Legal Docket: The importance of religious liberty

MARY REICHARD, HOST: It’s Monday morning and welcome back to another week of The World and Everything in It. Today is the 22nd of August, 2022.

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It’s time for Legal Docket.

Today, we feature a speech by U.S. Supreme Court Associate Justice Samuel Alito. The University of Notre Dame Law School hosted a religious liberties summit last month at its campus in Rome.

Justice Alito outlines challenges to religious liberty and warned that without religious liberty, other fundamental rights cannot survive.

REICHARD: We’ve edited the 34 minute speech to fit our available time, but we’ll link to the entire speech in today’s transcript.

Here now are excerpts from Justice Alito’s remarks at the Religious Liberty Summit in Rome last month.

JUSTICE SAMUEL ALITO: Here in Rome, history is all around us. The hotel in which my wife and I are staying looks out over the Roman Forum. And as a result, I find myself thinking about the proud civilization that was centered here two millennia ago. And as I think back, I also think ahead, and I wonder what historians may say centuries from now about the contribution of the United States to world civilization.

One thing I hope they will say is that our country after a lot of fits and starts and ups and downs, eventually showed the world that it is possible to have a stable and successful society in which people of diverse faiths live and work together harmoniously and productively while still retaining their own beliefs. This has been truly an historic accomplishment. But as the remnants of the classical past incessantly tell us here in Rome, no human achievement is ever permanent. And therefore, we can't lightly assume that the religious liberty enjoyed today in the United States, in Europe, and in many other places will always endure. Religious liberty is fragile, and religious intolerance and persecution have been recurring features of human history. We can't escape thinking about that here in Rome either.

This, after all is where St. Peter and St. Paul and countless other early Christians were martyred. If we look at the Colosseum today, we see a tourist attraction. We might see men dressed up as gladiators prancing around outside the Colosseum. But in its day, it was the killing place. It was the place where hundreds who knows who knows how many Christians were torn apart by wild beasts, to the delight of spectators, citizens of a rich, powerful and technologically advanced state, with little regard for the inherent worth of human life. Near the Colosseum, we can see the place where Nero is said to have used Christians as human torches to light up his garden parties. I think we're all aware of the persecution of the early Christians.

But more Christians are killed for their faith in our time than in the bloody days of the Roman Empire. And of course, Christians have by no means been the only victims of religious persecution. Religious persecution is alive and well in the world and in many places, it is a violent life and death thing.

Religious liberty is under attack in many places, because it is dangerous to those who want to hold complete power. 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. This challenge stems from a turn away from religion. 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 Berlin. One of the exhibits was a rustic wooden cross. A young, affluent woman, a well dressed woman and a 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. 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. As most of you know, I think a dominant view among legal academics is that religion doesn't merit special protection. 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? Does support for a sports team, for example, really merit the same protection as religious devotion?

Well, for me, the Constitution of the United States provides a clear answer. Some of my colleagues are not so sure. But for me, the text tells the story. The Constitution protects the free exercise of religion, it does not protect the free exercise of support for the Packers. Think of the increasing number of young Americans whose response when asked to name their religion, say none. Think of those who proclaim that religion is bad. What can we say to such people, to convince them that religious liberty is worth protecting?

That is the challenge and it is a challenge that will not be met by federal judges for whom the Constitution should be enough. So my primary point tonight is to pose that challenge to others. Not to offer anything like a full answer, which I certainly don't have. Nevertheless, I'm going to offer a few brief thoughts.

The first concerns a lesson that I think we can learn from American history. And that is that religious liberty promotes domestic tranquility. It provides a way for religiously diverse people to hold together and to flourish. As I said at the outset, I think that the American experience illustrates that well.

We all know, of course, that there has been a lot of religious discrimination against a variety of groups throughout the history of this country. And there is prejudice today, against members of other religions. But although we live in an era where people tend to dwell on what is bad about American history, I think, in the case of religious liberty, if we draw back, and we see what we achieved, after all of these missteps, it is something that we can be proud of. And it's an example I think, that we can give to the rest of the world.

A second point is the enormous charitable work that is done by religious groups and people of faith.

Two terms ago, I wrote an opinion in a case called Fulton, which concerned an effort by the city of Philadelphia to expel Catholic social services from the foster care program. And as part of that opinion, I recalled the history of providing help for orphaned and abandoned children. The first orphanage is thought to be one that was founded by Saint Basil the Great in the fourth century, the first orphanage in the United States, was founded by nuns in New Orleans in 1729. Long before governments began to institute programs to care for orphaned and abandoned children, for people who are sick, for the poor, for other people who are in need, churches were there. They have a long history of doing this, they continue to do it today. And it's something that I think we can remind our fellow citizens who may not be religious themselves about.

Another important point that can be made concerns social reform. It's not an accident I think that leaders of the movement to abolish slavery, both in Europe and in the United States, were very often men and women of faith. Nor is it an accident that the most prominent leader of the American civil rights movement in the 1960s was the Reverend Martin Luther King, Jr, an ordained minister. By drawing on his faith, Dr. King was able to speak to all Americans regardless of race, and make a powerful case for equal treatment of all people. If religious liberty is protected, religious leaders and other men and women of faith will be able to speak out on social issues, and people with deep religious convictions may be less likely to succumb to dominating ideologies or trends, and more prone to act in accordance with what they see as true and right. Civil society can count on them as engines of reform.

And this brings me to a related argument, and that is the relationship between religious liberty and other rights. Consider the relationship between freedom of religion and freedom of speech. The exercise of religion very often involves speech: a spoken or written prayer, the recitation of Scripture, a homily, a religious book or article. These are all forms of speech. They are also forms of religious exercise. If this sort fo speech can be suppressed or punished, what is to stop the state from crushing other forms of expression? Or consider the relationship between freedom of speech and the freedom of assembly. A religious service in a church, synagogue, mosque or temple is a form of assembly. If a government can ban those assemblies will it hesitate to outlaw others?

On the other hand, if religious liberty is allowed, it will be harder for the state to restrict other speech and other assemblies. Thus, as a practical matter, religious liberty and other fundamental rights tend to go together. And many have seen the rise of limited government often attributed to liberal ideology as an outgrowth of the freedom for which the Church has always fought. So powerful is religious liberty that it even helped to bring down what once seemed an indomitable totalitarian state.

When the state signs on to protect religious liberty, it necessarily signs on to a particular conception of what it means to be human, and that conception entails a respect for a panoply of rights. These are just a few thoughts about what may be said to a skeptical culture, about the protection of liberty. And make no mistake about it: unless the people can be convinced that robust religious liberty is worth protecting. It will not endure.

Learned Hand wrote, “Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can do much to help us help it.” I'm going to add another reminiscence. During my lifetime, the People's Republic of China did its best to eradicate religion completely. And yet it failed. Just as the Roman emperors who spent centuries trying to destroy Christianity failed. In China, there are now more Christians than there are in France or Germany. And if trends continue, the number of Christians in China may surpass those in the United States.

The Cultural Revolution did its best to destroy religion, but it was not successful. It was not able to extinguish the religious impulse. Our hearts are restless until we rest in God, and therefore the champions of religious liberty who go out as wise as serpents and as harmless of doves can expect to find hearts that are open to their message.

Thank you very much.

REICHARD: That was U.S. Supreme Court Associate Justice Samuel Alito in a keynote speech last month in Rome before a religious liberty summit hosted by Notre Dame Law School.

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