News Analysis Nov 14, 2020 3:00 PM EST

Justice Alito defends religious liberty and the left loses its mind

It's not political activism to be a robust defender of the First Amendment, and especially religious liberty, which was enshrined into the Constitution for such a time as this.

Justice Alito defends religious liberty and the left loses its mind
Nicole Russell Texas, US
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In an incredible keynote address to the Federalist Society's national convention, held virtually this year, Justice Samuel Alito observed that the global pandemic, caused by COVID-19, has resulted in "unimaginable" and unnecessary restrictions to Americans civil liberties, particularly religious ones. Alito, who has sat on the Supreme Court since 2006 and who has been a Federalist Society keynote speaker before, warned that said religious liberty and freedom of speech may someday be "second class" rights, should local leaders continue to behave this way.

The progressive left lost its mind:

Esquire magazine said, "Justice Samuel Alito's Federalist Society Gala Speech Hit All the Wingnut Sweet Spots." Fix the Court said, "Justice Alito's Brazen Political Speech to FedSoc Underscores Need for Ethics Code." Slate's Mark Joseph Stern said his speech was "grievance-laden," and "ultrapartisan."

After warning law students who are members of the Federalist Society that they will "face harassment and retaliation if they say anything that departs from the law school orthodoxy" Stern launched into a seething paragraph about what Alito's speech really means:

"These comments revealed early on that Alito would not be abiding by the usual ethics rules, which require judges to remain impartial and avoid any appearance of bias. The rest of his speech served as a burn book for many cases he has participated in, particularly those in which he dissented. Remarkably, Alito did not just grouse about the outcome of certain cases, but the political context of those decisions, and the broader cultural and political forces behind them. Although the justice accused several Democratic senators of being unprofessional, he himself defied the basic principles of judicial conduct."

For starters, Alito's comments that the pandemic has created opportunities for political and health officials to flex their authoritarian muscles and place unconstitutional restrictions on the free speech and free exercise rights of Americans are pertinent and courageous observations.

You don't have to be a First Amendment lawyer or a conservative to even see how the best of intentions has turned into a bit of an experiment in local executive orders with a dictatorial bend. It's not political activism to be a robust defender of the First Amendment, and especially religious liberty, which was enshrined into the Constitution for such a time as this, because the Founding Fathers had endured a tyrannical King who literally prevented people from worshiping freely. People seem to forget this, and particularly the left. It's not conservative to promote religious liberty—it's just Constitutional and non partisan. It's for everyone.

Second, Justice Alito is not the first Justice to give a speech about his written or political opinions. Kagan, Thomas, and yes, even Ruth Bader Ginsburg, have done so as well. Justices are human and everyone from political junkies to law students should entertain such speeches with interest and with the knowledge that everyone has a worldview, even a legal one. Such speeches are insights into that but are not always indicative of how a Justice will rule, as anyone who has read Supreme Court opinions knows.

Third, Justice Alito has long been one of the most staunch defenders of religious liberty in his opinions and the COVID-19 pandemic has only put a microscope on that. From Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission to Little Sisters of the Poor v. Pennsylvania, Alito has remained consistent with his jurisprudence and cultural observations. In Calvary Chapel Dayton Valley v. Sisolak, the Court denied a church an application for injunctive relief. The church claimed if Nevada's governor let people gamble, they should be able to go to church. Alito and others disagreed with the denial and his dissent went on for 11 pages:

"The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities. Claiming virtually unbounded power to restrict constitutional rights during the COVID–19 pandemic, he issued a directive that severely limits attendance at religious services [...] That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court's willingness to allow such discrimination is disappointing. We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility."

Justice Alito's speech is not a political hot button, as religious liberty is not a partisan issue. His remarks present a welcome warning to heed in this pandemic, especially for people who want to see the Constitution retain authority even during a global health crisis.

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