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Justice Alito Isn’t All Bad

Left-leaning political and legal commentators give the impression that Justice Alito wants to turn the United States into a Christian theocracy. In favor of this view is Alito’s majority opinion in Burwell v. Hobby Lobby (2014), which allowed a closely-held profit-making corporation to avoid paying for its employees’ contraception. The Affordable Care Act (ACA) requires the provision of such contraception free of charge, but the Supreme Court allowed Hobby Lobby to avoid this aspect of mandated coverage because the owners are Christians opposed to abortion, and four of the twenty birth control methods may operate as abortifacients.



In 303 Creative v. Elenis he joined the majority opinion allowing a web designer to discriminate against same-sex couples if she designs websites for weddings. The web designer objected to using her free speech rights to celebrate weddings in conflict with her Christian beliefs.



But I think these decisions don’t make Alito all bad. He shows consistent support for the free exercise of religion. During the 20th century, this right enabled a Jehovah’s Witness child to attend public school without having to pledge allegiance to the flag, as the law required before the Supreme Court ruled against the state. It allowed a widow who became a Seventh Day Adventist to collect unemployment insurance after she was fired for failure to show up for work on Saturdays. It allowed Amish parents to end their children’s public school attendance at age 14 instead of 16 as Wisconsin’s compulsory education statute required. The materialistic, individualistic, competitive culture of high school could have destroyed the Amish community’s free exercise of religion by siphoning off its youth.



In 1990 the Supreme Court dealt a blow to free exercise by denying unemployment insurance to two Native American drug counselors in Oregon who were fired for ingesting peyote as part of a Native American Church ritual. Justice Scalia, writing for the Court majority, declared that there should be no special accommodation of law-breaking just because it occurs as the free exercise of religion. Then Congressman and more recently Senate Majority Leader Chuck Schumer decried this decision as “a devastating blow to religious freedom.” Justice Alito continues to agree with this view and has long advocated overturning the 1990 decision.



Schumer, like many liberals, favors helping members of religious minorities, such as Jehovah’s Witnesses, Seventh Day Adventists, and the Amish. But Alito, too, favors protecting the free exercise rights of such minorities. He told the Federalist Society in 2020, “Over the years, I have sat on cases involving the rights of many religious minorities. Muslim police officers whose religion required them to have beards, a Native American who wanted to keep a bear for religious services, [and] a Jewish prisoner who tried to organize a Torah study group.”



So, who is guilty of intolerance, here? Do liberals like me want to protect free exercise of religion only when this freedom helps minorities, denying it when more populous groups of Christians claim the same freedom as in Hobby Lobby and 303 Creative? Free exercise of religion should be available to everyone, regardless of the particular religion.



Alito’s decision to protect the free exercise of the Green family who own Hobby Lobby should be respected so long as doing so does no harm to others. In that case, workers at Hobby Lobby received all twenty methods of birth control free of charge, just as the ACA mandates. I’ve searched the Internet for cases of hardship caused by the Hobby Lobby decision and have failed to find any. If there are none, complaint may rest on prejudice against some forms of religion, which conflicts with the self-concept of most liberals.



I find the majority opinion in 303 Creative to be incorrect. Besides relying upon inappropriate precedents, it threatens same-sex couples with a growing tide of discrimination in the provision of services that include an expressive component by those who oppose same-sex marriage. This is the threat of marginalization which people like me take seriously.



But people like Alito have similar worries. They’ve seen many of their cherished beliefs lose sway in our culture. Imagine if you really believed that abortion is absolutely wrong and that certain methods of contraception work as abortifacients, yet the law requires you to supply them. Or that you think that homosexuality is immoral and that same-sex marriage will harm society.



Alito expresses distress that society has abandoned values that he holds in the same esteem as I hold abortion rights and equality for same-sex couples. He’s distressed that some of his views are likened by Court majorities to racism, which he sees as a way to marginalize what he takes as sacred. He told a Catholic college that they are now upholding a counter-culture. I recommend that liberals display a little compassion and seek accommodations that ease his distress.


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