Professor Volokh has an interesting look at what a Justice Alito might do with respect to free speech and freedom of religion should he be seated on the Court.
Here’s the money quotes:
Supreme Court decisions involving the establishment clause [i.e., that the federal government shall not establish religion, which REALLY means that it can’t create a Church of the United States paralleling the Church of England, though which has been interpreted in all kinds of INSANE anti-religious ways since the days of Darth Earl Warren] have recently split more predictably down conservative-liberal lines. Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas have reasoned that government funding of programs may evenhandedly include religious institutions alongside secular institutions, and that the government’s own speech may include religious symbolism, at least when it’s generically monotheistic rather than specifically Christian.
Justices Stevens, Souter and Ginsburg have taken the opposite views. Justices Breyer and, especially, O’Connor have been swing votes, leaving the law not fully settled. Last year’s Ten Commandments cases, which upheld one display and struck down another, are the result.
It seems likely that a Justice Alito would give the conservatives a majority on issues involving funding and display. . . .
He also seems to conclude that equal treatment of religious institutions is not establishment, for instance holding that religious groups may have the same access as secular groups to public school bulletin boards. And he seems to lean toward viewing religious speech by the government–part of a longstanding American tradition–as constitutionally permissible, too.
“The broadest views of free speech were held by conservative Anthony Kennedy, followed by conservative Clarence Thomas tied with liberal David Souter. The narrowest views were held by liberal Justice Breyer, followed by Chief Justice Rehnquist and Justice Sandra Day O’Connor (both conservatives). Justices John Paul Stevens and Ruth Bader Ginsburg (liberals) and Antonin Scalia (conservative) were in the middle.”
On the surface this analysis looks really confusing — Ginsburg in the middle, and Clarence Thomas on the same side as David Souter — but of course this was “free speech” in general and not just religious speech. Free speech can encompass so much, from the question of pornography to whether someone can put a campaign sign in their yard — I wish the author had broken the issues down a little more.
However, from what the Professor tells us about Judge Alito’s rulings, it does appear that the Judge’s opinions related to religious speech should give us cause for encouragement. His approach seems to be well reasoned and consistent with traditional American values.
Going into the Christmas season, this subject is coming up more and more — eg. the recent Walmart controversy – where they were promoting Hannukah and Kwanza, but classifying Christmas (the one celebrated by nearly 90% of the country)as a generic “Holiday.” Unfortunately, a lot of retailers (and schools, etc) are running scared from fear of lawsuits and are also operating on false information thinking that they cannot countenance any religious expression at all. It would be great to get a majority on the court to set some real parameters and be able to take back Christmas as a religious holiday that could be acknowledged in public!
Maybe we should start pronouncing “Happy Holidays” “Happy Holydays” and restore some meaning back to that word. ^_^
Does anyone remember the 1950’s when Catholics were very wary of those watered down “non denominational” Christian prayers in public schools. We were very uncomfortable with them. I guess that is why I can live comfortably with the rulings in questions. As an individual I greet each person with a greeting as close to their faith or lack of faith as I am able.
I always use the expression Merry Christmas.
Ryan,
Good idea! I like it.