Supreme Court Justice Samuel Alito said in a Nov. 12 address to the Federalist Society that COVID-19 “has highlighted disturbing trends” regarding freedom in America.
Justice Alito spoke to the organization of conservative and libertarian lawyers via Zoom regarding the state of personal liberty. Alito expressed concern about the overreaching restrictions placed on liberty during the pandemic but noted that these restrictions only illustrate a problem that has been building for years.
Alito made it clear he was “not diminishing the severity of the virus’s threat to public health,” only expressing that it has revealed a troubling trend regarding religious freedom.
“The pandemic has resulted in previously unimaginable restrictions on religious liberty,” he stated. “We have never before seen restrictions as severe, extensive, and prolonged as those experienced for most of 2020.”
Alito continued, “The COVID crisis has served as a sort of constitutional stress test. In doing so, it has highlighted disturbing trends that were already present before the virus struck.” One of the trends Alito mentioned was “the dominance of lawmaking by executive fiat rather than legislation.”
He argued that policymaking has transitioned from the elected legislative representatives of the American people to unelected “experts” and governors making unilateral decisions. Alito remarked that we have seen “sweeping restrictions imposed, for the most part, under statutes that confer enormous executive discretion.”
Alito noted a case from Nevada that was heard this past July by the U.S. Supreme Court in which the state limited churches to a maximum of 50 attendees but allowed casinos, bars, shows, and others to operate at 50 percent capacity. The Supreme Court ruled in favor of Nevada, deferring to the governor’s discretion. Alito disagreed with the majority opinion.
“Deciding whether to allow this disparate treatment should not have been a very tough call,” he said during his speech. “You will see in 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.’”
The justice explained that the Nevada statute allows the governor to impose restrictions in an emergency. “If the governor 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.
However, he explained, “All sorts of things can be called an emergency or 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.”
Alito said that the state allowed casinos to operate at 50 percent capacity, which could total thousands of patrons and is a considerably larger number of people than the 50 people allowed at a church. “So 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,” Alito said.
He continued, “The state’s message is this: Forget about worship and head for the slot machines or maybe a Cirque du Soleil show.”
Alito argued that in another case in Maryland, there is a Food and Drug Administration (FDA) requirement that women who are taking a particular abortifacient must visit a doctor before taking the pill. In this case, federal courts ruled that, in the pandemic, this impeded women from having an abortion because they might fear going to the doctor and getting COVID-19. Rather than defer to the FDA, the court valued the right to an abortion above FDA requirements. Alito explained that this shows that religious freedom is now a “second-class” right.
He quoted a member of the Colorado Human Rights Commission, who told baker Jack Philips that religious freedom 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.”
Recently, Rep. Alexandria Ocasio Cortez (D-N.Y.) said something similar in a since-deleted tweet, “Sick and tired of Republicans who co-opt faith as an excuse to advance bigotry and barbarism. Fact is, if today Christ himself came to the floor of Congress and repeated his teachings, many would malign him as a radical and eject him from the chamber.”
As Alito closed his address, he said, “For all Americans standing up for our Constitution and our freedom is work that lies ahead. It will not be easy work, but when we meet next year, I hope we will be able to say that progress has been made.”
Alito is correct that the disparate enforcement of COVID-19 restrictions is only a symptom of an underlying attitude towards religious liberty. As Christianity becomes increasingly less popular in the United States, it is essential that the right of religious liberty be protected.