Justice Alito’s views on religious faith cloud the neutrality of the Supreme Court
Speaking recently at Notre Dame Law School’s Religious Liberty Summit in Rome, Italy, Supreme Court Justice Samuel Alito decried what he perceives as a growing hostility to religion. He stated that people’s ignorance about religion has exposed believers, particularly those who hold traditional religious beliefs, to discrimination. He railed that “Christians had been persecuted for centuries, including in Rome’s Colosseum, where ‘who knows how many’ were ‘torn apart by wild beasts.”’ He declared that “Unless the people can be convinced that robust religious liberty is worth protecting, it will not endure.”
Fundamentally, the First Amendment to the Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Constitution thus welcomes all religions or no religion, and bars the government from establishing any religion. Unlike a theocracy, there is no state religion. State and federal governments in America are required to be legally neutral. It is left to each of us to determine how to reconcile ourselves to the great mystery of human life and death.
This neutrality allows for a wide variety of traditional religions in their own way, and with fundamentally different doctrines, to promote charity, provide comfort for many, inspire great works, and promote the public good. Alito sees religion as promoting domestic tranquility.
This neutrality likewise allows others to reject all religion. They cannot accept the fantastic origin stories of the world’s religions, the notion that one is in a better place when one dies, the perceived arrogance and intolerance of declaring one’s way is the only way, and the wars and crimes committed over the centuries in religion’s name.
The First Amendment calls on nonbelievers to respect the freedom of believers of traditional religions and on believers to respect the rights of nonbelievers.
Because this freedom is fundamental to our Constitution, it is concerning when a Supreme Court justice publicly endorses religious faith, with emphasis on Christianity, as the key to domestic tranquility, and seeks to convince Americans that “robust religious liberty” must be protected. This appears to ignore that robust freedom not to be religious must also be protected with equal vigor.
The Supreme Court is often called on to determine if some action by government either violates the prohibition against establishing a religion or interferes with its free exercise. A religion may by doctrine hold that a fetus is not a person until born and that pre-birth, the health and freedom of the mother must be protected. How will the court rule if a litigant challenges a state abortion ban on grounds that it interferes with the free exercise of this religion and establishes a religion that treats a fetus as a person from conception? Today’s court has jettisoned Roe v. Wade’s bipartisan, Solomonic resolution of all competing interests then before that court, so is there another Solomonic solution?
Justices must judge this and other religion cases, such as prayer in school, without passion, prejudice, or preconceived personal or religious views. The First Amendment demands government neutrality.
In his farewell address, President Washington warned in 1796 that political parties, alternately dominating each other in the legislature, often seeking revenge, pose a risk of chaos that could give rise to a dictator.
His warning applies to Congress and state legislatures today. But the court has generally been insulated from the instability of alternating rulings based on the party or religious affiliations of changing court majorities. The court’s respect for past precedents of earlier courts, and its focus on the facts and evidence of a specific controversy before the court, have historically provided this stability.
Changing circumstances over time and the evidence in a case can justify rejections of a longstanding precedents, but it is up to the justices to heed Washington’s warning. Alternating court rulings on whether a right is or is not guaranteed by the Constitution, based on the majority’s party or religious affiliation, risk the chaos that Washington feared.
As religious freedom cases come before the court, the danger is not discrimination against religion, but disregarding precedent and discriminating in favor of one religion over another or over the right not to be religious.
Daniel O. Jamison is a retired attorney in Fresno.
