This column expresses the views of Tony Mauro, special correspondent for the Freedom Forum.
In a fiery speech Nov. 12 before the Federalist Society, conservative Supreme Court Justice Samuel Alito Jr. offered a list of grievances about the state of individual rights in America, from the “unimaginable restrictions” imposed because of the pandemic to the relegation of the Second Amendment’s right to bear arms to the status of “second-tier constitutional right.”
Alito’s main focus seemed to be the status of the First Amendment. “It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right,” Alito said. “The right of the free exercise of religion is not the only once-cherished freedom that is falling, in the estimation of some segments of the population. Support for freedom of speech is also in danger.”
Alito’s admonition may come as a surprise, since conservatives have won numerous Supreme Court victories in First Amendment disputes in recent decades. To some extent, he was chiding his colleagues for not winning even more cases.
The days are over when the First Amendment was nurtured mainly by liberal justices like Hugo Black and William Brennan Jr. Conservative wins led a frustrated liberal Justice Elena Kagan to assert in 2018 that the First Amendment has been “weaponized” to satisfy a conservative agenda.
In the Federalist Society speech, Alito himself acknowledged that “during my 15 years on the court, a lot of good work has been done to protect freedom of speech, religious liberty and the structure of government created by the Constitution.”
So, why was Alito sounding the alarm that the First Amendment is in peril?
Blackjack Clause: Alito, in referring to a July Supreme Court case, Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, 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. Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship.”
Alito, joined by justices Clarence Thomas and Brett Kavanaugh, lamented that their colleagues let stand a ruling that allowed Nevada to impose strict limits on attendance at houses of worship, while permitting looser restrictions on Las Vegas casinos. Lower federal courts had deferred to the governor in making those decisions.
Things You Can’t Say: “Even before the pandemic, there was growing hostility to the expression of unfashionable views … Here’s a marker. In 1972, the comedian George Carlin began to perform a routine called ‘The Seven Words You Can’t Say on TV.’
“Today, you can see shows on your TV screen in which the dialogue appears at times to consist almost entirely of those words. Carlin’s list seems like a quaint relic, but it would be easy to put together a new list called ‘Things You Can’t Say if You’re a Student or Professor at a College or University or an Employee of Many Big Corporations,” he said.
“I’ll mention one that I’ve discussed in a published opinion,” Alito said.. “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. Now it’s considered bigotry.”
Alito’s assertion that “you can’t say that marriage is the union between one man and one woman” was an overstatement. In the published opinion he mentioned, Obergefell v. Hodges, Alito dissented from the court’s declaration that states must allow same-sex marriages. He asserted that those who do not believe in same-sex marriages would be vilified because of the ruling, but the majority affirmed that the First Amendment protects religious organizations and people who advocate against same-sex marriages.
Little Sisters: “When a Supreme Court decision called Employment Division v. Smith cut back sharply on the protection provided by the Free Exercise Clause of the First Amendment, Congress was quick to respond. It passed the Religious Freedom Restoration Act (RFRA) to ensure broad protection for religious liberty. The law had almost universal support … 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. Some of our cases illustrate this same trend. Take the protracted campaign against the Little Sisters of the Poor.”
Alito was referring to the Catholic organization that helps the elderly poor, which has battled for years against a requirement under the Affordable Care Act that employers include contraceptive coverage in the healthcare plans of employees.
In July, in the case Little Sisters of the Poor v. Pennsylvania, the Supreme Court majority sided with the religious group, but the case was sent back to lower courts. As for Employment Division v. Smith and RFRA, the court on Nov. 4 heard arguments in Fulton v. City of Philadelphia, a case in which the 1990 Smith decision is under scrutiny.
Cake Shop: “Consider what a member of the Colorado Human Rights Commission said to Jack Phillips, the owner of the now-notorious Masterpiece Cakeshop, when he refused to create a cake celebrating a same-sex wedding. (That member) said that freedom of religion had been used, quote, ‘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.’”
“You can easily see the point. For many today, religious liberty is not a cherished freedom. It’s often just [viewed as] an excuse for bigotry and it can’t be tolerated, even when there is no evidence that anybody has been harmed … [There was] no reason to think that Jack Phillips’s stand would deprive any same-sex couple of a wedding cake. The couple that came to his shop was given a free cake by another bakery and celebrity chefs have jumped to the couple’s defense.”
Alito was quoting from the 2018 decision Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the majority sided with Phillips by finding that the Colorado commission displayed hostility toward the cakeshop, violating the Free Exercise Clause.
Tony Mauro is contributing U.S. Supreme Court correspondent for the National Law Journal and ALM Media and a special correspondent for the Freedom Forum.