A visibly bearded judge Samuel Alito delivered the keynote address at the Notre Dame Law School Religious Freedom Summit in Rome on Thursday evening. During his remarks, Alito revisited one of his common refrains: as our world becomes increasingly secular, religious liberty is “under attack,” because people simply don’t value religion to grant him special protection.
Alito focused his speech on what he called the “international problem” of religious liberty: the struggle to persuade an increasingly secular population that religion is valuable and worthy of special protection. The judge lamented the fragility of religious freedom and reminded his audience that “we cannot assume that the religious freedom we enjoy today will last forever.”
To emphasize his point, Alito first listed examples from history in which “Christians were torn apart in the Colosseum” and “Nero allegedly used Christians as human torches”. Then he pointed out that, as violent as these historical examples may be, “more Christians are being killed for their faith in our time than in the bloody days of the Roman Empire.” Alto quickly continued his discourse on Christian persecution with examples involving victims of other faiths, such as the Holocaust and terrorist attacks on Jewish synagogues, the massacre of Yazidi by Isis in Iraq, attacks on Coptic churches in Egypt, the Hindu-Muslim conflict in India, and China’s “indescribable treatment” of Uyghurs.
The judge noted that religious freedom is “under attack” because it threatens those who seek absolute power. Alito also said that religious persecution “grows out of something dark and deep in human DNA: the tendency to mistrust and dislike people who are not like us.”
Against this backdrop of violence, Alito described the “different challenge” facing religious freedom in the United States and Europe. In these places, he said, the real problem is that a growing percentage of the population rejects religion altogether and is therefore unmotivated to give it special protection.
As an example of the kind of “religious ignorance” that Alito says underlies hostility to religion, he told the story of seeing a 10-year-old boy in Berlin. Seeing a “rustic wooden cross”, the boy asked his “wealthy woman” companion: “Who is this man? Alito said he offered the example “as a harbinger of what might happen to our culture.”
Alito’s attitude turned joking as he gave a hypothetical example of the kind of outcome that could be brought about by anti-religious sentiment. He told an imaginary story of a courtroom in which three lawyers entered wearing head coverings. One, a zealous Green Bay Packers fan wearing a team cap, another, an Orthodox Jewish man wearing a kippa, and a third, a Muslim woman wearing a religious head covering. Alito rhetorically asked if the Packers fan could be forced to remove his cap while the other two were allowed a religious accommodation for their covers.
“To me, the Constitution of the United States provides a clear answer,” Alito replied, then commented as laughter broke out. “Some of my colleagues are not so sure.”
The reference to his colleagues surely pointed to some of his fellow judges who disagreed with recent SCOTUS rulings such as Kennedy vs. Bremerton (in which SCOTUS sided with a high school football coach who led students in prayer at games), Carson v. Makin (in which SCOTUS decides that Maine should fund religious school tuition), or Morrissey vs Beru (in which SCOTUS argued that religious schools are exempt from anti-discrimination laws because teachers are “ministers”).
About halfway through his remarks, Alito landed on a fundamental legal argument applicable to most disputes involving religious freedom: one just has to who activities are protected under the umbrella of “religious freedom”. Alito warned that the concept could be “reduced to ‘freedom of worship,'” which would only protect private religious practices in a home or synagogue. “But when you enter the public square, you better behave like a good secular citizen,” he warned.
Alito’s reduction of the problem to a dichotomy between private and public is, however, a bit too simplistic. What Alito omitted was any reference to the complex issue of whether religious conduct protected by the free exercise clause could be a violation of the establishment clause, which had been the issue in Shurtleff v. Boston. The dispute was not about whether an individual had the right to fly a religious flag, but whether Boston City Hall had the right to maintain a policy banning all religious flags.
Moreover, Alito made no reference to the type of dispute at the center of C. Smith Employment Division – the 1990 Alito case urged the Court to reverse its approval in Fulton vs. Philadelphia. Black-smith and other subsequent cases have continued to raise the question of whether a right to religious freedom encompasses a right to be exempted from other laws of general application.
The late judge Antonin Scaliaknown to be a deeply religious individual, wrote the majority vision in Black-smith in which SCOTUS argued that individuals are not exempt from following state drug laws even if they use drugs in a religious ceremony. As long as the law was neutral and generally applicable, Scalia said, the Constitution does not require an exception for those who violate it for religious reasons. On the contrary, the Alito who came closest during the speech to acknowledging any limits on “religious freedom” was a hypothetical religious group that wished to carry out child sacrifice.
The climax of Alito’s remarks came when he joked that he “had the honor” of writing “the only Supreme Court decision in the history of this institution that has been lambasted by an entire series of foreign leaders who felt perfectly fine commenting on U.S. law.” Justice’s indirect reference to SCOTUS’s recent ruling in Dobbs v. Jackson Women’s Health Organization was greeted with robust laughs from the audience. Alito continued, mockingly, “One of them was former Prime Minister Boris Johnson– but he paid the price. The audience laughed and clapped as Alito joked, “post hoc ergo propter hoc, right?” referring to the logical error that wrongly assigns a causal relationship between two events.
Alito mentioned the French president Emmanuel Macron and Prime Minister of Canada Justin Trudeau like other incumbent foreign leaders who criticized the decision “whose name cannot be pronounced”. Alito also said he was “really hurt” when Prince Harry, Duke of Sussexaddressed the United Nations and seemed to compare the Dobbs decision with the Russian attack on Ukraine.
Alito’s levity in discussing the Dobbs The decision – and its repeated reference to the ignorant of 10-year-old Christian iconography – stands in stark contrast to much of the highly emotional and, in some cases, tragic fallout from the Court’s ruling. Specifically, the case of a 10-year-old rape victim forced to travel for an abortion and suing her doctor has been widely reported as an example of the serious consequences Dobbs has already caused.
The judge spent several minutes extolling some of the virtues of religion and the enormous charitable contributions of religious institutions. He even gave an overview of the history of the Catholic Church having established the first orphanages, then briefly mentioned the Fulton to point out Philadelphia’s reckless attempt to “kick Catholic social services out of foster care.”
Alito concluded his remarks with an anecdote about his trip to China in 2016 during which he met a Peking University student who was born and raised in secret in contradiction to China’s strict one-child policy. Alito attributed the girl’s remarkable story to growing up in a town with several churches, including a Catholic church known as “the church that gave reasons.” The justice ended with a quote from the scriptures, “Champions of religious freedom who come out as wise as serpents and as harmless as doves can expect to find hearts open to their message.”
You can watch Alito’s full speech here.
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