He Defends Christmas ... and Hanukkah ... and Ramadan
BY Joseph A. D'Agostino
December 18-31, 2005 Issue | Posted 12/18/05 at 1:00 PM
Kevin Seamus Hasson is busy this time of year.
The founder and president of the Becket Fund for Religious Liberty, a public interest law firm dedicated to protecting religious liberty, Hasson is busy with numerous challenges to Nativity scenes on public property. Author of the new book The Right to Be Wrong: Ending the Culture War Over Religion in America (Encounter, 2005), Hasson once worked under Supreme Court nominee Samuel Alito. He spoke to Register correspondent Joseph A. D'Agostino.
Some will argue that if we continue to allow Christmas trees and menorahs, some day we will have Islamic crescents, Wiccan symbols, pagan symbols, and, some day, devil worshippers. Where does this end?
Jersey City, N.J., in 1997, under Mayor Brett Schundler, had a Nativity scene for Christmas, a menorah for Hanukkah, put up a sign to proclaim Ramadan, and celebrated the Hindu festival of lights with the grand phagwah parade. That was simply the mayor being the mayor. There were significant numbers of Muslims in the community, significant numbers of Hindus in the community, and Christians and Jews as well.
In a rural town in Utah or in Borough Park in Brooklyn, there is simply no point in having a grand phagwah parade because there aren't any Hindus there. As long as the government is faithfully recognizing the culture of the people it serves, there is no difficulty with celebrating some religious elements of one culture and not others.
How did you end up in the line of work that you are in, defending religious liberty?
I went to law school believing that the culture wars were out of hand and needed a Catholic perspective. And that was my intention, to do something like this, right from the first day of law school. Then I started at a big firm with the idea of spending all my pro bono time on religious liberty, only to find that I didn't have any pro bono time. During the Reagan administration at the Justice Department, I became the church-state lawyer in the Office of Legal Counsel with Sam Alito, among others. I left there to join Williams & Connolly, which was the Church's law firm. I spent several years there doing religious liberty law about a third of the time and doing product liability law the other two-thirds of the time. I became convinced that the culture war needed a larger presence than a one-third-time lawyer. So I made a retreat in Rome, and decided I should do full-time what I set out to do when I went to law school and started the Becket Fund.
We opened our doors on May 13, 1994. We were incorporated on Dec. 8 of 1993.
What have been the biggest cases or the most important cases you have been involved in?
Probably the most important case is one that we are involved in at the moment. We're representing the Knights of Columbus and the other kids in the class in defending against Michael Newdow's attack against “under God” in the Pledge of Allegiance, in a case that will almost certainly go to the U.S. Supreme Court.
It will decide not only whether kids can say the Pledge of Allegiance as Congress intended it to be said, it will decide the larger question of whether Americans are allowed to say where their rights come from. When the Knights of Columbus lobbied to have “one nation under God” inserted into the pledge, they and the congressmen and senators who supported them believed it was important to distinguish the Pledge of Allegiance to the American flag from the pledge of allegiance to the Soviet flag.
The pledge of allegiance to the Soviet flag was the recognition that the Soviet state was the source of all rights, and therefore could modify or revoke them at will. The American state had to be humble before a greater source of its rights. They were endowed to each individual by his or her Creator.
This was nothing other than the incorporation, by reference, of the Declaration of Independence into the Pledge of Allegiance.
Logically, then, if you can't recite the Pledge of Allegiance with its language of “one nation under God,” you can't recite the Declaration of Independence's language about being endowed by our Creator. Or put differently, Mr. Newdow is claiming a right not to hear our long-standing conviction of where our rights come from. If he succeeds in establishing that right, he will have turned American rights theory precisely on its head.
Hasn't the Supreme Court already decided, or isn't it thought by public school officials that it has been decided, that it is unconstitutional to teach children that their rights come from God?
That may well be the practice at public schools. Lots of crazy things are the practice at public schools…. Hillsboro, N.J., banned Valentine's Day because it's named after a saint, and if you're a 12-year-old boy with a crush on a 12-year-old girl in Hillsboro, you have to embarrass her with something called a Special Person card, because Feb. 14 is not Valentine's Day anymore, it's Special Person Day.
In Lansing, Mich., the Easter Bunny was caught violating the separation of church and state and summarily replaced with a breakfast with the Special Bunny.
There is an understanding among some people that religious liberty in this country really embraces only a Judeo-Christian range, and, for example, the religious freedom of Muslims to have multiple wives is not protected by the Constitution. And the freedom of descendants of Aztecs to perform human sacrifice is not protected by the Constitution. So when we say we're for religious liberty, are we really saying it's for all or in a Judeo-Christian context?
We mean religious liberty for all. It's not that religious liberty is less for Muslims. Muslims are welcome to wear their beards in the Newark Police Department because of the Becket Fund; they are welcome to wear their hijabs (headscarves); they are welcome to pray the required times in public schools in Texas because of the Becket Fund.
But they, like Mormons, an American home-grown religion, are not free to commit bigamy. That's not because they're Muslims, or Mormons, but because there are limits on all freedoms, including religious freedom. That limit is public health, safety, and morals.
Tell me about Samuel Alito.
Samuel Alito is a regular guy who happens to be a legal genius.
He has all the benefits of an Ivy League education, but he also has all the benefits of growing up as the son of an Italian immigrant. He's never forgotten that.
Sam treats his employees the same way he treats his fellow judges the same way he treats the lawyers who appear before him the same way he treats a taxi driver. He's humble and down to earth with all of them, and to treat all of them the same is quite an accomplishment, especially for someone who has spent so much time in Washington.
But having said that, he's a legal genius, and he will very respectfully and in a very soft-spoken way, insist that every “i” be dotted and every “t” be crossed, and that's what makes him such a fine judge and such a principled one at that.
What can you say about his general legal philosophy?
I have appeared before him four times now in arguing cases before the 3rd Circuit, and he is meticulously committed to adhering to the Constitution, and at the same time not going an inch farther than he has to in deciding any given case.
So he's conservative in the sense that he's committed to the Constitution as it is rather than as someone thinks it ought to be, and he's conservative in the sense he will not reach out to decide great questions if there is no need to do so.
What is his attitude toward precedent?
Judge Alito in my experience has given due weight to precedent, no more, no less.
Joseph A. D'Agostino writes from Washington, D.C.
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