On November 12th, Supreme Court Justice Samuel Alito delivered, via Zoom, a speech to the right-wing Federalist society. It was blunt, and clearly articulated his highly politicized views about current issues, including Covid-19 and the attempts to control it.
Justice Alito also discussed Obergefell, the Supreme Court decision which recognized gay marriage. Here is an excerpt of what Justice Alito had to say, from the transcript provided by the Volokh Conspiracy.
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. Yes, the opinion of the court included words meant to calm the fears of those who claim to traditional views on marriage. But I could say and so did the other justices in dissent, where the decision would lead. I wrote the following. “I assume that those who claim to old beliefs will be able to whisper their thoughts in the recesses of their homes. But if they repeat those of us in public, they will risk being labeled as bigots, and treated as such by governments, employers, and schools.” That is just what is coming to pass. One of the great challenges for the Supreme Court going forward will be to protect freedom of speech. Although that freedom is falling out of favor in some circles, we need to do whatever we can to prevent it from becoming a second-tier constitutional right.
He is correct, in the sense that bigots who assert that gay marriage is not real marriage, risk being labeled as bigots.
But – one must ask – so what? Freedom of speech has consequences. No one is suggesting that people can no longer deny the validity of gay marriage, or gravity, or that 2 + 2 = 4. People have freedom of speech, and so can make these claims.
But by the same token, bigots who express bigotry, risk being called out. People who defend slavery are free to do so, but they can and should be called out. Those who defend Naziism (a) are evil, stupid, and wrong, and (b) free to do so. – But they must recognize and be ready to face the opprobrium that follows from their speech.
It is no limitation on free speech to note that bigots who express bigoted views can and will be labelled as bigots.
Moreover, people generally, and employers specifically are free to employ whoever they choose. If an employer does not wish to hire someone who espouses hatred or bigotry – well, that is one of the consequences of having freedom of speech.
I deplore the idea that college students are so delicate that they must have trigger warnings for content that may upset them. The world can be cruel and dangerous, and they should prepare and be prepared for that. Likewise, I do not agree that “safe spaces” or limits on topics for consideration are good approaches to education in general. Having said that, however, times, beliefs, and mores change. To the extent that somebody holds to discredited racist or bigoted views, I stand with their right to express those views. But I also think that bigots and racists can and should be called out on those beliefs.
In short, I cherish freedom of speech, but I recognize, as should Justice Alito, that free speech carries consequences. Those, for example who deny gay marriage, do not merely risk being “labelled as bigots,” – they are bigots.