The Congress has passed the Defense of Marriage Act, DOMA, passed overwhelmingly, signed into law by President Clinton. It basically did two things. First, it establishes for purposes of federal law, marriage would be defined as a union of a man and woman. And second it provided that no state would be forced to recognize a marriage entered into in another state.
A number of legal scholars believe this second part violates the full faith and credit clause of the Constitution.
Judge Alito, this case is coming forward and will probably be resolved in the federal courts, if it isn't resolved by the Congress through a constitutional amendment. What is your understanding of the meaning of the full faith and credit clause, and does this apply to the institution of marriage, which has been traditionally an issue and an area left up to the states?
ALITO: Well, several constitutional doctrines seem to be implicated by the matters that you have discussed.
ALITO: The full faith and credit clause in general means that one state must honor judgments that are issued by a court of another state, and it's an important part of the process. It is an important part of the federal system, so that we don't have warring decisions in different states.
I have not had cases involving this, but there are -- the doctrine has certain boundaries to it. There are exceptions and it covers certain areas and doesn't cover other areas. And a challenge to the Defense of Marriage Act under the full faith and credit clause would call into question the precise scope of the doctrine. And I believe that scholars have expressed differing views about how it would apply in that situation. And that's an issue that may well come up within the federal courts, almost certain to do so. ....
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....Alito:: The Constitution was adopted to endure throughout the history of our country. And considering how long our country has existed, it's been amended relatively few times.
And the magic of that, I think, is that it sets out a basic structure for our government and protects fundamental rights. But on a number of very important issues, I think the framers recognized that times would change, new questions would come up. And so they didn't purport to adopt a detailed code, for example, governing searches and seizures. That was the example I gave yesterday, and I'll come back to it.
ALITO: They could have set out a detailed code of search and seizure; they didn't do that. They said that the people are protected against unreasonable searches and seizures, and they left it for the courts -- and, of course, the legislative body can supplement this -- to apply that principle to the new situations that come up.
Now, when that is done, that doesn't amount to an amendment of the Constitution or a changing of the Constitution. It involves the application of a constitutional principle to the situation at hand.
BROWNBACK: Let me go to a specific area you have written quite a bit about, and that's on religious liberties and free exercise.
And I've looked at these cases. And this is going to be an active area of law in front of the Supreme Court. It has been for the last 40 years.
You wrote the case of ACLU v. Schundler, 3rd Circuit case considered ACLU challenge to religious displays erected by Jersey City on the plaza of city hall. Jersey City, for decades, it had holiday displays of menorah and Christmas tree. Litigation resulted in permanent pulling of this. The city came back, said, "OK, if that's not good enough, we'll put a nativity scene, a menorah, Christmas tree, Frosty the Snowman, Santa Claus, Kwanzaa symbols and signs explaining the display. So, OK, if two is not enough, we'll add more into that."
And they were again challenged by the ACLU. District court found no constitutional violation.
Panel 3rd Circuit, not including you, reversed that decision. Panel found no basis for the demystification approach, as they put it, and expressed skepticism as to constitutional display.
BROWNBACK: On remand, district court held that there was a constitutional violation. The city appealed. You sat on the panel that heard that appeal. In a 2-1 decision, you upheld the constitutionality of the modified display.
In your decision, you specifically cited Justice O'Connor and two particular issues regarding excessive entanglement with religious institutions and government endorsement or disapproval of religion.
Because Justice O'Connor used these factors to uphold similar displays in prior cases, you applied them to your upholding that Case. That's a correct interpretation; is that correct?
ALITO: Yes, it is, Senator.
BROWNBACK: Because these are coming up so much in front of the court, are these types of displays, you feel -- generally -- constitutionally permissible?
ALITO: Well, this is an area in which the Supreme Court has handed down several decisions. And like a number of the issues that the court has addressed under the establishment clause, it has drawn some fairly fine lines.
The first case involving a display of this nature was the Pawtucket, Rhode Island, display that was involved in Lynch v. Donnelly. And it was a display that was similar to the display in Jersey City. It included both religious and secular symbols. And they found that that was not a violation.
BROWNBACK: I want to jump in here, because I've several areas I want to go at. When I read your opinions, what I hear you to write is you would rather have a robust public square ...
