Justice Alito's Sense of Grievance Distorts His Views of Free Speech

 by Michael C. Dorf

In remarks at the Federalist Society national convention yesterday, Justice Samuel Alito proved that even if the clown-tyrant currently occupying the White House fails in his attempted putsch, right-wing grievance politics will remain with us for quite some time. As Justice Alito made clear during last week's oral argument in Fulton v. Philadelphia, he has not gotten over Obergefell v. Hodges, the 2015 case recognizing a constitutional right to same-sex marriage. Justice Alito repeated his complaint again for his FedSoc audience.

Much of the coverage of Justice Alito's remarks has focused on whether they were inappropriately political or partisan. I want to put that issue aside to focus instead on how Justice Alito's sense of aggrieved entitlement has distorted his legal analysis on the issue of free speech.

On Monday on this blog, Prof Colb explained that Justice Alito's grievance centers on a passage in Justice Kennedy's majority opinion in Obergefell in which the Court ostensibly reassured those who oppose same-sex marriage on religious (or other) grounds that they are fully entitled to express those views. In his FedSoc remarks yesterday, Justice Alito quoted his own Obergefell dissent, in which he questioned that reassurance. He wrote there and repeated yesterday:

I assume that 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 treated as such by governments, employers, and schools.

Is that true? If so, is it problematic?

I begin with the observation that of course Obergefell had nothing to do with anyone's free speech right to oppose same-sex marriage. It was not a speech case at all. Rather, the case presented the question whether a state could deny two people the right to marry because they are of the same sex.

It's true, of course, that any legal entitlement could have implications for some other people's speech down the line. And indeed it did not take long for the Court to take up (but ultimately decide on other grounds) a case--Masterpiece Cakeshop--in which a claimed right to free speech potentially conflicted with marriage equality. But the very fact that the bakeshop owner in Masterpiece Cakeshop was asserting a free speech right shows that marriage equality had no inevitable consequence for legal entitlements to oppose marriage equality. And even if the Court had reached the core issue in Masterpiece Cakeshop and ruled against the cakeshop owner--as I believe it ought to have--that would be either on the ground that baking a cake isn't speech or that to the extent it has an expressive component, the state's interest in equal citizenship of persons in same-sex relationships overrides it. Cakeshop owners and everyone else would of course retain the right to advocate against same-sex marriage in virtually every other context without facing any legal sanction.

Evidence for that proposition can be found in Justice Alito's statements themselves. He faces no legal sanction for his vociferous and public opposition to marriage equality, which he is not whispering in the recesses of his home, but voicing publicly from his seat on the Supreme Court and before a national audience at the FedSoc convention. And to be clear, I agree that anyone who opposes legal same-sex marriage has a free speech right to do so.

But what about lesser sanctions? Justice Alito is not so much worried that people like him will be imprisoned for opposing same-sex marriage but that they will face social opprobrium or worse. He won't lose his job because it comes with life tenure, but, his Obergefell dissent implies, others might, or might not be hired in the first place.

To the extent that Justice Alito is worried about mere social opprobrium, his concern is misplaced and more than a bit ironic. Social conservatives have for years complained about left/liberal snowflakes who supposedly cannot stand disagreement with their views, but here, note that Justice Alito is, not to put too fine a point on it, acting like a snowflake. Being called a bigot might be hurtful, but it is not censorship. It is counter-speech.

Justice Alito might have a somewhat better point when he worries about adverse concrete consequences. If someone is fired from their job or not hired in the first place for, say, posting on social media that "God ordained marriage as between one man and one woman," that indeed would infringe free speech. But is that happening?

The short answer is no. Cases like Masterpiece Cakeshop involve the application of general anti-discrimination laws--which regulate the conduct of discrimination regardless of any message the discriminator intends to express--to people whose discriminatory conduct may also involve the expression of a view. To my knowledge, there are virtually no cases of people losing jobs or not getting jobs or being expelled from schools for merely saying things like "I don't support marriage equality."

Justice Alito's real concern, then, does seem to be with mere social opprobrium. His feelings are hurt when other people say that his views are bigoted notwithstanding that they originate in religious views.

But let us imagine the worst-case scenario from Justice Alito's perspective. Suppose that some day employers treat opposition to same-sex marriage as anti-LGBTQ+ bigotry, which they in turn treat as comparable to racism and thus potentially disqualifying in an applicant for a job or promotion on the ground that they don't want their employees creating a hostile environment for one another. Would that be so bad?

Justice Alito seems to think so. Consider a couple of rhetorical questions Justice Alito posed during last week's oral argument in Fulton, which concerned Philadelphia's failure to renew a contract with a Catholic social services organization to provide foster parent eligibility screening on the ground that the organization was unwilling to comply with the contractual term forbidding discrimination against same-sex couples. Philadelphia argued that, just as it could insist that recipients of contracts with the city comply with its rules against race discrimination, so it could insist that they comply with other non-discrimination policies, including based on sexual orientation. The lawyer for the Trump administration, siding with Catholic Social Services, tried to distinguish the government interest in redressing racial discrimination as unique.

Justice Alito echoed that point in these rhetorical questions: "Didn't the Court say [in Obergefell] that there are honorable and respectable reasons for continuing to oppose same-sex marriage? Would the Court say the same thing about interracial marriage?"

And there you have it. What Justice Alito cannot stomach is the idea that homophobia could be deemed similar enough to racism that it would be condemned even when religion is invoked to support it (as religion was invoked to support racist views for much of history).

In his FedSoc speech, Justice Alito said this: "You can't say that marriage is a union between one man and one woman. Until very recently, that's what the vast majority of Americans thought. Now it's considered bigotry."

If what Justice Alito is saying is that he and other people of his generation and background need a little more time to adjust, then perhaps we who have already adjusted can cut them some slack. But count me as dubious. In 1955, in the Brown II case, the SCOTUS cut white Southerners slack by telling them to desegregate their schools "with all deliberate speed" rather than immediately. A decade of foot dragging and recalcitrance resulted.

It has been only five years since Obergefell, but it has been more than fifty years since Stonewall. Justice Alito and his tender feelings are not entitled to more time to adjust.