Supreme Court Justice Samuel Alito recently spoke to the Federalist Society, of which he is a member. In his virtual address, he touched on three subjects that are of interest to this blogger: the expanded power of the executive during the COVID pandemic, the assault on religious freedom, and the assault on free speech. You can listen to Justice Alito’s speech on the reason.com website, which also includes a transcript. Though the transcript has many errors in it, it’s not difficult to figure out the correction.
Justice Alito addresses his concern that the power of the executive has grown during the COVID pandemic specifically by exploiting the pandemic to justify governance by executive fiat. Alito says:
“Who could have imagined that the COVID crisis has served as a sort of constitutional stress test. And in doing so it has highlighted disturbing trends that were already present before the virus struck. One of these is the dominance of lawmaking by executive fiat rather than legislation. The vision of the early 20th century progressives and the New Dealers of the 1930’s was that policy making would shift from narrow-minded legislators to an elite group of appointed experts. In a word, that policy making would become more scientific. That dream has been realized to a large extent. Every year administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarf the statutes enacted by the people’s elected representatives.”
Alito points to the example of a broadly-worded law that states that, if the governor of Nevada finds “a natural, technological, or man-made emergency or disaster of major proportions, the governor can perform and exercise such functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population.”
Alito’s concerns are, first, that such a law represents a movement that has been evolving for some time, namely government by executive officials, by-passing the legislature. His second concern is the ease with which such laws can be abused. Who, after all, gets to decide when a “natural, technological, or man-made” event constitutes an emergency? Who gets to decide when the emergency is over? This expansion of executive power is not a small concern. Executives tend not to give up power once obtained, and they are often tempted to use their powers to favor their political allies and disfavor their opponents.
Justice Alito then turns to the assault on religious freedom. “Just as the COVID restrictions highlighted the movement toward rule by experts,” Alito said, “litigation about those restrictions has pointed up emerging trends in the assessment of individual rights. 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.”
Alito makes his point with three examples: the Little Sisters of the Poor, Ralph’s Pharmacy, and Jack Phillips and the Masterpiece Cakeshop. In each of these cases, the government sought to force people to act contrary to their religious beliefs under the justification that they were protecting the rights of others. In the case of the Little Sisters of the Poor, the federal government demands that the Little Sisters provide coverage for birth control in their insurance, in spite of the fact that the Little Sisters are a Roman Catholic community of women religious and that none of their employees have sought such coverage. The Little Sisters have fought for their religious freedom and have so far won on every level. But, Joe Biden, who says he was inspired to run for president by nuns, has promised to sue the Little Sisters yet again to force them to act against their religious principles.
In the case of Ralph’s Pharmacy, the state of Washington requires that every pharmacy carry every form of birth control, including the morning after pill, which is an abortifacient. Ralph’s is owned by a Christian family who refused to carry the morning after pill. When a woman came with such a prescription, they would refer her to the more than 30 stores in a five mile radius where she could get her prescription filled. But, the state of Washington was not satisfied by this accommodation, insisting that Ralph’s fill the prescription.
In the case of Masterpiece Cakeshop, the ownder Jack Phillips refused to use his skills as a cake artist to design and create a cake celebrating a same-sex wedding. Instead, Phillips offered to sell the same-sex couple any cake in his inventory, only he would not design one, citing his Christian faith. A member of the Colorado Human Right Commission told Phillips that religious freedom, one of the freedoms delineated in the First Amendment of our Constitution, had been used 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.”
The inconsistent application of COVID restrictions is another area to which Alito points to illustrate the lack of respect for religious freedom. Several states, including New York, California, and Nevada have issued restrictions to public gatherings and businesses that are unfavorable to worship services and more favorable to businesses, including tattoo shops and casinos. In Nevada, the governor allows casinos to open at 50% capacity and, considering how large casinos are, that includes a great number of people. Churches, however, are limited to 50 people total, regardless of how large the church building is.
Alito is concerned that religious freedom is being dismissed as a secondary right to other rights or, worse, regarded as an excuse for bigotry. “For many today,” Alito said, “religious liberty is not a cherished freedom. It’s often just an excuse for bigotry, and it can’t be tolerated, even when there is no evidence that anybody has been harmed. … 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.”
It seems, for those preaching inclusivity and tolerance, the answer to that question is no.
Justice Alito then turned to free speech. He said:
“The rights of the free exercise of religion is not the only cherished freedom that is falling in the estimation of some segments of the population. Support for freedom of speech is also in danger. And COVID rules have restricted speech in unprecedented ways. As I mentioned, attendance at speeches, lectures, conferences, conventions, rallies, and other similar events has been banned or limited. And some of these restrictions are alleged to have included discrimination based on the viewpoint of the speaker.”
“Even before the pandemic,” Alito went on, “there was growing hostility to the expression of unfashionable views. And that, too, was a surprising development. 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 dialog appears at times to consist almost entirely of those words. Carlin’s list seems like a quaint relic. But it would be easier to put together a new list called things you can’t say if you’re a student or a professor at a college or university, or an employee of many big corporations. And there wouldn’t be just seven items on that list. Seventy times seven would be closer to the mark. I won’t go down the list, but I’ll mention one that I’ve discussed in a published opinion. 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 is right, of course. Many college and university campuses restrict speech at almost ridiculous extremes. Speakers are routinely cancelled or disinvited because groups opposing their viewpoint threaten disruption or even violence if such speakers are allowed on campus. Students are restricted as to what they can say and where they can say it. Employees at almost every business now must be careful what they say, lest someone take offense and they are accused of making the workplace an uncomfortable environment.
We need to decide what is important to us as a community. We need to decide if religious freedom, freedom of speech, and the reining in of executive power are things worth fighting for. There are many who would be happy to have a nation governed by experts (so long, of course, that they are the experts, or the experts are the ones with whom they agree). There are many who would be happy to restrict individual liberties, and are attempting to do so, and in some cases are succeeding.
If a Justice of the highest court in our land is raising concerns, perhaps we should pay attention, before it’s too late.
Be Christ for all. Bring Christ to all. See Christ in all.