The Volokh Conspiracy

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Justice Alito Speaks On Religious Liberty

"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."


In an earlier post, I commented on Justice Alito's new beard. Here, I will highlight his remarks at the Notre Dame Religious Liberty Summit. You can watch them on YouTube, and I've transcribed them here.

Alito stated that religious liberty is under attack, and people must learn that religious liberty is a good thing that warrants protection.

Religious liberty is under attack in many places, because it is dangerous to those who want to hold complete power. It also probably grows out of something dark and deep in the human DNA. A tendency to distrust and dislike people who are not like ourselves. I'm not very well positioned to talk about religious liberty outside the United States, Europe, and other economically advanced countries. But in those places, religious liberty is facing a different challenge. And Professor Glendon has referred to that. This challenge stems from a turn away from religion. Polls show a significant increase in the percentage of the population that rejects religion or thinks it's just not all that important. 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. I'm reminded of an experience I had a number of years ago in a museum in, in Berlin. One of the exhibits was a rustic wooden cross. A young, an affluent woman, a well dressed woman and the young boy, were looking at this exhibit. And the young boy turns 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. And 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 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. And that will not be easy to do. As most of you know, I think a dominant view among legal academics is that religion doesn't merit special protection. It doesn't merit special treatment. A liberal society, they say, should be value neutral, and therefore it should treat religion, just like any other passionate personal attachment, say rooting for a favorite sports team, pursuing a hobby or following a popular artist or group. Now, I think we would all agree that in a free society, people should be free to pursue those avocations. But do they really merit the same protection as the exercise of religion? The support for a sports team, for example, really merit the same protection as religious devotion In posing that question, I put aside the question of support for the Notre Dame football team, which I understand has a quasi religious significance.

Justice Alito also remarked on his Dobbs opinion:

Over the last few weeks since I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders who felt perfectly fine commenting on American law. One of these was former Prime Minister Boris Johnson, but he paid the price. Post hoc ergo propter hoc, right.

LOL. And a dig at Prince Harry:

Post hoc ergo propter hoc right. But others are still are still in office, President Macron and Prime Minister Trudeau I believe are two. But what really wounded me what really wounded me was when the Duke of Sussex [Prince Harry] address the United Nations and seemed to compare the decision whose names may not be spoken with the Russian attack on Ukraine. Well, despite this temptation, I'm not going to talk about cases from other countries. All I'm going to say is that ultimately, if we are going to win the battle to protect religious freedom, in an increasingly secular society, we will need more than positive law.

Read the entire remarks.