Justice Alito Defends the First Amendment

During a speech to The Federalist Society on Thursday, Supreme Court Justice Samuel Alito defended the First Amendment rights to free speech and religious liberty, warning that support for each is slipping.

“We should all welcome rational, civil speech on important subjects even if we do not agree with what the speaker has to say,” he said. “Unfortunately, tolerance for opposing views is now in short supply in many law schools, and in the broader academic community.”

Recent law graduates he has met, Alito said, said that expressing themselves freely has led to harassment and retaliation if they reject the “orthodoxy” of their schools. This isn’t the case at all schools, but it’s no secret that many public universities are far from defenders of free speech. Perhaps more concerning, however, is the infringement of free speech and religious liberty at private organizations.  

The Little Sisters of the Poor, for example, have faced legal battles for years for the group’s refusal to provide birth control through its health-care plan. As the organization consists of Catholic nuns, Alito notes, no one that he knows of has actually felt discriminated against by the religious group’s commitment to conscience. Yet after winning a recent battle in the Supreme Court, the Little Sisters had their case sent back to the court of appeals, and the legal fight “goes on and on.”  

Similarly, Jack Phillips, the baker who famously refused to make a wedding cake for a same-sex couple, was sued in 2012 for acting according to his conscience. Never mind that another bakery gave the couple a free cake and celebrity chefs showered them with support. “For many today, religious liberty is not a cherished freedom,” Alito said. They see it as an intolerable “excuse for bigotry…even when there is no evidence that anybody has been harmed.”  

Alito lays out a concerning landscape for defenders of free speech and religious liberty. What happens in a society when only some forms of expression are tolerated? We’re starting to find out firsthand.  

“A great many Americans disagree, sometimes quite strongly, with the religious beliefs of the Little Sisters…and Jack Phillips,” Alito said. “And of course they have a perfect right to do so. That is not the question. The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.” 

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