Religious freedom becoming 'second tier right' warns Supreme Court Justice

Washington, D.C. Newsroom, Nov 13, 2020 / 11:30 am

Supreme Court Justice Samuel Alito has spoken of his concern that religious liberty is under threat in the United States. The justice spoke out on Thursday about a range of issues which, he said, were challenging basic legal freedoms in the country.

The justice warned that the ongoing coronavirus pandemic was acting as a "stress test" for Constitutional liberties, and that religious liberty as an emerging "disfavored" and "second tier" right.

Alito made the comments on Nov. 13, in a Zoom presentation to the Federalist Society's annual conference. The Federalist Society's website describes the group as "an organization of 60,000 lawyers, law students, scholars, and other individuals who believe and trust that individual citizens can make the best choices for themselves and society." 

Alito has been a member of the Federalist Society for many years, and has previously addressed its conferences. 

"The pandemic has obviously taken a heavy human toll," said Alito. "Thousands dead, many more hospitalized, millions unemployed, the dreams of many small business owners dashed. But what has it meant for the rule of law?"

Alito went on to say that his sentiments would likely be "twisted or misunderstood," but that he believed the pandemic has had a clear impact on liberty. 

"The pandemic has resulted in previously unimaginable restrictions on individual liberty," said Alito. 

The justice said that he was not offering a commentary on the severity of the coronavirus, and he was not suggesting that all the restrictions taken to control the spread of the virus were necessarily illegal or bad public policy.

But, he said, "we have never before seen restrictions as severe, extensive, and prolonged as those experienced for most of 2020." 

Alito specifically mentioned the closure of churches on Easter Sunday, and the closure of synagogues during the Jewish holidays of Passover and Yom Kippur, and the delays of many federal court trials. 

"The covid crisis has served as kind of a Constitutional 'stress test' and in doing so, it has highlighted disturbing trends that were already present before the virus struck," said Alito. 

He raised concerns that the pandemic has sparked a "executive fiat" in terms of lawmaking.  

"Just as the COVID restrictions have highlighted the movement toward rule by experts, litigation about those restrictions has pointed out emerging trends in the assessment of individual rights."

"This is especially evident with respect to religious liberty," said Alito. "It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right." 

Alito said this is a "surprising turn of events," noting that in the 1990s, the Religious Freedom Restoration Act was a bipartisan piece of legislation that easily was voted into law. Today, he said, "when states have considered or gone ahead and adopted their own versions of RiFRA, they have been threatened with punishing economic boycotts." 

Alito said that the cases the court hears today follow the "same trend" of eroding religious liberty. 

Specifically, Alito cited the "unrelenting attack" on the Little Sisters of the Poor, a Catholic religious order that operates nursing homes for the elderly poor. The Little Sisters of the Poor have made several trips to the Supreme Court after they refused to provide contraception and abortifacient drugs in their insurance plans, and have won each time. 

"For many today, religious liberty is not a cherished freedom," said Alito. "It's often just an excuse for bigotry, and it can't be tolerated, even when there is no evidence that anybody has been harmed." He said there was no evidence that any of the employees working for the Little Sisters of the Poor had ever sought to receive contraception under their insurance plan. 

Alito was critical of states that have restricted access to worship services under the guise of coronavirus safety protocols, but had allowed other gatherings to continue without issue. 

In July, the Supreme Court declined to hear the case Calvary Chapel v. Sisolak, which argued that Nevada was discriminating against houses of worship by restricting capacity to 50 people. Casinos, however, were allowed 50% capacity. Alito voted to hear the case. 

"Now, deciding whether to allow this disparate treatment should not have been a very tough call," said Alito. "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."

"Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship," he said. "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."

Alito raised concerns that freedom of speech was on its way to becoming a "second-tier Constitutional right," and said that the court would be facing the "great challenge" in the future to protect freedom of speech.

"You can't say that marriage is the union between one man and one woman. Until very recently, that's what the vast majority of Americans thought," said Alito. "Now it's considered bigotry."

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"That this would happen after our decision in Obergefell should not have come as a surprise," he said. While the majority opinion "included words meant to calm the fears of those who cling to traditional views on marriage," he said that he foresaw that the decision would erode freedom of speech protections. 

Alito quoted his dissent in Obergefell, where he wrote "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 of us 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 said.