A speech Supreme Court Justice Samuel A. Alito delivered recently to the Federalist Society is attracting a lot of criticism for two reasons: its appalling content and the fact that Alito gave it at all.
Alito’s talk was little more than a right-wing screed. Among other things, he asserted that the restrictions we’re all living under during the coronavirus pandemic are throttling personal liberty and that religious freedom is under assault as LGBTQ rights advance.
Alito is often celebrated by conservatives as a sharp legal mind, but his speech was littered with lazy reasoning. Consider this passage: “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.”
Does Alito live in a cave? People – primarily Christian nationalists – criticize marriage equality constantly. They own publications, websites and entire radio and television stations that push their view. They march in the streets to promote it. Their legal arms take cases into courts to curtail that right. They walk the halls of Congress and state legislatures, lobbying to curtail LGBTQ rights. They clearly exercise their free-speech rights to criticize marriage equality. Do they receive pushback when they promote anti-LGBTQ views? You bet. That’s how the First Amendment works.
It’s also remarkable that Alito doesn’t understand that when it comes to our constitutional rights, what the “vast majority” of Americans think is utterly irrelevant. There was a time when most Americans thought it was perfectly all right to deny basic civil and political rights to Blacks, women, non-Christians and others. Courts put a stop to that because the basic freedoms enshrined in the U.S. Constitution can’t be overridden by majority rule. (Plus, for what it’s worth, a firm majority of Americans now supports marriage equality.)
Alito also said, “It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.” What? If anything, Alito and his fellow conservatives on this high court have allowed religious freedom to become weaponized to the point where bosses are allowed to interfere with the private reproductive choices of their employees, taxpayer-funded adoption and foster care agencies may be permitted to impose religious tests on prospective parents and the owners of secular businesses may soon win the right to refuse service to anyone – LGBTQ people, single moms, atheists, Muslims, etc. – if something about the way they live their lives offends the shopkeeper.
In an extended rant about restrictions that have been placed on large gatherings to combat the spread of coronavirus, Alito hoisted a huge straw man when he said, “Whatever one may think about the COVID restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed.” No, we don’t – that’s why we’re all living under restrictions now. Virtually no one is talking about these restrictions still being in place once we’ve vanquished the pandemic. Alito’s remarks are a scare tactic, the type of thing that’s commonly employed by the Religious Right but that should be beneath a justice who sits on our highest court.
Americans United President and CEO Rachel Laser criticized Alito for his partisan remarks, telling Bloomberg News that Alito “signaled how he will vote on issues that are almost certain to come before the court, such as coronavirus public health restrictions on both secular and religious gatherings, and religious freedom being misused to justify discrimination against LGBTQ people and others. He’s dropped even the pretense of the impartiality that judges are obligated to have.”
Indeed, he has. And the really sad thing is the thought that Alito’s views – as illogical and regressive as they are – might carry the day given the rightward tilt of the current court where he enjoys a lifetime seat.
P.S. For an antidote to Alito’s disturbing views, check out Americans United’s “Agenda to Restore and Protect Religious Freedom,” which we hope the incoming Biden-Harris administration will implement.
Photo: Screenshot via YouTube
