WASHINGTON — A month ago, Supreme Court Justice Samuel Alito delivered a commencement speech at a Catholic college in Ohio in which he returned to a familiar theme of his: that conservative Christians are under attack from liberals in a culture war that grips the United States.
He told students that both religious liberty and freedom of speech are threatened and warned them that there are "certain principles that we cannot compromise without paying a fearsome price."
Alito, who is Catholic, has made similar statements over the years in public remarks, and his conservative religious worldview is also reflected in his written opinions when the court rules on contentious topics like same-sex marriage.
His views, which were no mystery even back in 2005 when he was nominated to the high court by Republican President George W. Bush, are under renewed scrutiny after a secret recording of him speaking at a social event that required attendees to purchase a ticket became public this week.
The recording by liberal activist Lauren Windsor is the latest intrusion into the formerly closed-off elitist bubble around the justices that has been repeatedly pierced following the tumultuous leak two years ago of a draft ruling, written by Alito, overturning the abortion rights landmark Roe v. Wade. NBC News has not been able to independently verify the audio recordings.
Alito has also been under the spotlight for flags that were seen flying at his homes that have been linked with conservative political causes, including former President Donald Trump's attempt to overturn the 2020 election.
Alito said the flags were flown by his wife, Martha-Ann Alito, and refused to step aside from pending cases involving Trump and the Jan. 6 attack on the Capitol.
In the latest episode, Windsor covertly recorded Alito and fellow conservative Chief Justice John Roberts at a June 3 event at the court hosted by the Supreme Court Historical Society. The recordings, which also feature Alito’s wife, were first reported by Rolling Stone magazine.
In the recordings, Alito seemed to agree with Windsor, who was posing as a conservative Christian, that the U.S. is locked in a culture war between liberals and conservatives, saying at one point that "one side or the other is going to win." He quickly added that "there can be a way of ... living together peacefully, but it's difficult you know because there are differences on fundamental things that can't really be compromised."
Alito also agreed when Windsor said the U.S. should return to a "place of godliness."
Roberts was more circumspect, pushing back on Powell's questioning, saying it was not up to the court to decide whether the country should be put on a more moral path.
Alito’s comments in particular sparked renewed focus on his role as one of the most forceful members of the court’s 6-3 conservative majority, a position that recently prompted one law professor to call him “the most MAGA Republican justice.”
Alito and Roberts, via the Supreme Court’s spokeswoman, did not respond to requests seeking comment.
In defending Alito, Carrie Severino, president of JCN, a conservative legal group, said Alito's agreement with the "godliness" comment is "a rather unremarkable statement for anyone who is not part of the radical Left."
Richard Garnett, a professor at the University of Notre Dame Law School, said Alito's remarks on culture wars, when read in context, suggest he is simply making the point that there are deep divisions in society.
"I certainly didn’t take that remark to indicate any disposition on his part to be unfair to one side or another," he added.
But Carolyn Shapiro, a professor at Chicago-Kent College of Law, said Alito's comments provide further evidence that he does not necessarily see himself as a "neutral umpire" in the conflict.
"I think he sees himself as a partisan in this fight," she added.
During his recent commencement speech at Franciscan University of Steubenville, Alito warned that support for freedom of speech is "declining dangerously" and that religious liberty is also under threat.
"When you venture out into the world, you may well find yourself in a job, or community or a social setting when you will be pressured to endorse ideas you don’t believe, or to abandon core beliefs. It will be up to you to stand firm," he told the students.
Alito has frequently backed religious rights in cases before the Supreme Court including rulings that have opened the door to taxpayer money being used to send children to religious schools. He voted in favor of a Christian high school football coach who was suspended for leading prayers on the field after games and backed a Christian web designer who did not want to work on websites for same-sex weddings.
In 2014, Alito wrote the majority opinion when the court allowed certain companies to deny employees health care coverage for contraceptives based on the religious views of the owners.
He wrote a lengthy separate opinion in 2021 when the court ruled in favor of a Catholic group that was barred from participating in Philadelphia's foster care program because of the church's stance against same-sex relationships. Alito complained that the court did not go far enough in expanding religious rights in a ruling that "leaves religious liberty in a confused and vulnerable state."
Alito spoke at length on his concerns about religious liberty becoming what he called a "second-class right" during a speech he gave remotely to the conservative Federalist Society in November 2020.
"It pains me to say this, but in certain quarters religious liberty is fast becoming a disfavored right," he said.
He cited several recent Supreme Court cases, including one in which a Catholic religious order called the Little Sisters of the Poor had refused to allow contraception to be included under their health insurance plans. Alito said the group had been "under unrelenting attack" for its stance. Ultimately, the group was not required to comply.
Alito also cited pandemic-specific cases in which houses of worship had been forced to close as a result of shutdown orders issued to prevent the spread of Covid-19, saying governors had "blatantly discriminated" against religious institutions.
In relation to same-sex marriage, Alito said that as a result of the Supreme Court's 2015 ruling that legalized the practice, "you can't say that marriage is a union between one man and one woman."
Alito dissented in that 5-4 ruling, writing in defense of those who opposed same-sex unions based on their religious beliefs.
"I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools," he wrote.
Five years later, in his Federalist Society speech, Alito referred to his earlier prediction.
"That is just what is coming to pass," he said.
