Justice Alito gave away the plan to destroy marriage equality

Dangerous and delusional, he believes same-sex marriage threatens his free speech

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In a hyper-partisan political speech that received a lot of attention last week, Supreme Court Justice Samuel Alito told the conservative Federalist Society — the incubator for far-right judges and Supreme Court justices — just about everything he believes is wrong with America.

Alito didn’t even pretend that he will be fair and unbiased as cases come before him, laying out his pre-determined positions for all to see. From abortion and guns to same-sex marriage and even public health restrictions amid the coronavirus pandemic, Alito made it clear that, with Amy Coney Barrett solidifying a 6-3 conservative majority, he now has the votes to radically remake American society.

And much of that will be about giving Christian religious beliefs an exemption to our laws, including allowing for blatant discrimination.

Slate’s sharp and insightful legal analyst Mark Joseph Stern, who comes on my SiriusXM show every Tuesday, live-tweeted the speech and provided analysis and some clips.

On the issue of marriage equality specifically, Alito not only further revealed the plan to hollow out same-sex marriage which we’ve seen laid out by anti-LGBTQ conservatives; he also revealed that he personally feels persecuted by gays and lesbians having the right to marry and having popular support behind them.

This is an astounding amount of victimhood. And it adds a bizarre and frightening dimension to the court’s intentions.

We’ve known for several years now, via cases like Hobby Lobby and Masterpiece Cakeshop, that the court’s conservatives were moving in the direction of making same-sex marriage into second class marriage by supporting religious exemptions. That became clearer two weeks ago in oral arguments before the court in Fulton v. City of Philadelphia, in which a Catholic adoption agency in Philadelphia wants the right to take taxpayer money while discriminating against gay couples. It was worrying but predictable that the court appeared to side with the agency — the first such case with Barrett on the court.

When Barrett was nominated by Donald Trump after the death of Ruth Bader Ginsburg and installed at lightning speed, I wrote about her public statements siding with Chief Justice John Roberts’ blistering dissent in Obergefell, as well as her lack of respect for precedent and why it was a grave concern.

What Alito did in his speech last week, however, took everything to a whole other level. It’s one thing to say an issue should be left to the states, or that there should be exemptions based on “religious liberty” — as wrong-headed as both of those positions are with regard to marriage equality. It’s quite another thing, however, to imply that establishing a minority group has a specific right in the Constitution is problematic because doing so might actually change public opinion. But that’s exactly what Alito claimed:

You can’t say that marriage is between one man and one woman. Until very 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.

That is ridiculous because free speech is of course protected. Anyone can say marriage is between a man and a woman. Just as anyone can express his or her views on race, gender, or anything else. But it doesn’t mean you’re protected from disagreement, criticism, or ridicule for your opinions, including as public opinion shifts.

Alito claims the Supreme Court decision on marriage equality itself is what changed public opinion, and that it stigmatized those who would soon have the minority viewpoint. But actually, public opinion was rapidly changing before the Obergefell decision. Marriage equality advocates, led by Freedom To Marry, mounted a years-long campaign to change public opinion by educating Americans on the important issues, knowing that the Supreme Court was unlikely get behind something that was too unpopular.

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Sure, the decision likely swayed even more people, as did a general acceptance in other parts of society, such as the business world and Hollywood. But that’s how change in public opinion works. It’s how the public comes to a consensus on what’s right or wrong.

Before 1967 most Americans believed interracial marriage was wrong and, for many, they said it was even against their religious beliefs. (Some Americans sadly still believe that today). But in the years after the Supreme Court’s Loving v. Virginia decision in 1967, which threw out bans on interracial marriage in the states, public opinion shifted. Alito seems to be saying that the court, in its decisions, needs to take into account protecting those on the losing side of public opinion — by curbing the rights of those discriminated against:

Yes, the decision by the court included words meant to calm the fears of those who cling to traditional views on marriage. But I could see, and so did the other justices in dissent, where the decision would lead. I wrote the following: “I assume those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes. But if they repeat those views in public they will risk being labeled as bigots and being treated as such by their governments, employers and schools.” That’s just what is coming to pass. One of the great challenges of the Supreme Court going forward will be to protect freedom of speech.

What Alito really is pointing to is not speech being curtailed, but unlawful actions. A few weeks ago he revealed that to be the case by joining an opinion by Clarence Thomas when the Supreme Court decided not to take up the case of Kim Davis, the Kentucky clerk who refused in 2015 to allow her office to give marriage licenses to gay and lesbian couples after the Obergefell decision, citing her religious beliefs.

Davis, you’ll remember, didn’t simply want the right to refrain from the giving out the license herself; she wouldn’t allow anyone in her office to give out the licenses. Thomas, in his opinion, called Davis a “devout Christian” faced with a choice between her “religious beliefs and her job”:

Davis may have been one of the first victims of this court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last…Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws..."

Though the Supreme Court denied taking up Davis’s case, this statement from Thomas and Alito upon the court’s denial was a shot across the bow because they stated that “the court has created a problem that only it can fix," implying Obergefell needed to be overturned or amended, and that “until then” Obergefell would negatively affect “religious liberty.”

Alito’s speech last week starkly underscored that position. He’s making known that the plan is to make sure people like Davis not only have the right to their opinion but also shouldn’t be criticized for it, nor made to carry out the duties of their offices or businesses. He and the court’s conservatives are thus going to “fix” Obergefell so that people like Davis — and Alito and everyone else opposed to LGBTQ equality — are privileged above everyone else.