Justice Alito And The Dangers Of Redefining ‘Religious Freedom’

Last week, Supreme Court Justice Samuel Alito gave a speech to a group of Catholic lawyers that didn’t get as much attention as it should have.

Alito addressed Advocati Christi, a group of Catholic lawyers and judges affiliated with the Catholic Diocese of Paterson, N.J.  The Associated Press reported that the organization works to “provide an opportunity for lawyers learn about the Catholic faith and Catholic social teaching and to help them integrate these into their life and practice.”

During his remarks, Alito basically telegraphed how he’ll likely rule on future cases dealing with “religious freedom” claims. He cited a passage from his dissent in Obergefell v. Hodges, the 2015 high court ruling that had the effect of extending marriage equality nationwide, asserting that the country would soon “vilify those who disagree, and treat them as bigots.”

Justice Alito's interpretation of religious freedom would allow for discrimination and harm against others.(AP Photo/Cliff Owen)

Asserted Alito, “We are seeing this is coming to pass.” He quoted a song lyric by Bob Dylan: “You don’t need a weatherman to know which way the wind blows” and insisted, “A wind is picking up that is hostile to those with traditional moral beliefs.”

He also said, “We are likely to see pitched battles in courts and Congress, state legislatures and town halls. But the most important fight is for the hearts and minds of our fellow Americans. It is up to all of us to evangelize our fellow Americans about the issue of religious freedom.”

Alito is right about one thing: We are seeing those pitched battles right now. In fact, a case is pending before the Supreme Court concerning a Colorado baker who says he won’t serve same-sex couples because of his religious beliefs. (The high court has been asked to hear the case but has not yet decided if it will.) A similar case dealing with a florist in Washington state could reach the court as well.

Where Alito gets it wrong is his definition of “religious freedom.” That concept is extremely important to all Americans. Indeed, it’s part of the foundation of our nation and is so intertwined with our history as to be inseparable, so it’s crucial to get it right. Alito doesn’t.

That vital principle gives you the right to worship, or not, as you see fit. It gives you the right to spread your views on your own time with your own dime. It means you can raise your children in the faith of your choice. You can join an established religion or blend elements from several faiths into a personal theological brew. You can be devout, “spiritual but not religious” or utterly irreligious.

Religious freedom means you can change your mind about religion. It gives you the right to question, to doubt, to argue with others. It’s about spirited give-and-take in a free society where the government respects the right of its people to adopt many faiths but officially endorses none.

One thing religious freedom does not do is give you the right to harm others or take away their rights. It’s not a license to treat others like second-class citizens or blithely ignore any law designed to protect us all.  

We are indeed engaged in a debate over religious freedom in America – but perhaps not the one Alito thinks we are. We will either reaffirm our support for the traditional view of religious freedom as a precious right that enables you to choose for yourself but not make choices for others, or we will move toward a new definition of religious freedom, one that interprets that principle as a weapon that can be used to obliterate the rights of others.

This debate is important. And it takes on more importance today, with the Senate Judiciary Committee beginning its confirmation hearings of Neil Gorsuch, President Donald J. Trump’s nominee to take the seat left vacant by the death of Justice Antonin Scalia.

If Gorsuch joins Alito and a bloc of justices who are determined to redefine religious freedom, we could see the Supreme Court convert our nation’s noblest principle into little more than a cover for shabby forms of discrimination.

Much is at stake, so pay attention to the Gorsuch hearing over the next few days. Learn more about his record here, and tell your senators to oppose him. And read about Americans United’s efforts to protect real religious freedom through our Protect Thy Neighbor project.