Alito's dissent is encouraging for freedom of religious speech. However, he also seems to reinforce the mistaken notion that government cannot endorse religion. That was not the intention of the Founders, who saw the benefits of religious virtues and morals for the republic, nor can it be found in the text of the Constitution. And those are the only legitimate considerations for a Supreme Court justice on constitutional matters.

Raymond J. Keating, also a columnist with Newsday, can be reached at ChurchandSociety@aol.com.

Copyright Raymond J. Keating

Posted: 07-Nov-05

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