Alito and the Free Exercise of Christianity

Posted in: Civil Rights

On July 28, 2022, Samuel Alito (SA) delivered the keynote address at the Notre Dame Religious Liberty Summit in Rome, Italy. For those experiencing withdrawal symptoms from going over a month without an offensive and dishonest communication from SA, his Rome speech did not disappoint.

The theme of SA’s keynote was the importance of religious liberty. In giving examples of the denial of religious liberty, he mentioned the Holocaust along with other violent outrages. As a child of Holocaust survivors, I was stunned at SA’s ignorance about this period in European history.

The Holocaust was a racial genocide rather than a denial of religious freedom. We know as much because secular Jews—including very prominent ones like Anne Frank and her family—perished along with observant ones. The Nazis regarded Jews as a race to be annihilated. Describing the Holocaust as a denial of religious liberty is a bit like characterizing a firing squad as a denial of the right to travel. I will give SA the benefit of the doubt, however, and assume that on this point he is just ignorant rather than dishonest.

A Glaring Omission

Yet as SA described various historical examples of the supposed denial of religious liberty, I noticed something strange about his list. Despite remarks about the importance of protecting “diverse faiths” and the inclusion of non-Christians in his list of the oppressed, none of the oppressors he mentioned were acting for Christianity.

SA recalled how Christians “were torn apart by wild beasts” in the Colosseum and more generally how the Romans persecuted the early Christians. Citing Pope Francis, he noted that “more Christians are killed for their faith in our time than in the bloody days of the Roman empire.” He noted the oppression and murder of Christians in Nigeria and Egypt.

To be clear, SA’s list did include non-Christian victims. He described Nazi atrocities against Jews and more recent instances of lethal antisemitism. He mentioned the horrors ISIS inflicted on Yazidis. SA noted that “in India, Hindu and Muslim groups have brutally assaulted each other since independence.” SA called out China’s “unspeakable treatment of the Uighurs.” And SA acknowledged that his list is incomplete.

However, the list is not simply partial; it is skewed. SA did not pause to reflect at all on oppression by Christians in the name of Christianity or a particular Christian sect. SA said nothing about the Crusades, the expulsion of the Jews from Spain and other European countries, the Spanish Inquisition, the European wars of religion in the sixteenth through eighteenth centuries, or, in our time, the Troubles in Ireland. Why not?

Could it be that despite name-checking other faiths, what SA means when he says “religious liberty” is really Christian liberty?

Mischaracterizing Secularism

Perhaps I am being unfair. Perhaps SA would condemn expressly pro-Christian oppression of other faiths or sects. In any event, he directed most of his critique at secularism.

SA has little patience for secularism, which he regards as an enemy of religious liberty. To illustrate the need to give religion a special place relative to nonreligious pursuits, he gave a telling example. He asked us to consider a story of three attorneys who will appear before a court and wish to cover their heads in violation of a categorical rule forbidding the wearing of headgear. There is a Muslim attorney “who covers her head for religious reasons.” There is an Orthodox Jew who wants to wear a “kippah,” spoken to rhyme with Kelly Rippa’s last name because SA could not be bothered to learn a basic Hebrew word (pronounced “kee pah”) for a speech about religious liberty. And there is a “cheesehead,” a rabid fan of the Green Bay Packers.

Unsurprisingly, SA concluded from his straw man analogy that the religious Muslim and Jewish attorneys presented stronger grounds for an exception from the rule than did the football enthusiast. Yet in choosing this example, SA assumed that secular people have only frivolous pursuits, in contrast to the far more serious commitments and activities of religious people. SA might be surprised to learn that no secular person would seek such a ridiculous accommodation as the opportunity to wear a giant foam block of cheese as a hat when arguing in court.

Secular people have profound commitments that are just as important to them as head coverings are to observant Muslims and Jews. A fairer comparison might have asked whether a Quaker and a Jain are more entitled to conscientious objector status than a pacifist who happens to be an atheist or agnostic. The fact that SA used the example of a cheesehead to illustrate secular liberty demonstrates his impoverished understanding of the lives of people who reject religion. Religion has no monopoly on morality, despite SA’s parochial understanding.

To emphasize his contempt for secular people—and for non-Christians especially—SA told the story of a ten-year-old boy he observed in a museum in Berlin some years ago. The boy saw a rustic cross on display and asked his mother “who is that man?”. Because SA does not own up to his view that Christianity is the only religion worth protecting, I will state the obvious: the boy could have been a Jew, a Muslim, a Hindu, or a Buddhist and therefore know nothing about Jesus, much like SA knows nothing about how to pronounce “kippah.” Should all young European children recognize every depiction of the person of Jesus? Perhaps, but only because people like SA are inclined to use their religion to satisfy their will to power.

Freedom to Impose Religion

Although Judaism and some other non-Christian faiths regard a fetus as less than a baby, in his opinion in Dobbs v. Jackson Women’s Health Org., SA felt empowered to inject a current conservative Christian perspective on “life” into our legal system. Even as SA regaled the crowd in Rome with dishonest and arrogant claims about the free exercise of Christianity, women and girls in the United States suffered and bled because of SA’s crusade in Dobbs.

SA’s keynote on religious liberty was essentially a massive lie. Religious liberty is about accommodating the needs of religious people, but SA is all about imposing Christianity on uninterested people. Yet unlike the missionary who merely annoys his neighbors with what the latter view as nonsense, SA holds real power and uses it to force his targets to behave like (the kind of) Christians (he approves).

During his keynote, SA mentioned last year’s shameful case of Fulton v. Philadelphia, which held that Catholic Social Services (CSS) had a free exercise right to refuse to consider same-sex couples to be foster parents. SA misled his audience by saying that Philadelphia tried to “expel” CSS from the foster care program, as if a city has no legitimate interest in demanding that its contractors conduct official city business without discriminating on the basis of sexual orientation. What a robust vision of religious liberty that gives an organization the right to discriminate because its religion embraces bigotry. It is apparently not enough for members of CSS to observe their religion themselves; they must be allowed to punish and exclude those who reject religiously motivated homophobia in their own lives.

And now, under Dobbs, states can incarcerate doctors and women for rejecting the view of a minority of Christians that a cluster of undifferentiated cells is a moral person, entitled to cause physical and emotional pain and illness to a nonconsenting woman.

In his keynote, SA warned us that nothing is permanent. This line at least should give us comfort in a time of theocratic ascendency in the United States.

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