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Promoted from the Diaries by Adam C... This kind of original research is much appreciated

Yesterday I reviewed three opinions by Judge Sam Alito of the Third Circuit dealing with free speech issues.  I argued they represent the First Amendment approach of a principled guardian of these most important rights.  Today I will review three free exercise and establishment of religion opinions of the man who may be the next Supreme Court nominee.

Ten Commandments, Pledge of Allegiance and other religious issues get more attention these days than free speech issues, unless the latter are implicated by campaign finance reform.  So it won't surprise the reader to find that unlike the three cases I reviewed yesterday, the press (and advocates for religious liberty) paid attention to today's three when released.  It also will not be surprising if Judge Alito's opinions in these cases receive more attention than many others (the obvious exception being his Casey dissent) if he is nominated to the Supreme Court, because of the politicization, on both sides, of religious issues when it comes to federal court nominees.

Mixed secular and sectarian Christmas displays on public land

Given the confused state of Supreme Court jurisprudence on religious displays, you would be hard pressed to find a federal judge with many years' tenure who has not been involved in such a case.  Judge Alito's most famous was 1999's ACLU of N.J. v. Schundler.  Yesterday I noted that it was unusual for Judge Alito to file a lengthy dissent from a dismissal of a complaint on procedural grounds, especially when that dissent (in C.H. v. Oliva) included a detailed discussion not only of why the merits should have been reached, but also why the plaintiff should have won his First Amendment claim.  Schundler is likewise interesting because it "undermined" (as the dissent complained) a previous three-judge Third Circuit panel evaluating the same display two years before.  There are hints in Alito's opinion, which I will identify below, that he welcomes the opportunity.

For instance, you may or may not read something into the first sentence of judge Alito's opinion:

This appeal concerns the constitutionality of two Jersey City "holiday" displays.

"Holiday" does not appear in scare quotes in the rest of the opinion.  (Only an interesting aside.)

The facts and procedural posture of the case: A Christmas tree and menorah were displayed in front of Jersey City City Hall "for several decades," before the District Court enjoined the practice in 1995.  The creche and menorah were owned and stored, when not on display, by the City.  A three-judge panel of the Third Circuit affirmed the unconstitutionality of the display in 1997.  As part of the 1999 case the City sought relief from that order based on intervening Supreme Court precedent (Agostini v. Felton, 1997); the court denied that motion.  But a display modified to comply with the previous order was under attack in the present case, too.  Alito described it:

The modified display contained not only a creche, a menorah, and Christmas tree, but also large plastic figures of Santa Claus and Frosty the Snowman, a red sled, and Kwanzaa symbols on the tree.  In addition, the display contained two signs stating that the display was one of a series of displays put up by the City throughout the year to celebrate its residents' cultural and ethnic diversity.

The ACLU moved to have the City held in contempt of the District Court's order and sought an injunction against the modified display.  The District Court held that the modified display squared with constitutional requirements.   The Third Circuit panel reversed, saying the District Court had applied a novel Establishment Clause standard, and remanded to case for reconsideration based on the correct one.  As Alito notes, "the panel also spent several paragraphs expressing in dicta a skeptical view about the constitutionality of the modified display."  

These dicta, Alito, suggested, improperly motivated the District Court to reverse itself.  

Not unreasonably, the District Court interpreted certain statements in the prior panel opinion  to mean that the panel viewed the modified display as constitutionally dubious.   We conclude, however, that the statements on which the District Court relied were merely dicta, that the prior panel did not render a decision regarding the constitutionality of the modified display, and that we are therefore obligated to analyze that question in accordance with our own best independent judgment.

Alito goes so far as to suggest that remand was unnecessary.

Since no facts were in dispute, the prior panel itself certainly could have ruled on the constitutionality of the modified display.  Moreover, since the relevant facts are relatively simple and were set out in full detail in the panel's opinion, the prior panel was in just as good a position as the District Court to decide that question in the first instance. Yet the prior panel chose not to take that course, instead remanding for the District Court to make that decision.

(Citation omitted.)  This seems like Inside Baseball stuff, but a reasonable reader familiar with procedure in cases like this will detect something beyond an "obligation" to analyze the constitutionality of the modified display.  The passage quoted immediately above, for example, is completely unnecessary once Alito has said (and one of his fellow judges on the panel has agreed) that the prior panel made no decision and the matter is within the new panel's purview to decide starting from square one.

Alito is dueling with a dissenting Judge here, too:

[T]he dissent's chastisements about "evad[ing] the reasoning of [the] prior panel" are mistaken.  We have scrupulously followed what is "binding" upon us:  the prior panel's "holding," i.e., that the original display was unconstitutional and the District Court, in judging the second display, employed incorrect standards.  As for the prior panel's comments about the modified display, the dissent itself acknowledges that these were expressed "in dictum," but the dissent would apparently have us follow these non-binding statements rather than Supreme Court precedent.  This we cannot do.

(Citations omitted.)  Perhaps needless to say, Alito concluded that the modified display did not run afoul of the Establishment Clause under the most recent at the time Supreme Court precedent (and some older ones).  Schundler is an unremarkable case in a time when the Supreme Court itself has trouble establishing a standard for when if ever religious displays are permissible on public land, and there are many cases like this one littering the Circuit level landscape the last ten years.  What a reader takes away is Judge Alito's insistence, in effect, that the previous Third Circuit panel was wrong, and his determination to get it right.  This is an admirable quality for a judge on any issue, and it's gratifying to know that if Alito is elevated to the Supreme Court he brings a willingness to fight to get the First Amendment right with him.

Invitation to participate in religious activities distributed at a public school

Like C.H. v. Oliva, Child Evangelism Fellowship of N.J. v. Stafford Township School Dist. (link is PDF) is a free speech case in which the school district argued that the Establishment Clause trumped the Free Speech clause.  Child Evangelism Fellowship represents a more interesting Establishment Clause discussion by Judge Alito.

Child Evangelism Fellowship was denied the opportunity to distribute information about its Bible club for elementary students and permission slips in fora available to other groups.  Child Evangelism invited students with written parental permission, through pin-ups and flyers, to attend its "Good News Club," a Bible-oriented activity.   Judge Alito's opinion concluded that the schools' denial of an opportunity to distribute literature and participate in informational activities was impermissible viewpoint discrimination under the Free Speech clause.

Noting that the "Supreme Court has not settled the question whether a concern about a possible Establishment Clause violation can justify viewpoint discrimination," Alito nevertheless said "equal access would not result in an impermissible endorsement of religion."  

Child Evangelism's flyers specifically disclaim any school sponsorship. In addition, a reasonable observer, "aware of the history and context of the community and forum," would know that Stafford has a policy of assisting a broad range of community groups, that Stafford plays no role in composing the flyers that are sent home and does not pay for them, and that Stafford teachers do not discuss the flyers in class. If permitting Good News Club [in a Supreme Court case of that name] meetings on school premises shortly after the end of the school day does not convey a message of endorsement, the lesser activities at issue here cannot be viewed as bearing the school's implicit approval.

(Citations omitted.)  The panel went on to reject the argument that any other result is compelled if the "reasonable observer" in question is an elementary school student.  It also ran the facts through the much-maligned Lemon test and found the school's Establishment Clause defense wanting.

Religious exemptions from police department facial hair policy

In an opinion applauded by the ACLU, Alito wrote that a Newark Police Department policy banning beards other than for medical reasons violated the free exercise rights of Sunni Muslims on the force.

F.O.P. Newark Lodge v. City of Newark concerned a 28-year-old policy providing that "[f]ull beards, goatees or other growths of hair below the lower lip, on the chin, or lower jaw bone area are prohibited."  Exceptions were made for undercover necessity and medical conditions such as a skin condition called pseudo folliculitis barbae.  Officers Faruq Abdul-Aziz and Shakoor Mustafa were subject to discipline in 1997 for refusing the shave their beards, citing religious necessity.  The case required Alito and his fellow judges to navigate changing Supreme Court landscape on religious burden cases.

Alito reasoned that heightened scrutiny must be applied to rules where "mechanisms for individualized exemptions" are in place, but where an individual exemption is denied someone based on religious belief or practice.   Reviewing recent cases involving government burdens on the exercise of religion, Alito concluded that precedent required heightened scrutiny for "neutral, generally applicable laws that burden religious activity by affirmatively compelling or prohibiting conduct."  But generally applicable rules involving benefits programs, where benefits are conditioned on making a choice that burdens religious practice, were properly evaluated by a lower, "rational basis" standard.

A 1986 Supreme Court plurality had suggested that where such a denial of benefits situation provided for individual exemptions, but an individual exemption was denied based on religious belief or practice, the action might fall under heightened scrutiny.  The Supreme Court had not followed this suggestion in its Employment Div., Dep't of Human Resources of Oregon v. Smith case, in which individuals fired for ingesting peyote as part of a religious ritual were denied unemployment benefits.  

But the Smith court, Alito said, "did not overrule its prior free exercise decisions, but rather distinguished them."  He accepted the invitation to evaluate Abdul-Aziz's and Mustafa's complaint under heightened scrutiny:  "[W]e conclude that the Department's decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny."  The Department was unable to allege and prove an interest in prohibiting beard growth where religious necessity dictated not shaving so as to withstand heightened scrutiny.  

Like the Free Speech Clause opinions reviewed previously, Judge Alito's Free Exercise and Establishment opinions appear to be the work of a judge who goes to great lengths to protect First Amendment rights.  At least on First Amendment grounds, he is an outstanding choice for the Court from an individual liberty perspective.