A few years ago, Justice Samuel Alito addressed the Federalist Society’s annual convention in Washington, D.C. He vented some of his frustrations with a few of the court’s then-recent decisions with which he had disagreed. I found this darkly amusing at the time. After all, the conservative legal movement had just spent four years stocking the federal judiciary with its disciples. It had even secured a six-justice conservative supermajority on the Supreme Court just a few weeks earlier.
The intervening years have seen things tilt even further in Alito’s preferred direction. The Supreme Court’s conservative bloc is now firmly ascendant. Just this term, it has expanded the scope of the Second Amendment, crafted itself a new veto power for itself over federal regulatory agencies, and ruled in favor of religious litigants in multiple cases that came before the court. Most importantly, the conservatives also achieved their half-century goal of overturning Roe v. Wade and eliminating constitutional protections for abortion rights.
If Alito was jubilant in his moment of triumph, he did not show it last week during a surprise speech in Rome. The justice, who authored the majority opinion that overturned Roe, gave an address to a summit on religious liberty hosted by the University of Notre Dame’s law school in the Italian capital. Despite all the victories for his causes this term, particularly on the religious front, he said that religious freedom still faced serious challenges in Europe and the United States. His understanding of the problem also shows why he thinks it persists.
What are those challenges, you might ask? In Alito’s eyes, the answer is a growing tide of secularism. “The problem that looms is not just indifference to religion, it’s not just ignorance about religion, there’s also growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors,” the justice said. “The challenge for those who want to protect religious liberty in the United States, Europe, and other similar places is to convince people who are not religious that religious liberty is worth special protection.”
Alito is far from the only leading conservative to voice similar concerns. A few years ago, for example, I wrote about a series of speeches that then–Attorney General Bill Barr had given where he denounced “secularists” for supposedly trying to suppress the rights of Christians (and Catholics in particular) to “live according to their faith.” Alito’s speeches have not quite reached the same strident tone and tenor that Barr used, but they shared a conclusion: Religious Americans—and especially Christians—are being persecuted in this country, and secular and non-Christian Americans are their persecutors.
That supposed persecution, Alito, Barr, and others have argued, is unmooring the U.S. from its cultural roots. “I’m reminded of an experience I had a number of years ago in a museum in Berlin,” Alito recounted. “One of the exhibits was a rustic wooden cross. A young and affluent woman, a well-dressed woman, and a young boy were looking at this exhibit, and the young boy turned to the woman, presumably his mother, and said ‘Who is that man?’ That memory has stuck in my mind as a harbinger of what may lie ahead for our culture.”
Some might have hesitated about drawing broad conclusions from a child’s idle question at a museum in another country. But Alito is nonetheless right that fewer Americans participate in organized religion today than their parents or grandparents did. “Polls show a significant increase in the percentage of the population that rejects religion, or thinks it’s just not all that important,” he claimed. “And this has a very important impact on religious liberty because it is hard to convince people that religious liberty is worth defending if they don’t think that religion is a good thing that deserves protection.”
Alito did not provide specific examples, perhaps because he did not want to risk commenting on potential cases that could reach the justices down the road. But he did offer a slightly ridiculous one to make his point. He described a courtroom with a rule against head coverings, in which three lawyers planned to appear. One of them is a devout fan of the Green Bay Packers. “His form of worship on Sunday morning is to bundle up, pack up his tailgating supplies, and head out for Lambeau Field, which for him is sacred ground,” Alito explained. “For 20 years he’s never missed a home game, he’s incurred frostbite, his wife grew tired of his obsession and left him, but nothing will stop him. The walls of his home are adorned with icons: There is an icon of Saint Vincent Lombardi, there is an icon of Saint Paul Hornung, Notre Dame class of 1956, and others.
“One Monday morning, he is ecstatic about a Packers victory,” Alito continued. “He can’t contain himself, and he insists on wearing a green-and-gold cap when he appears in court. He feels he’s being restrained. He’s not wearing the big cheese on his head, but he wants to wear a Packers hat. That’s Attorney A. Attorney B is an Orthodox Jewish man who always wears a kippah. Attorney C is a Muslim woman who covers her head in public for religious reasons. If A can’t wear his Packers hat, is it still possible to accommodate Attorneys B and C?”
The fairly obvious answer is “yes” under the Free Exercise Clause. But Alito showed somewhat less faith in other legal minds. “Well, for me, the Constitution of the United States provides a clear answer,” Alito concluded. “Some of my colleagues are not so sure, but for me the text tells the story: The Constitution protects the free exercise of religion; it does not protect the free exercise of support for the Packers.”
The implication here is that “some of” Alito’s fellow justices would not support a religious exemption to a rule against wearing head coverings in court. I don’t disagree that he personally knows the other justices better than I do and has a clearer perception of their philosophical beliefs than I might. But consider me skeptical that any sitting justice would botch a free-exercise question as basic as “can Jews and Muslims wear religious garb in public buildings?”
I also have some questions about Alito’s First Amendment analysis in this hypothetical. For one, the Constitution almost certainly protects a right to support the Green Bay Packers on free speech and free association grounds, even if it may not extend to the courtroom itself. Given Alito’s description of this hypothetical person’s extraordinary Packers fandom, that person’s beliefs might even trend toward the genuinely spiritual. Even the most secular football fan has, at some point, tried to quietly curry favor with a higher power on fourth and 1. The Supreme Court, for its part, typically counsels against scrutinizing the validity of a person’s beliefs. (I don’t think Packers fans constitute a religion, to be clear, but I also didn’t draft a hypothetical where one comes pretty close to it.)
Perhaps the most telling thing about Alito’s anecdote, however, is how he frames it. One could tell the same story by focusing on Attorneys B and C, the Jewish and Muslim lawyers who want to wear their respective head coverings in a public building. That would be about as easy a question as it gets from a free-exercise perspective. Alito instead constructed it around a hypothetical Packers fan whose beliefs, though not religious, are apparently sincerely held. Even when he frames the scenario entirely on his own terms, Alito paints religious freedom as a denial of a nonbeliever’s liberties.
This would be an almost petty observation to make if it didn’t reflect a deeper theme in Alito’s jurisprudence. Take, for example, his descriptions of Obergefell v. Hodges, the landmark 2015 ruling that struck down bans on same-sex marriage across the country. In his dissent at the time, Alito wrote that “by imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.” In the Federalist Society speech I mentioned earlier, he lamented that opposing same-sex marriages was now considered “bigotry.” And he joined a dissent by Justice Clarence Thomas in 2020, in which Thomas wrote that “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws.”
Whether two consenting adults enter into a legal contract does not actually affect Alito or anyone else not part of that contract, of course. But in Alito’s eyes, the biggest takeaway from a landmark Fourteenth Amendment ruling on LGBTQ rights is how it demeans and insults people who disagree with it, and how those rights should therefore be abridged. Alito’s perspective here is not limited to purely private expressions of disapproval. The 2020 dissent was in a case involving a Kentucky government employee who sought to exercise the state’s powers according to her own spiritual beliefs. And later in his Rome speech, Alito defended a ruling that he wrote last year that effectively required the city of Philadelphia to fund private adoption agencies that refused to work with gay couples.
“What can we say to such people to convince them that religious liberty is worth protecting?” Alito asked the audience in Rome. “That is the challenge, and it is a challenge that will not be met by federal judges for whom the Constitution should be enough, and it certainly will not be met by people of my generation. So my primary point tonight is to pose that challenge to others, not to offer anything like a full answer, which I certainly don’t have.” If Alito is curious why a growing number of Americans are skeptical of religious freedom claims, he might consider whether telling those same Americans over and over that religious freedom means treating others like second-class citizens has contributed to the problem.
