In July, 2022, U.S. Supreme Court justice Samuel Alito gave a speech at the Religious Liberty Summit in Rome, Italy. The speech received some media attention, much of which I believe missed the main noteworthy elements of the speech.
It’s not just that Supreme Court Justice Samuel Alito spoke of the threat to religious liberty by Muslims, Hindus, Communists, Roman Emperors, and secular Americans, while casually omitting the long history of religious oppression by leaders of his own Catholic faith.
It’s not just the jokes about foreign leaders having the temerity to criticize Alito’s Supreme Court decision removing the right to abortion in the United States.
It’s how the central argument of Alito’s speech seems to be based on a profound misunderstanding of the First Amendment.
The Terror of Minority Status
Justice Alito said that in the US, the threat to religious liberty comes from the decline of American religiosity. Since fewer people will be religious, fewer people will want to protect religious rights. In other words, he is afraid that the First Amendment will no longer protect groups such as – oh, just picking one at random – Christians, because Christians will have become a minority.
I assume that before he went to law school, the Supreme Court justice took American History in high school and learned that a big part of the rationale of the First Amendment is precisely to protect minority rights. Maybe they teach something different at Yale Law School, where Mr. Alito earned his J.D., but I doubt it. In a democracy, it is not the majority religion that is persecuted – who would have the power to persecute them? Justice Alito appears to have some kind of fantasy that solidarity among the religious is a protection from persecution that we are about to lose. This would be easier to believe if one never opened a history book. If everyone is a Protestant, the Anglicans can struggle with the Puritans. Add Catholics and both Protestant groups turn against the newcomers. And all of them can persecute Muslims, Jews, and atheists.
I am not trying to suggest that the religious are uniquely repressive. The Soviets, Chinese communists, and other have proved that. The impulse to apply force against ideological opponents is a universal temptation among those who believe they have the power to do so. Alito tried to argue that the godly people he was speaking to might convince the ungodly to safeguard religion because religious freedom would reinforce other freedoms such as speech and assembly. Again, he has cause and effect backwards. Governments don’t protect freedom of speech because it’s part of freedom of religion; they protect freedom in many spheres if they think that freedom is an important value.
People’s beliefs in the tenets of a religion should be protected from both irreligious and religious persecution. Similarly, we consider protection of the right to practice a religion and the right to not practice a religion to be two sides of the same coin. This is not a new idea; it goes back at least as far as Thomas Jefferson, who wrote “It does me no injury for my neighbor to say there are 20 gods or no God.” Justice Alito doesn’t come out and say so explicitly, but everything in his argument suggests that he does not see the symmetry in that argument. To him, freedom of religion is important, and freedom from religion is not even worth mentioning.
Defending Freedom or Defending Religion?
The speech ended in a curious way which further illustrates the Justice’s thinking. He says that if people don’t believe “that robust religious liberty is worth protecting, it will not endure.” What does the “it” refer to in that quote? Grammatically speaking, “robust religious liberty”. He then comments that this is a gloomy ending, so he tells a sunnier story about Christianity flourishing in China despite official repression. He concludes that the Cultural Revolution “was not able to extinguish the religious impulse,” and therefore the religious will continue “to find hearts that are open to their message”. What is it that Justice Alito thinks is surviving in China? Certainly not religious liberty, since the People’s Republic continues to curtail that and other freedoms.
Justice Alito’s answer to the question “will religious liberty survive?” is “yes, religion will survive.” In his conception, “religious liberty” does not mean “freedom to formulate your own religious beliefs,” it means “the triumph of religion.” I suspect it would not take too much more probing of his beliefs to discover that “the triumph of religion” really means “the triumph of Christianity,” or perhaps “the triumph of Catholicism.”
Conservatives make much of the idea of simply applying the law to the matter at hand. Yet Justice Alito acknowledges that when faced with competing values, in practice judges have the ability to allow one favored value to overshadow less-favored ones: “what sort of judge cannot take a limitation like that, and shrink religious liberty as much as that judge wants?” The same forces work the other way too. Clever judges can find ways to privilege some beliefs over others. Remember, to Samuel Alito, “religious liberty” appears to be “the triumph of Catholicism.” Is he really working to defend the Constitution, or to bring about this triumph?