God Help Him
Alito gets religion.
Judge Samuel Alito's rulings on religious liberty have been trotted out as evidence that he is a freethinker. The opinions show off the nominee's "libertarian streak," according to this Cato Institute post. They demonstrate that Alito is no Scalito, argued University of Wisconsin law professor and blogger Ann Althouse in a New York Times op-ed (sorry, you have to pay to read it; here are her follow-up comments for free). Religious groups have approvingly emphasized that Alito "is very respectful of religious liberty," as Kevin Hasson, chairman of the Becket Fund for Religious Liberty, told the Religious News Service.
Sam Alito, Champion of the Religiously Downtrodden—it has a certain ring. Alas, it also largely falls apart upon closer examination. Constitutional law on religion splits into two categories. The first is religious-liberty cases, which center on what rights the faithful have to practice their religion when doing so violates a law or regulation that applies to everyone. The second is church-state cases, in which courts decide when the government can associate itself with a religious group and when it can't.
Alito's religious-liberty opinions are mechanistic applications of precedent. They reveal little about the stance he'd take toward religious liberty as a justice of the Supreme Court. Meanwhile, his church-state opinions are consistently, predictably, conservative. When his rulings on religion are taken as a whole, their most noteworthy aspect isn't Alito's independence. Rather, it's his fealty to the view—fervently espoused on the current court by Antonin Scalia—that the government must give religious groups the same access to public benefits that it gives secular ones. As in, if the Boy Scouts or the town fire department can meet in a public-school classroom, then so can the local Bible-study group.
Here are the much-touted religious-liberty rulings. In a 2004 case, Alito ruled in favor of Dennis Blackhawk, a Lenape Indian by birth who began to see bears in a recurring dream, bought two, and used them in religious ceremonies. ("Some consider him to be a holy man," Alito writes, ever deadpan.) Blackhawk went to court after the Pennsylvania Game Commission told him he had to pay $200 a year for an exotic wildlife license and then took the bears away when he pleaded hardship and refused. Alito ordered the commission to back off, saying that because the state's wildlife code allowed for exemptions to the licensing requirement at the discretion of state officials, the government had to show it had a compelling reason for denying Blackhawk an exemption—a test it had failed to meet. In a 1999 case, Alito stopped the Newark police department from disciplining two Muslim police officers who refused to shave their beards. Again, the problem was that the department made exemptions to its no-beard policy for secular reasons (like medical ones) and didn't give a good enough reason for refusing similarly to exempt the Muslim officers on religious grounds.
Score one for bear-dreaming Indians and beard-wearing Muslims. But don't assume Alito is so for religious liberty that he will next embrace a sect that imports hallucinogenic tea in defiance of federal law and an international treaty, the Religiously Dowtrodden group in this year's Supreme Court lineup. Or that he's so for religious liberty that he'll favor creating an across-the-board exemption from some state laws for religious groups, the prize they're really after.
What's at issue in the religious-liberty cases is a question left open by the Constitution's Free Exercise Clause: When a state passes a law that applies to everyone but has particular implications for religious groups, when should those groups be exempt from following the law—never, sometimes, whenever they say so? As this instructive post by Eugene Volokh explains, in the 1963 case Sherbert v. Verner, the Supreme Court decided that religious groups are presumed to have the right to an exemption. But there were always lots of exceptions to the exception—the faithful weren't allowed to go around murdering and pillaging on religious grounds, of course. They also had to observe more mundane laws like the nation's tax code. In the 1990 case Employment Division v. Smith, the court refused to protect the right of the Native American Church to use small amounts of peyote and in the process moved away from the more religion-friendly rule in Sherbert. The court gave the state the benefit of the doubt: Laws were constitutional as long as they didn't discriminate against religious objectors.
Post Smith, the partisan politics have gotten scrambled. Religious freedom used to be the cause of the quintessential liberal Justice William Brennan; law-and-order types like Chief Justice William Rehnquist wanted the state to be allowed to enforce its laws against fringe groups unhindered. Since Smith, however, the churchy right tends to think more religious liberty is a good idea, too.
Alito may turn out to be their man, but you can't tell that from Dennis Blackhawk's case or the one involving the Muslim police officers. Alito simply followed the Supreme Court, which has said (even in Smith) that the state doesn't get a free pass when it offers an exemption to a law to people who ask for special treatment based on a secular rationale but denies the same exemption to other people who ask for special treatment for a religious reason. Pennsylvania exempted circuses and zoos, among others, from paying licensing fees for their wild animals. Newark let police officers keep their beards if they asked to because of a medical condition. So, why couldn't Dennis Blackhawk keep his bear and the Muslim cops keep their beards? Pennsylvania and Newark lost because they didn't have a good enough answer. Alito didn't stick his neck out to promote religious liberty by finding in favor of Blackhawk and the Muslims, argues Cardozo law professor Marci A. Hamilton, author of the recent book God vs. the Gavel. In light of Supreme Court precedent, he didn't have to.
In church-state cases, Alito's opinions are conservative but not daringly so. In two cases, Alito let stand hybrid crèche-menorah-Frosty the Snowman displays (the kind whose real offense is that they're kitsch). The church-state case that stands out is Child Evangelism Fellowship of New Jersey v. Stafford Township School District, decided in 2004, because it tracks precedents that Scalia in particular would dearly like to take further. In that case, the evangelical Good News Club asked the Stafford school district if it could use the classrooms of McKinley Elementary School for weekly after-school meetings. The district agreed. But the superintendent balked at letting the Good News-ers pass out flyers and staff a table at an annual back-to-school night for fear of creating the appearance of endorsing the group's religious message.
In its own words, the Christian fellowship that runs the Good News Clubs is "composed of born-again believers whose purpose is to evangelize boys and girls with the Gospel of the Lord Jesus Christ and to establish (disciple) them in the Word of God and in a local church for Christian living." How likely are parents, much less grade-school students, to understand that the presence of Good News at back-to-school night has nothing to do with the school's approval of Good News' teachings? Likely enough, Alito said, just as Scalia has argued in the Supreme Court cases that gave Alito his foundation. Religious liberty is nice. But if you're on the side of the faithful, giving the church the keys to the elementary school is better.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at email@example.com or on Facebook or Twitter.
Photograph of Samuel Alito by Kevin Dietsch/UPI Photo.