Acton Institute Powerblog

Americans agree with Alito: Religious liberty shouldn’t be canceled

Justice Samuel Alito testifies before House Appropriations Committee on Capitol Hill in Washington, Thursday, March 7, 2019. (AP Photo/Susan Walsh.)

The COVID-19 pandemic has further eroded America’s already flagging support for religious liberty, Supreme Court Justice Samuel Alito warned in a prophetic speech to the Federalist Society. Alito’s critics described his clarion call to respect our nation’s first freedom as “charged,” “unusually political,” and “unscrupulously biased, political, and even angry.” Sen. Elizabeth Warren called the justice a “political hack.” But a new survey shows that most Americans share Justice Alito’s assessment of faith in the public square, with surprisingly strong support among the generation thought to be the most secular.

The Becket Fund for Religious Liberty’s second annual “Religious Freedom Index,” released this Tuesday, found that “62% of respondents said that faith or religion was important to them during the outbreak.” Interestingly, Gen Z respondents were more likely than any other generation, including the Silent Generation, to say faith had been “extremely or very important” in dealing with the COVID-19 pandemic. Their solace comes no thanks to governors (and quiescent church authorities), who closed churches and others houses of worship during the coronavirus shutdowns.

“The pandemic has resulted in previously unimaginable restrictions on individual liberty,” Justice Alito said in a livestream address last Thursday:

I think it is an indisputable statement of fact: We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020. Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings, think of worship services, churches closed on Easter Sunday, synagogues closed for Passover and Yom Kippur … Who could have imagined that the COVID crisis has served as a sort of constitutional stress test?

Perhaps recognizing the importance our Founding Fathers placed on religion for the survival of our constitutional form of government, Becket found that 78% of Americans say “religion is important for providing stability to society during times of social unrest.” Twice as many Americans believe our political leaders should expedite people’s right to in-person worship than facilitate outdoor protests. Yet some governors kept casinos, marijuana distilleries, and abortion facilities open at greater capacity than houses of worship.

“In certain quarters, religious liberty is fast becoming a disfavored right,” Alito observed – a surprising turn of events since Chuck Schumer’s Religious Freedom Restoration Act passed Congress with near-unanimous consent and was signed into law by President Bill Clinton on November 16, 1993. The justice cited three examples that predate the pandemic.

First, the Little Sisters of the Poor, who serve approximately 13,000 impoverished senior citizens each year, “face crippling fines, fines that would likely have forced them to shut down their homes,” because they refuse to participate in a process that results in their insurance plan providing their female employees with “free” contraceptives. Despite the fact that artificial contraception violates Roman Catholic teachings, and not one of their employees has requested the coverage, the Obama administration picked a defining legal battle with the sisters which, after a brief respite during the Trump administration, Joe Biden vows to reignite.

Second, Ralphie’s Thriftway drug store in Washington state defined a state order to carry potentially abortion-inducing drug like Plan B and ella. The drugs, which violate the conscience of the store’s owners, could be had at numerous other pharmacies within a five-mile radius. Yet government officials sued to prevent the owners from living out their faith on the job.

Finally, Alito cited the Colorado Human Rights Commission, which sued Jack Phillips of the Masterpiece Cakeshop “when he refused to make a cake celebrating a same-sex wedding.” Ruling in Phillips’ favor, Justice Anthony Kennedy noted the “expressions of hostility to religion” uttered by the government officials who brought the case. Alito merely amplified his former colleague’s concern last Thursday by saying, “For many today, religious liberty is not a cherished freedom. 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 devolution of respect for religious rights can be seen in one family of presidential candidates. “Let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions,” said President Clinton after signing RFRA. “Let us instead respect one another’s faiths [and] fight to the death to preserve the right of every American to practice whatever convictions he or she has.” Yet by 2015, Hillary Clinton would insist “religious beliefs” that oppose abortion “have to be changed.”

During the interregnum, critical theory completed its long march through the institutions. Academic theorists problematized the concept of religious liberty, heard the testimony of protected groups’ “lived experience,” and convicted conviction of oppressing the powerless. Since critical theory values equity over equality, its exponents feel free to deny the unalienable rights of the disfavored majority. The real victims of the elite decision to jettison America’s constitutional consensus are the faithful photographers, florists, county clerks, and pizza shop proprietors crushed between vapid cries of “bigotry” and the government lawsuits those allegations trigger. Ironically, politicians threaten to use the full force of the federal government to crush their life’s work because, according to their ideology, these middle-class professionals wield too much power.

The good news is that a majority of Americans of both parties still uphold Americans’ right to live out their deeply held religious beliefs in the workplace. This year, 61% of Democrats and 71% of Republicans “supported freedom to practice one’s religion in daily life or at work even if it creates an imposition or inconvenience for others.” This silenced majority embodies the broad-minded tolerance that lies at the heart of the American experiment. Thomas Jefferson may as well have been speaking of the U.S. government when he wrote that “this institution will be based on the illimitable freedom of the human mind, for here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”

The American people must make this our motto again because, as Alito said in closing:

[I]n the end, there is only so much that the judiciary can do to preserve our Constitution, and the liberty it was adopted to protect. As Learned Hand famously wrote, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can do much to help it.” For all Americans, standing up for our Constitution and our freedom is work that lies ahead.

We must show ourselves worthy of the freedoms enshrined in our founding documents and of the constitutionally limited government instituted by our Founding Fathers. That requires us to rekindle our nation’s long-dormant sense of national unity in place of the bitter bifurcation of identity politics. We must reaffirm the fundamental goodness of America and, alas, even the goodness of God. We must renew our commitment to self-reliance, a reciprocal recognition of one anothers’ liberties, and our refusal to apologize when the deep philosophical currents that shaped Western civilization threaten to drown this present age’s obsession with “swimming in shallow waters.”

Rev. Ben Johnson

Rev. Ben Johnson is Executive Editor of the Acton Institute's flagship journal Religion & Liberty and edits its transatlantic website.