Why Justice Alito May Be the Most Dangerous Man on the Bench

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Commentary Law and Policy

Why Justice Alito May Be the Most Dangerous Man on the Bench

Jessica Mason Pieklo

For Justice Samuel Alito, the Defense of Marriage Act and workplace discrimination cases represent the coming together of two very real threats to him: advancing equality in society and advancing equality in the workplace.

In Windsor v. United States, the Supreme Court invalidated a provision of the Defense of Marriage Act (DOMA) that denies federal marriage benefits to same-sex couples. Justice Anthony Kennedy’s majority opinion is a little unclear on exactly the basis of his reasoning and the Court’s conclusion. Did DOMA fail because of concern that the federal government was meddling too much in the business of states? Or is this truly an issue of equal protection and not singling out one group for mistreatment? It’s hard to say, and I guess we’re still sorting that out as the limiting ruling in Hollingsworth v. Perrythe case that narrowly struck California’s ban on same-sex marriage (Proposition 8), suggests, leaving for another day the ultimate issue of whether or not the constitution protects the right of same-sex couples to marry.

But as is often the case Supreme Court decisions, and especially those that deal with civil rights and the issue of “collective morality” like the issue of same-sex marriage, the real measure of where the fault line lies is in the dissent. In the case of Windsor, once it was known DOMA would go down, it was no surprise to find Justices Samuel Alito and Antonin Scalia in the minority, railing against the forward progress of LGBT rights. But what is surprising is just how personally the two took the fact that Justice Kennedy grounded at least a portion of the majority opinion in principles of equality and for calling out the federal government for its purposeful discrimination on the basis of sexuality in enacting DOMA. According to Justices Alito and Scalia, that was just mean.

To his credit, at least, Scalia tries to mask his hurt feelings by saying that if Kennedy really believed the federal government was engaging in purposeful discrimination then he should at least have the courage to rule so expressly. Fair enough. Justice Alito takes a slightly different tack. He said that some people think that same-sex marriage undermines heterosexual marriage and therefore it is totally legitimate to legislate based on those “sincere” beliefs. Alito seems particularly drawn to such arguments for DOMA as “the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing,” and “marriage is essentially the solemnizing of a comprehensive, exclusive, per­manent union that is intrinsically ordered to producing new life, even if it does not always do so.”

Unfortunately, Alito’s clinging to a cultural definition of the role of marriage as procreative and justification for legislating bigotry has been largely eclipsed by Scalia’s over-the-top, mouth-breathing dissent in Windsor. And given the cases lining up for the court next term, it’s time we pay it some attention.

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By Alito’s logic, a heterosexual marriage that produces no children could not be thought to be “intrinsically ordered to producing new life,” yet the law obviously recognizes that as a valid marriage entitled to federal marital benefits. By his dissent though, it appears as though Alito does not.

That matters most, because right now a religious revolution is underway, one in which conservatives are desperate to re-write the religious protections of the First Amendment to shield businesses from a host of market regulation, including providing insurance coverage for contraception. We all know what side of this fight Justice Alito lands on. After all, this is man willing to uphold the constitutionality of spousal consent laws while an appellate court justice. There’s no reason to believe he will have any problem helping employers deny insurance coverage for birth control to their employees. But when we pair his plutocratic tendencies to protect business at all cost with his deeply ingrained social conservatism, we get an image of a sitting justice more radical than even Scalia at his most petulant.

Predictably, in his dissent in Windsor, Alito moves from making the case of institutional marriage being a tool of population growth worthy of defending to the argument that acceptance of same-sex marriage will lead us down the slippery slope of moral decay.

We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. … At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.

It’s easy to roll our eyes at Alito here, and given his history of similar treatment to his colleagues on the bench, some could argue warranted. I mean, really, the concern-trolling as to the state of society should all loving couples form married unions is a bit much. But just a few days earlier, in Vance v. Ball State University, Justice Alito demonstrated how deep and far his social conservatism permeates his understanding of the workplace. In Vance, Alito ignored a mountain of evidence that workplaces are becoming increasingly hostile and combative to women and people of color, disregarded experts within the Equal Employment Opportunity Commission (EEOC), and brushed aside decades of jurisprudence to radically limit exposure that businesses have to worker-on-worker harassment claims. And the only way he could do so, as Justice Ruth Bader Ginsburg forcefully points out in her dissent in Vance, is to replace all the evidence and law with his own worldview, full stop.

What could the Vance and Windsor cases possibly have in common? For Justice Alito, they represent the coming together of two very real threats to him: advancing equality in society and advancing equality in the workplace. In the case of Windsor, Alito could do nothing but rail against the winds of change. But in Vance, he was able to do much more. And he did. The decision in Vance refuses to recognize that power can be wielded in a more subtle but equally devastating manner by others than those with the power to hire and fire, and in his opinion Alito takes away the ability to curb those abuses of power. The collective effect is a further signaling to the religious right that the private sector is theirs for the taking.

Not that they needed any more signaling. Religious conservatives have already filed over 60 cases trying to grant for-profit enterprises religious rights, and so far they’re winning. If Alito is able to get Justice Kennedy to move away from his flirtation with equality as seen in the DOMA decision and climb on board with the idea that the government unlawfully meddles with individual religious rights when it regulates businesses, we can almost predict with total certainty how the Court will rule on whatever challenge to the contraception mandate lands before it.