alt=Kelsey DallasSupreme Court Justice Samuel Alito doesn’t deny that sports fandom can feel like a religion. But he still thinks actual religious practices should be treated differently under the law.
In his remarks at last month’s Notre Dame Religious Liberty Summit in Rome, Alito used the story of a hypothetical Green Bay Packers fan to spell out his view. He argued that religion merits "special protection," even at a time when fewer and fewer Americans are active in a faith group.
“The challenge to those who want to protect religious liberty ... is to convince people who are not religious that religious liberty is worth special protection,” he said.
Alito's sports-themed hypothetical scenario involved three attorneys who come into conflict with a rule prohibiting the wearing of headgear in the courtroom. Two are people of faith who feel a religious duty to cover their head in some way, and the other is a rabid Packers fan who wants to wear a green-and-gold hat.
The question, Alito said, is whether the law allows us to accommodate the two religious attorneys, while still banning the Packers cap. Alito said it does, no matter how deeply the one attorney loves his favorite NFL team.
“The Constitution protects the free exercise of religion. It does not protect free exercise of support for the Packers,” he said.
Alito acknowledged that plenty of Americans, including some legal experts, would take issue with his conclusion, or at least not follow him where it leads. In the United States and elsewhere, people are increasingly hostile to traditional religious beliefs, he said.
“I think a dominant view among legal academics is that ... we should treat religion just like any other passionate personal attachment,” he said.
The key to protecting religious liberty in the long-run is to convince even those who don't practice a faith or who are actually hostile to religion that giving special protection to religious beliefs is a good thing, Alito said.
"Make no mistake about it unless people can be convinced that robust religious liberty is worth protecting, it will not endure," he said.
As Alito predicted, his remarks at the Rome conference were controversial, at least within more liberal circles. Some accused the Supreme Court justice of privileging religion at the expense of secular governance, pointing to his recent decision to overturn Roe v. Wade as an example of where trying to protect conservative religious interests can lead.
"Samuel Alito is an embarrassment to the Supreme Court because he doesn't understand there are different religions in America. ... Some religions support abortion, some don't," tweeted U.S. House Rep. Ted Lieu, a Democrat from California.
Legal writers Dahlia Lithwick and Mark Joseph Stern argued in a column for Slate that Alito's vision of religious freedom disregards the founders' interest in creating separation between church and state.
"If you are not very frightened by the prospect of a Supreme Court justice crossing the ocean in order to quote the Gospels to religious adherents of his own faith, who have business before the court, as he excoriates all who do not share his personal view of the primacy of religion as an organizing force in a political democracy, it’s difficult to know what could alarm you," they wrote.
During his speech, Alito said it's not his job to try to convince people who reject his view of religious freedom to change their mind. Federal judges are meant to focus on interpreting the Constitution, not tackling cultural shifts, he said.
But he did offer some tips for those who do want to help rebuild religious freedom's reputation. He said they could highlight the many times throughout history when robust religious liberty protections led to flourishing and peace.
"Religious liberty promotes domestic tranquility. It provides a way for religiously diverse people to hold together and flourish," he said, adding that religious freedom also enables faith groups to run programs that serve people in need.
Americans should be proud of how their commitment to protecting religious liberty has inspired other countries, Alito said. But they also can't forget that this right is "fragile" and that it needs to be recommitted to again and again.
"One thing I hope (future historians) 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," he said.