Why The U.S. Senate Should Not Confirm Court Nominee Alito

Religious Right groups often express the view that the majority should rule in matters of religion.

If most people want official prayer in school every day, they should have it, opine TV preachers and their followers. These people see no problem with government adopting the symbols and language of the Christian majority - of which they just happen to belong.

This position finds no safe harbor in our Constitution. That document is specifically anti-majoritarian. When it comes to religion, all Americans have the right to worship or not as they see fit. In the eyes of the government, a church with 50 million members has the same rights and responsibilities as one with 500.

That principle is under assault by some Supreme Court justices these days. It's cause for great concern. In a large measure, it's also why Americans United opposes the nomination of Judge Samuel A. Alito to the Supreme Court.

We are simply not persuaded that Alito fully understand the Constitution's anti-majoritarian impulse. Nothing in his rulings indicates any sensitivity to this principle.

When it comes to church and state, Alito seems to default to majority rule. In a 1996 case from New Jersey, he sided with a dissenting bloc, arguing that public school students should be able to vote on whether or not to have prayer at graduation. This is nothing more than religion imposed by majority rule. It is alien to our Constitution.

In a pair of cases dealing with government display of religious symbols, Alito was similarly dismissive of minority rights. In one case, he ruled that a couple opposed to a city-sponsored religious holiday display didn't even have a legal right to challenge it. They hadn't really been injured by the display, Alito ruled.

If confirmed, Alito will take the seat now occupied by Justice Sandra Day O'Connor. O'Connor's understanding of church-state separation was not perfect, but she at least understood how that principle protects the freedom of all Americans.

In a case last year, O'Connor wrote, "At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate. Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"

Why indeed? Our fear is that if Alito is confirmed, he will join the Antonin Scalia/Clarence Thomas axis that is hos tile to church-state separation. By pulling in Anthony Kennedy, whose church-state views are at best erratic, and new Chief Justice John G. Roberts, a man personally vetted by the Religious Right, Scalia, Thomas and Alito will have an operational majority to begin tearing down the church-state wall on some key issues.

The nation deserves a justice in the mode of O'Connor, a justice who understands the importance of church-state separation in protecting the rights of all Americans.

Samuel A. Alito will not be that justice. The Senate should reject his nomination.

Copyright Americans United for Separation of Church and State Jan 2006
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