Thanks to Rick for his post on Emily Bazelon's article about Alito's Religion Clause opinions. The article also misfires in stating that Alito's opinions on free exercise of religion don't show a "libertarian" streak or a sensitivity to minority rights, but are mere "mechanistic applications of precedent."
The major claim for Alito as a strong free exercise proponent rests on two opinions he wrote, one holding that a Muslim police officer in Newark should be able to wear a beard notwithstanding a departmental grooming policy against facial hair (Fraternal Order of Police v. Newark, 170 F.3d 359), and another holding that a Native American holy man (Dennis Blackhawk) was unconstitutionally burdened by a $200 license fee he was charged for keeping a bear that he used in religious rituals (Blackhawk v. PA, 381 F.3d 202). Both decisions mandated an exemption from the laws in question under the Free Exercise Clause, notwithstanding the Supreme Court's ruling in Employment Division v. Smith that such exemptions are not required when the law is "neutral and generally applicable."
Bazelon thinks that these opinions don't reveal much about Alito's commitment to free exercise:
Alito simply followed the Supreme Court, which has said (even in Smith) that the state doesn't get a free pass when it offers an exemption to a law to people who ask for special treatment based on a secular rationale but denies the same exemption to other people who ask for special treatment for a religious reason. Pennsylvania exempted circuses and zoos, among others, from paying licensing fees for their wild animals. Newark let police officers keep their beards if they asked to because of a medical condition. So, why couldn't Dennis Blackhawk keep his bear and the Muslim cops keep their beards? Pennsylvania and Newark lost because they didn't have a good enough answer. Alito didn't stick his neck out to promote religious liberty by finding in favor of Blackhawk and the Muslims, argues Cardozo law professor Marci A. Hamilton, author of the recent book God vs. the Gavel. In light of Supreme Court precedent, he didn't have to.
It's true that in basing a religious-liberty exemption in these cases on the presence of secular exceptions in the law, Alito did not challenge the Smith ruling that exemptions are not required when a law is generally applicable (as a court of appeals judge, he of course couldn't make such a challenge). Rather, he ruled that the presence of other exemptions made the law not generally applicable and therefore triggered strict constitutional scrutiny.
But it is a real overstatement to call these two religious-liberty decisions mere "mechanistic applications of [Supreme Court] precedent." The Alito decisions hold that one comparable exemption for secular interests is enough to render a law not generally applicable, and therefore to require an exemption for religious-liberty interests unless there is a compelling reason to deny it. This is not the only reading of the Smith "general applicability" rule that is out there. For example, another prominent conservative judge, Diarmuid O'Scannlain of the Ninth Circuit, wrote in a 1999 case (Thomas v. Anchorage, 165 F.3d 692) that a law does not trigger strict review under the Smith approach unless it has a lot of exceptions, that is, unless its "underinclusiveness" -- the amount of secular conduct it leaves unregulated -- is very "substantial":
Underinclusiveness is not in and of itself a talisman of constitutional infirmity; rather, it is significant only insofar as it indicates something more sinister. In [the key previous case,] the [Supreme] Court considered considered the ordinances' lack of neutrality and generally applicability as a proxy of the [l]awmakers' illicit intention to single out the [particular] religion for unfavorable treatment.
The O'Scannlain decision says that when a law has "only a single exception," it is still generally applicable and the "permissive Smith standard" still applies. There must be so many exceptions that they show an intent to "single out" or "target" religion.
There is a big difference between the Alito and O'Scannlain approaches. Many laws have one or a few exceptions but not so many that they go to the point of "singling out" religious conduct. Thus the Alito approach would protect free exercise in many more cases, often involving minority religions such as the Muslims and Native Americans in the cases in which Alito sat. The approach has already been used in other cases, in Alito's circuit and elsewhere, to protect Native Americans and Orthodox Jews.
I think that the Alito approach is the better reading of the Free Exercise Clause and the purposes underlying it: when the state exempts secular interest but not comparable religious ones, it sends a message that religious freedom is less important, a message inconsistent with its status as a constitutional right. Alito's approach, requiring exemptions in such cases, salvages a good deal of protection for free exercise even in the face of the Smith decision. But even though I'm a strong proponent of this approach, I cannot claim that it is a mere "mechanistic application" of Smith. Rather, Alito's approach shows that, in an instance where (even as a lower court judge) he could have opted for minimal free-exercise rights or significant rights, he chose the latter. More than any other judge in the country, he is responsible for this approach finding its way into the law. It says a good deal about his attitude toward free exercise.
I must say, though, that I'm happy to have Marci Hamilton -- probably the nation's leading opponent of broad protection for free exercise of religion -- on record as saying that the Alito protective approach is essentially compelled by Smith!
Tom
The ZENIT news organization reports that, during a recent visit to the Pontifical Academies of Sciences and of Social Sciences, Pope Benedict XVI said that (in ZENIT's words) an "aim of Christianity is to put the person at the center of the social order[.]" Quoting the Pope:
"According to God's design, persons cannot be separated from the physical, psychological or spiritual dimensions of human nature," the Pope said in his address today . . ..
The Holy Father focused on a theme on which the Pontifical Academy of Social Sciences is reflecting, "The Concept of the Person in the Social Sciences."
"Even though cultures change over time, to suppress or ignore the nature that they claim to 'cultivate' can have serious consequences," Benedict XVI said. "The concept of person continues to bring about a profound understanding of the unique character and social dimension of every human being.
"This is especially true in legal and social institutions, where the notion of 'person' is fundamental. Sometimes, however, even when this is recognized in international declarations and legal statutes, certain cultures, especially when not deeply touched by the Gospel, remain strongly influenced by group-centered ideologies or by an individualistic and secularist view of society."
The Holy Father continued: "The social doctrine of the Catholic Church, which places the human person at the heart and source of social order, can offer much to the contemporary consideration of social themes."
