Alito Put Faith in the 1st Amendment

If there is a sure winner in the cases decided by 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; a Native American 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. Last year, Alito held that an evangelical Christian group had a free-speech right to pass out fliers on school property to invite students to attend Bible study meetings.

In dissents, Alito said he would have allowed high school seniors to elect one of their own to deliver a graduation prayer.

And he would have allowed a mother to sue a school principal for damages because her kindergartner’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 1st 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 nonmainstream faiths are not entitled to special exemptions for religious practices. In that case, two Native Americans 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 Native American who believed that black bears sanctify religious ceremonies 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.

Under Pennsylvania law, people wishing to keep wild animals in captivity usually are charged a permit fee, but exemptions are granted to qualifying zoos and circuses, and those claiming financial hardship.

The Newark Police Department said it had a zero-tolerance policy for officers who were not clean-shaven. However, it allowed an exemption for those who, for medical reasons, had difficulty shaving.

University of Texas Law professor Douglas Laycock, an expert on religion and the Constitution, said Alito’s Newark opinion had been influential in the lower courts in defining when officials should make religious exemptions.

“It has been the leading case in that area,” Laycock said. “It is quite important and encouraging from a religious-liberties perspective.”

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 succeed -- have said that injecting matters of faith into the schools creates the risk of religious divisiveness.

This conflict can arise in many ways. For example, may a student lead a prayer at a public school event?

All sides agree that students have a free speech right to pray on their own or with their friends at school. The disagreement arises over how far the right extends.

In 1996, Alito joined a dissent saying that students at a New Jersey high school had a free speech and freedom of religion right to deliver a prayer at graduation. Under a policy adopted by the Black Horse Pike Regional School District in New Jersey, seniors voted and the prayer option won, 128 to 120.

Four years ago, the Supreme Court struck down as unconstitutional a similar policy adopted by a Texas school board. In a 6-3 decision, the court said a religious message should not be broadcast at school-sponsored events. The justices also said they were troubled by the notion of holding a school election to decide a question of religion.

Then-Chief Justice William H. Rehnquist and Justices Scalia and Clarence Thomas dissented. Like Alito, they said the free speech rights of the majority should prevail.

Religion is a subject of perpetual dispute in the courts, in part because of the conflicting principles set in the Constitution. The 1st 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 cited: Although officials may not “establish” religion, they also may not restrict an individual’s freedom of speech or religion.

Several lawyers who 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 found out, she put the poster up again, but 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 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 U.S. 3rd Circuit Court of Appeals in Philadelphia, the judges split 6 to 6. The tie vote had the effect of upholding the judge’s decision.

But Alito wrote a lengthy dissent saying why Carol Hood should have won. He saw the matter entirely as one of free speech for the child.

“Public school authorities may not discriminate against student speech based on its religious content,” he wrote. Zachary’s “poster was given less favorable treatment than it would have received had its content been secular rather religious.”

Usually, conservatives describe it as “judicial activism” when judges second-guess the decisions of managers in prisons, police departments, colleges or public schools. But in this case, Alito said he would have held the principal liable for damages for the role she played in removing Zachary’s poster from the hallway.

Julie Underwood, the former general counsel for the National School Boards Assn., said Alito’s view would put schools in an untenable position.

“If you allow the religious speech from the podium or in the classroom, you can be accused of promoting religion,” said Underwood, now dean of education at the University of Wisconsin in Madison. “If you don’t, you can be sued for discriminating against religion.

“This issue comes up in all kinds of contexts. Whether there can be prayer at school board meetings or at graduation. Or evolution versus intelligent design.”

Marc Stern, general counsel for the American Jewish Congress, said he was surprised by the fervor of Alito’s dissent.

“His opinion seemed over the top. It seemed out of proportion to what happened,” said Stern, who had filed a friend-of-the-court brief in the case. “We thought the poster of Jesus should have gone up on the wall, but you don’t expect to see a conservative calling for federal intrusion into an elementary school dispute.”

Stern said his group had not decided whether to support or oppose Alito because his record on religion was complicated.

“For us, it is very difficult call,” he said. “His opinions pull in different directions. We are going to wait for the hearings.”