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Justice Samuel Alito argues that homophobic jurors’ rights are being hurt by same-sex marriage

Justice Samuel Alito
Justice Samuel Alito Photo: Shutterstock

Supreme Court Justice Samuel Alito issued an odd opinion that argued that excluding openly homophobic people from juries in cases involving LGBTQ+ people is happening now because of marriage equality and is a form of anti-Christian discrimination.

The case involved Jean Finney, an out lesbian who sued her employer, the Missouri Department of Corrections (DOC), for discrimination. Three potential jurors on the case said that they believed that gay sex is a sin, and her lawyers asked the judge to exclude them from serving on the jury since their stated hatred towards the plaintiff brought their impartiality into question. The judge agreed to “err on the side of caution.”

Finney won her lawsuit in 2021 and was awarded $275,000, but the DOC appealed in an attempt to overturn the decision, saying that excluding the homophobic jurors violates their 14th Amendment right to equal protection under the law. The DOC said that the jurors were just expressing their beliefs as Christians and that they suffered religion-based discrimination. Currently, the 14th Amendment only prevents jurors from being excluded on the basis of race or sex, and the DOC was arguing to expand that protection to include religion.

The DOC appealed to the U.S. Supreme Court, which has generally been favorable to requests for religious exemptions but refused to hear this case. Alito agreed that they shouldn’t hear the case for technical reasons, but he still wrote an opinion saying that the jurors suffered religious discrimination, all because marriage equality was legalized in all 50 states in 2015.

Calling the homophobic jurors people “who still [hold] traditional religious views on questions of sexual morality,” Alito said that this is exactly “the danger that I anticipated in Obergefell v. Hodges,” referring to the case that legalized marriage equality in 2015. He said the case shows that “Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government.”

Contrary to his claim, the jurors in this case weren’t asked about their opinion on the issue of marriage equality. They were asked if they “went to a conservative Christian church” where “it is taught that people [who] are homosexual shouldn’t have the same rights as everyone else” because being gay is a “sin.”

“When a court, a quintessential state actor, finds that a person is ineligible to serve on a jury because of his or her religious beliefs, that decision implicates fundamental rights,” Alito wrote. “I see no basis for dismissing a juror for cause based on religious beliefs.”

This isn’t the first time that Alito has said that Obergefell is faulty because homophobic Christians might be treated like homophobes. In 2020, he and Justice Clarence Thomas issued an opinion in another case involving Kentucky county clerk Kim Davis’s refusal to issue marriage licenses to same-sex couples. They said that Davis is a “devout Christian” who was “one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision.”

Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss,” their opinion said. “Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy.”

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