Alito: ‘Religious Liberty Is in Danger of Becoming a Second-Class Right’

During a speech before the Federalist Society on Thursday, Supreme Court Justice Samuel Alito stated that “in certain quarters, religious liberty is fast becoming a disfavored right.” And is viewed by some as “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.”

Alito began by cautioning that, aside from specific references to any Supreme Court cases, he isn’t commenting on the legality of coronavirus restrictions and isn’t making any statements as to whether the restrictions constitute good policy.

He stated that coronavirus has “highlighted disturbing trends that were already present before the virus struck.”

Alito said that cases involving coronavirus restrictions have “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 contrasted the bipartisan passage of the federal Religious Freedom Restoration Act with the backlash faced by states that have attempted to pass or passed similar legislation in recent years.

He then turned to “the protracted campaign against the Little Sisters of the Poor,” the Ralph’s pharmacy case, and the Masterpiece Cakeshop case. Alito remarked, “You can easily see the point, for many today, 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. And the cases I just mentioned illustrate the point. As far as I’m aware, not one employee of the Little Sisters has come forward and demanded contraceptives under the Little Sisters’ plan. There was no risk that Ralph’s referral practice would have deprived any woman of the drug she sought and no reason to think that Jack Phillips’ stand would deprive any same-sex couple of a wedding cake. The couple that came to his shop was given a free cake by another bakery, and celebrity chefs have jumped to the couple’s defense.”

Alito then noted cases where coronavirus restrictions that “blatantly discriminated against houses of worship” in California and Nevada were upheld by the Supreme Court. Alito stated that in both cases, the rationale was that the court should defer to the governors. Alito continued that this deference meant that Nevada treated “casinos more favorably than houses of worship.”

He added, “If what I have said so far does not convince you that religious liberty is in danger of becoming a second-class right, consider a case that came shortly after the Nevada case.” Alito then discussed U.S. District Judge Theodore Chuang’s ruling suspending the FDA’s requirement that women who wish to obtain an abortion pill must pick up the drug at a clinic. Alito said that Chuang’s rationale that enforcing the rule would interfere with abortion rights because some women might not obtain the pill due to fear of contracting coronavirus if they leave their homes. He noted that at the time of the decision, Maryland’s governor had opened many places of business, and “apparently concluded that Marylanders could safely engage in all sorts of activities outside the home. … If deference was appropriate in the California and Nevada cases, then surely, we should have deferred to the federal Food and Drug Administration on an issue of drug safety. But no, in this instance, the right in question was the abortion right, not the right to religious liberty, and the abortion right prevailed.”

Follow Ian Hanchett on Twitter @IanHanchett