November 20, 2020
Is religious freedom “fast becoming a disfavored right”? That is the worry expressed by Justice Samuel Alito in a recent speech to a virtual convention of the Federalist Society. His comments highlight the need for Congress and concerned citizens to step up and protect people with unpopular religious beliefs from religious intolerance.
After hoping – perhaps vainly, as subsequent news coverage has shown – that he would not be misunderstood, Alito noted that the current “pandemic has resulted in previously unimaginable restrictions on individual liberty.” He was careful not to minimize the public health threat but pointed out that as an “indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020.” As examples, he noted the restrictions on speeches, lectures, and worship services and the fact that “trials in federal courts have virtually disappeared in many places.”
He explained that the litigation over COVID restrictions on worship services “has pointed up emerging trends in the assessment of individual rights.” Alito said: “This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”
As evidence of the dramatic shift in the assessment of the importance of religious freedom, he pointed to the passage of the Religious Freedom Restoration Act in 1993: “The law had almost universal support. In the House, the vote was unanimous. In the Senate, it was merely 97 to 3, and the bill was enthusiastically signed by President Clinton. Today, that widespread support has vanished.”
To illustrate the change in support for religious freedom, he talked about two trends.
First, the litigation involving religious organizations and people of faith who decline to provide services or products at odds with their beliefs. After describing the Little Sisters of the Poor, Ralph’s Pharmacy, and Masterpiece Cakeshop cases, he noted:
A great many Americans disagree sometimes quite strongly with the religious beliefs of the Little Sisters, the owners of Ralph’s and Jack Phillips and of course they have a perfect right to do so. That is not the question. The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs. Over the years, I have sat on cases involving the rights of many religious minorities, Muslim police officers whose religion required them to have beards, a Native American who wanted to keep a bear for religious services, a Jewish prisoner who tried to organize a Torah study group. The Little Sisters, Ralph’s and Jack Phillips deserve no less protection.
Second, he pointed to the COVID restrictions on worship services in California and Nevada, which he said “blatantly discriminated against houses of worship.” For instance:
If you go to Nevada, you can gamble, drink and attend all sorts of shows. But here’s what you can’t do. If you want to worship and you’re the 51st person in line, sorry, you are out of luck. Houses of worship are limited to 50 attendees. The size of the building doesn’t matter. Nor does it matter if you wear a mask and keep more than six feet away from everybody else. And it doesn’t matter if the building is carefully sanitized before and after a service. The state’s messages is: forget about worship and head for the slot machines, or maybe a Cirque du Soleil show.
Now deciding whether to allow this disparate treatment should not have been a very tough call. 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. 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.
Coming from a respected member of the U.S. Supreme Court, the warning is particularly striking. His analysis of the cases the court has decided shows that the court alone is not going to solve all of the potential incursions on religious freedom.
Other branches of government and concerned citizens, then, need to support measures that “will be inclusive enough to tolerate people with unpopular religious beliefs.”
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