The potential replacement of retiring justice Sandra Day O'Connor with Judge Samuel Alito could culminate in a Supreme Court majority that would significantly enhance the ability of state and federal governments to fund faith-based organizations and religious activity.
Alito's confirmation, depending on Chief Justice John Roberts' views on the issue, may establish a five-justice majority that could validate government funding programs specifically tailored for faith-based groups and public funding of religious activity.
The delicate intersection of religion and money, in addition to abortion and the expanse of presidential power, will likely be emphasized throughout the Senate confirmation hearings being held this week. While consistently favoring the free exercise clause in religious display and school related cases as a circuit court judge, Alito displayed views on both the separation of church and state, and access to public resources for religious groups, which would place him with the more conservative members of the Court and in contrast to O'Connor.
Jay Sekulow, chief counsel for the American Center for Law and Justice, said that Alito would uphold President Bush's faith-based initiatives as constitutional. In praising Alito, he stated, "Clearly, he is someone who believes that religious views, values, and beliefs are valued in the marketplace," and that the future construction of the Court would be "more protective of the free exercise clause"
Barry Lynn, executive director of the Americans United for Separation of Church and State contended that Alito would not be bothered by government funding of religious ministries, classifying his view of the separation of church and state as, "Extremely crabbed, narrow, and inconsistent with much of the precedent of the last 50 years." Lynn added that Alito's confirmation would signify a "dramatic shift" in the protection of rights for religious minorities.
In the 1996 case ACLU v. Black Horse Pike, Alito, as one of four dissenting judges, disagreed with the Court's ruling that a student-initiated, graduation prayer at a New Jersey public high school was unconstitutional. The dissent stated that because the Board of Education was not actively endorsing a religious message-but merely allowed the students to choose to have a graduation prayer-a constitutional violation never occurred. The dissent forwarded the view that only when the government itself is an actual proponent of religion or a religious message does a constitutional violation exist.
Alito has exhibited this interpretation when addressing the issue of public resources for religious groups. In 2004, the Circuit Court ruled in favor of The Child Evangelism Fellowship of New Jersey, a religious non-profit corporation, holding that they could not be denied access to public educational resources for their usage. In writing the opinion, Alito stated that, "…this case involves private, not school-sponsored speech," adding that the school district's disfavoring of faith-based groups was discriminatory.
Currently, public funding cannot be allocated towards religious worship, indoctrination, or proselytizing. Alito's judicial philosophy, however, lends to the view that public funding of both faith-based groups and activity is constitutional, so long as the government provider itself does not endorse a religious viewpoint.
Alito's philosophy differs sharply from O'Connor's. The Supreme Court ruled in 2000 that federal educational backing of the Jefferson Parish, a governmental unit affiliated with the Catholic Church, did not violate the constitution in spite of funds being diverted to Louisiana private schools. Nevertheless, the six-justice majority was split four to two on the issue of the government's ability to fund religious groups.
Writing separately, O'Connor, who has been defined throughout the course of her tenure with the court as a swing justice, stated that while the government assuming a neutral stance towards religion was important, it could not singularly determine whether public funding of faith-based groups is constitutional. She also asserted that government funding of religious indoctrination would be unconstitutional, regardless of whether the program was neutral.
Conversely, Justice Clarence Thomas, joined by current sitting Justices Scalia and Kennedy, the other noted swing justice, and the late Chief Justice William Rehnquist wrote in a separate opinion that, "If the government is offering assistance to recipients who provide…a broad range of indoctrination, the government itself is not thought responsible for any particular indoctrination," mirroring the viewpoint of Judge Alito in the Black Horse Pike and Child Evangelism cases.
The Court later held that a state scholarship program that denied funding for pastoral study was constitutional. Scalia and Thomas were the lone dissenters against a seven-justice majority, which included Rehnquist and O'Connor. Sekulow stated that Alito was in the "Scalia-Thomas mold" in terms of public funding for religious groups and activity, and that Justice Kennedy would also likely uphold the President's faith-based initiatives.
Jim Backlin, legislative director with the Christian Coalition of America, said that the Alito hearings as well as pending cases relating to spiritual practice in the military would make the suppression of religious freedom a prominent issue for voters in 2006.
Judith Schaffer, deputy legal director with the People For The American Way, contends that senators who will support Alito when the vote comes to the floor may pay a political price this November-that voters will remember Alito's record on the court when casting ballots in the mid-term races.
According to the nonpartisan Roundtable on Religion & Social Welfare Policy, several lawsuits are pending in federal court surrounding the issue of public funding of religious groups, including programs in Iowa, Pennsylvania, and New Mexico. Such cases could reach the Supreme Court.