WASHINGTON — In presenting a virtual keynote speech to the Federalist Society’s annual National Lawyer’s Convention on Thursday, Supreme Court Justice Samuel Alito expressed his concern that religious liberty is “in danger of becoming a second-class right,” and along with that, freedom of speech.
“It pains me to say this, but in certain quarters, religious liberty has fast become a disfavored right,” he lamented.
Alito noted that not too long ago, in 1993, Congress nearly unanimously passed the Religious Freedom Restoration Act (RFRA), which was then gladly signed into law by then-President Bill Clinton. But today, should a state seek to pass legislation that mirrors RFRA, they are “threatened with punishing economic boycotts.”
The Supreme Court now also finds itself being presented with cases that are demonstrative of this same “trend,” he outlined, pointing to the Little Sisters of the Poor legal challenge, in which Catholic nuns who ran a charity for the indigent and elderly fought to have the right to not include contraceptive coverage in their employee insurance plans, which violates their religious beliefs.
“For that, they were targeted by the prior administration,” Alito said, referring to the Obama era. “If they did not knuckle under and violate a tenet of their faith, they faced crippling fines — fines that would likely have forced them to shut down their [charitable] homes.”
When the Trump administration sought to grant the nuns and others protection by making allowance in federal rules, States such as Pennsylvania and New Jersey, along with a coalition of 17 attorneys general, then moved to fight the accommodations in court.
While the U.S. Supreme Court ruled in favor of the Little Sisters of the Poor, the matter was sent back to the appeals court and the still fight continues to this day.
Alito also pointed to a case out of Washington, where the Christian-owned pharmacy Ralph’s Thriftway declined to stock the “morning after” pill but sought to refer any such customers to other locations that carry the product.
He noted that there were 30 other pharmacies within five miles, but the State would not allow a religious exemption and rather doubled down that the abortifacients must be carried.
In the Masterpiece Cakeshop case, he outlined, the Colorado Human Rights Commission told Christian owner Jack Philips, that freedom of religion had been “used to justify all kinds of discrimination throughout history,” including the Jewish Holocaust and the enslavement of blacks.
“For many today, religious liberty is not a cherished freedom,” Alito mourned. “It’s often just [considered] an excuse for bigotry and it can’t be tolerated even when there’s no evidence that anybody has been harmed.”
He noted that no one that works for the Little Sisters of the Poor has even sought contraceptives, no one was kept from obtaining the morning after pill just because one Christian pharmacist didn’t stock it, and the homosexual men in the Masterpiece Cakeshop case were even provided a free cake by another bakery.
Alito also provided an example in the present-day, such as two recent cases challenging uneven COVID regulations that place greater restrictions on houses of worship than on secular facilities.
He honed in on the State of Nevada, which had initially closed casinos but later opened them up to 50% capacity — including those that are of significant expanse and would thus hold sizeable crowds — while churches were limited to a 50 person cap, no matter their size.
“So, if you go to Nevada, you can gamble, drink, and attend all sorts of shows, but here’s what you can’t do: If you want to worship, and you’re the 51st person in line, sorry; you are out of luck,” Alito noted. “The size of the building doesn’t matter, nor does it matter if you wear a mask or stay six feet away from everybody else. And it doesn’t matter if the building is carefully sanitized before or after a service.”
“The State’s message is this: Forget about worship and head for the slot machines or maybe a Cirque du Soliel show,” he illustrated.
He said that the matter, which made its way to the U.S. Supreme Court, should have been easy to decide as religion is protected in the U.S. Constitution while gambling is not. Nonetheless, the majority of his colleagues sided with allowing the government to have discretion.
In light of these matters, Alito opined that “religious liberty is in danger of becoming a second-class right.” And it is not just religious liberty that is at risk, but also its companion First Amendment right to free speech — and the two rights overlap.
“You can’t say that marriage is a union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now, it’s considered bigotry,” he lamented.
Alito pointed to his prediction surrounding the 2015 ruling of Obergefell v. Hodges, in which he wrote in his dissent, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but it they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers and schools.”
“That is just what is coming to pass,” he noted. “One of the great challenges for the Supreme Court, going forward, is to protect freedom of speech.”
“Although that freedom is falling out of favor in some circles, we need to do whatever we can to prevent it from becoming a second-tier constitutional right.”
Watch Justice Alito’s keynote speech in full below.