Supreme Court Justice Samuel Alito criticized same-sex marriage as a harbinger of the erosion of free speech in America, drawing renewed concern from LGBTQ advocates about the future of this recently gained right.
In a virtual address Thursday to the conservative Federalist Society, Alito took aim the landmark 2015 Obergefell v. Hodges decision that guaranteed gay marriage rights across the country, as well as restrictions aimed at reducing the spread of the coronavirus and talk of restructuring the Supreme Court and the federal judiciary more broadly.
“You can’t say that marriage is a union between one man and one woman. Until recently, that’s what the vast majority of Americans thought. Now, it's considered bigotry,” Alito said in his speech. “That this would happen after our decision in Obergefell should not have come as a surprise.”
Alito then cited his dissent in which he theorized that the majority’s opinion in the case would lead to those who “cling to traditional views on marriage” being “labeled as bigots and treated as such by governments, employers and schools.” He then warned that freedom of speech is “falling out of favor in some circles” and at risk of becoming a “second-tier constitutional right.”
Paul Smith, a professor at Georgetown Law School, told NBC News that while Alito has spoken at Federalist Society events for years, his latest address was “aggressive in tone,” in contrast to past talks. That contrast, according to Smith, could be due to the event being streamed live, instead of behind closed doors as other Federalist Society events have been.
“I'm not really sure where all the anger and victimhood are coming from,” said Smith, who successfully argued the landmark 2003 Lawrence v. Texas case, which decriminalized same-sex sexual activity across the country. “Conservatives control the federal courts, and politically the country is about evenly divided. There is no great liberal overtaking of the law or the government.”
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Alito’s words drew sharp rebukes from LGBTQ advocates who considered the speech an attack on a settled ruling and further fueled their concerns about whether the high court’s conservatives would look to reverse the landmark Obergefell ruling.
Alphonso David, president of the Human Rights Campaign, the country’s largest LGBTQ rights group, took to social media to say Alito has “shed any pretense of impartiality in a politically charged speech, again attacking the Obergefell decision.”
“Justice Alito: Our love and our marriages are valid,” David wrote. “There is no tension between full equality and religious liberty.”
Last month, in a four-page dissent following the Supreme Court’s rejection of an appeal from Kim Davis, a former Kentucky county clerk who denied marriage licenses to same-sex couples, Alito and Justice Clarence Thomas used the opportunity to issue a blistering critique of the Obergefell ruling. The two said 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.” The Supreme Court “has created a problem that only it can fix,” they said of the landmark decision.
When asked for a comment regarding Alito’s speech to the Federal Society, the American Civil Liberties Union referred NBC News to its response following the Kim Davis dissent.
“When you do a job on behalf of the government — as an employee or a contractor — there is no license to discriminate or turn people away because they do not meet religious criteria. Our government could not function if everyone doing the government's business got to pick their own rules,” James Esseks, director of the ACLU’s LGBT & HIV Project, said at the time. “We will fight against any attempts to open the door to legalized discrimination against LGBTQ people."
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Still, amid the concern, Smith does not believe that the Obergefell ruling is in danger of being overturned in the near future. Alito’s views are certainly well known, but he is only one of nine justices on the court. Given that overturning the ruling would accomplish little, Smith said, it is unlikely he could get four other justices to sign on.
“Same-sex couples would still be married, and there would be plenty of states where new same-sex marriages could be solemnized,” Smith added.
Alito was a member of the Federalist Society when he was nominated to the Supreme Court in 2005 by Republican President George W. Bush, and his speech on Thursday, he showed support for lawyers who fought a bid by the U.S. Judicial Conference to bar federal judges from being members of the group. The Federalist Society says it is a nonpartisan judicial group but is funded by prominent conservative attorneys. Five of the court’s sitting justices — Alito, Thomas, Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh — are counted as members.
The Supreme Court is currently deliberating on Fulton v. Philadelphia, which looks into whether faith-based child welfare organizations can reject same-sex prospective foster parents and others whom they consider in violation of their religious beliefs. The case could have broad implications for nondiscrimination laws across the country.