‘Second tier’ right?

Richard A. Sokerka

“In the future, there will be pitched battles for religious freedom in courts and Congress, in state legislatures and town halls.” Those prophetic words were spoken by U.S. Supreme Court Justice Samuel Alito in his speech March 15, 2017 at St. Paul Inside the Walls: the Diocesan Center for Evangelization at Bayley-Ellard in Madison.

Fast forward to Nov. 14 where in a Zoom presentation to the Federalist Society, the justice again issued a clarion call that religious liberty today was emerging as a “second tier” right, especially during the pandemic.

Alito said his views would likely be “twisted or misunderstood,” and they immediately were by politicians and secular media, yet he reiterated that the pandemic has had a clear impact on religious liberty. “The pandemic has resulted in previously unimaginable restrictions on individual liberty,” said Alito. “Just as the COVID-19 restrictions have highlighted the movement toward rule by experts, litigation about those restrictions has pointed out emerging trends in the assessment of individual rights.”

“This is especially evident with respect to religious liberty,” said Alito, who added that the cases the court hears today follow the “same trend” of eroding religious liberty.

Specifically, Alito cited the “unrelenting attack” on the Little Sisters of the Poor, who have made several trips to the Supreme Court after they refused to provide contraception and abortifacient drugs in their insurance plans, and have won each time.

“For many today, religious liberty is not a cherished freedom,” said Alito. “It’s often just an excuse for bigotry, and it can’t be tolerated, even when there is no evidence that anybody has been harmed.” He said there was no evidence any employee working for the Little Sisters of the Poor had ever sought to receive contraception under their insurance plan.

Alito was also critical of states that have restricted access to worship services under the guise of coronavirus safety protocols, but had allowed other gatherings to continue without issue.

In July, the Supreme Court declined to hear the case which argued that Nevada was discriminating against houses of worship by restricting capacity to 50 people. Casinos, however, were allowed 50 percent capacity. “Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship,” Alito said. “But the court nevertheless deferred to the governor’s judgment, which just so happened to favor the state’s biggest industry and the many voters it employs.”

On Nov. 12, the Diocese of Brooklyn asked the Supreme Court for relief from the state of New York’s COVID-19 rule limiting attendance at diocesan churches to just 10 people while allowing businesses to remain open without capacity limits. The diocese said it is “committed to reopening our churches, safely, and to vindicate our First Amendment rights.” In October, Gov. Andrew Cuomo issued an executive order limiting some houses of worship to 25 percent capacity or 10 people — whichever number was smaller — effectively limiting Mass attendance to a priest and nine parishioners.

In his speech at St. Paul Inside the Walls, Justice Alito said, “It is vital to our country that we evangelize our fellow Americans about the importance of religious freedom, because if we don’t, we won’t keep the flame of religious liberty alive in this country.”

All people of faith need to heed the words of Justice Alito, lest those elected officials now in power continue to take measures attempting to douse the flame of our religious liberty.