Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, October 31, 2005

Alito on Free Exercise of Religion

In addition to other opinions that will be discussed (most notably his dissent in Casey that would have upheld spousal notoficiation for abortion), Alito is also the author of what is currently one of the most important decisions under the Free Exercise Clause: Fraternal Order of Police v. Newark, 170 F.3d 359 (3d Cir. 1999).  The decision held that a Muslim police officer had a constitutional right to wear a beard as required by his faith, notwithstanding a police department rule prohibiting facial hair, because the department had already made a similar exception for officers needing to wear a beard for medical reasons (such as a sensitive-skin condition).  The opinion has been highly influential in the wake of Employment Division v. Smith, the peyote case, which had rejected  exemptions from law for religious conduct when the law in question was "neutral and generally applicable."  Alito, in a careful opinion, wrote that the presence of the other major exemption made the department policy not generally applicable and suggested that the department regarded other interests as more important than the constitutional right of religious exercise.  This is the best reading of the free exercise right, I believe, but it was not compelled by precedent.  It suggests a hospitable attitude on Alito's part toward religious freedom, within the bounds of precedent and the historical purposes of the Free Exercise Clause.   And as the case indicates -- and as with so many cases involving free exercise -- a hospitable attitude toward religious freedom is also a hospitable attitude toward religious and cultural (even ethnic) minorities such as Muslims.

Alito has written several other opinions concerning religion and the state under the First Amendment (see here and here for starts at analysis). 



Berg, Thomas | Permalink

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Tracked on Oct 31, 2005 11:11:53 AM