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Religion, politics and Judge Alito

ASK THIS | January 30, 2006

Religion has great relevance in contemporary American politics, but what is its relationship to Samuel Alito as a U.S. Supreme Court justice?

By Laura R. Olson
(864) 656-1457

Q.  Is it relevant to discuss the fact that Alito is the fifth Catholic justice on the current Supreme Court?

Q.  What effect does the addition of Alito to the Supreme Court have on existing church-state jurisprudence?

George W. Bush nominated Samuel A. Alito, Jr. to fill the vacancy on the United States Supreme Court left by the retirement of Justice Sandra Day O’Connor. Alito, 55, is a Roman Catholic; his presence on the Court creates a five-person Catholic majority for the first time in American history. The Alito family attends Our Lady of the Blessed Sacrament Parish in Roseland, New Jersey.

What consequences, if any, ensue from Alito's presence on the Supreme Court? It is important to note that the Court’s two most reliable conservatives, Justices Antonin Scalia and Clarence Thomas, are also Catholics, as is new (and likely conservative) Chief Justice John Roberts. However, Justice Anthony Kennedy is the Court’s other Catholic member, and he is an established moderate on certain key issues, including church-state matters and abortion. American Catholics are extremely diverse politically, and there is no reason to think that a distinctive or consistent “Catholic bloc” will coalesce with Alito on the Court.

When asked by Senator Richard Durbin (D-Illinois) to comment on the ways in which his religious faith might affect his potential work as a Supreme Court justice, Alito gave the only socially acceptable answer: “My obligation as a judge is to interpret and apply the Constitution and the laws of the United States, and not [to bring in] my personal religious beliefs or any personal moral beliefs that I have.”

On the other hand, both Senators John Cornyn (R-Texas) and Robert Byrd (D-West Virginia) were quoted in the New York Times saying that they believed Alito would take an accommodationist approach to church-state issues. It is important to remember, however, that Article VI of the U.S. Constitution provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Some years ago, Alito’s Catholicism might have been used publicly as a justification to vote against him. Not anymore.

Finally, how might Alito’s presence on the Court affect current church-state jurisprudence? The key to answering this question lies in understanding the significant role Justice O’Connor played in casting the swing vote in many religion cases, including the 2005 decisions in the Ten Commandments cases (Van Orden v. Perry and McCreary County, Ky. v. ACLU).

As a more conservative justice, Alito will likely tip the balance toward more accommodation of religion in public venues, as he did for Christmas displays while a member of the U.S. Court of Appeals for the Third Circuit in the case of ACLU v. Schundler (1999). He is also thought to favor broad free exercise rights. As a judge on the Third Circuit Court of Appeals, he voted to uphold the right of Muslim police officers to wear beards as a form of religious expression in the case of Fraternal Order of Police v. City of Newark (1999).

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