Samuel Alito Hub

The Most Dangerous Line in the Supreme Court's Hobby Lobby Ruling


The most dangerous line in the Supreme Court’s recent decision in Burwell v. Hobby Lobby doesn’t come until page 46. It reads as follows:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

That doesn’t sound too bad; indeed, it is probably one of the few statements in Justice Alito’s opinion that many of us would endorse.

Its danger, particularly to the LGBT community, rests in what is not said.

As we have discussed at length, Hobby Lobby allowed a family-run, for-profit arts and crafts company to deny its female employees access to certain contraception simply because that contraception violates the religious beliefs of the company owners.

GinsburgJustice Ruth Bader Ginsburg’s dissent cautioned that the Court was opening a door to allow anyone to use the pretext of religion to opt out of antidiscrimination or public accommodations laws. Justice Alito’s response was to deny the charge, arguing that where the government has a compelling interest in preventing discrimination, as it does in preventing discrimination on the basis of race, the Hobby Lobby exemption would not succeed.

But what happens when the government does not have that “compelling interest”?

Justice Alito chose a convenient example to respond to Justice Ginsburg’s concern. Most people agree that discrimination on the basis of race is not just bad, but absolutely anathematic to our constitutional tradition. But no one in the Court’s five-justice conservative majority has ever said that the state has a compelling interest to prevent discrimination on the basis of sexual orientation or gender identity. Even Justice Kennedy, the author of the Supreme Court’s three gay rights decisions, has carefully declined to declare that antigay discrimination merits heightened scrutiny or that the government has a compelling interest to permit gays to marry. We might believe that the same compelling interest that gives the state the power to prevent discrimination on the basis of race gives the state the same power to prevent discrimination on another status that has nothing to do with an individual’s ability to contribute to society—namely, sexual orientation or gender identity. But there are many judges out there who are not yet there. Congress isn’t even there yet.


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Clerk Files Petition with Supreme Court to Halt Same-Sex Marriages In Pennsylvania

Theresa Santai-Gaffney, the Schuylkill County clerk, has petitioned the Supreme Court to put a stop to same-sex marriages in Pennsylvania, reports SCOTUS Blog.

Theresa Santai-GaffneyIn May, U.S. District Court Judge John E. Jones struck down Pennsylvania's ban on gay marriage. Last month, Jones refused to allow the clerk to intervene so that she could appeal his decision.  On Thursday, the Third Circuit Court of Appeals barred Santai-Gaffney from the case and dismissed her appeal.

Santai-Gaffney's Supreme Court application is based on the argument that the court’s January order putting on hold temporarily a federal judge’s decision striking down the ban on same-sex marriage in Utah "signaled to all lower federal courts" that they must act "to preserve the enforcement of man-woman marriage laws" until the Court rules on the constitutionality of state bans on same-sex marriage.

Santai-Gaffney’s petition can only continue if Justice Samuel A. Alito or a Supreme Court majority allows her to intervene . Alito can also seek a response from challengers of the Pennsylvania ban before acting on the clerk’s application.

Read the Third Circuit Court of Appeals' ruling on Santai-Gaffney's petition to appeal the decision striking down Pennsylvania's same-sex marriage ban, AFTER THE JUMP...

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The "Gay" Marriage Misdirection: Justice Alito Gets It Wrong in Windsor


I am pleased to welcome guest columnist, Brian Chelcun, a graduate of N.Y.U. Law School and a friend, who both conceived of and principally drafted today's installment of "What's Next." Towleroad is honored to have the benefit of his keen insight. The "What's Next" series takes an in depth look at marriage and gay rights, in general, after the Supreme Court's momentous rulings striking down the Defense of Marriage Act and Prop 8. Today's column looks at Justice Alito's dissenting opinion in Windsor.

1299099052136Back in March, when the Supreme Court heard oral argument Windsor v. United States, the media -- Towleroad included -- quickly jumped on a provocative question posed by Justice Samuel Alito:  

"Traditional marriage has been around for thousands of years. Same-sex marriage is very new… [You] want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?"

Last week we discussed Justice Scalia’s dissent, a sloppy, berating conceit lambasting what he perceived as judicial activism and warning (again) about the impending extension of marriage equality across the country. Justice Alito’s dissent is a little different: it's a little less bombastic and focuses mainly on the "newness" of the institution of same-sex marriage. But, like Justice Scalia's, Justice Alito's dissent doesn't stand up to scrutiny.

He repeatedly invokes the phrase "same-sex marriage," a term that is often used as shorthand for marriage equality. It seems innocuous enough, and many advocates have probably used it in conversation to avoid more tongue-twisting phrases such as "marriage for same-sex couples." So why is Alito wrong to use it (over, and over, in his dissent), and why should we avoid it as well?

Continue reading AFTER THE JUMP to see how Justice Alito’s assessment of "same-sex marriage" is flawed, and doesn't appreciate what Windsor v. United States and the marriage equality battle are really about. His dissent serves as a timely reminder to those of us who are continuing the fight to expand marriage equality about how important the phrasing of a few words like "same-sex marriage" can be.

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Obama Gives Supreme Court Public Spanking; Alito Mouths 'Not True'


One of Obama's better moments last night came at the expense of the Supreme Court, whom he reprimanded for its decision on corporate spending limits in elections. Conservative judge Samuel Alito (far left) could be seen scowling, shaking his head in defiance, mouthing "not true." The Joe Wilson moment of the speech?


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