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Justice Alito begins full-court press on LGBTQ rights by claiming that marriage equality ruling censors people

WASHINGTON, DC, USA - JANUARY 6, 2010: Judge Samuel A. Alito Jr., U.S. Supreme Court nominee, during confirmation hearings before the Senate Judiciary Committee.
Photo: Rob Crandall / Shutterstock.com

Supreme Court Associate Justice Samuel Alito gave a rare public speech, delivering the keynote address for an event sponsored by the conservative judicial group The Federalist Society. During the speech, he declared that the “great challenges before the Supreme Court going forward will be to protect freedom of speech,” because previous rulings and lawmakers have limited or plan to limit it.

He specifically mentioned that Obergefell v. Hodges, the 2015 ruling that cemented marriage equality, as such a case. He then defended Masterpiece Cakeshop v. Colorado Civil Rights Commission, the 2018 ruling that sided with the owner of a bakery who refused to serve a same-sex couple on the basis of religious liberty.

Related: Clarence Thomas & Samuel Alito want to end marriage equality & they won’t stop there

“You can’t say that marriage is a union between one man and one woman,” Justice Alito alleged. “Until recently, that’s what the vast majority of Americans thought. Now, it’s considered bigotry. That this would happen after our decision in Obergefell should not have come as a surprise,” citing his dissenting minority opinion in the case.

This reaffirms hopes that he signaled in legal opinions earlier this year along with Justice Clarence Thomas that Obergefell should be overturned.

With fellow originalist Amy Coney Barrett’s recent confirmation to the bench, a clear majority of the justices on the Supreme Court are conservative-leaning, and Justice Alito is considered the “most conservative” of them all.

By continuing to gripe on Obergefell‘s ruling, Alito signaled to proponents of anti-LGBTQ discrimination under the gauge of religious liberty, and those that still “cling to traditional views on marriage,” that they have support on the highest court in the land.

Alito also reaffirmed his decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, noting that “as far as I’m aware… [there is] no reason to think [bakery owner] Jack Phillips’ stand would deprive any same-sex couple of a wedding cake. The couple that came to his shop was given a free cake by another bakery and celebrity chefs have jumped to the couple’s defense.”

The keynote was given virtually on November 12 for the 2020 National Lawyers Convention, held during the last week to address “[t]he Rule of Law and the Current Crisis.” Justice Alito was introduced by Federal Society General Counsel and VP Dean Reuter. Current Secretary of Labor Eugene Scalia, son of late Supreme Court Justice Antonin Scalia, was also a speaker that day.

The Convention was sponsored by the Federalist Society, a key component in instilling conservative judges on the bench. They aim to push back on the “the legal profession…[being] currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.”

Six of the nine Supreme Court justices are current or former members of the group.

During his 30-minute remarks, Justice Alito also levied attacks on several government leaders from the local to federal levels, both legislative and those in “the executive fiat,” over their hopes to realign the Supreme Court. He also cited birth control, restrictions in place due to COVID-19, a blog by a Harvard professor, and Democrat senators signaling support for judicial reform as reasons that the Supreme Court has to do “whatever we can” to protect religious freedom.

He specifically named the government in Washington state that set requirements for pharmacies to carry ‘Plan B’ contraceptives and Nevada governor Steve Sisolak’s apparent favoring of casinos over churches in COVID-19 pandemic restrictions.

“It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right,” Justice Alito claimed.

“One of the great challenges for the Supreme Court going forward will be to protect freedom of speech. Although that freedom is falling out of favor in some circles, we need to do whatever we can to prevent it from becoming a second-tier constitutional right.”

“For many today, religious liberty is not a cherished freedom,” he also said. “It’s often just an excuse for bigotry and can’t be tolerated, even when there is no evidence that anybody has been harmed….the question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.”

Politico labelled the address as an “unusually inflammatory public speech,” noting that “it is uncommon for a justice to weigh in on hot-button topics like abortion or gay rights in speaking appearances open to the press or public.”

CNN wrote that this Alito’s “frustration may flow from a view that his conservative brethren have failed to be sufficiently vigilant,” because they have sided with the liberal wing of the court on occasion, while he has remained staunchly to the right in many of the Court’s recent rulings.

They name Alito’s minority dissent in this year’s Bostock v. Clayton County as an example – he opposed extending Title VII regulations to protect LGBTQ employees from workplace discrimination, but Chief Justice John Roberts and conservative-leaning Justice Neil Gorsuch sided with the majority.

Congressman Jimmy Gomez (D-CA) remarked on Twitter that Justice Alito’s words were “stunning” and “harmful” because “homophobic rhetoric isn’t a matter of free speech. It’s a matter of hate speech.”

“Supreme Court Justices aren’t supposed to be political hacks. This right-wing speech is nakedly partisan,” Senator Elizabeth Warren (D-MA) tweeted.

Both Gomez and Warren noted actions they have introduced – a resolution by Gomez and other members of the LGBTQ Equality Caucus, and a Senate bill by Warren that “restores some integrity to our Court by forcing Justices to follow the ethics rules other federal judges follow.”

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