Alito Testimony On Church-State Relations Fails To Persuade Experts

The Senate Judiciary Commit­tee hearings on Judge Samuel A. Alito’s nomination to the Supreme Court wrapped up Jan. 12, with little new light shed on the conservative jurist’s views on church-state relations.

Alito’s track record on the U.S. 3rd Circuit Court of Appeals shows him to be no fan of the church-state wall. He ruled in favor of religious displays on public property and advocated for more religious activity in public schools. In one case, Alito even opined that students should be able to vote on whether to include religious worship during school events.

Several Democratic senators questioned Alito about church-state issues during the hearings, but he remained cagey. Little new information was uncovered.

U.S. Sen. Richard Durbin (D-Ill.) asked Alito his views on the Establish­ment Clause, the part of the First Amendment that bars government from making laws “respecting an establishment of religion.”

Replied Alito, “Well, I do not myself have a grand, unified theory of the Establishment Clause. As a lower court judge, of course, my job has been to apply those precedents. And this is an area in which I think the court has been &8#151; you can just see by the number of cases that it has decided &8#151; it has been attempting to find the best way of expressing its view of what the Establishment Clause requires.”

Continued Alito, “I certainly agree that it embodies a very important principle and one that has been instrumental in allowing us to live together successfully as probably the most religiously diverse country in the world and maybe in the history of the world. It’s a very important principle. But I, myself, do not have a grand unified theory of this.”

Durbin attempted to get more information from Alito about his dissent in the school prayer case. In that case, which involved a New Jersey high school, Alito joined a dissent asserting that students should have the right to vote on graduation prayer. Alito defended the prayer as permissible student speech that was not school sponsored.

“So here we had a situation involving an election by the students to pick somebody to lead them in prayer, and which side of the line did it fall on?” said Alito. “Well, it wasn’t individual student speech, but it was collective student speech by way of an election.”

Alito, who is Roman Catholic, also said his religious views would play no role in his judging.

“[M]y obligation as a judge,” he told Durbin, “is to interpret and apply the Constitution and the laws of the United States and not my personal religious beliefs or any special moral beliefs that I have. And there is nothing about my religious beliefs that interferes with my doing that.”

Duke University law professor Erwin Chemerinsky said he remains convinced Alito will shift the court to the right. Chemerinsky noted that Alito will replace Justice Sandra Day O’Connor, a moderate who often supported church-state separation.

“Justice O’Connor was a key fifth vote in enforcing a wall separating church and state, such as in the 5-4 decision last spring to declare unconstitutional a county in Kentucky placing the Ten Command­ments on government property,” wrote Chemerinsky in The Forward newspaper. “In contrast, Alito repeatedly has voted against such limits on government power, such as in opinions permitting student-delivered prayers at public school graduations and in allowing religious symbols on government property. Alito likely would be a fifth vote on the court to dramatically change the law of the Establishment Clause to allow far more government aid to religion and far more religious involvement in government.”

Americans United sent a letter to every member of the Judiciary Commit­tee urging Alito’s defeat. A Senate vote was pending as Church & State went to press.