Alito, In and Out of the Mainstream

Larger Role for Religion

Alito has agreed consistently with people who are trying to expand the role of religion in public life, the analysis shows.

Three cases in the analysis deal with the boundaries between church and state, and Alito's decisions parallel about a dozen other -- unanimous -- cases he has heard that were not examined by The Post, said Ira C. Lupu, a constitutional scholar at George Washington University Law School.

Alito's views differ from those of most appellate judges and all the current members of the Supreme Court, Lupu said, because "he is on the side of whoever is trying to include or advance a religious message." Alito has taken a narrow view of the First Amendment's establishment clause, which forbids the government to sponsor any religion, and an expansive view of its free-exercise clause, which protects people's rights to worship as they want.

In an establishment-clause case in the analysis, American Civil Liberties Union of New Jersey ex rel. Lander v. Schundler , Alito wrote a 1999 majority opinion upholding the constitutionality of a holiday display in front of City Hall in Jersey City. A lower court had banned the display a few years earlier, when it featured a Hanukkah menorah and a Christmas tree. Two weeks later, the city put it back up with changes, adding a large plastic Santa Claus, Frosty the Snowman, a red sled and Kwanzaa symbols.

Alito said the secular additions "demystified" the religious symbols and made the display legal. In a dissent, Judge Richard Lowell Nygaard, a Reagan appointee, wrote that the "addition of a few small token secular objects is not enough to constitutionally legitimate the modified display."

In a free-exercise case, Alito sided with a boy named Zachary Hood in Medford, N.J., who, as a kindergartner, made a poster on which he had drawn a picture of Jesus as an example of something he was thankful for. In first grade, when allowed to bring a book to read to class, he brought "The Beginner's Bible: Timeless Children's Stories."

The court's majority ruled in favor of the school system and teachers, who removed the boy's poster from a wall and forbade him to read the Bible stories to his class. Alito dissented, writing that "discriminatory treatment of the poster because of its 'religious theme' would violate the First Amendment." He reasoned that "public school students have the right to express religious views in class discussion or in assigned work, provided that their expression falls within the scope of the discussion or the assignment."

Alito has greater sympathy for First Amendment rights when it comes to religion than other free-speech issues. Of six First Amendment cases in the analysis that did not involve religion, he voted to uphold such rights once.

Last February, for instance, he helped to decide a class-action lawsuit by inmates in a unit of a Pittsburgh prison set aside for especially violent prisoners. Inmates in the unit were not allowed to have newspapers, magazines or photographs -- and they sued, alleging the rule violated their free-speech rights.

The court's majority found the ban unconstitutional. Alito disagreed. Citing a precedent that "instructs courts to extend considerable deference to judgments of correctional officials," he wrote that the prison officials were reasonable in believing the restrictions might deter other inmates from misbehaving -- and that the segregated prisoners did not face absolute restrictions, because they could get around the ban by improving their behavior enough to get out of the unit. In November, the Supreme Court decided that it will hear the case.

Staff writers Jeffrey H. Birnbaum, Charles Lane and Christopher Lee; research editor Lucy Shackelford; researcher Madonna Lebling; and research database editor Derek Willis contributed to this report.