Alito and the First Amendment
Much of the reaction to Alito’s nomination has been predictable. Liberals are questioning if not oppositional while conservatives are overjoyed that Bush did not nominate another diversity pick (Miers) or someone otherwise unqualified.
After reviewing Judge Alito’s opinion in Saxe v. State College Area School District, I am more confident that Alito is a great choice by President Bush. Saxe involved a suit by a Christian parent who objected to their school’s Anti-Harassment Policy (”AHA”) because he does approve of homosexuality and who felt that he and his children would be punished for expressing those beliefs. The AHA policy protected, among others, harrassment based upon sexual orientation:
Harassment on the basis of sexual orientation is unwelcome verbal, written or physical conduct directed at the characteristics of a person’s perceived sexual orientation, such as negative name calling and degrading behavior.
. . .
Other harassment on the basis of such things as clothing, physical appearance, social skills, peer group, income, intellect, educational program, hobbies or values, etc. may also cause or effect substantial interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment. This type of harassment is also protected against by this policy and procedures.
Clearly, the policy was political correctness run amok. Judge Alito’s emphasis on protecting the First Amendment rights of all schoolchildren (even those who objected to homosexuality on religious grounds) is outstanding:
[T]he Policy prohibits harassment based on personal characteristics that are not protected underfederal law. Titles VI and IX, taken together with the other relevant federal statutes, cover only harassment based on sex, race, color, national origin, age and disability. The Policy, in contrast, is much broader, reaching, at the extreme, a catch-all category of “other personal characteristics” (which, the Policy states, includes things like “clothing,” “appearance,” “hobbies and values,” and “social skills.”) Insofar as the policy attempts to prevent students from making negative comments about each others’ “appearance,” “clothing,” and”social skills,” it may be brave, futile, or merely silly. But attempting to proscribe negative comments about “values,” as that term is commonly used today, is something else altogether. By prohibiting disparaging speech directed at a person’s “values,” the Policy strikes at the heart of moral and political discourse–the lifeblood of constitutional self government (and democratic education) and the core concern of the First Amendment. That speech about “values” may offend is not cause for its prohibition, but rather the reason for its protection: “a principal ‘function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’ ” (citations omitted). No court or legislature has ever suggested that unwelcome speech directed at another’s “values” may be prohibited under the rubric of anti-discrimination.
Scalito saw that values-based discrimination (i.e. religious discrimination) was contrary to the purpose of the First Amendment, which is and was an invitation to poltical, social, or religious disputations held in the public square. Moreover, a hurt feelings do not trump an individual’s verbal expression of conscience, particularly religious expression which is explicitly protected in the First Amendment.
Scalito’s unwillingness to ride the wave of discrminatory lawlessness is great news for Americans who value freedom and an originalist view of the First Amendment.
Thanks to Liberty Counsel for highlighting the case.