The latest ACLU Newsletter included links to the ACLU report on Samuel Alito as well as the letter it sent accompanying the report expressing grave concerns about some of Alito’s positions on civil liberties and urging a thorough examination during the hearings.
In other words, the ACLU punked out. It neither endorses nor urges rejection of Alito; it simply provides what appears to be a mixed bag (the report) of civil liberty positions.
I’ve downloaded the report and, since I’ve already beat Casey to death, decided to take a look at the ACLU’s concerns relating to the Establishment Clause which struck me as hinted at rather than strongly voiced in the ACLU letter. After reading the report, I can understand why.
The ACLU’s concern centers around five cases. The one it provides the most attention to is the ACLU of NJ v. Schundler. This is actually a two part case consisting of Schundler I and Schundler II.
Basically the case revolves around a holiday display in Jersey City. The display, consisting of a crèche, a menorah and a Christmas tree had been set up by Jersey City for some 30 years. Now, the sequence of events appears to have been as follows. I say appears because one has to read between the lines a tad in the ACLU description.
- In 1994, because Chanukah & Christmas did not overlap that year, the menorah was taken down as the crèche was put up.
- The ACLU challenged, I assume, the constitutionality of the crèche alone.
- The District Court ruled the display unconstitutional with or without the menorah interpreting it to be an unacceptable entanglement between government & religion and endorsing specific religions (note the plural).
- The following year, Jersey City added a number of secular symbols such as Santa Claus and Frosty.
- The ACLU challenged the new display.
- The District Court, in a summary decision, decided that the addition of the secular symbols “demystified” the religious display.
- The case arrived at the Alitoless 3rd Circuit (Schundler I) which a) upheld the decision that the original display was unconstitutional and b) spanked the District Court for concluding that the mere addition of secular symbols was sufficient to render the display constitutional when the Supremes had ruled that CONTEXT was critical. In other words adding a 6 inch Frosty off in a dark corner does not render a 30 foot crèche illuminated by multiple flood lights constitutional. It sent the case back to the District Court to formally rule on the constitutionality of the revamped display.
- The District Court, probably taking the hint that the 3rd Circuit was unhappy, now declared the revamped display unconstitutional as well.
- The case arrived back at the 3rd Circuit (Schundler II) with two new judges (Alito and Rendell). The court reiterated the unconstitutionality of the original display but reversed the District Court on the revamped display finding it to be “indistinguishable in any constitutionally significant respect from the displays upheld by the Supreme Court in Lynch v. Donnelly.”
- Judge Nygaard, the sole remaining judge from Schundler I dissented, primarily because he felt that the addition of the secular symbols did not sufficiently change the context of the display to “negate the message that was conveyed by the original display, which we held unconstitutional.”
Phew, get it? The bottom line is that what we have here is a subjective decision as to whether the context of the display would lead a reasonable observer to conclude that a specific religion or religions was being endorsed. Alito and Rendell felt that the context had been sufficiently changed and Nygaard didn’t.
From what I know of Jersey City and Northern New Jersey I can almost guarantee you that there was no intention, even in the original display, of endorsing religion. The display had been used for 30 years and I’ll bet no one even thought about it. When it was declared unconstitutional I suspect the expansion of the display, with secular figures of the season, was a good faith attempt to make the display acceptable while still holding on to some of the 30 year tradition. I don’t find this decision terribly unsettling.
ACLU of NJ v. Township of Wall was another holiday display case in which the 3rd Circuit claimed that the plaintiffs lacked standing to bring the suit. After reading Alito’s decision however, the Township had, by the time the case reached the 3rd Circuit significantly expanded the display with numerous secular symbols. I suspect the 3rd Circuit felt the case was just moot and a colossal waste of time and resources. And you know what? I agree; it was moot.
The other three cases revolved around the collision between the Establishment Clause and Freedom of Speech. In one case Alito and the 3rd Circuit found that it was constitutional to allow an evangelical student group to distribute information about their organization along with other student groups on Open School Night.
In a second case Alito, in a dissent, felt that displaying a kindergartener’s religiously themed poster was not an issue feeling that public school students have the right to express religious views as long as those views fall within the scope of the school assignment.
In the last case Alito, again in dissent, felt that student led prayers at graduation were ok because the 1st Amendment did not prohibit activities that have the effect of assisting religion in general. This argument was subsequently rejected by the Supremes four years later in another case when they clearly stated that the Establishment Clause also prohibits actions that aid all religions.
I draw two conclusions from these opinions. First that in any conflict between Freedom of Religious Expression and the Establishment Clause, Alito will tend to come down on the side of Freedom of Religious Expression.
The second conclusion, an easy one because he SAID it in ACLU of NJ v. Black Horse Pike Bd. Of Ed., is that Alito feels that the 1st Amendment “gives religion an exceptionally protected status.” I fundamentally disagree with this position. The 1st Amendment gives Freedom of Religion, not religion itself, an “exceptionally protected status” and there is a huge difference. According to the Supremes the government must be neutral with respect to religion and non-religion. In other words Freedom of Religion DOES MEAN Freedom from Religion if that’s what rows your boat.
I would definitely like to know more about Alito’s position on this point.
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