Posted by Emily Kane, Legislative Assistant

Below you will find the exchange between Sen. Durbin (D-IL) and Judge Alito from Day 2 of the hearings focusing on Alito’s interpretation of the 1st Amendment, the Establishment Clause, and Free Exercise.

January 11, 2006

DURBIN: Fair enough.

Let me move to another area. I hate to return to that infamous 1985 memo, but there's one elements of it we've really not asked you about, and that is your reference to the establishment clause. So instead of going into that memo, let me just try to explore with you for a moment your feelings about religion.

You've heard some questions about religion in our diverse society under the Constitution. You've heard some questions from the other side about it, from Senator Brownback, Senator Cornyn and others. And I would like to try to get into this a little bit.

There seems to be a debate within the court between two standards for judging conduct as to whether it's constitutional in relation to freedom of exercise of religion, as well as establishment. And the two theories, if I can describe them quickly, are the Lemon theory, which has three tests, that the Burger court came out with in 1971, and the new coercion theory.

Are you familiar with both of those theories?

ALITO: I am. And there's actually a third theory, the endorsement test.

DURBIN: Where do you come down? So you subscribe to any one of those as an accurate analysis of what the founding fathers meant under the establishment clause?

ALITO: I don't think the court has settled on any single theory that it applies in every case. There are cases in which it finds the Lemon theory, the Lemon test, which now has two parts, whether the statute has -- whether whatever is at issue has a secular purpose and whether the primary effect is to advance or inhibit religion. There are instances in which it applies that. It tends to apply that in cases involving funding.

There is the endorsement test, and it applies that in certain cases. Typically, it applies those in cases involving things like the displaying of symbols that have religious significance.

So it itself has not found a single test that it applies in all of these cases.

DURBIN: Well, where are you? If the court is divided, and it appears it is, where do you come down? Please tell me.

ALITO: Well, I do not myself have a grand, unified theory of the establishment clause. As a lower court judge, of course, my job has been to apply those precedents. And this is an area in which I think the court has been -- you can just see by the number of cases that it has decided, it has been attempting to find the best way of expressing its view of what the establishment clause requires.

ALITO: I certainly agree that it 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. It's a very important principle. But I, myself, do not have a grand unified theory of this.

DURBIN: Let me ask you a few starting points: The question was asked of John Roberts about his personal, religious and moral belief. And I would ask you, in the most open-ended fashion.

We all come to our roles in life with life experience and with values. When you are calculating and making a decision, if you were on the Supreme Court, tell me what you are personal, religious, or moral beliefs -- what role that will play in that decision process.

ALITO: Well, my personal religious beliefs are important to me in my private life. They are an important part of the way I was raised and they have been important to Martha and me in raising our children.

But my obligation as a judge is to interpret and apply the Constitution and the laws of the United States and not my personal religious beliefs or any special moral beliefs that I have.

And there is nothing about my religious beliefs that interferes with my doing that. I have a particular role to play as a judge. That does not involve imposing any religious views that I have or moral views that I have on the rest of the country.

That is virtually the same answer given by Justice Roberts. And I think, from my point of view, that is the right answer. It's the same challenge many of us face on this side of the table with decisions that we face.

Now, I asked Judge Roberts the following: Does the free exercise clause, in addition to the establishment clause -- does it protect the right of a person to be respected in America if they have no religious beliefs -- the nonbelievers?

ALITO: Yes, it does. It is freedom to worship or not worship as you choose. And compelling somebody to worship would be a clear violation of the religious -- the religion clauses of the First Amendment.

DURBIN: Let me go to a specific case: Black Horse Pike Board of Education case, which you were involved in. And it's an interesting case. And I hope this fact pattern I described to you is correct.

The school board policy allowed the seniors at this school to vote on having a graduation prayer. And the decision was suggested whether that was coercing students who didn't agree with that religious prayer or had no religious belief.

What is your feeling or what was your feeling at that time when it came to that decision?

ALITO: Well, that was a case that followed Lee v. Weisman and preceded the Santa Fe case which dealt with a prayer before a football game. Lee v. Weisman involved a situation in which the principle -- and that was the most directly relevant and a rather recent precedent at the time of the Black Horse Pike case.

In Lee v. Weisman, the principal of a middle school, as I recall, decided that there would be an invocation at the middle school graduation and selected a member of the clergy, a local rabbi, to deliver the prayer and specified the nature of the prayer that would be appropriate for the circumstances. The Supreme Court held that that was a violation of the establishment clause.

The case that we considered in the Black Horse Pike case involved a situation in which the high school left it up to the students through an election to decide whether there would be a prayer at the high school graduation and left it up to them to select the person who would conduct the prayer, the student who would lead them in the prayer, if they decided by a vote to do that.

So our job at that point was to decide whether this fell on one side or the other of a line that I referred to earlier which Justice O'Connor very helpfully -- the distinction that she drew between government religious speech, which is not allowed, and 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. And what you have here...

DURBIN: This is with respect to the Olivia case, where the student comes up with the drawing of Jesus, and that is a voluntary, personal and private expression, as you have described it.

ALITO: That's correct. And the Supreme Court has recognized this in a number of cases. In the Rosenberger case and the Good News Club case and the Lamb's Chapel case, they've drawn this distinction.

So here we had a situation involving an election by the students to pick somebody to lead them in prayer, and which side of the line did it fall on? Well, it wasn't individual student speech, but it was collective student speech by way of an election. And that was what we had to decide, which side of the line it fell on. Judge Mansmann, who wrote the opinion that I joined in that case, explained why we thought it fell on the side of the line of individual student speech.

DURBIN: Let me ask you about that; let me explore it for a second. You are dealing with a school board policy. A school board is a government agency. They've set up the policy, so it is not coming entirely from a voluntary personal situation like the Olivia case. And you know that the majority is going to rule in the decision on whether there will be a prayer and what the substance of the prayer will be.

DURBIN: How, then, could you respect the rights of the minority, including people with different religious beliefs and nonbelievers, if you leave it up to a majority vote?

ALITO: Well, that factor is why it was a case that didn't -- there could be a debate about which side of this line it fell on. Now, I think there also was a disclaimer that was distributed at the time of the graduation explaining to anybody who was in attendance that the prayer was not endorsed -- if there was a prayer, it wasn't endorsed by the school board and that this was a decision of the students.

There are factors there that fall on one side of the line. There are factors there that point to the case being put on one side of that line, factors that point to putting the case on the other side of the line.

And Judge Mansmann's opinion explained why she thought -- and I agree that it would fall on the private student speech side of the line. But it was a question that was debatable.

And then the Santa Fe case came along later. It didn't involve exactly the same situation, but it involved the related situation -- and that is now the Supreme Court's expression of its opinion in the form of a precedent on the application of this test that I've been talking about, a situation like this.

DURBIN: Let me ask you, as you've described it, this is not an easy call. I mean, there are circumstances on both sides. And yet, in your dissent, you used the phrase -- referring to the majority -- as "hostility toward religion."

It seems to me that you could make a case that I'm not hostile toward religion but trying to be sensitive to the rights of all to believe or not to believe in America and come down on the opposite side of the case.

Were you overstating your position in using that phrase, "hostility toward religion," in describing the majority?

ALITO: It was Judge Mansmann's opinion, which I joined. And I don't remember the phrase "hostility to religion." Obviously, it must be in there.

I certainly don't think that she meant to suggest that those who were objecting to this were proceeding in bad faith or even that they were hostile to religion.

ALITO: I think what she -- I can't speak for her and I don't recall the specific language, but looking at it now, the way I would put it was that she probably thought that this was not giving as much room for private religious speech as should be given.

DURBIN: Interesting that when you -- I couldn't tell you what in the heck I ever wrote in law school about anything.

But in your second year in law school you wrote a paper, I take it, some research paper which you had to tell us about here relative to the issue of religion and then, in the '85 memo, raised the question about the Warren court on the establishment clause.

What was it that the Warren court decided on the establishment clause that troubled you, if you remember?

ALITO: Well, I actually think that the student note from the Yale Law Journal is an illustration of the sort of thing that has interested me and troubled me about the jurisprudence in this area for a long time.

In the law school note, I talked about two of what are called the release time cases. It was the McCollum case...

DURBIN: Versus...

ALITO: ... versus Clausen, both of which were decided just before Chief Justice Warren took his seat. And they involved situations that were quite similar.

There was a distinction between the two programs, but they were quite similar and the court reached contrary conclusions. And unfortunately, this has been a recurring pattern in the establishment clause jurisprudence, cases that turn on extremely fine distinctions.

The Supreme Court held in Board of Education v. Allen, if I'm remembering the correct case at the end of the Warren court, that it was permissible for a school board to supply secular books to schools that are related to a religious -- that are religiously oriented. And then later in another case, I think it was Wolman, they said but you can't -- but that doesn't apply to other instructional material, other secular instructional material.

And this has been the thing about the establishment clause that has bothered me: the absence of just what your initial question was pointing to, some sort of theory that draws distinctions that don't turn on these very fine lines.

DURBIN: Tell me about the establishment clause in a more contemporary context, if you can. You talked about the case in the Warren court and providing secular books to religious schools, which I find no problem with. I think that's acceptable from my point of view, whatever that's worth.

But what about the concept and theory of financial support from a government agency to a school that is a religious school, where the money is used for the purpose of teaching religion or proselytizing?

ALITO: Well, I think the court's precedents have been very clear on that, that a government body cannot supply money to a school for the purpose of conducting religious education. And I don't recall a suggestion in dissenting opinions -- maybe there is one that I'm not recalling here -- that says that that would be permissible.

DURBIN: I'm running out of time, but it would go back to my first question. I think under the coercion test, there is some argument among some on the court and others that, not applying Lemon, but using this new coercion test may give them more leeway when it comes to this kind of financial support and vouchers. But I don't want to presume that.

And I thank you for your responses to these questions.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Durbin.