Bench Memos

Law & the Courts

Justice Alito’s Robust Defense of Religious Liberty and Freedom of Speech

In his keynote address yesterday evening at the Federalist Society’s (virtual) national lawyers convention, Justice Alito warned that religious liberty and freedom of speech are in danger of being demoted to “second class” rights. As if to prove his point, the usual suspects on the Left, such as Slate’s Mark Joseph Stern, raced to condemn Alito’s speech as “bitter[ly] partisan” and as “[f]louting his ethical obligations.”

In contending that Alito has improperly “waded into fierce political debates,” Stern obscures from his readers that Alito’s speech, on all the matters that Stern finds controversial, broadly reiterates what Alito has already spelled out in his written opinions. It’s one thing for a justice to speak publicly about an open issue on which the justice hasn’t yet ruled (as Justice Ruth Bader Ginsburg did with respect to same-sex marriage and President Trump’s tax returns). It’s a very different—and much less remarkable—thing for a justice to restate positions that he has already formally adopted.


1. Alito on restrictions on religious liberty during the pandemic (Calvary Chapel Dayton Valley v. Sisolak):

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 has issued a directive that severely limits attendance at religious services. A church, synagogue, or mosque, regardless of its size, may not admit more than 50 persons, but casinos and certain other favored facilities may admit 50% of their maximum occupancy—and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.

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.

2. Alito on the Little Sisters of the Poor (Little Sisters of the Poor v. Pennsylvania):

We now send these cases back to the lower courts…. This will prolong the legal battle in which the Little Sisters have now been engaged for seven years—even though during all this time no employee of the Little Sisters has come forward with an objection to the Little Sisters’ conduct….

The inescapable bottom line is that the accommodation demanded that parties like the Little Sisters engage in conduct that was a necessary cause of the ultimate conduct to which they had strong religious objections. Their situation was the same as that of the conscientious objector in Thomas [v. Review Board], who refused to participate in the manufacture of tanks but did not object to assisting in the production of steel used to make the tanks. Where to draw the line in a chain of causation that leads to objectionable conduct is a difficult moral question, and our cases have made it clear that courts cannot override the sincere religious beliefs of an objecting party on that question….

[Under Justice Ginsburg’s dissent,] [n]othing short of capitulation on the part of the Little Sisters would suffice….

I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption (or something very close to it). I would bring the Little Sisters’ legal odyssey to an end.

3. Alito on Washington state’s coercion of pharmacists (Storman’s, Inc. v. Wiesman):

This case is an ominous sign.

At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications. There are strong reasons to doubt whether the regulations were adopted for—or that they actually serve—any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time. If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.

The Stormans family owns Ralph’s Thriftway, a local grocery store and pharmacy in Olympia, Washington. Devout Christians, the Stormans seek to run their business in accordance with their religious beliefs. Among those beliefs is a conviction that life begins at conception and that preventing the uterine implantation of a fertilized egg is tantamount to abortion. Consequently, in order to avoid complicity in what they believe to be the taking of a life, Ralph’s pharmacy does not stock emergency contraceptives, such as Plan B, that can “inhibit implantation” of a fertilized egg, 1 Supp. Excerpts of Record in Nos. 12–35221, 12–35223 (CA9), p. 1245 (SER). When customers come into the pharmacy with prescriptions for such drugs, Ralph’s employees inform them that the pharmacy does not carry those products, and they refer the customers to another nearby pharmacy that does. The drugs are stocked by more than 30 other pharmacies within five miles of Ralph’s. These pharmacies include an Albertson’s located 1.9 miles from Ralph’s and a Rite-Aid located 2.3 miles away.

4. Alito on the religious-liberty rights of baker Jack Phillips (joining Justice Gorsuch’s concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Comm’n):

As the Court explains, the Colorado Civil Rights Commission failed to act neutrally toward Jack Phillips’s religious faith. Maybe most notably, the Commission allowed three other bakers to refuse a customer’s request that would have required them to violate their secular commitments. Yet it denied the same accommodation to Mr. Phillips when he refused a customer’s request that would have required him to violate his religious beliefs. As the Court also explains, the only reason the Commission seemed to supply for its discrimination was that it found Mr. Phillips’s religious beliefs “offensive.” That kind of judgmental dismissal of a sincerely held religious belief is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny. The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all….

Many may agree with the Commission and consider Mr. Phillips’s religious beliefs irrational or offensive. Some may believe he misinterprets the teachings of his faith. And, to be sure, this Court has held same-sex marriage a matter of constitutional right and various States have enacted laws that preclude discrimination on the basis of sexual orientation. But it is also true that no bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.

5. Alito on district-court order blocking FDA rule on medication abortion (FDA v. American College of Obstetricians):

While COVID–19 has provided the ground for restrictions on First Amendment rights, the District Court saw the pandemic as a ground for expanding the abortion right recognized in Roe v. Wade (1973). At issue is a requirement adopted by the FDA for the purpose of protecting the health of women who wish to obtain an abortion by ingesting certain medications, specifically, mifepristone and misoprostol. Under that requirement, a woman must receive a mifepristone tablet in person at a hospital, clinic, or medical office. The FDA first adopted the requirement in 2000, and then included it in a package of safety requirements under express statutory authority in 2007. Over the course of four presidential administrations, the FDA has enforced this requirement and has not found it appropriate to remove it. During the COVID–19 pandemic, the FDA suspended in-person dispensing requirements for some drugs, but it evidently decided that the mifepristone requirement should remain in force.

Nevertheless, a District Court Judge in Maryland took it upon himself to overrule the FDA on a question of drug safety. Disregarding the Chief Justice’s admonition against judicial second-guessing of officials with public health responsibilities, the judge concluded that requiring women seeking a medication abortion to pick up mifepristone in person during the COVID–19 pandemic constitutes an “undue burden” on the abortion right, and he therefore issued a nationwide injunction against enforcement of the FDA’s requirement. The judge apparently was not troubled by the fact that those responsible for public health in Maryland thought it safe for women (and men) to leave the house and engage in numerous activities that present at least as much risk as visiting a clinic—such as indoor restaurant dining, visiting hair salons and barber shops, all sorts of retail establishments, gyms and other indoor exercise facilities, nail salons, youth sports events, and, of course, the State’s casinos. And the judge made the injunction applicable throughout the country, including in locales with very low infection rates and limited COVID–19 restrictions.

6. Alito on the threat that the invented constitutional right to same-sex marriage poses to freedom of speech (Obergefell v. Hodges):

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

7. Alito on the effort by Senator Whitehouse and other Democratic senators to bully the Supreme Court in their appalling amicus brief (New York State Rifle & Pistol Ass’n v. City of New York):

Five United States Senators, four of whom are members of the bar of this Court, filed a brief insisting that the case be dismissed. If the Court did not do so, they intimated, the public would realize that the Court is “motivated mainly by politics, rather than by adherence to the law,” and the Court would face the possibility of legislative reprisal.

Regrettably, the Court now [mistakenly] dismisses the case as moot.

It’s worth noting that Justice Ginsburg also publicly opposed the Left’s Court-packing plan on the same grounds as Alito did, as this excerpt from an NPR article shows:

Roosevelt’s proposal would have given him six additional Supreme Court appointments, expanding the court to 15 members. And Ginsburg sees any similar plan as very damaging to the court and the country.

“If anything would make the court look partisan,” she said, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

That impairs the idea of an independent judiciary, she said.

(Throughout this post, I have omitted or simplified some citations.)


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