Citing two Supreme Court rulings limiting church activities amid the COVID-19 pandemic, Justice Samuel Alito said Nov. 12 that “religious liberty is in danger of becoming a second-class right.”
Addressing the conservative Federalist Society National Lawyers Convention via Zoom, Alito said the high court’s deference toward governors’ rulings in Nevada and California limiting church attendance capacities significantly below other public gatherings was discriminatory.
“In both cases, the court allowed the discrimination to stand,” said Alito, who was nominated by President George W. Bush in 2006. “The only justification given was that we should defer to the judgment of the governors because they have a responsibility to safeguard the public health.”
In late July, a Supreme Court majority of 5-4 rejected an emergency injunction request by a Nevada church that appealed the governor’s directive limiting religious gatherings to 50 worshipers regardless of the size of the building, while allowing casinos and other venues to operate at 50% capacity irrespective of their size.
And in late May the high court, by a 5-4 vote, refused to grant an injunction for a San Diego-area church that had appealed California Gov. Gavin Newsom’s executive order limiting church attendance to 25% of building capacity while allowing retail stores and restaurants to open under less restrictive social distancing measures.
“[Deciding] whether to allow this disparate treatment should not have been a very tough call,” Alito said concerning the Nevada case specifically. “Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment, which protects religious liberty. You will not find a craps clause or a blackjack clause or a slot machine clause.”
On Saturday, Franklin Graham posted Alito’s comments on Twitter and stated that the Supreme Court justice had “sounded a strong warning for every American.”
“Religious liberty in America is under attack,” Franklin added. “If we’re not careful, we could lose the most precious freedom we have—religious freedom.”
During his remarks, Alito also referenced Supreme Court cases involving Masterpiece Cakeshop owner Jack Phillips, who refused to design a cake for a same-sex wedding; and Little Sisters of the Poor, which requested an exemption from an Obamacare insurance mandate to cover birth control and abortifacients.
“For many today, religious liberty is not a cherished freedom,” Alito said. “It’s often [considered] just an excuse for bigotry [that] can’t be tolerated, even when there is no evidence that anybody has been harmed.
“As far as I’m aware, not one employee of the Little Sisters has come forward and demanded contraceptives under the Little Sisters’ plan,” he said. “There was … no reason to think that Jack Phillips’ stand would deprive any same-sex couple of a wedding cake. The couple that came to his shop was given a free cake by another bakery, and celebrity chefs have jumped to the couple’s defense.”
Photo: REUTERS/Jim Young/File Photo (Newscom)