Samuel Alito: Protecting Free Speech Is Major Challenge for Supreme Court

Justice Samuel Alito blasted the deterioration of free speech Thursday, insisting that protecting this right is one of the major tasks facing today’s Supreme Court.

“One of the great challenges for the Supreme Court going forward will be to protect freedom of speech,” Justice Alito stated in a live-streamed keynote address to the 2020 Lawyers’ Convention sponsored by the Federalist Society.

“Although that freedom is falling out of favor in some circles, we need to do whatever we can to prevent it from becoming a second-tier Constitutional right,” the justice said.

“We should all welcome rational, civil speech on important subjects even if we do not agree with what the speaker has to say,” he noted.

Alito was speaking of free speech in the context of traditional marriage after the Court’s 2015 decision in Obergefell v. Hodges that imposed same-sex marriage on the nation, wresting it from the hands of the states and away from the democratic process.

“You can’t say that marriage is a union between one man and one woman,” the justice noted. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”

“That this would happen after our decision in Obergefell should not have come as a surprise,” he continued. “Yes, the opinion of the Court included words meant to calm the fears of those who cling to traditional views on marriage. But I could see — and so did the other justices in dissent — where the decision would lead.”

Alito went on to note that people with a historical understanding of marriage are now considered to be extremists whose opinions have no place in polite society. Quoting his own dissent in the case, Alito said:

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

“That is just what is coming to pass,” he stated.

In that strongly worded dissent from the majority opinion, Alito warned that the ruling would have disastrous effects on religious Americans and all those who believe in marriage as it has been understood in every culture until now. He said that the decision

will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

In his address Thursday, Alito also criticized two cases earlier this year where the Court sided with states that imposed restrictions on the size of religious gatherings, citing the coronavirus pandemic.

The Court rejected an appeal by a California church challenging attendance limits at worship services in May and a similar challenge by a Nevada church in July.

Alito said that in both cases the restrictions had “blatantly discriminated against houses of worship,” warning that “religious liberty is in danger of becoming a second-class right.”

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