Justice Alito Doesn’t Know What Liberty Means

Justice Samuel Alito gave a speech yesterday to the Federalist Society, frightening in its bold redefinition of liberty. “It pains me to say this,” he said, “but in certain quarters, religious liberty is fast becoming a disfavored right.” Among many other complaints, he focused on same-sex marriage.

Alito is fast on his way to becoming the high court’s leading voice. We all need to start paying close attention to his reactionary views.

A few years ago, Dad and I drove to Ohio to attend my cousin’s wedding. The groom beat the snot out of the best man after the open-bar-fueled reception.

“Welp,” Dad said to me driving back. “Hope she’ll be OK.”

She wasn’t. The marriage broke up a few weeks later after the groom beat the snot out of his 22-year-old bride. Few of us were surprised. “We did the best we could to change her mind,” Dad said. “But the choice was hers.”

The bride was a young adult woman with her own agency. Her parents and my dad urged her to walk away from her fiance, but did not try to force her decision.

What does any of this have to do with Justice Alito?

Bear with me. Writing in Slate, Mark Joseph Stern calls Alito’s pre-recorded Zoom keynote address an unethical and ill-advised “taunt to the left,” calling the justice “a bitter partisan out to settle scores.”

Alito waded into fierce political debates over public health during a pandemic, reproductive rights, LGBTQ equality, and other issues that routinely come before his court. It is wildly inappropriate for a justice to assume the role of Fox News commentators, and unwise in light of progressives’ mounting doubt about the Supreme Court’s legitimacy.

The Federalist Society itself is fiercely partisan, having worked hand-in-glove with the Republican Party for decades to install conservative judges and justices willing to advance partisan ideology. Alito spoke at the Federalist Society last night to encourage their work and to stake out a hyper-conservative position for the U.S. judiciary.

He’s rapidly becoming the Supreme Court’s leading conservative voice, unafraid of appearing partisan and apparently confident that Amy Coney Barrett’s recent appointment strengthens his hand.

For more on the broader issues, please see Stern’s analysis, but I intend to focus in on how Alito views LGBTQ equality. His toxic ideas about liberty are Orwellian in their bold redefinitions.

People used to dismiss Alito’s reactionary ideas as fringe and irrelevant, but since that’s no longer possible, we had better pay close attention to what he thinks.

What Alito thinks about liberty is frightening

The justice is already on the record doubting the high court made the right call in Obergefell v. Hodges, the 2015 decision that found same-sex couples enjoy a fundamental right to marry under the Constitution’s 14th Amendment guarantee of equal protection of the law.

He signed a dissent in a different case last month in which Justice Clarence Thomas claims 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.”

Last night, Alito expanded on that theme, complaining that Obergefell also imposes an unacceptable free-speech burden. He rephrased his 2015 Obergefell dissent, saying he foresaw then how Obergefell would harm those who “cling to traditional [religious] views on marriage, subjecting them to being “labeled as bigots and treated as such by governments, employers and schools.”

“That is just what has come to pass,” he told the Federalist Society. “One of the great challenges for the Supreme Court going forward will be to protect freedom of speech.”

Alito’s ideas are provocative and incoherent

The justice can’t seem to decide which liberty interest he’s most concerned about. At times (as in Thomas’s dissent), he claims equal marriage infringes the free exercise of religion. At other times, he claims equal marriage is a threat to freedom of speech. Both arguments are sloppy to the point of incoherency, shocking from the mouth of a learned judge.

Equal marriage does not infringe anyone’s religious exercise

This ought to go without saying, but marriage in the United States is and always has been a purely civil institution. Sometimes ministers in churches formalize marriages but that’s an optional custom with no legal force or meaning.

Since same-sex marriage became legal, no church in the United States has been forced or pressured to conduct same-sex wedding ceremonies. No person in the United States has been pressured to marry a same-sex partner. Everyone in the United States is unquestionably free to practice religion at a church with wedding-ceremony customs that match their own beliefs.

Just to be clear, when Alito signed Thomas’s dissent, the free exercise infringement they objected to involved a county clerk who refused to process a same-sex marriage license. No religious practice or belief was remotely involved.

The justices’ argument is incoherent nonsense. The clerk engaged in an act of civil disobedience, an American tradition that constitutes political rather than religious practice. In so doing, she acted as an agent of the State to force others to abide by her private religious beliefs. If anyone was infringing religious exercise, she was.

Equal marriage does not infringe anyone’s speech rights

Justice Alito complained yesterday that equal marriage “has crushed the free speech of anti-LGBTQ advocates,” but he provided not one example. Instead, he bitterly rued that such advocates are being labeled as bigots.

Justice Alito of all people should know the First Amendment does not (cannot) protect people from the social consequences of their speech. Nor does it pretend to constrain speech in response to other speech. As the saying goes, the remedy for bad speech is more speech.

As an LGBTQ advocate, I happen to believe people who want to stop me from marrying are bigots. I think they’re meddling in business that isn’t their own as they try to force their religion on me.

Whether I’m right or wrong, I am free and should be free to state those beliefs in response to people who say marriage equality should not exist. Anti-LGBTQ advocates should, just like me, be free to speak without State interference.

Literally nobody says they shouldn’t be.

In fact, they so speak all the time. What comes up if you Google marriage equality? Tons of vigorous speech on both sides of the issue. Some of it’s pretty nasty, especially if you’re a member of a same-sex couple just living your life and loving your partner.

Alito seems to object to same-sex marriage because people might be mean to vocal opponents of same-sex marriage.

I hate to keep repeating “incoherent nonsense,” but it’s hard to think of another way to characterize Alito’s complaint, which seems to be partisan bellyaching rather than legal analysis.

When my dad and I drove to that wedding, we feared for my cousin’s safety

We did not want her to get married, and my dad had spoken up with strong opinions about why. We consulted other family members and did everything we could to help.

If we had tried to stop the wedding with force, we might have felt we had acted morally, but we would have nonetheless been infringing my cousin’s liberty. As a free adult, she had the right to make her own choices — as much right as we had to ask her to reconsider.

But we had no right to go beyond asking.

Justice Alito and his growing coalition on the Supreme Court seem to suggest that people ought to have the right to try to stop same-sex marriage by any means necessary. He’ll even redefine words like “liberty” to make his case.

Justice Alito needs to hear the following —

• Stopping people from making their own choices is not liberty
• Imposing religious practice on others is not liberty
• Being free from the consequences of speech is not liberty

If you’re not LGBTQ or don’t care much about marriage equality, be warned

Alito’s views on contraception are equally concerning. Think we decided generations ago that women have a right to contraception? Alito doesn’t agree. As for abortion, he’s signaled he’d overturn Roe v Wade. And to top it all off, he thinks regulating church attendance during a pandemic is an “unimaginable restriction on individual liberty.”

Justice Alito’s ideas about liberty are incoherent and run counter to individual freedom. He privileges religious ideas above others, to the point of advocating for the right of religious people and institutions to interfere in personal choices made by Americans with different or no religious beliefs.

Trump has given the U.S. a new Supreme Court with an emerging leadership that is hyper-partisan and unafraid of eroding real liberty. This problem won’t fix itself. The sooner we understand how bad it is, the better.

James Finn is a former Air Force intelligence analyst, long-time LGBTQ activist, an alumnus of Queer Nation and Act Up NY, an essayist occasionally published in queer news outlets, and an “agented” novelist. Send questions, comments, and story ideas to jamesfinnwrites@gmail.com.