Sam Alito, Critical Race Theorist

One of the interesting features of Justice Alito's dissent in Obergefell is that it shows how social and religious conservatives are rethinking freedom of speech in the light of the next phase of the culture wars.  In the last three decades many social and religious conservatives have been strong defenders of freedom of speech against "political correctness" on the left. But consider how widespread acceptance of gay rights is quietly reshaping their judgments about what freedom of speech means.

Social and religious conservatives have already been arguing--and will continue to argue--that others should not call them discriminators, much less bigots, because they refuse to accept same-sex marriage or gay equality. Perhaps more important, social conservatives are starting to claim that they are being silenced (and therefore censored) by the larger secular community.  Justice Alito explains:

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion,the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. 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.

In this respect, social and religious conservatives are reviving left-wing arguments made in the 1980s and 1990s by radical feminists like Catherine MacKinnon and by critical race theorists like Mari Matsuda. They argued that sexist and racist speech silenced (and therefore censored) women and minorities, because they were afraid to speak up for themselves and be thought crazy or disagreeable.  In the same way, Alito argues, general acceptance of equal rights for gays is going to silence religious people, who will be afraid to say what they think because they will be thought backward or bigoted.

Sam Alito as Mari Matsuda and Catherine MacKinnon. Talk about your ideological drift.