AA's Johnson warns separation, civil liberties at risk!

resident Bush Monday announced the selection of Judge Samuel Alito as his latest nominee for the U.S. Supreme Court.

   This comes following the withdrawal of White House attorney Harriet Miers to replace outgoing Justice Sandra Day O'Connor. Conservatives were wary of Miers' credentials for the post, and statements she had made concerning issues from abortion to gay rights. Despite an aggressive White House campaign to shore up her appointment including the possible leak of confidential information by Bush strategist Karl Rove to key religious right leaders, Miers failed to attract the needed support from key Republicans and other crucial interest groups on the right.

   By selecting Alito, however, Bush appears to have won back his conservative and religious right base. At the White House announcement, the president described his latest nominee as "one of the most respected and accomplished judges in America."

   Republicans quickly joined in the praise-singing. Sen. Trent Lott gushed that the president "hit a home run" by naming Alito, a 15-year veteran of the Philadelphia-based U.S. Third Circuit Court of Appeals. Sen. Mike DeWine promptly warned Democrats that the prospective justice is "clearly within the mainstream," adding "It's hard for me to envision that anyone would think about filibustering this nominee."

   DeWine is part of the Gang of 14, an informal coalition of Hill Republicans and Democrats who earlier this year worked to end the stalemate over judicial filibusters, thus avoiding the dreaded "nuclear option" of re-writing Senate rules to cut off debate on possible nominees.

   A handful of Democrats also cautioned against any "rush to judgment" over Samuel Alito's nomination. "Ordinarily it takes six to eight weeks to evaluate a Supreme Court nominee," Sen. Dick Durbin (D-Ill.) said on the CBS program "The Early Show."

   Unlike Miers, however, Judge Alito has an extensive paper trail of statements, including written opinions in about 300 of the 3,500 cases he has participated in.

   That record is already galvanizing a broad informal coalition of advocacy groups touching on culture war issues like abortion, gay rights, and state-church separation. Both supporters and opponents of Alito note that his possible confirmation to the high court could result in a profound shift affecting previous rulings like ROE v. WADE (abortion rights), and MURRAY v. CURLETT/ABINGTON TOWNSHIP v. SCHEMP that helped to end mandatory prayer and Bible verse recitation in public schools. Critics are already pointing to Alito's position in PLANNED PARENTHOOD v. CASEY where he dissented in the 2-1 ruling and voted to affirm a Pennsylvania statute requiring married women to inform their husbands prior to getting an abortion. The Supreme Court struck down the law in 1992, with justices pointing out that "spousal notification" gave husbands excessive authority over wives, especially those enthralled in abusive relationships.

   That and other positions has led the pundits to bestow Judge Alito with the nickname "Scalito," since critics say he is cut from the same ideological cloth as Justice Antonin Scalia. He may well be. Within minutes of the White House announcement, George Washington University law professor Jonathan Turley -- who had earlier described Miers as an "amazingly bad choice" -- weighed in on the Alito nomination.

   "He's a top choice for particularly pro-life people," Turley told TV host Katie Couric. "Sam Alito is viewed as someone who is likely to join the hard right in narrowing ROE and possibly voting to overturn ROE. There will be no one to the right of Sam Alito on this Court..."

   While media buzz is focusing on Alito's disturbing views on abortion rights, privacy and other civil liberties issues, there is also concern over the nominee's hostility toward the First Amendment separation of church and state.

    ¶       In ACLU-NJ v. TOWNSHIP OF WALL (3d Cir. 2001), the Circuit Court examined the constitutionality of a seasonal "holiday" Christmas display on public property that included a Jewish menorah and Christian nativity creche. Citizens had been complaining about the display, erected in front of the City Hall since 1995. The U.S. Third Circuit Court of Appeals found the practice to be unconstitutional, and in July, 1997, the U.S. Supreme Court refused to hear the case.

   Officials later resorted to the widely-practice ruse of "secularizing" the overtly religious display with a plastic Santa Claus, reindeer and Frosty the Snowman.

   In this case, Judge Alito authored an opinion to dismiss the suit arguing that the plaintiffs lacked standing and failed to demonstration sufficient government involvement and how public funds may have been used. Worse yet, though, Alito asserted that even if the plaintiffs succeeded in meeting those legal criteria, the religious elements of the display were successfully "secularized."

    ¶       A similar suit (ACLU-NJ v. SCHUNDLER, 1999) emerged in Jersey City where the town maintained and erected a holiday religious display complete with the menorah, Christian nativity scene and a Christmas tree conspicuously situated at the entrance to the main government building. The display was challenged on constitutional grounds, and during this time the city added symbols and ornaments appropriate to Kwanza, along with a sign stating that the purpose for the presentation was to celebrate "cultural and ethnic diversity."

   Again, the strategy was to include religious icons and symbols while disingenuously claiming that the overall presentation had been successfully "demystified," "desanctified," "deconsecrated" and, of course, would presumably pass constitutional muster.

   The Third Circuit majority (Alito enunciated the minority opinion) said that the first version of the display was clearly unconstitutional. The case was remanded to take up the issue of whether the "deconsecrated" version would pass constitutional scrutiny. The federal district court then struck down both versions of the Jersey City display, and at the behest of Mayor Bret Schundler and local religious groups, the case was again appealed to the Third Circuit.

   With Alito a member of the three-judge panel, the court left in tact the decision on the original display, but reversed the finding in respect to the latest version of the "holiday" presentation. Alito argued that the district court opinion was only "advisory." Circuit Judge Nygaard, however, wrote that Alito failed to pay proper attention and give sufficient weight to the evidence in front of the court:

"We explicitly held that the display at issue here, minus Frosty, Santa, the sleigh and the Kwanzaa symbols, was unconstitutional because it had the effect of communicating an endorsement of particular religions. So, I submit here that the real question now is whether simply adding Kwanzaa symbols to the tree and placing Frosty (a secular symbol of Christmas), Santa (a once-religious symbol -- St. Nicholas -- now quite secularized), and a sleigh in the display sufficiently changed the display's context so as to negate the message that was conveyed by the original display, which we held (to be) unconstitutional."

   While Judge Alito clearly showed minimal concern about direct government endorsement of religion through the use of public resources to proselytize, his view on the related issue of "religious liberty" appears to be more complex. Indeed, a segment of conservative and liberal "religious supremacists" may well find Alito's position here to be distasteful; but the record is incomplete.

   In FOP NEWARK LODGE NO.12 v. CITY OF NEWARK (1999), the Third Circuit Court took up a 28-year old police department policy stating that officers could not wear beards. Two Sunni Muslim officers challenged the regulation, pointing out that exceptions were provided on behalf of undercover officers and those who may require a medical exemption. A federal court ruled that the prohibition was unconstitutional. Here, in examining the balance between "secular exemptions" and a "generally applicable" rule, the court found in favor of religion trumping all considerations. Judge Alito's written opinion cited earlier precedent, that when matters of religion are involved the court may use a heightened standard of "strict scrutiny." Employing this discriminatory standard, government is required to demonstrate that it has a "compelling interest" in regulating any religious conduct (as opposed to actions pertaining to private individuals, businesses or secular groups.) Alito thus found that the City of Newark Police Department regulations were "sufficiently suggestive of discriminatory intent (against religious practice) so as to trigger heightened scrutiny."

   A considerable volume of state and federal legislation such as the "Religious Liberty Protection Act" has been enacted which critics say gives preferential treatment to religious groups and practices. It is difficult to say whether Alito would concur with the Religious Land Use and Institutionalized Persons Act (RLUIPA) which holds governments -- especially state and federal Corrections departments -- to this heightened standard. From the CITY OF NEWARK case, however, it becomes clear that Samuel Alito seems disposed toward using this standard, one that will disturb many state-church separation advocates who see in its broad legal outlines a clear policy of government preference and favoritism toward religion.

    ¶       Finally, Alito's record on the First Amendment includes his views in the case of CHILD EVANGELISM FELLOWSHIP OF NJ v. STAFFORD TOWNSHIP SCHOOL DISTRICT.

   An off-campus religious organization, the Child Evangelism Fellowship was denied permission to distribute proselytizing information and meeting announcements, including advertisement for Bible club meetings, to elementary school students on school premises. The group described itself as: "a Bible-centered, worldwide organization composed of born-again believers whose purpose is to evangelize boys and girls with the Gospel of the Lord Jesus Christ and to establish them in the Word of God and in a local church for Christian living."

   The Fellowship operated "Good News Clubs" in schools throughout the country. Often, the "club" would meet at the immediate end of the school day in a classroom.

   The school district originally permitted the proposed "Good News Club" to assemble, but denied its request to have flyers posted on school bulletin boards and parental permission forms handed out to students. Administrators also expressed concerns that aside from violating the First Amendment, allowing the religious club to operate in such a fashion could create divisiveness, isolate students who did not participate, and lead to other problems based on religious belief.

   Critics also pointed out that other clubs sponsored activities more related to the mission of the school, including the 4-H Club, the PTA and the Girl Scouts.

   A panel of the Third Circuit Court including Samuel Alito ruled in favor of the Child Evangelism Fellowship. The written opinion stated that any restriction on the "Good News Club" violated the Free Speech Clause of the First Amendment, and dismissed the argument that allowing the group to meet on school premises at the very end of the class day conveyed a message of endorsement of religion.

   The temperament of Alito's decision in the CEF case raises questions about a related legal issue, school prayer.

   Mandatory devotional exercises ranging from prayer to the unison reading of Bible verse were struck down by the U.S. Supreme Court in a series of historic cases. ENGEL v. VITALE (1961) banned the use of a coercive government-composed religious prayer in public schools even though the prayer in question had been concocted to be "nondenominational" and supposedly include language associated with all religions.

   MURRAY v. CURLETT and ABINGTON TOWNSHIP v. SCHEMPP were decided in 1963. These combined cases struck down the practice of other forms of prayer or verses from the King James Bible being recited in public school classrooms by students.

   In recent years, however, so-called "voluntary" prayer at school graduation ceremonies and even athletic contests has been defended not so much as a religious practice but an expression of "free speech," especially if the prayer is supposedly selected and led by members of the student body. Critics say that this amounts to a shabby ruse to sneak organized prayer back into the public schools, and is a form of majoritarian "prayer bullying." Judge Alito's legal opinion has not been tested on this specific type of case, but his position enunciated in the CHILD EVANGELISM FELLOWSHIP decision suggests that he MAY be favorably disposed toward allowing this sort of religious proselytizing and ritual under the veneer of free expression.

    ¶       Curiously, while he seems predisposed toward justifying religious expression in the public square as a form of free speech, Judge Alito has not extended the same legal reasoning or courtesy to forms of speech involving sex, political ideas and other content. In SANGUIGNI v. PITTSURGH BOARD OF PUBLIC EDUCATION (1992), the Third Circuit, with Alito concurring, upheld the dismissal of a teacher who wrote critical comments about school policy in a faculty newsletter.

   In BANKS v. BEARD (2005), Judge Alito broke with the majority opinion which supported the right of prison inmates to receive newspapers and magazines. Ironically, the policy provided an exemption for publications which were legal or "religious." Alito argued that the regulations of the prison were "reasonably related to the legitimate penological goal of curbing prison misconduct."

   This position, though, raises questions of whether Alito would support religious exemptions for other regulations that might affect prison or jail security. He obviously does not believe that Free Speech trumps all other considerations. We can only speculate how he might rule when confronted with a test case involving practices covered by the Religious Land Use and Institutionalized Persons Act or similar statutes.

   His overall disposition concerning the First Amendment, however, is a disturbing one. In a statement to media, American Atheists President Ellen Johnson said that Mr. Bush's selection of Judge Alito to fill a position on the nation's highest court was a poor choice.

   "We fear that if he is appointed to the Supreme Court of the United States, important decisions like MURRAY v. CURLETT will be reversed, and other laws protecting our First Amendment separation of church and state could be in jeopardy."

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