Alito has proved a friend to religion

Supreme Court nominee's rulings show strong support for faith claims

November 27, 2005|By DAVID G. SAVAGE | DAVID G. SAVAGE,LOS ANGELES TIMES

WASHINGTON -- If there is a sure winner in the cases decided by Judge Samuel A. Alito Jr., it is freedom of religion - any religion.

During his 15 years as an appellate judge, President Bush's Supreme Court nominee has written decisions in favor of Muslim police officers in Newark, N.J., who wore beards, an American Indian from Pennsylvania who raised sacred black bears, and a Jewish professor who said she was pushed out of her job for refusing to attend faculty events on Friday evenings and Saturdays, her Sabbath.

"Intentionally pressuring a person to choose between faith and a career ... by manipulating the job requirements" is a form of illegal discrimination based on religion, Alito wrote in ruling for Gertrude W. Abramson, the professor.

He also upheld the holiday display in Jersey City, N.J., that featured a creche, a menorah, a Christmas tree and a plastic Frosty the Snowman. In doing so, he rejected the complaint filed by the American Civil Liberties Union that the display in front of City Hall promoted an official religion.

And he would have allowed a mother to sue a school principal for damages because her kindergartener's drawing of Jesus had been temporarily removed from its prime place in a hallway. "Discriminatory treatment of the poster because of its religious theme would violate the First Amendment," he wrote.

Alito's strong and across-the-board support for religious claims suggests he could prove influential on the Supreme Court in an area where the justices have been closely split. This would usually align him with the court's right wing, but not always.

Unlike the court's conservatives, such as Justice Antonin Scalia, Alito has championed the rights of religious minorities.

In 1990, Scalia wrote a key opinion saying unconventional faiths are not entitled to special exemptions for religious practices. In that case, two American Indians had been fired from their jobs because they had ingested peyote, a drug they said was sacred but that is an illegal narcotic under federal law.

Alito, by contrast, held that the bearded Muslim police officers and the American Indians with the black bears were entitled to exemptions based on their religion. He said the Constitution's protection for the "free exercise" of religion required the government to bend its rules for religion if other exceptions were permitted.

In other areas, Alito has aligned himself with the court's conservatives in championing religious free speech in public schools. By contrast, the liberals - sometimes joined by retiring Justice Sandra Day O'Connor, whom Alito would replace - have said that injecting matters of faith into the schools creates the risk of religious divisiveness.

Religion is a subject of perpetual dispute in the courts, in part because of the conflicting principles set in the Constitution. The First Amendment says the government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech."

In many school cases, all three principles are frequently noted: Although officials may not "establish" religion, they also may not restrict an individual's freedom of speech or religion.

Several lawyers who closely follow school and religion cases said they were concerned by the rigid rule Alito had adopted in the case of the child who drew a picture of Jesus.

It seemed a minor dispute. Just before Thanksgiving, a kindergarten teacher in Medford Township, N.J., asked the children to make a poster of something they were "thankful for." All the posters were put on display in the hallway, but a few days later, a school official - possibly the principal - removed Zachary Hood's poster of Jesus because of its religious theme. When his teacher discovered this, she put the poster up in a less prominent place.

The following year, Zachary brought The Beginner's Bible to school and was ready to read to his fellow first-graders during story time. His teacher said this was inappropriate because of its religious subject, and the principal told his mother that reading the Bible "might upset Muslim, Hindu or Jewish students."

Carol Hood filed a lawsuit alleging that the state, the township school board, the principal and the teacher had violated Zachary's right to freedom of speech and freedom of religion.

A federal judge dismissed the lawsuit. When the case came before the full 12-member 3rd U.S. Circuit Court of Appeals in Philadelphia, the judges split, 6-6, effectively upholding the judge.

But Alito wrote a lengthy dissent."Public school authorities may not discriminate against student speech based on its religious content," he argued. Zachary's "poster was given less favorable treatment than it would have received had its content been secular rather than religious."

David G. Savage reports for the Los Angeles Times.

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