© YouTube Supreme Court Justice Samuel Alito delivered a politically-charged speech to a conference of conservative lawyers. YouTube
Supreme Court Justice Samuel Alito expressed concern about religious liberty with regard to same-sex marriage and COVID-19 restrictions during a speech on Thursday.
"You can't say that marriage is a union between one man and one woman," Alito said. "Until very recently that's what a vast majority of Americans thought. Now it's considered bigotry."
Alito was heavily criticized by Democratic lawmakers and legal experts over the politically-charged nature of his remarks, which were delivered to a group of conservative lawyers.
Supreme Court Justice Samuel Alito gave a politically-charged speech on Thursday night in which he suggested that religious liberty is under threat by same-sex marriage and COVID-19 restrictions.
Conservatives have a 6-3 majority on the Supreme Court, but Alito's remarks implied that they're a marginalized group.
"It pains me to say this," Alito said while addressing a virtual conference of conservative lawyers (the Federalist Society), "but in certain quarters, religious liberty is fast becoming a disfavored right."
Alito, who was appointed to the Supreme Court by Republican President George W. Bush, said the "question" the US faces is "whether our society will be inclusive enough to tolerate people with unpopular religious beliefs."
The conservative justice said the COVID-19 pandemic had led to "previously unimaginable" restrictions on individual liberty. He pointed explicitly to impositions on religious services.
"Think of worship services! Churches closed on Easter Sunday, synagogues closed for Passover in Yom Kippur," Alito said.
The Supreme Court justice said he was not diminishing the severity of the threat of the virus to the public, and was not commenting on the legality of the restrictions imposed.
"We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020," Alito added. He said the COVID-19 pandemic has served as a "constitutional stress test."
Alito also suggested that freedom of expression is under threat with regard to same-sex marriage. Freedom of speech is "falling out of favor," he said.
"You can't say that marriage is a union between one man and one woman," he said. "Until very recently that's what a vast majority of Americans thought. Now it's considered bigotry."
The conservative justice argued that the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide, opened the door for discrimination against those with a traditional view of marriage. "I could see where the decision would lead," Alito said, echoing his past criticism of the 2015 same-sex marriage decision.
Alito garnered praise among conservatives for his remarks, which were tweeted out by President Donald Trump. But Democratic lawmakers and legal experts excoriated Alito over his comments, as Supreme Court justices are meant to be impartial and avoid appearing too political.
"Supreme Court Justices aren't supposed to be political hacks. This right-wing speech is nakedly partisan," Democratic Sen. Elizabeth Warren of Massachusetts said in a tweet.
Democratic Sen. Sheldon Whitehouse of Rhode Island said Alito had outed himself as a "full-on partisan crusader."
"I'm not surprised that Justice Alito believes any of those things. One need only read his written opinions to see most of them. I'm surprised that he decided to *say* them in a public speech that was livestreamed over the internet—clips of which will now be recirculated forever," Steve Vladeck, a University of Texas law professor, tweeted.
Watch Alito's full remarks below:
Samuel Alito's viral speech signals where conservative Supreme Court is headed
There's no secret to what Supreme Court Justice Samuel Alito wants for the law in America. He said it out loud Thursday night in an ireful speech to the conservative Federalist Society.
There's no secret to what Supreme Court Justice Samuel Alito wants for the law in America. He said it out loud Thursday night in an ireful speech to the conservative Federalist Society.
© MANDEL NGAN/AFP/Getty Images Associate Justice Samuel Alito poses for the official group photo at the US Supreme Court in Washington, DC on November 30, 2018.
Alito, who rarely speaks in public but has a way of going viral when he does, wants the high court to move further and faster on right-wing, anti-regulation interests, particularly for religion in a time of Covid, in the face of LGBTQ concerns, and when people simply, as he says, want to describe marriage as only between a man and a woman.
Alito, a 70-year-old appointee of President George W. Bush, has become an infuriated dissenter, even as his side of the bench has become fortified with appointments and will likely see greater majorities ahead.
"The pandemic has resulted in previously unimaginable restrictions on individual liberty," Alito asserted Thursday, highlighting the consequences for "worship services, churches closed on Easter Sunday, synagogues closed for Passover and Yom Kippur."
Alito said he was not minimizing the death toll of coronavirus nor commenting on "the legality" of pandemic-era rules, yet he emphasized, "We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020."
"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." He referred to agency regulation and a general "dominance of lawmaking by executive fiat rather than legislation."
The gnashing ideological tone of Alito's speech in such a prominent forum was striking and immediately ignited social-media commentary. Supreme Court justices have generally tried to recede from the hyper-partisanship throughout Washington today. In some respects, Alito's suggestion that government is infringing on Americans' freedoms echo the anti-mask, anti-restriction Trump talking points of the day.
Moreover, conservatism on the Supreme Court is in ascendance, along with tougher scrutiny for government regulation. The Supreme Court is now dominated by a 6-3 conservative-liberal majority, following the death of Ruth Bader Ginsburg and succession of Amy Coney Barrett. Her appointment marked the third for President Donald Trump on the nine-member bench.
Part of Alito's frustration may flow from a view that his conservative brethren have failed to be sufficiently vigilant. One his fiercest dissenting opinions last session came in response to a majority opinion by fellow conservative Justice Neil Gorsuch, joined by Chief Justice John Roberts and four liberal justices extending federal anti-discrimination law to LGBTQ workers.
He assaulted Gorsuch's legal reasoning, likening it to "a pirate ship" flying under a false flag and decried the opinions assertion of a modest move. "If today's decision is humble, it is sobering to imagine what the Court might do if it decided to be bold," Alito wrote.
A man with a shy nature who appears stiff -- as President Bush himself described in his memoir -- Alito now exhibits no reserve as he blasts the "intolerance" and "intimidation" of religious views. As his speech demonstrated, he also believes abortion rights wrongly win the day and liberals try to bully the justices to preserve gun regulations.
Alito has moved beyond the mere mouthing of "not true," in the 2010 memorable State of the Union moment that went viral on social media as he tried to counter President Barack Obama's criticism of the Citizens United campaign finance decision.
Alito, a New Jersey native who served as a federal prosecutor and US appeals court judge before taking his high court seat in 2006, usually cuts a low profile even with his most consequential votes.
He succeeded centrist conservative Justice Sandra Day O'Connor, and his new fifth vote on the right immediately meant more conservative high court decisions on reproductive rights, job discrimination measures and campaign finance regulations.
Chief Justice Roberts often assigned Alito the majority opinion in 5-4 disputes, for example, over contentious labor protections and religious freedom. He could speak for a fivesome that included now-retired centrist-conservative Justice Anthony Kennedy and Justice Clarence Thomas at the rightward pole.
As the court has become more conservative with Trump appointments, Alito has aligned more with Thomas in high-profile cases. Many revolve around social policy dilemmas, but Alito and Thomas also separated themselves from the seven-justice majority that compromised last July for resolution of two Trump document subpoena disputes.
In October, Alito joined Thomas in a case involving a Kentucky municipal clerk who refused to give gay couples marriage licenses. The justices contended religious liberty was being compromised by the court's 2015 decision, Obergefell v. Hodges, that found a constitutional right to same-sex marriage.
Thomas and Alito agreed that the high court should not hear the clerk's appeal, yet they used the case to lament what they described as "this Court's cavalier treatment of religion" and "assaults on the character of fairminded people."
In a Covid-related conflict, Alito drew Thomas, as well as Justice Brett Kavanaugh, as he wrote a dissenting opinion last summer when the majority rejected an appeal from a Nevada church challenging a 50-percent limit on attendance during the pandemic.
Referring to varying state rules for churches and casinos, Alito wrote that the "Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or black-jack, to feed tokens into a slot machine, or to engage in any other game of chance."
In his keynote address to the Federalist Society, Alito invoked that case and other Covid-related dilemmas. Equally prominent was his commentary related to gay rights.
At one point, he riffed on the late comedian George Carlin's "seven dirty words" routine. Calling them a "quaint relic" of another time, Alito said today's disfavored words, on campuses and in corporations, are of a new variety.
They are also too abundant to list, he said. Still, the jurist who continues to protest the court's decision affirming same-sex marriage offered this example:
"You can't say that marriage is a union between one man and one woman. Until very recently that's what the vast majority of Americans thought. Now," said Alito, "it's considered bigotry."
Critics decry Supreme Court Justice Alito's 'nakedly partisan' speech on COVID-19 measures, gay marriage
William Cummings, USA TODAY
Supreme Court Associate Justice Samuel Alito delivered candid takes on several divisive issues facing the U.S., from the measures put in place to address the COVID-19 pandemic to tensions between gay rights and religious freedom, during an address to the conservative Federalist Society on Thursday.
Alito said the restrictions imposed by political leaders in order to contain the coronavirus pandemic have "resulted in previously unimaginable restrictions on individual liberty" and denounced recent Supreme Court decisions holding up orders he believed discriminated against religious groups. He argued the pandemic highlighted a wider assault on religious freedom as conservative views are increasing equated with "bigotry."
© Jack Gruber/USA TODAY NETWORK Associate justice Samuel Alito, Jr.
The conservative justice insisted he was not "diminishing the severity of the virus' threat to public health," or "saying anything about the legality of COVID restrictions" or "whether any of these restrictions represent good public policy."
"I'm a judge, not a policymaker," he said.
Alito went on to say the "severe, extensive and prolonged" restrictions imposed in response to the pandemic represented an unprecedented curtailment of rights that would clearly be protected by the First Amendment under normal circumstances, creating "a sort of constitutional stress test."
He said the restrictions "highlighted distinct trends that were already present before the virus struck" such as "the dominance of lawmaking by executive fiat rather than legislation."
The conservative justice insisted he was not "diminishing the severity of the virus' threat to public health," or "saying anything about the legality of COVID restrictions" or "whether any of these restrictions represent good public policy."
"I'm a judge, not a policymaker," he said.
Alito went on to say the "severe, extensive and prolonged" restrictions imposed in response to the pandemic represented an unprecedented curtailment of rights that would clearly be protected by the First Amendment under normal circumstances, creating "a sort of constitutional stress test."
He said the restrictions "highlighted distinct trends that were already present before the virus struck" such as "the dominance of lawmaking by executive fiat rather than legislation."
Alito painted the use of executive orders as the culmination of a dream held by "early 20th century progressives" and "the New Dealers of the 1930s" in which "policymaking would shift from narrow-minded elected legislators to an elite group of appointed experts." And he warned that after "the pandemic has passed, all sorts of things can be called an emergency or disaster of major proportions" to justify similar measures.
He also said the pandemic restrictions were evidence that "in certain quarters, religious liberty is fast becoming a disfavored right." Alito decried the Supreme Court's decision to let restrictions stand in California and Nevada that he said "blatantly discriminated against houses of worship."
Regarding Nevada's restrictions limiting religious services to 50 people while allowing casinos to open at 50%, Alito said, "The state's message is this: 'Forget about worship and head for the slot machines, or maybe a Cirque du Soleil show.'"
Alito also claimed the pandemic revealed the already "growing hostility to the expression of unfashionable views" because some of the "restrictions are alleged to have included discrimination based on the viewpoint of the speaker." He said many conservative social views were now prohibited speech at most institutions of higher education and major corporations.
"You can't say that marriage is a union between one man and one woman," Alito cited as an example. "Until very recently, that's what the vast majority of Americans thought. Now it's considered bigotry."
Alito, 70, joined the court in 2006. He was nominated by former President George W. Bush and confirmed by a 58-42 vote in the Senate.
Many Democrats and Supreme Court watchers criticized Alito's comments as too openly political for a Supreme Court justice.
"Supreme Court Justices aren't supposed to be political hacks," tweeted Sen. Elizabeth Warren, D-Mass. "This right-wing speech is nakedly partisan. My bill to #EndCorruptionNow restores some integrity to our Court by forcing Justices to follow the ethics rules other federal judges follow."
Human Rights Campaign President Alphonso David tweeted, "Last night, Justice Alito shed any pretense of impartiality in a politically charged speech."
“If you thought Joe Biden’s victory would end the Trump Era, think again," said Aaron Belkin, director of Take Back the Court – a group that seeks to expand the Supreme Court – in a statement. "Justice Alito’s wildly inappropriate speech is a reminder that Republicans have packed the Supreme Court with extremist politicians in robes – and they’re planning a partisan revenge tour."
Gabe Roth, executive director of Fix the Court, which promotes ethics and transparency, said Alito's remarks were "more befitting a Trump rally than a legal society." Fix the Court advocates for Supreme Court reforms such as term limits and televised proceedings, as well as making the public more aware of when the justices speak in various forums and what they say at those events.
"What's more, Alito's decision to speak about COVID's impact on religious exercise is unconscionable at a time when cases concerning this very topic remain active at the Supreme Court and across the federal judiciary," Roth said in statement on Friday. "If there were enforceable recusal standards at the high court, this would be a ripe opportunity for a motion to disqualify."
Roth said Alito's address demonstrated the need for the Supreme Court to adopt a formal code of conduct that "would encourage them to think twice before making political speeches to partisan organizations and further eroding the public's trust in their impartiality."
Others came to Alito's defense amid the objections to his statements.
On Friday, President Donald Trump tweeted without comment a link to a Breitbart article about Alito's remarks.
"Justice Alito is a hero. Protecting religious liberty and freedom of speech in America is paramount," said Trump campaign lawyer Jenna Ellis.
Though it was unusual for a Supreme Court justice to lay out his or her views so explicitly, Alito's remarks did not reveal thoughts he hadn't expressed before in his legal opinions.
Edward Whelan, president of the conservative Ethics and Public Policy Center, said in a statement that the speech "broadly reiterates what Alito has already spelled out in his written opinions."
"It’s one thing for a justice to speak publicly about an open issue on which the justice hasn’t yet ruled (as Justice Ruth Bader Ginsburg did with respect to same-sex marriage and President Trump’s tax returns). It’s a very different – and much less remarkable – thing for a justice to restate positions that he has already formally adopted," Whelan said.
For example, Alito's opposition to the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage, is well documented. He and Justice Clarence Thomas both dissented in that decision, along with Chief Justice John Roberts and Justice Antonin Scalia.
Same-sex marriage ruling at 5: Acceptance, advancement, but opposition remains
Last month, when the Supreme Court declined to hear an appeal from Kim Davis – a Kentucky county clerk who refused to issue marriage licenses to same-sex couples – Alito and Thomas said her case was not the right one to consider further the issue of religious freedom in an era of expanding LGBTQ rights. But the two conservative high court jurists also called Davis "one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision" and warned "she will not be the last."
"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," wrote Thomas in the statement that was joined by Alito.
In Thursday's remarks, Alito did not directly address recent calls from some Democrats and progressives to expand the Supreme Court in order to change the 6-3 conservative majority. But he strongly objected to a recent brief from five Democratic senators regarding a gun rights case in which they said the "Supreme Court is not well. And the people know it."
More: Senate GOP writes letter to the Supreme Court, pledging not to allow Dems to 'pack the Court'
The senators cited a Quinnipiac University poll that found a majority of Americans think the court should be "restructured in order to reduce the influence of politics."
In his Federalist Society address, Alito called the remarks written by Sen. Sheldon Whitehouse, D-R.I., a "threat" and "an affront to the Constitution and the rule of law."
"The Supreme Court was created by the Constitution, not by Congress," he said.
"We exercise the judicial power of the United States. Congress has no right to interfere with that work any more than we have the right to legislate. Our obligation is to decide cases based on the law, period. And it is therefore wrong for anybody, including members of Congress, to try to influence our decisions by anything other than legal argumentation."
Alito said "that sort of thing has often happened in countries governed by power, not by law."
"Alito outs himself as full-on partisan crusader. At Federalist Society, no less," tweeted Whitehouse in response to news of Alito's comments.
Contributing: Richard Wolf
He also said the pandemic restrictions were evidence that "in certain quarters, religious liberty is fast becoming a disfavored right." Alito decried the Supreme Court's decision to let restrictions stand in California and Nevada that he said "blatantly discriminated against houses of worship."
Regarding Nevada's restrictions limiting religious services to 50 people while allowing casinos to open at 50%, Alito said, "The state's message is this: 'Forget about worship and head for the slot machines, or maybe a Cirque du Soleil show.'"
Alito also claimed the pandemic revealed the already "growing hostility to the expression of unfashionable views" because some of the "restrictions are alleged to have included discrimination based on the viewpoint of the speaker." He said many conservative social views were now prohibited speech at most institutions of higher education and major corporations.
"You can't say that marriage is a union between one man and one woman," Alito cited as an example. "Until very recently, that's what the vast majority of Americans thought. Now it's considered bigotry."
Alito, 70, joined the court in 2006. He was nominated by former President George W. Bush and confirmed by a 58-42 vote in the Senate.
Many Democrats and Supreme Court watchers criticized Alito's comments as too openly political for a Supreme Court justice.
"Supreme Court Justices aren't supposed to be political hacks," tweeted Sen. Elizabeth Warren, D-Mass. "This right-wing speech is nakedly partisan. My bill to #EndCorruptionNow restores some integrity to our Court by forcing Justices to follow the ethics rules other federal judges follow."
Human Rights Campaign President Alphonso David tweeted, "Last night, Justice Alito shed any pretense of impartiality in a politically charged speech."
“If you thought Joe Biden’s victory would end the Trump Era, think again," said Aaron Belkin, director of Take Back the Court – a group that seeks to expand the Supreme Court – in a statement. "Justice Alito’s wildly inappropriate speech is a reminder that Republicans have packed the Supreme Court with extremist politicians in robes – and they’re planning a partisan revenge tour."
Gabe Roth, executive director of Fix the Court, which promotes ethics and transparency, said Alito's remarks were "more befitting a Trump rally than a legal society." Fix the Court advocates for Supreme Court reforms such as term limits and televised proceedings, as well as making the public more aware of when the justices speak in various forums and what they say at those events.
"What's more, Alito's decision to speak about COVID's impact on religious exercise is unconscionable at a time when cases concerning this very topic remain active at the Supreme Court and across the federal judiciary," Roth said in statement on Friday. "If there were enforceable recusal standards at the high court, this would be a ripe opportunity for a motion to disqualify."
Roth said Alito's address demonstrated the need for the Supreme Court to adopt a formal code of conduct that "would encourage them to think twice before making political speeches to partisan organizations and further eroding the public's trust in their impartiality."
Others came to Alito's defense amid the objections to his statements.
On Friday, President Donald Trump tweeted without comment a link to a Breitbart article about Alito's remarks.
"Justice Alito is a hero. Protecting religious liberty and freedom of speech in America is paramount," said Trump campaign lawyer Jenna Ellis.
Though it was unusual for a Supreme Court justice to lay out his or her views so explicitly, Alito's remarks did not reveal thoughts he hadn't expressed before in his legal opinions.
Edward Whelan, president of the conservative Ethics and Public Policy Center, said in a statement that the speech "broadly reiterates what Alito has already spelled out in his written opinions."
"It’s one thing for a justice to speak publicly about an open issue on which the justice hasn’t yet ruled (as Justice Ruth Bader Ginsburg did with respect to same-sex marriage and President Trump’s tax returns). It’s a very different – and much less remarkable – thing for a justice to restate positions that he has already formally adopted," Whelan said.
For example, Alito's opposition to the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage, is well documented. He and Justice Clarence Thomas both dissented in that decision, along with Chief Justice John Roberts and Justice Antonin Scalia.
Same-sex marriage ruling at 5: Acceptance, advancement, but opposition remains
Last month, when the Supreme Court declined to hear an appeal from Kim Davis – a Kentucky county clerk who refused to issue marriage licenses to same-sex couples – Alito and Thomas said her case was not the right one to consider further the issue of religious freedom in an era of expanding LGBTQ rights. But the two conservative high court jurists also called Davis "one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision" and warned "she will not be the last."
"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," wrote Thomas in the statement that was joined by Alito.
In Thursday's remarks, Alito did not directly address recent calls from some Democrats and progressives to expand the Supreme Court in order to change the 6-3 conservative majority. But he strongly objected to a recent brief from five Democratic senators regarding a gun rights case in which they said the "Supreme Court is not well. And the people know it."
More: Senate GOP writes letter to the Supreme Court, pledging not to allow Dems to 'pack the Court'
The senators cited a Quinnipiac University poll that found a majority of Americans think the court should be "restructured in order to reduce the influence of politics."
In his Federalist Society address, Alito called the remarks written by Sen. Sheldon Whitehouse, D-R.I., a "threat" and "an affront to the Constitution and the rule of law."
"The Supreme Court was created by the Constitution, not by Congress," he said.
"We exercise the judicial power of the United States. Congress has no right to interfere with that work any more than we have the right to legislate. Our obligation is to decide cases based on the law, period. And it is therefore wrong for anybody, including members of Congress, to try to influence our decisions by anything other than legal argumentation."
Alito said "that sort of thing has often happened in countries governed by power, not by law."
"Alito outs himself as full-on partisan crusader. At Federalist Society, no less," tweeted Whitehouse in response to news of Alito's comments.
Contributing: Richard Wolf
