Justice Alito: COVID Has Led to a Constitutional 'Stress Test' for Religious Freedom

November 13, 2020

In a keynote speech before the Federalist Society convention this week, U.S. Supreme Court Justice Samuel Alito provided a stark reminder of the need to consistently be on guard to defend our freedoms, observing that "[t]he [coronavirus] pandemic has resulted in previously unimaginable restrictions on individual liberty."

While Justice Alito's speech is drawing sharp criticism, he merely spoke the truth.

"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 ... think of worship services, churches closed on Easter Sunday, synagogues closed for Passover on Yom Kippur ... The COVID crisis has served as a sort of constitutional stress test. And in doing so, it has highlighted disturbing trends that were already present before the virus struck. One of these is the dominance of lawmaking by executive fiat rather than legislation."

He's exactly right.

In his remarks, Justice Alito highlighted one case from Nevada emblematic of a number of unconstitutional restrictions nationwide. After initially closing the state's casinos for a time, the governor opened them up and not only allowed them to admit 50 percent of their normal occupancy, but encouraged people from all over to come visit the state. Yet at the same time, the state only allowed 50 people to attend church, regardless of the size of the church building. As Justice Alito pointed out, there is an incredible double standard when it comes to upholding our liberties and Constitution versus other "rights" like abortion.

Justice Alito's protection of the cherished right of religious liberty dates back to his time on the U.S. Court of Appeals for the Third Circuit, where he wrote the opinion in Fraternal Order of Police v. City of Newark. In that case, the police department required the officers to shave their beards; while there was a health exemption, there was not a religious exemption for those faiths that forbid shaving a beard. Justice Alito ruled in favor of the officers.

While serving on the Supreme Court, Justice Alito has further cemented his reputation as a jurist who desires to protect a robust understanding of religious exercise in the public square. He authored the opinion in Burwell v. Hobby Lobby Stores, which recognized that a closely-held corporation was protected under the federal religious liberty law known as the Religious Freedom Restoration Act. In that case, he protected the store's Christian owners from being forced to cover abortion-causing drugs and services, and therefore becoming complicit in furthering moral evil. In Obergefell v. Hodges, Justice Alito dissented from the majority's judicial overreach when it crafted a right to same-sex marriage that is found nowhere in the Constitution, threatening religious liberty in the years ahead.

Justice Alito also proclaimed the importance of religious liberty in a more recent decision concerning the negative implications of Obergefell. While he agreed with the court not to hear a case brought by Kim Davis, a former county clerk in Kentucky who refused to issue a same-sex marriage license because it would violate her conscience, he did sign on to Justice Thomas's statement blasting the problems stemming from the court's activist decision: "Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss."

In last night's address, Justice Alito also pointed out that the attack on religion in America is nothing new; it is just being exploited by the pandemic. Further, he raised other important cases, lest they be forgotten in the midst of the current crisis. Justice Alito praised the Little Sisters of the Poor and their noble work while pointing out the Left's relentless attack on them. He spoke about Ralph's Pharmacy -- a business owned by a Christian family who does not want to sell abortifacients -- yet one who the Left is trying to force to participate in a practice that is against their faith. He also highlighted the case of Jack Phillips, the owner of Masterpiece Cakeshop, who simply did not want to participate in a ceremony against his religion by crafting a cake for it -- yet is being vilified for doing so.

While the Left objects to people living out beliefs they disagree with, they seem to forget that we all need the protection of the Constitution. Justice Alito reminded us that despite constant attacks by the Left, we have a right to believe and practice our faith. Under the Constitution, no government officials should be able to get away with utilizing a crisis to treat religious adherents differently than casinos. We are all better off as a country with Justice Alito and those like him upholding the freedom to practice our faith.