Justice Alito’s Defense of Religious Freedom - The American Spectator | USA News and Politics
Justice Alito’s Defense of Religious Freedom
Justice Samuel Alito addresses the Federalist Society’s National Lawyers Convention, November 25, 2020 (YouTube screenshot)

The Founding Fathers established the First Amendment as a protection for religion. But today’s secularists, including President Biden, reject that view and feel the need to protect Americans against religion. They have turned the First Amendment on its head. Consequently, religious freedom, in the words of Justice Samuel Alito, is increasingly “disfavored” under modern jurisprudence.

Secularism’s spurious view of “rights” is based upon coercing the religious into fulfilling them. Hence, secularists can’t abide the Little Sisters of the Poor, who decline to pay for the contraceptives and abortifacients of their employees. Nor can secularists tolerate bakers who don’t want to make cakes for gay weddings or Catholic adoption agencies faithful to perennial moral teaching.

The violation of religious freedom is central to the agenda of modern liberalism for the simple reason that its goals can’t be fulfilled unless the religious are forced to enact them. On the Left’s collective, no one is free to leave. Of course, secularists rarely put the matter this bluntly. Joe Biden prefers to describe the coercion of the religious in euphemistic terms. He says that he will not allow “discrimination.” He is opposed to “broad exemptions” and so forth. The upshot of these comments is that wherever religious freedom and liberalism conflict, Biden favors the suppression of religious freedom.

His parsimonious view of the First Amendment is completely at odds with the vision of the Founding Fathers. They emphasized the “free exercise” of religion and feared an overweening federal government that might swoop down and crush it at the state level. The states would never have ratified the Constitution without the First Amendment’s strong protection of religion.

It was the French, not the American, revolution that viewed Christianity as a barrier to progress. The idea that the state has a “compelling government interest” to force Christians to violate the historic tenets of their faith would have been anathema to the Founding Fathers. They considered the preservation of Christianity essential to virtuous self-government. Biden’s plans to force the religious to perform transgender surgeries in the name of “nondiscrimination” is really no different than the thugs of the French Revolution demanding Christians bow before the “goddess of reason.”

Last Thursday, the Supreme Court appeared to offer a mild rebuke to secularists in the Philadelphia city government who refused to place children with a Catholic adoption agency unless it opened up its services to homosexuals. Unfortunately, the unanimous ruling carries little significance, says Justice Samuel Alito, who noted that the ruling rested on narrow and technical reasoning. (The city, the court ruled, had failed to observe its own exemption-making power, which it denied to Catholic Social Services.) Alito had hoped the court would defend the Catholic adoption agency on originalist First Amendment grounds.

“This decision might as well be written on the dissolving paper sold in magic shops,” Alito wrote. “The City has been adamant about pressuring CSS [Catholic Social Services] to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voila, today’s decision will vanish — and the parties will be back where they started…. What is the point of going around in this circle?”

He continued, “The Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed — as am I.”

Alito is correct. The justices would rather nibble at the edges of these cases than reaffirm the robust view of religious freedom contained in the First Amendment. These cases will multiply until that originalist understanding is restored. As Alito argues in his lengthy opinion, the Founding Fathers had an expansive view of the free exercise of religion. That expansive view has been replaced by a “crabbed” one.

Until recent decades, it would have been unthinkable for government officials to decree that Christians must pay for abortion and contraceptives, perform transgender surgeries, and the like. These are obvious violations of the First Amendment and can only be explained by the rejection of the moral and political philosophy that informed the American founding. We are now living under a new moral and political philosophy, one that twists the non-participation of the religious in the fulfillment of invented liberal rights into constitutionally impermissible “harm” and “offense.” Imagine explaining that to John Adams, who said the Constitution could only survive in the hands of a Christian people.

The spitefulness of secularism has never been clearer. Alito wonders “whether our society will be inclusive enough to tolerate those with unpopular religious beliefs.” Secularism’s answer is no, as it displays the very intolerance it claims to see in religion. To stop this juggernaut, the justices must follow Alito’s lead and treat religious liberty once again as what he rightly calls a “fundamental freedom.”

George Neumayr
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George Neumayr, a senior editor at The American Spectator, is author most recently of The Biden Deception: Moderate, Opportunist, or the Democrats' Crypto-Socialist?
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