Culture Friday – Case closed for religious liberty?

MARY REICHARD, HOST: It’s Friday, November 20th, 2020.

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REICHARD: Well, it’s Culture Friday. 

Last week, a sitting justice of the U.S. Supreme Court said some things and the media lost its collective mind. Headlines like: Justice Samuel Alito delivers “caustic speech,” and “Alito takes gloves off.” 

What really happened in Justice Alito’s keynote address to the Federalist Society is outline the slide toward tyranny and that first freedoms of religion and speech are in danger of disappearing. 

Now keep in mind, he’s talking to a bunch of lawyers. That’s his audience. Justice Alito spoke for a half hour, so in the interest of time we’ve pulled together a heavily edited clip to air the core of what he was talking about. It’s a little over a minute long. Let’s listen:

ALITO: The pandemic has resulted in previously unimaginable restrictions on individual liberty. Now, notice what I am not saying or even implying, I am not diminishing the severity of the virus’s threat to public health. I’m not saying anything about the legality of COVID restrictions. All that I’m saying is this, and I think it is an indisputable statement of fact: we have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020. Laws giving an official so much discretion can of course, be abused. And whatever one may think about the COVID restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed. All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored, right.

EICHER: Justice Alito touched on several other topics that we’ll get to in a moment. And, do yourself a favor: Listen to the whole speech. If you visit we’ll link to it in today’s transcript.

Now, let’s welcome John Stonestreet. He’s president of the Colson Center and host of the Breakpoint podcast.

REICHARD: John, good morning.


EICHER: In his speech, Justice Alito quoted a law professor at Harvard, Mark Tushnet. The professor’s quote is a few years old, but because of the Alito speech, we’re talking about it now.

ALITO: He candidly wrote, quote, “The culture wars are over, they lost we won. The question now is how to deal with the losers in the culture wars. My own judgment is that taking a hard line, ‘you lost; live with it’ is better than trying to accommodate the losers. Taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”

Then Justice Alito quoted Bob Dylan as his response to the professor’s frightening comment. This is the lyric that the justice referred to.

BOB DYLAN: It’s not dark yet, but it’s gettin’ there.

Well, The New York Times called up the professor to get his response to Justice Alito. He said:

“The very intensity of [the] remarks seems to me to confirm my judgment about who won the culture wars. His are in fact the observations of a person who hasn’t come to grips with the fact that he’s been on the losing side of many culture-war issues.” End-quote.

You know, instead of the long answer, he could’ve just corrected Bob Dylan: It isn’t just getting there. It’s dark.

Your thoughts?

STONESTREET: What an interesting thing for this professor to talk about the intensity of Justice Alito’s comments when he’s the one that compared them to post-World War II Germany and Japan. Isn’t that the game? Like, as soon as you compare someone to the Nazis you lose? But that’s what actually happened here. 

But the tone deafness of this is everywhere. There were four other articles just like that New York Times article this week where it basically is saying, as one wrote—this was either New York Times or Washington Post, forgive me for not remembering which one. But an op-ed of somebody who goes, “They told me to try to get along with Trump voters. I tried. It didn’t work. Don’t waste your time.” And the thing is, we’re dealing with a significant number of Americans on each side. There’s not a landslide. There’s not an overwhelming population on one side of these issues as opposed to the other. This divide is far more stark. And it’s hard to see what the way forward is. But, yeah, I think it’s dark. It’s too late. We’ve gotten there.

REICHARD: Let me play some more audio from this remarkable speech. Justice Alito is really great with cultural references, and he talks about a famous comedy bit from 1972. Famous for its shocking nature, called the seven dirty words you can’t say on television. Now, of course, you can and you hear it way too frequently. But Alito has proposed an updated list:

ALITO: Things you can’t say if you’re a student or professor at a college or university or an employee of many big corporations. And there wouldn’t be just seven items on that list. 70 times seven would be closer to the mark. I won’t go down the list, but I’ll mention one that I’ve discussed in a published opinion. You can’t say that marriage is the union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.

That this would happen after our decision in Obergefell should not have come as a surprise.

No, it shouldn’t, and he refers, of course, to the same-sex marriage decision in 2015. But there we have it: the words you can’t say. John, does Justice Alito exaggerate?

STONESTREET: Well, it might be that we all owe Rod Dreher an apology. Justice Alito sounds an awful lot like this columnist, this blogger from the American Conservative that many of us read and appreciate greatly and accuse of being maybe too negative, too pessimistic. His hair’s on fire, sort of stuff. And then this is Justice Alito saying many of the same things. 

But, you know, I also had a lunch meeting just recently with the parent of a college student. And her experience was exactly what Justice Alito just suggested: where they were having—I think the class is on social ethics—and the professor gave her the boundaries not only of the topics of class, but of the approaches to those topics, the lenses through which she could look at those topics, and the sources she was able to use—could not use any other. Just like real education. 

This is a stunning reality, but of course—and, by the way, this wasn’t at a notorious lefty college. 

Look, again, this reveals something. We’re hearing this from all kinds of different sides. Folks who helped lead the charge to get Obergefell and same-sex marriage into law have now openly said that their job is to punish the wicked and the wicked are those like who Justice Alito just referred to: the millions of Americans who until yesterday thought that marriage is between a man and a woman. And that there’s not even a conversation. 

What’s so historically inaccurate about this accusation of hate and bigotry being behind the opposition to same-sex marriage: When we say that a lot of people were against same-sex marriage until just recently, we could say that no culture in the history of the world ever imagined such a thing as same-sex marriage until yesterday. Even cultures that had no Christian views on sexual morality, even those that weren’t being informed by religious hangups. 

In other words, they saw—observably—a difference between intimate relationships between two men and intimate relationships between a man and a woman and the potential procreative result of that union. And because of that, even cultures that had no hangups with that sort of sexual behavior still did not call it the same thing as marriage. That’s an important data point. And the reason is because it helps us understand that it has nothing to do with bigotry. It has to do with observable differences that exist that are completely being denied across the board.

EICHER: John Stonestreet is president of the Colson Center and host of the Breakpoint podcast.

REICHARD: Thanks, John!

STONESTREET: Thanks guys.

(AP Photo/Susan Walsh) Justice Samuel Alito testifies before House Appropriations Committee on Capitol Hill in Washington, Thursday, March 7, 2019. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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