“AU” Against Alito
Recently, the Americans United for the Separation of Church and State (”AU”) released their official position regarding the nomination of Judge Alito to the Supreme Court. Not suprisingly, AU has decided to oppose Alito:
Americans United opposes the nomination of Judge Alito . . . because of the substantial risk that he would abandon the sensitive approach to church-state issues that has been the defining feature of Justice O’Connor’s Establishment Clause jurisprudence, and that he would . . . revamp[] Establishment Clause law in ways that would weaken or dismantle the constitutional wall separating church and state.
AU is worried about the downfall of the anti-originalist and court-doctored meaning of the Establishment Clause that Justice Hugo Black inserted almost sixty years ago in Everson. The “sensitive approach” that Justice O’Connor applied is code for “separationist approach”–which is AU’s overarching objection to Alito’s jurisprudence.
According to AU, Alito’s decisional history regarding the Free Exercise and Establishment Clauses is troubling because he would allow students to pray at a graduation ceremony if a majority of the students approved (ACLU of New Jersey v. Black Horse Pike Regional Board of Education) or during a class presentation (Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Township School District). AU fear Alito not because he would allow for a Christianization of America (isn’t America already Christian?), but, because of his willingness to protect the rights of religious majorities in the public square. Moreover, he treats religious speech as protected by the Constititution instead of forbidden, rejecting the constitutional ostracism that pervades the liberal elite and is prominent in Justice O’Connor’s religious jurisprudence.
An originalist understanding of the Religion Clauses espoused by Alito, particularly of the Establishment Clause, would remove the muddiness of Justice O’Connor’s endorsement test and restore the religious freedom that the Founding Fathers intended to bestow upon the American people. Contrary to O’Connor and AU, the First Amendment guarantees freedom of religion not equality of religious expression. The Framers didn’t intend to elevate the hurt feelings of Atheists or those whose religious doctrine fails to attract more than 200 adherents to a constitutional plateau that precludes majoritarian religious practice in the public arena.
It is time for the constitutional myth of separation of church and state to end. Confirming Justice Alito would be a good starting point.
December 29th, 2005 at 3:36 pm
Tanking on the Right
Rightank thrice misconstrues the nature of separationist opposition to Judge Alito….
December 30th, 2005 at 9:38 am
First, the First Amendment does not require any balancing act of majority versus minority religious expression. Moreover, the words “Congress shall make no law . . . prohibiting the free exercise [of religion]” are not limited to individual expression. If it were, the Amendment would have explicitly said so. There is a difference between what a constitutional right “ought to be” and that right actually is.
Second, establishment properly understood does not prohibit a school from interacting and even approving religious instruction in the schools. In fact, the Bible was the main textbook for many early American schools (which contradicts your last point that the Founders intended to closet religious instruction in the home and church). Moreover, the First Amendment does not prohibit state governments from creating a religious establishment. It was only in 1940 when the Supreme Court decided to apply the First Amendment to the States–in contravention of the constitutional intent–that state governments were then “prohibited” from establishment. The teaching of religion in school does not “establish” a religion but, for example, a tax paid directly to a church under the direction of the state would constitute establishment.