Saturday, May 20, 2017

Judges Speaking Out: Justice Alito and Religious Liberty

By Eric Segall

On at least three occasions over the last seven months Justice Samuel Alito has made public remarks about the appropriate role of religion in this country that, if made by a liberal Justice, would likely result in conservative outrage and calls for recusal the next time the Supreme Court hears a case regarding religious liberty (there is such a case on the docket this term). Despite these public comments by Alito, there has been a deafening silence by those who often complain when other Justices make such political statements.

At the annual meeting of the Federalist Society in November, 2016, Justice Alito said that only “conservative resolve” could prevent liberals from undermining gun rights, freedom of speech, and religious liberty. He also remarked that “religious freedoms are in even greater danger,” and quoting Bob Dylan, Alito said, “It’s not dark yet, but it’s getting there.”
         In March of this year, Justice Alito spoke to a group of Catholic lawyers and judges and said the United States “is entering a period when its commitment to religious liberty is being tested.”  Quoting his own dissent from the Supreme Court's state law same-sex marriage opinion, he said that people who supported that result would "vilify those who disagree, and treat them as bigots." Alito went on to say that “we are seeing this is coming to pass," and again quoted Bob Dylan. "You don't need a weatherman to know which way the wind blows."

Alito also said during this speech that “a wind is picking up that is hostile to those with traditional moral beliefs.” There can be little doubt whom Alito was referring to with these remarks: people of faith who object to providing commercial services such as wedding cakes and other wedding services to gays and lesbians. Several of these cases are percolating in the lower federal courts.
         Alito concluded his remarks at this meeting by saying "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."

And, just a few days ago, according to The Daily Caller, Alito spoke to graduates of St. Charles Borromeo Seminary and warned them that concentrated efforts to erode “traditional moral values” could confine Catholics and other believers to the margins of society. He said that “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 treated as such by governments, employers, and schools.” According to another source, Alito “spoke candidly about what he perceives as persistent attacks on free-speech rights and religious liberty." He said that “a shifting morality in American society has put individuals and institutions in the crosshairs of future legal challenges.” He also lamented that “for most of my life, American people have been united in their strong respect for religious liberty. But recently, things have started to change."

Alito’s repeated statements about threats to religious liberty come in the context of pitched social, cultural and legal battles about the proper balance between articles of faith and laws restricting discriminatory practices. It is not hard to imagine litigants in state and federal courts who wish to discriminate against gays and lesbians quoting Justice Alito’s off-the-court worries about what he perceives to be growing threats to religious freedom.

Although I am in favor of Supreme Court Justices transparently admitting their priors even if they implicate current debates or maybe even cases, I am in a distinct minority. For example, before the Supreme Court heard the most recent abortion case involving a state law in Texas, Justice Ginsburg said: “How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business.” This was an accurate factual statement about the effect of the Texas law and a general remark that state legislatures cannot be trusted to protect abortion rights. The latter comment is quite similar to Alito’s concerns about his perception of the dangers to religious liberty, and the former, while perhaps improvident, simply stated what was true in Texas. Yet both Ed Whelan and Josh Blackman called for Ginsburg’s recusal in the case. 

In addition, there were numerous calls by conservatives for both Justices Ginsburg and Kagan to recuse themselves from the Court's same-sex marriage case because both had officiated at same-sex wedding ceremonies. But, and this should be obvious, the mere fact that both Justices agreed to perform these weddings tells us little or nothing about their views on the constitutional issues at stake (not that we weren't sure where they stood in any event).

The reality is that, like all Americans, Supreme Court Justices hold views on the contentious issues of the day. In my opinion, there is nothing wrong with them revealing those views in public. I have no objection to Justice Alito's public railing against liberals who favor equal rights for gays and lesbians and his support of those who believe those rights are trumped by matters of faith. But I hope conservative Court watchers remember those rants the next time a liberal Justice speaks out in a similar manner.


Shag from Brookline said...

Alito is establishing himself as the "Revengelical Justice for All" on the Court.

el roam said...

Thanks for that interesting post , the author of the post, is quoting Judge Alito , but the latter , does express general concern , while the author of the post , suggest or mention discriminations towards gays and lesbians as more specific illustration .

Freedom of religion , is beyond debate . But this is a very general assertion . It should refer to freedom of expression (whether content, whether effective, like: association and acting publicly and politically) and of course, exercising rituals, prayers, with no interference.
Yet, nothing to do , with discrimination in public space . Public space , and services granted or given to public , should be out of the scope .

There's no way, surely not in the US, where one costumer, is discriminated , due to irrelevant feature (only what has to do, with religious rituals, should be exempted, I mean, in Synagogue for example, separation between women and men ( discriminative in fact ) is vital, and does touch the heart of the freedom of religion ).

This may be , serious blow , to US values . One can only imagine , the gate wide open for such floods :

KKK , shall discriminate Hispanics and blacks , whites generally speaking , shall discriminate Muslims . Homosexuals let alone by many sectors .Men Vs. women . The list of occurrences , unthinkable one , can be prolonged endlessly . The public domain , is not subjected to capricious personal beliefs . It is safe from it !! Can render life , unbearable . Strict and anonymous service , must be kept in the public domain .

The strategic problem yet persists : as long as such dichotomy and divergence , between federal constitution , and state constitutional perception is held , it shall persist ( as well as issues of neutrality of judges ) . Federal uniformity and unity , must come in and prevail , and impose it on all . Why have state constitutions and federal one, if they collide so severely, doesn't make sense!!


el roam said...

Just clarification :

It is evident of course , that services given by firms , is public space . It is regulated , supervised by authorities , and meant among others , for protecting consumers ( in public territory of course ) . As such, must include , protection from discrimination .

One may read , in Wikipidea , about consumer protection laws , in the US , and other states , here :


el roam said...

Just negligible illustration ( potential floods ) here :


Joe said...

I concur with the general tenor of the remarks of the professor here.

I'd toss in that in the "stun gun" case, Alito wrote a concurrence that included a reference to how stun guns could have a moral/religious implication since it allows a non-lethal form of self-defense matching the person's views.

I was impressed. I actually wrote him a letter to say so. No reply -- did a while back get one from the office of Justice Blackmun.

el roam said...

very recommended :


Shag from Brookline said...

This article titled "Trump Tax Plan Would Give 400 Highest-income Americans More Than $15 Million a Year in Tax Cut," at

might inspire religious-style tithing principles in the form of political campaign contributions by such taxpayers to assure the continuity of such tax cuts. Let's see, what's 10% of $6 Billion ... And the poorer of the 0.1% might also be so inspired. Money can talk loudly with tax cuts combined with old time religion, via two elements of the 1st A.

Joe said...

I didn't support (but understood) the breadth of RBG's comments about the possibility of Trump being elected & think her referencing a specific law that was due to be addressed by the Supreme Court a bad idea.

Her recusing herself would not be necessary. Josh Blackman btw has criticized John Paul Stevens as unethical for his public remarks in the last few years because JB doesn't think he really "retired."

Shag from Brookline said...

Is Josh shopping for tenure beyond academia?

Joe said...

Whelan is upset too:

I guess it's how you define "retired."

I'm tired of those guys myself though JB is repeatedly seen as more credible than Whelan, who is basically a conservative hack.

Shag from Brookline said...

So many defining moments: Depends upon what the meaning of "is" is. (Pres. Clinton) Depends upon what the meaning of "loyalty" is. (Pres. Trump)