Justice Alito is right: The pandemic brought an assault on our basic rights

The usual mainstream-media suspects wasted no time in blasting as inappropriate Samuel Alito’s address last week to the Federalist ­Society. Which is another way of saying they didn’t like what he had to say. The Supreme Court justice warned that “religious liberty is fast becoming a disfavored right,” that freedom of speech is also ­“becoming a second-tier constitutional right.”

He was exactly right — and his wake-up call was urgently timely: Democrats threaten to “reform” the high court by packing it with liberals, while the pandemic has imposed what Alito called a “stress test” on the Constitution, creating a new ranking order of fundamental rights.

Simply put: Basic respect for some rights is dying.

The justice made clear that he wasn’t “diminishing the severity of the virus’ threat to public health,” nor even “saying anything” about whether lockdown rules are “good public policy.” Even so, “the pandemic has resulted in previously unimaginable restrictions on individual liberty” — and this happened “by executive fiat, rather than legislation.”

The unchecked growth of the administrative state and the rule of unaccountable “experts” long precede the appearance of the novel coronavirus. What we have experienced in the last nine months is a sweeping away of legal norms that deserves more than a passing glance, even in the midst of an emergency.

Alito pointed out that in ­Nevada, the courts had deferred to the judgment of the governor of that state about how to halt the spread of the virus. The result was a rule that allowed casinos to ­operate while severely restricting the right to attend a house of worship. We’re supposed to think that these kinds of arbitrary and illogical rules are kosher; anyone who notices that something is very wrong is framed as either a partisan troublemaker or a “conspiracy theorist.”

As Alito noted, treating the right to render worship to God as being as important as the right to gamble shouldn’t have been a “tough call.” If you look in the Constitution, “you will see the Free Exercise Clause of the First Amendment, which protects religious liberty.” But “you will not find a craps clause or a blackjack clause or a slot-machine clause.”

And yet the courts let those ­restrictions stand, just as they have elsewhere, including in New York, where the state and the city have cracked down hard against believers for violating COVID-19 rules while cheering other events, such as Black Lives Matter riots or Biden victory celebrations — barely even bothering to hide that political or theological content is the deciding factor.

This didn’t take place in a vacuum. Religious freedom was ­already under siege. Even before the pandemic, our laws and the wider culture were squeezing ­believers who don’t accept the dictates of liberalism about issues like same-sex marriage and abortion. A society that began by allowing rampaging online mobs to “cancel” religious conservatives would soon attempt to cancel religious freedom altogether.

You may not want to attend a church, a synagogue or a mosque during a pandemic. You don’t have to agree with the Little Sisters of the Poor about birth control and abortion, or with an evangelical baker about gay marriage. But you should be alarmed about how they’re losing their rights because their faith is out of fashion. The same thing can happen to any of us, no matter our religion or point of view. And advocating for preserving the Constitution even during a public-health crisis doesn’t make someone an “extremist.”

Some judges have tried to push back against the demands of an ­intolerant, majoritarian, secular mindset to marginalize religious freedom and to restrict the right of free speech to only those who parrot politically correct views. But the courts can only do so much. In the absence of a popular defense of liberty, it won’t survive, especially when the unprecedented power of social media and pop culture are arrayed against it.

Rather than jeer Alito’s warnings, decent Americans — whether they are people of faith or unbelievers, conservative or liberal — should be cheering him.

Jonathan S. Tobin is editor in chief of JNS.org.

Twitter: @JonathanS_Tobin

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