Saturday, November 26, 2005
Not-getting Alito on religion
Emily Bazelon has an essay up at Slate.com called "God Help Him: Alito Gets Religion." Bazelon is an excellent writer, and very helpful on law- and Court-related matters. But she misses the boat here, I think:
Sam Alito, Champion of the Religiously Downtrodden—it has a certain ring. Alas, it also largely falls apart upon closer examination. . . .
Alito's religious-liberty opinions are mechanistic applications of precedent. They reveal little about the stance he'd take toward religious liberty as a justice of the Supreme Court. Meanwhile, his church-state opinions are consistently, predictably, conservative. When his rulings on religion are taken as a whole, their most noteworthy aspect isn't Alito's independence. Rather, it's his fealty to the view—fervently espoused on the current court by Antonin Scalia—that the government must give religious groups the same access to public benefits that it gives secular ones. As in, if the Boy Scouts or the town fire department can meet in a public-school classroom, then so can the local Bible-study group.
For starters, I'm not sure what it means to say that Alito's religious-freedom opinions are "mechanistic applications of precedent." I mean, it is true that -- to his credit -- Alito "appli[es] . . . precedent" in his religious-freedom opinions, but the cases being cited by Alito's supporters as evidence for his sensitivity to religious-freedom concerns hardly decided themselves. Nor am I sure what it means to say that the church-state opinions discussed in the essay are "consistently, predictably conservative" -- except that, perhaps, they reach results on equal-treatment and neutrality grounds that are consistent with the published views of a majority of our allegedly "conservative" Supreme Court. Finally, Bazelon's effort to link Alito's approach to the bogeyman of Justice Scalia is quite misleading: She knows full well that Justices O'Connor and Kennedy, no less than Scalia, have consistently endorsed the view that view that "the government must give religious groups the same access to public benefits that it gives secular ones." Is the idea that to point out Alito's agreement here (as in nearly every other context) with Justice O'Connor would not do enough to scare Slate's readers?
https://mirrorofjustice.blogs.com/mirrorofjustice/2005/11/notgetting_alit.html