Opinion: Justice Alito’s Flag Excuses Only Raise Questions About His Marriage

“As soon as I saw it, I asked my wife to take it down, but for several days, she refused.”

That was Supreme Court Justice Samuel Alito’s explanation to two senators for how an upside-down American flag ended up on the front lawn of his Virginia home.

In letters to members of Congress in which he rejected calls to recuse himself from cases involving former President Donald Trump and the Jan. 6 insurrection, Alito pointed a public finger at his wife of almost 30 years for putting him in an awkward position of defending himself against accusations of bias. In fact, he insisted, he didn’t even know about the second questionable “Appeal to Heaven” flag that his wife hung outside their vacation home.

With zero irony and heaps of hypocrisy, Alito wrote, “She makes her own decisions, and I have always respected her right to do so.”

While he has control over every woman’s baby-making uterus, he does not have control over his wife’s flag-lowering arms. So he threw up his own. In the meantime, the signs of a troubled Alito marriage are mounting:

• She ignored his advice.

• She embarrassed him at work.

• Worst of all, they are on completely different pages when it comes to oblong pieces of cloth. “My wife is fond of flying flags,” Alito writes. “I am not.”

Reading between the lines of the letter reveals more marital tension. In both the letters, Alito refers to the woman he shares two homes with only as “my wife”—just like Borat.

Can their marriage survive this strain? Was his inability to say her name an upside-down red flag signaling that the Alitos are on the rocks?

Probably not given Alito’s interpretation of coupling. In his dissent in United States v Windsor—which paved the way for federal recognition of gay marriage—Alito describes two competing visions.

The first view is called “conjugal” and defines holy matrimony as “an intrinsically opposite-sex institution” based on “biological kinship.” This kind of marriage, Alito wrote, is “the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.”

But there’s a newer less holy view of marriage that Alito calls, “consent-based marriage.” This type of union between two people is “marked by strong emotional attachment and sexual attraction.” This, Alito argues, is the definition that has allowed proponents of same-sex marriage “to argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is rank discrimination.”

Alito just doesn’t buy this new-fangled “consent-based” relationship and adds that although the Constitution does not codify either of these views of marriage, he suspects the Founding Fathers would have taken “the traditional view for granted.”

As an originalist, Alito must accept this view, too. He and his wife share a biological kinship—two grown children—as well as a vacation home. Although as Alito quickly points out, that vacation home was purchased with money that his wife inherited from her parents and the title is in her name—so don’t even think about pinning that Christian nationalist flag on him. (Perhaps he didn’t notice it because justice is blind and he simply never looked out the window.)

So even as Alito tries to distance himself from his wife (and might spend a few nights sleeping in the guest room) the two are in it for the long haul. As he stated in the Windsor defense, marriage is “a comprehensive, exclusive, permanent union.”

He’s not budging–not at home nor on the Supreme Court, where he also enjoys a comprehensive, exclusive, and permanent union.

So far, Alito’s wife has not commented on either of the two flags or the feud with her neighbors which may have included the wife of a Supreme Court justice spitting at a car. Instead, she is letting her husband represent her side to the media and to Congress. Still, she must be a bit rankled that her husband won’t even utter her name.

She’s not alone. Destiny’s Child knows just what she’s going through:

Say my name, say my name

You actin’ kinda shady

Ain’t callin’ me baby

Why the sudden change?

It’s Martha-Ann, by the way. Martha-Ann Alito. And her husband, Sam, according to Senators Sheldon Whitehouse and Dick Durbin, is indeed “actin’ kinda shady.”

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