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.