Justice Alito takes aim at abortion rights, gay marriage and Covid rules

The inability of people to say, without fear of being branded as bigots, that marriage is exclusively between a man and a woman is threatening to make freedom of speech “a second-tier constitutional right”, supreme court justice Samuel Alito said at a virtual conference on Thursday.

In a bleak address, Alito took aim at abortion rights, same-sex marriage, gun control and other conservative bugbears.

The remarks were made to the Federalist Society, the conservative legal group that has helped Donald Trump remake the judiciary in the last four years.

While supreme court justices have in the past waded into politics in public forums, Alito’s 30-minute speech stood out for its provocative engagement on fronts in the culture wars that had not seemed to be particularly hot, at least before the confirmation of Justice Amy Coney Barrett last month.

Alito’s speech fueled concerns that Barrett’s elevation, which established an ironclad 6-3 conservative majority on the court, could lead the court to revisit basic anti-discrimination protections, marriage equality, reproductive rights and other issues.

“This was a hyper-political, partisan speech, and his message in sum was: I’m free to say this now. We have the votes,” tweeted Chris Geidner, director of strategy at the justice collaborative advocacy group.

As the United States continues to shatter daily records for new Covid-19 cases, Alito blasted coronavirus mitigation measures for imposing “previously unimaginable restrictions on individual liberty”.

He singled out restrictions in Nevada limiting religious services to 50 attendees. “The states’s message is this: forget about worship and head for the slot machines, or maybe a Cirque du Soleil show,” Alito said.

Although by any measure conservative jurisprudence under Trump has flourished, securing minority legal views for a generation, Alito spun a conservative victimization narrative, in which citizens are threatened in their freedom to speak and act as they please.

“When I speak with recent law school graduates, what I hear over and over is that they face harassment and retaliation if they say anything that departs from the law school orthodoxy,” he said.

“It pains me to say this,” Alito said, “but in certain quarters, religious liberty is fast becoming a disfavored right.” As an example, Alito decried a Washington state law requiring a pharmacist to fill prescriptions for “morning-after pills, which destroy an embryo after fertilization”, as he put it.

“Even before the pandemic, there was growing hostility to the expression of unfashionable views,” Alito continued, using the rubric of “the rule of law and the current crisis” to mount an attack on same-sex marriage, secured by the court in Obergefell v Hodges (2015), a ruling from which he dissented.

“You can’t say that marriage is a union between one man and one woman,” Alito complained. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”

Alito went on:

That this would happen after our decision in Obergefell should not have come as a surprise. Yes, the opinion of the court included words meant to calm the furors of those who cling to traditional views on marriage. But I could see, and so did the other justices in dissent, where the decision would lead. I wrote the following: ‘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.’ That is just what is coming to past.

One of the great challenges for the supreme court going forward will be to protect freedom of speech. 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.”

Legal analysts said the speech displayed thinking familiar from the 70-year-old justice’s opinions – but they called his decision to give voice to those opinions unusual.

“I’m not surprised that Justice Alito believes any of those things,” tweeted University of Texas law professor Steve Vladeck. “One need only read his written opinions to see most of them. I’m surprised that he decided to *say* them in a public speech that was live-streamed over the internet – clips of which will now be recirculated for ever.”

Alito is a George W Bush appointee who previously worked as a federal prosecutor in New Jersey and a circuit court judge. The speech was pre-recorded for the 2020 National Lawyers Federation sponsored by the Federalist Society. “Today I’m talking to a camera, and that feels really strange,” Alito said.

To capture the mood of what he described as an assault on religious liberties and free speech, Alito quoted a 1997 Bob Dylan song.

“To quote a popular Nobel laureate,” Alito said, “it’s not dark yet, but it’s getting there.”