WASHINGTON — The religion clauses of the First Amendment protect nonbelief as well as religious faith, Judge Samuel Alito told the Senate Judiciary Committee late Jan. 11 as the hearings on his confirmation as a Supreme Court justice neared their end.
Questioned by Sen. Richard Durbin, D-Ill., Alito also said he had no "grand, unified theory of the establishment clause."
Alito added, however, that prohibiting government establishment of religion "embodies a very important principle and one that has been instrumental in allowing us to live together successfully as probably the most religiously diverse country in the world and maybe in the history of the world."
When Durbin asked if the establishment and free-exercise clauses protected nonbelievers' right to have no religious faith, Alito said yes.
"It is freedom to worship or not worship as you choose," Alito said. "And compelling somebody to worship would be a clear violation of the religious - the religion clauses of the First Amendment."
Durbin pressed Alito to explain a 1995 ruling by the 3rd U.S. Circuit Court of Appeals in a case involving prayer before a public school graduation, ACLU of New Jersey v. Black Horse Pike Regional Board of Education.
Alito took part in deciding the case, in which the high school allowed the students to vote on whether to precede the ceremony with prayer, and to select a student to lead it if so. The 3rd Circuit's job, Alito told Durbin, was to decide whether such a procedure constituted "government religious speech, which is not allowed," or "private religious speech, which is protected."
"The government itself cannot speak on religious matters, but the government also can’t discriminate against private religious speech," Alito said. He concurred with the 3rd Circuit's opinion in the case that the voting system represented "individual student speech."
When Durbin asked how such a majority-rule procedure could respect the rights of a minority of students of a different faith or no faith, Alito said that a "disclaimer" was to be distributed to those attending the graduation stating that the school board did not endorse the prayer.
Funding religious schools
Turning to another religious-liberty issue, Durbin asked whether a government agency should be allowed to give money to a religious school for the purpose of religious teaching and proselytizing.
"I think the Court's precedents have been very clear on that," Alito responded, "that a government body cannot supply money to a school for the purpose of conducting religious education."
Confirmation prospects appear good
Alito's nomination to the Supreme Court is gliding toward confirmation despite a week of hearings in which Democrats tried to hobble his prospects with withering questions on abortion, presidential power and ethics.
Democrats argue that the former Reagan administration lawyer is likely to tip the Court's balance to the right in replacing centrist Sandra Day O'Connor. But with little success so far peeling away Alito's support to be the 110th U.S. Supreme Court justice, the Democrats were noncommittal about trying to mount a filibuster, a parliamentary delaying tactic, on the Senate floor. The chances of one appeared slim.
Instead, they are seeking to slow Alito's ascension by demanding that the Judiciary Committee's chairman, Sen. Arlen Specter, delay the panel's vote a week.
Senate Democratic leader Harry Reid "is urging all Democrats to refrain from committing to a vote either for or against confirmation prior to the caucus next Wednesday," Jan. 18, Reid spokesman Jim Manley said.
The hearings wound toward a close today with testimony from law professors, former colleagues and a representative of an abortion-rights group.
Kate Michelman, former president of the National Abortion and Reproductive Rights Action League, told the panel that Alito's promise to approach cases that affect abortion rights with an "open mind" does not mean he would follow O'Connor's model of independence.
Democrats want to give their caucus time to study the hearing transcripts, Manley said.
"I don't think he's going to get many votes from Democrats on the committee," Sen. Charles Schumer, a New York Democrat on the committee, told CBS television's "The Early Show."
"As for a filibuster, it's something we'll have to discuss. So it's not on the table or off the table right now," Schumer said.
At least two moderate Republicans in the "Gang of 14" — centrist senators who have promised not to participate in a judicial filibuster without there being "extraordinary circumstances" — have said they would not support a filibuster on Alito.
Sen. Olympia Snowe "does not believe that Judge Alito warrants a filibuster," spokeswoman Antonia Ferrier said yesterday. Sen. Lincoln Chafee "has said he has not seen any extraordinary circumstances," spokesman Stephen Hourahan said today.
Republican senators, both on and off the committee, praised Alito, who has been a federal appeals court judge for the past 15 years, as his testimony ended yesterday.