Supreme Court Associate Justice Samuel Alito told Thursday’s meeting of the Federalist Society’s National Lawyer Convention that America’s First Amendment guarantees of religious liberty and freedom of speech are in grave danger, thanks in large part to state and local policies justified as responses to the Covid Pandemic.
“The pandemic has resulted in previously unimaginable restrictions on individual liberty,” Alito told the convention at the outset of his address, which he delivered virtually.
After cautioning that he was speaking as a judge and not as a policymaker, Alito continued, noting “all that I am saying, and I think it is an indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”
Calling the Covid crisis “a sort of constitutional stress test,” Alito said that “in doing so, it has highlighted disturbing trends that were already present before the virus struck.”
Alito singled out the trend toward “law-making by executive fiat” rather than legislatively created and approved law, which, he said, has been pushed for more than a century by early 20th century progressives and the New Dealers of President Franklin D. Roosevelt in the 1930s, then the Great Society advocates of the 1960s and their successors on the Left side of the American political spectrum.
Their vision was that “policy-making would shift from narrow-minded elected legislators to an elite group of appointed experts, so that in a word policy-making would become more scientific,” Alito explained.
That vision has largely been achieved, with a result that large delegations of authority from Congress to executive branch agencies have generated a flood of administrative rules and regulations about virtually every aspect of American life.
“And what have we seen in the pandemic? Sweeping restrictions imposed for the most part under statutes that confer enormous executive discretion,” Alito said.
“All sorts of things can be called a disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights.”
Citing Nevada’s statute granting that state’s governor extremely broad authority to act virtually without restraint, Alito said it illustrated the direction more broadly of law-making generally.
“First, what we see in this statute and in what was done under it is a particularly developed example of where the law has been going for some time, in the direction of government by executive officials who are thought to implement policies based on expertise, and in the purest form, scientific expertise.
“Second, laws giving this much discretion can of course be abused and whatever one may think about the Covid restrictions, we surely don’t want them to become a recurring feature after the pandemic is over.
“All sorts of things can be called a disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.”
With that premiss, Alito then noted that Covid regulations that have come before the court were routinely justified by a 1905 Supreme Court decision upholding a Massachusetts, requirement that residents be vaccinated against a smallpox outbreak in Cambridge.
With tongue firmly lodged in his cheek, Alito observed said he “is all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge, stays in Cambridge.”
Continuing, Alito observed that “it pains me to say this, but in certain quarters religious liberty is fast becoming a disfavored right.” He pointed to the 1993 Religious Freedom Restoration Act (RFFRA) as a measure of how far the country has come in the years since. That measure was passed with nearly-unanimous support in Congress and signed into law by President Bill Clinton.
“Today that widespread support has vanished, when states have adopted their own versions of RFFRA, they have been threatened with economic boycotts,” Alito said.
“The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.”
He cited “the protracted campaign” against the Little Sisters of the Poor Catholic charity, who “have been under unrelenting attack for the better part of a decade. Why? Because they refuse to allow their health insurance plan to provide contraceptives to their employees.”
Alito also cited the Masterpiece Cakeshop Decision out of Colorado and Ralph’s Pharmacy case from Washington state, and then observed that, sadly, “for many today, religious liberty is not a cherished freedom, it’s often just an excuse for bigotry and it can’t be tolerated.”
Nobody was harmed as a result of any of the trio of cases he cited, according to Alito, but due to the intolerance that forced them onto the judicial docket, “the question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.”
Regarding the Nevada regulation that allowed casinos to operate with 50 percent of their capacity while limiting church services to no more than 50 worshipers, Alito said:
“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 are the 51st person in line, sorry, you are out of luck.”
Alito said the Constitution contains the “free exercise of religion clause,” but not “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.
Alito suggested to his hearers that the Nevada case should convince them “that religious liberty is in danger of becoming a second-class right.”
Many congressional aides working for senators and representatives of both political parties will have to deal with this issue in the 117th Congress, so, regardless of where you are coming from on religious freedom and practice, Alito’s presentation bears close study and thought.