Jack Reed’s Reservations about the Free Exercise of Religion and His Vote Against Samuel Alito

Senator Jack Reed has announced his opposition to confirming Judge Alito to the Supreme Court and voted to filibuster the nominee. According to a statement by Senator Reed, first amendment concerns play a prominent role in his opposition…

The first amendment protects Americans' religious liberties through two clauses that work in tandem: the free exercise clause and the establishment clause. I worry that if confirmed, Judge Alito would upset the careful balance the Founders sought in constructing the first amendment. In fact, Judge Alito seems to interpret the establishment clause as a rarely applicable part of the first amendment. He applies the free exercise clause on a much broader basis, often interpreting establishment clause cases as free exercise cases. He seems to see a plaintiff's complaint of establishment clause violations as attempts to block the free exercise of religion.

In other words, Senator Reed opposes Judge Alito because he believes that Judge Alito believes too strongly in the free exercise of religion. An example of what this means comes from the Senator’s criticism of Judge Alito’s opinion in Child Evangelism Fellowship v. Stafford Township (2004).

CEF had requested permission to distribute materials in the Stafford schools, in the same way that other groups, including the Cub Scouts, the Ocean County Girl Scouts, the Long Beach Island Foundation of the Arts and Sciences, the Ocean County Library, Stafford Township Volunteer Fire Company #1, the Stafford Basketball Club, Pop Warner football, and the PTA, were allowed to distribute materials. However, the school administration denied CEF‘s request (and denied CEF’s request to participate in a back-to-school night) arguing that religious organizations do not have the same rights of free speech and public access enjoyed by non-religious organizations.

Judge Alito -- and the panel of third circuit Judges who heard the case -- disagreed. Alito wrote an opinion stating that Stafford could not treat CEF differently from other organizations simply because CEF was a religious organization.

Senator Reed stands by the position of the school district; strict government regulation of religious organizations, to the point of banning religious organizations from public access granted to non-religious organizations, is permissible in the public sphere. Reed, apparently, thinks that treating religious organizations as the equals of non-religious organizations would upset his "careful balance".

Is the contrary view -- that religious organizations should enjoy the same freedom of speech enjoyed by non-religious orginazations -- really a radical position that justifies a filibuster? Is Senator Reed really representing Rhode Island when he embraces discrimination based on religious beliefs?