Religious Liberty as Religious Supremacy: Why Justice Alito's Federalist Society Speech was Paranoid and Inaccurate
By Eric Segall
Justice Samuel Alito’s partisan speech to the Federalist Society last week caused quite a stir among both the left and the right, with both sides lining up to criticize or applaud the presentation based on their political views. He said many things that perhaps Supreme Court Justices should keep to themselves. But the part of Alito’s remarks that focused on the alleged persecution being heaped on people who object to same-sex marriage on religious grounds, and his overall argument that "religious liberty is in danger of becoming a second class right," raise important issues concerning the separation of church and state (or-non-separation) and suggest Justice Alito has a perverse and counter-factual perspective on the state of religious liberty in America.
People of faith, according to many, have a right to be exempt from laws applicable to the rest of us, if complying with those laws substantially burdens their religious exercise, but secular objectors attending official government meetings (often coercively) are expected to respectfully put up with their discomfort with official prayers or leave the room, chamber, or capitol building. Non-believers have also been told by the Supreme Court to accept religious symbols (usually Christian) on government property. This hypocrisy is unnecessary, triggers culture wars, and shows that religious supremacy, not religious liberty, is Justice Alito's, and the Court's, preferred constitutional value.
For eight years beginning in 1999, the town of Greece, New York, began its legislative sessions with prayers given exclusively by Christian clergy. Many of the prayers referred to “Jesus,” the “Holy Ghost,” and other religious deities and symbols. The prayer giver often asked those in attendance to bow their heads and was frequently thanked for being the “chaplain of the month.” Among the many people present during these legislative sessions were residents who had to conduct official business with the town board as well as students fulfilling high school civics requirements by attending the sessions.
In response to an establishment clause challenge to this practice, the five conservative Justices, including Alito, responded that the prayers at issue simply recognized the importance of religion in American life, and non-believers could always leave the room, remain silent, or protest later. The Court also pointed put that if those in attendance remained silent, no one would construe that silence as approval of the prayers. In short, in the famous words of Justice Scalia talking about Bush v. Gore, the Greece Court effectively said to the plaintiffs, "get over it." Justice Kagan expressed a quite different view in dissent:
For centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable—that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American. I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality—the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.