Agencies Weighing New Court Strategy

Alito Is Seen As Swing Vote On Church-State

By E.J. Kessler

Published January 20, 2006, issue of January 20, 2006.
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The expected confirmation of Judge Samuel Alito is prompting Jewish organizations to re-examine their strategy of bringing cases involving church-state separation and other civil rights matters to the Supreme Court.

Officials at several Jewish agencies, including the American Jewish Congress, the American Jewish Committee, the Anti-Defamation League and the Religious Action Center of Reform Judaism, said they might try to keep cases out of the high court in hopes of getting results more to their liking in lower courts, Congress and state legislatures.

The Jewish organizations, besides pressing their own matters, frequently write “friend of the court” briefs offering liberal arguments in important church-state cases. Alito’s 15-year record as a federal appeals court judge shows him to be supportive of more religious expression in public venues, such as crèches on government property, and of freer exercise of religion on the part of individuals, such as the wearing of religious headgear and beards. His record, according to some observers and critics, also demonstrates a degree of skepticism toward those claiming to be victims of discrimination. According to a Washington Post analysis, in civil rights cases — as is typical of Republican appointees — Alito has sided against people claiming discrimination about 75% of the time.

“The Jewish community benefited significantly from the Warren and Burger courts’ robust expansion of rights to women and minorities and its expansion and robust interpretation of the free exercise and establishment clauses [of the Constitution],” said Rabbi David Saperstein, head of the Reform action center. The center opposed Alito’s nomination. “For the first time the promise of the framers, that one’s rights and opportunities not be limited by religion, really became a reality. We saw Jews move to the center of American life. Now we’re in danger of watching the high court substantially retrench the expansion of those rights and punch holes in the wall of separation of church and state. Judge Alito’s nomination is likely to speed up this process.”

Though officials at the ADL, AJCommittee and AJCongress appeared to share Saperstein’s concerns, their organizations all stuck to their general policy of not weighing in on judicial nominees. In addition to the Reform Action Center, the National Council of Jewish Women and the Workman’s Circle/Arbeter Ring are opposing Alito’s nomination.

Alito has been endorsed by Agudath Israel of America, an ultra-Orthodox organization. The Orthodox Union, representing 1,000 congregations, has defended the nominee against liberal critics but stopped short of a formal endorsement.

The Senate Judiciary Committee is expected to vote January 23 on Alito’s nomination. Debate on the nomination by the full Senate is expected to start two days later.

Saperstein said that, assuming Alito would form a strong conservative bloc with justices Antonin Scalia, Clarence Thomas and John Roberts, “the Jewish community will have to be more careful of what cases to bring to the high court.”

“We’ll have to fight more battles at the legislative level, both in Congress and in state legislatures, where, for example, many state constitutions still have robust establishment clauses,” Saperstein said, adding that when cases do come before the high court, Jewish groups would have to shape their arguments more strategically in order “to win those justices in the middle.”

The assistant executive director and general counsel of the American Jewish Congress, Marc Stern, concurred with Saperstein’s assessment.

“Alito looks like he’s going to be very hardline,” Stern said. “We will be looking for cases that are very clean, in the sense that there are clear violations” of the line separating church and state.

Stern said that civil liberties groups probably would not bring cases against government displays of the Ten Commandments or against nonsectarian references to the divine, such as the phrase “under God” in the Pledge of Allegiance.

At the same time, Stern said, the push by conservative Christian groups for more religious symbolism and speech in the public square would make it harder not to litigate some issues.

“They’re pushing Intelligent Design, religious symbols, praying in Jesus’ name,” Stern said. “All of that, if it’s not moderated in their own community, is going to make it difficult in following a low-key strategy.”

Orthodox groups have been defending Alito, arguing that the Jewish community would benefit from his expansive interpretations in cases involving the free exercise of religion.

“I think we know more about what Judge Alito thinks about the free exercise clause than the establishment clause,” said, Nathan Diament, Washington representative of the Orthodox Union. The union frequently argues in court cases for the expansion of religious liberties and a lower church-state wall. “The whole Jewish community should be very encouraged by his free exercise record. I would hope we get some free exercise cases up before the court soon with an eye toward rolling back Scalia’s opinion in the Oregon v. Smith case, which the entire Jewish community has denounced.”

Diament was referring to a 1990 decision allowing the state to forbid the use of peyote in a Native American religious ritual, on the grounds that the law in question was not crafted or enforced with the goal of targeting any particular religious group. Jewish groups argued that the decision violated the religious freedoms of the tribes and set a dangerous precedent. Diament said the court soon was expected to issue an opinion on a case involving the use of hallucinogenic herbal teas in a religious ritual that would be an important test of the Religious Freedom Restoration Act, a law passed at the urging of Jewish organizations and other religious groups in an effort to limit the impact of Scalia’s decision in the peyote case.

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