In a Federalist Society speech on Thursday, Supreme Court Justice Samuel Alito raised the alarm about threats to religious freedom, free speech, and the rule of law — threats exacerbated in the “constitutional stress-test” of the Wuhan coronavirus pandemic. These threats are by no means limited to lockdown restrictions and COVID-19 issues, but the virus has highlighted them.
“The pandemic has resulted in previously unimaginable restrictions on individual liberty,” Alito said. “I am not diminishing the severity of the virus’s threat to public health, and putting aside what I will say shortly about a few Supreme Court cases, I’m not saying anything about the legality of COVID restrictions. All that I’m saying is this… we have never before seen restrictions as severe, extensive, and prolonged as those experienced for most of 2020.”
Alito mentioned many “live events that would otherwise be protected by the right to freedom of speech” that state and local governments have prohibited, including the fact that churches were closed on Easter Sunday by government fiat.
“The COVID crisis has served as a sort of constitutional stress-test. And in doing so it has highlighted disturbing trends that were already present before the virus struck,” the justice argued.
Alito first highlighted “the dominance of lawmaking by executive fiat rather than legislation.” He rightly traced this idea back to “the vision of early twentieth-century progressives and the New Dealers of the 1930s … that policy-making would shift from narrow-minded elected legislators to an elite group of elected experts, in a word, that policymaking would become more scientific.”
For instance, a Nevada law gives the state’s governor extraordinary powers. If the governor finds that there is “a natural, technological, or manmade emergency or disaster of major proportions, the governor can perform and exercise such functions, powers, and duties as are necessary to promote and secure the safety and protection of the civilian population.”
Yet the Supreme Court has a duty to step in “whenever fundamental rights are restricted.”
Along those lines, Alito warned that religious freedom has grown increasingly out of favor.
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“It pains me to say this but in certain quarters, religious liberty is fast becoming a disfavored right,” he lamented. He briefly mentioned the Supreme Court case Employment Division v. Smith and Congress’s passage of the Religious Freedom Restoration Act of 1993. The House of Representatives unanimously passed the bill, while the Senate passed it, 97-3. President Bill Clinton signed it into law.
“Today, that widespread support has vanished. When states have considered or gone ahead and adopted their own versions of RFRA, they have been threatened with punishing economic boycotts,” Alito said.
He also briefly covered recent Supreme Court cases illustrating the threat to religious freedom.
Alito mentioned the Little Sisters of the Poor, “women who have dedicated their lives to caring for the elderly poor, regardless of religion.” Some of their beneficiaries have testified that the Little Sisters “will keep you alive for ten years longer.”
“Despite this inspiring work, the Little Sisters have been under unrelenting attack for the better part of a decade. Why? Because they refuse to allow their health insurance plan to provide contraceptives to their employees. For that, they were targeted by the prior administration,” the justice noted.
The Obama administration threatened the Little Sisters with hefty fines “if they did not knuckle under and violate a tenet of their faith.” While the group of nuns won a Supreme Court case last spring, the case went back to the Court of Appeals. President Donald Trump created a religious freedom exemption in the contraception mandate, but Joe Biden has pledged to drop that exemption.
In another case, the State of Washington required pharmacies to carry all contraceptives, including the morning-after pill. The Christian pharmacy Ralph’s refused to carry that abortifacient pill, but it gladly referred women to nearby pharmacies that did carry it. The state decided that this work-around was not enough.
Alito also mentioned Jack Phillips, the owner of Masterpiece Cakeshop who notoriously refused to bake a cake celebrating a same-sex wedding. He cited a member of the Colorado Civil Rights Commission who said that freedom of religion had been used “to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, we can list hundreds of situations where freedom of religion has been used to justify discrimination.”
“For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry, and it cannot be tolerated,” Alito warned.
He mentioned that not a single employee of the Little Sisters has asked for contraception, no woman lacks contraception because of Ralph’s, and no same-sex couple has failed to get a cake because of Jack Phillips.
“A great many Americans disagree, sometimes quite strongly, with the religious beliefs of the Little Sisters, the owners of Ralph’s, and Jack Phillips. They have a perfect right to do so. That is not the question. The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs,” the justice noted.
Alito cited Harvard Law professor Mark Tushnet, who notoriously wrote, “The culture wars are over. They lost, we won.” Terrifyingly, the professor compared social conservatives to the defeated Axis powers in World War II.
“My own judgment is that taking a hard line (‘You lost, live with it’) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all,” he argued. “Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.)”
This hostility to traditional religion has bled into COVID-19 restrictions.
Alito referenced a Supreme Court decision on Nevada’s restrictions upholding the state’s double standard on casinos and houses of worship. The governor opened casinos — some of which are truly humongous — at 50 percent capacity while restricting religious services to 50 people or fewer. “If you want to worship and you’re the 51st person in line, sorry, you are out of luck. The size of the building doesn’t matter, nor does it matter if you wear a mask or stay 6 feet apart.”
“The state’s message is this: forget about worship and head for the slot machines or maybe a Cirque du Soleil show,” Alito said.
“Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment which protects religious liberty. You will not find a craps clause, or a blackjack clause, or a slot machine clause,” the justice quipped. “Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship, but the Court nevertheless deferred to the governor’s judgment, which just so happened to favor the state’s biggest industry and the many voters it employs.”
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The justice contrasted this “blatant discrimination” against religious freedom with a Maryland district judge’s decision to strike down an FDA rule providing that women who want medication abortions must go to a clinic in person to access them. The judge struck down this rule in the name of protecting women from COVID-19, even though Gov. Larry Hogan (R-Md.) had allowed people to go to gyms, casinos, and hair and nail salons in a limited reopening at the time.
Alito also warned that “support for freedom of speech is also in danger and COVID rules have restricted speech in unprecedented ways.”
While coronavirus lockdowns have shut down attendance at speeches, conferences, lectures, rallies, and more, “even before the pandemic, there was growing hostility to the expression of unfavorable views.”
Alito quipped that there are “seventy times seven” things that Americans cannot say if they are students or professors at a college or university, or employees speaking for a corporation.
“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 warned.
“That this would happen after our decision in Obergefell [the 2015 case striking down state laws on marriage] should not have come as a surprise. Yes, the opinion of the Court included words meant to calm the fears of those who cling to traditional views on marriage. But I could see, and so did the other justices in dissent, where the decision would lead,” Alito warned.
He quoted his own dissent in the case, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes. But if they repeat those views in public, they will risk being labeled as bigots and being treated as such by governments, employers, and schools.”
“That is just what is coming to pass,” the justice lamented. Indeed, in one recent case, the Kroger Company fired two women in Little Rock, Ark., who refused to wear a rainbow-colored heart emblem on an apron because they did not want to endorse LGBT activism.
Religious freedom and free speech are indeed under assault in America today, and even if the coronavirus pandemic fades away tomorrow, these threats to fundamental rights will persist.
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.
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