Justice Alito on America’s First Amendment wars
Almost a half- century ago, comedian George Carlin recorded his controversial “Seven Words You Can Never Say on Television” monologue.
That was then.
“Today, it would be easy to create a new list titled, ‘ Things you can’t say if you are 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 — 70 times seven would be closer to the mark,” said U.S. Supreme Court Justice Samuel Alito, via Zoom, at the recent Federalist Society National Lawyers Convention.
Discussing religious beliefs, he argued, has become especially dangerous.
“You can’t say that marriage is the union between one man and one woman,” he noted. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
Consider, for example, the case of Jack Denton, a Florida State University political science major whose long-range plans include law school.
In June, he participated in a Catholic Student Union online chat in which, after the death of George Floyd, someone promoted a fundraising project supporting BlackLivesMatter.com, the American Civil Liberties Union and similar groups. Denton criticized the ACLU’s support for wider access to abortion and the BLM group’s “What We Believe” page on its website that, at that time, pledged support for LGBTQ rights and efforts to disrupt “nuclear family” traditions.
“As a Catholic speaking to other Catholics,” Denton said, “I felt compelled to point out the discrepancy between what these groups stand for and what the Catholic Church teaches. So, I did.”
Denton didn’t expect this private discussion to affect his work as president of the FSU Student Senate. However, an outraged student took screenshots of his texts and sent them to the Student Senate. That led to petitions claiming that he was unfit to serve, a painful six-hour special meeting and his forced exit.
Backed by Alliance Defending Freedom, a faithbased nonprofit, Denton sued the university for violating his First Amendment rights, as well as campus policies against discrimination against religious believers. A student court returned him, briefly, to office in late October, after a federal judge ruled that FSU should pay him lost wages. Denton graduates in December.
“This whole experience has certainly perked my interest in studying constitutional law and First Amendment rights, in particular,” said Denton, reached by telephone.
Denton isn’t alone.
Alito, in his Federalist Society address, stressed that it is now common to hear students and professors, including many in law schools, express fears about the consequences of being honest about their religious convictions.
“It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right, and that marks a surprising turn of events,” said Alito. “Consider where things stood in the 1990s — and, to me at least, that does not seem like the Jurassic Age,” he said, referring to bipartisan efforts to pass the Religious Freedom Restoration Act. The bill passed on a 97-3 vote in the Senate, received unanimous support in the House and was signed by President Bill Clinton in 1993.
“Today that wide support has vanished,” said the Supreme Court justice. “When states have considered or gone ahead and adopted their own versions of RFRA, they have been threatened with punishing economic boycotts. …
“For many today, religious liberty is not a cherished freedom,” he continued. “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. … The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.”
As an example of these sentiments, Alito quoted an online commentary by Harvard Law School Professor Mark Tushnet in which he stated: “The culture wars are over; they lost, we won. … For liberals, the question now is how to deal with the losers in the culture wars.”
Tensions about controversial religious issues have, of course, spread to other battle lines in American life, he said. At this point, the entire First Amendment has become controversial.
“One of the great challenges for the Supreme Court going forward will be to protect freedom of speech,” said Alito. “Although that freedom is falling out of favor in some circles, we need to do whatever we can to prevent it from becoming a second-tier constitutional right.”