On November 12, 2020, Justice Samuel Alito warned the Federalist Society of “unimaginable restrictions” on “religious freedom” due to the COVID-19 Pandemic. Justice Alito’s comments are not new, nor are they limited to conservative justices. They reflect a long-standing hypocrisy, which goes back beyond the Constitution to the Puritan colonization of North America.
All the Constitution says about the subject, in the First Amendment, is that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This may be a reference to the official Church of England, and the supposed “persecution” of other Protestant sects, such as Puritans. I say “supposed” because this “persecution,” like Alito’s comments, were more perceived than real. This perceived persecution becomes especially trivial when it is compared to the very real and physical torture and murder of Jews and Muslims under the Spanish Inquisition of the same time period.
What the Puritans, and now Alito, really meant by “religious freedom” is actually the “freedom” to impose their religion on others.
As soon as they became established, the Pilgrims of the Mayflower quickly began persecuting any other religion. Quakers were expelled, and Jews fleeing the Inquisition were barred from the colony. Through Cotton Mather, their religious ideology became the justification for slavery. And of course, there were the Salem Witch Hunts.
The “freedom of religion” in the Bill of Rights has been applied with as much hypocrisy as the Puritan claim of religious persecution. An example of this is the “Sunday Laws” in this country. These laws prohibit businesses from operating on the Christian Sabbath — Sunday. Initially, such laws were struck down as establishing a compulsory religious observance. See Ex Parte Newman, 9 Cal. 502(1858). It was conservative, pro-slavery, judges who made this ruling, while the supposedly liberal judges, such as Justice Stephen Johnson Field, dissented. Ultimately, it was the supposedly-liberal Warren Court which upheld these laws. See McGowan v. Maryland, 366 U.S. 420 (1961). The basis for upholding these Sunday Laws was as a protection for labor. But these laws did nothing to protect labor, on Sunday, or any other day. Instead, they do what the First Amendment explicitly prohibits — a law requiring observance of a particular religion.
A modern example of a decision establishing this “right” to impose religion on others is Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682 (2014). The shareholders of Hobby Lobby claimed that their religious beliefs were against certain types of birth control. Nobody was forcing these shareholders to use any type of birth control. But they claimed the “religious freedom” to exclude those forms of birth control from the health plan of the corporation whose shares they owned, contrary to regulations under Obamacare. In effect, they insisted on the “right” to pierce their own corporate veil in order to impose their religious beliefs on the employees of their corporation. The Supreme Court agreed.
The Trump Administration revised those Obamacare regulations to allow anybody, not just religious organizations, to impose their religion on employees through their health insurance. This was recently upheld by the Supreme Court in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania. The Court said that the Trump Administration had the authority “to create the religious and moral exemptions” in the regulation, based on the Hobby Lobby decision.
Even more disturbing was the companion decision to Little Sisters, written by Justice Alito himself. In Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court held that any religious organization could discriminate against anyone whose duties touched on religion even remotely. As the dissent put it, the Court now gives “religious” employers “free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law” without having to “cite or possess a religious reason” for the discrimination at all. There, one teacher alleged discrimination because of age and another because she asked for time off when she was diagnosed with breast cancer.
The latter, Kristen Biel, died without any sympathy or remorse, much less pay and health insurance, from her employer — the Roman Catholic Archdiocese of Los Angeles. According to the Supreme Court, that’s OK. Two of the supposedly liberal justices joined in this opinion. (Only Justices Sotomayor and Ginsberg dissented).
Justice Alito’s comments to the Federalist Society are particularly disturbing, as they were made a few days after the Court heard arguments to decide whether “religious freedom” justifies discrimination against same-sex couples. In Fulton v. Philadelphia, the City of Philadelphia found out that one of the agencies it contracted to provide foster care placement services refused to make referrals to same-sex couples. This was in violation with city law and their contract with the city.
Yet the agency — Catholic Social Services — claims it can take government money and use it to impose its “religious beliefs” on others, depriving children of the care of loving and qualified couples. All in the name of “religious freedom.”
They are asking the Supreme Court to overturn Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which held that a neutral generally-applicable law could apply to conduct motivated by religious belief without violating the First Amendment.
So now, Justice Alito complains that requiring churches not to kill their own parishioners through COVID-19 infection is an “unimaginable restriction” on religious freedom. There are already numerous legal cases on this issue. It is only a matter of time before one or more are heard by the Supreme Court. His comments on this issue are thus more than an academic exercise.
What if my “religion” includes human sacrifice? What if my “sincerely held moral” belief requires that Justices who abandon their sacred duty to uphold the social contract which is our Constitution, be burned at the stake? Who would question my “right” to observe my “religion?” In case there is any misunderstanding, that is not my belief. Rather, my own “sincerely held religious belief” is the same as John and Yoko:
“Imagine . . . no religion . . . nothing to kill or die for.
Imagine all the people, living life in peace.”
 The original Sabbath observed by Jesus, and still observed by Jews, is Saturday. See Genesis 2:2–3; Exodus 20:8–1; Mark 2:23–27; Luke 6:1–4. In 363 AD, the Roman Council of Laodicea outlawed observance of the Sabbath on the seventh day, and encouraged its observance on the first day (Sunday) instead. The Muslims later adopted Friday as their Sabbath day.
 The law in Smith was not really “neutral” — it prohibited peyote use, which is an essential part of the Native American Church. That may explain the holding. According to the Supreme Court, only the Christian religion is protected by the First Amendment. This is consistent with the “Originalist” interpretation of the Constitution, since many states only allowed Protestant white men to vote at the time the Constitution was adopted.