The Supreme Court justice believes faith-based bigotry should get a free pass in court.

(Cue the Inquisitioners...)

Yesterday, Supreme Court Justice Samuel Alito argued that excluding potential jurors from hearing a case involving a lesbian, even after they say they believe homosexuality is a sin, amounts to religious discrimination.

Even though the Supreme Court won’t hear the case, Alito’s remarks shine a light on how the most conservative members of the highest court in the country treat Christian bigotry differently from other forms of hate, and how they believe faith-based discrimination should be given a free pass.

The case in question involves a corrections officer named Jean Finney. She described herself in court as a lesbian who “presents masculine” and, in 2010, after her female work colleague was transferred to a different location, the two of them began a relationship.

That infuriated Finney’s ex-husband Jon. The three of them had worked together for the Missouri Department of Corrections (DOC), and after Finney began that new relationship, Jon began harassing her. He sent her derogatory text messages. He kept information from her that made her job more difficult. He threatened to report friends of hers to authorities (for no reason).

At first, Finney didn’t say anything, hoping to maintain the peace. But in 2016, when it became too much to ignore, she filed two formal complaints against Jon with the DOC.

Nothing happened. They didn’t investigate the matter.

The DOC continued to ignore the complaints even after a higher ranking official complained on Finney’s behalf, saying that he feared Jon would bring a gun to the office to kill his ex partly because he couldn’t handle the fact that she was in a same-sex relationship.

Based on Jon's conduct, the warden determined that Jon was creating a harassing, discriminatory, and retaliatory work environment for Finney based on her sexual orientation.

That’s how serious his (mis)conduct was. But the DOC didn’t seem to care.

That’s why Finney sued. She said the DOC was violating the Missouri Human Rights Act by allowing the harassment to go on, creating a hostile work environment, all on account of her sex and sexual orientation.

When the case went to trial, the two sides had to settle on jurors, and that’s when things took a different turn.

During the course of questioning, three different jurors admitted that they believed homosexuality was a sin… but all three later added that everyone was a sinner and that they could still be impartial jurors. The DOC’s lawyers said that rejecting those jurors from the pool on that basis could get “into the bounds of religious discrimination”… but they didn’t say anything more.

Finney’s lawyers asked for those jurors to be excluded as options—and Judge Kate Schaefer agreed. She wanted to “err on the side of caution,” she said, and there were plenty of other jurors available.

The (eventual) jury soon returned verdicts in Finney’s favor, awarding her $175,000 in non-economic damages and $100,000 in punitive damages.

The DOC’s lawyers demanded a new trial, claiming that the “blanket exclusion” of certain jurors on the basis of their faith, even though they promised to be impartial, “violated the Equal Protection Clause of the U.S. Constitution and the Equal Protection Clause of the Missouri Constitution, and Article I section 5 of the Missouri Constitution.”

That appeal was denied by the trial court.

So the DOC took their case to the Missouri Court of Appeals. That, too, was denied. The justices said the DOC didn’t raise proper objections at the time, and you can’t retroactively complain about a tainted jury pool. They also pointed out that those jurors were not excluded because they were Christian, but rather because they had strong views against homosexuality, which was central to this case. Finally, they noted that there were no complaints about the 12 jurors who ultimately heard the case, so it’s not like justice wasn’t served.

The DOC, still upset with the result, appealed again to the U.S. Supreme Court.

And on Tuesday, SCOTUS also denied the appeal.

While the justices don’t have to explain their decision not to hear a case, Alito chose to lay out his concerns in writing—and his thinking is disturbing. Alito said he agreed the Supreme Court shouldn’t hear the case (largely because the DOC didn’t properly object to the jurors’ dismissals at the time) but he was still worried about what this case revealed.

In this case, the court below reasoned that a person who still holds traditional religious views on questions of sexual morality is presumptively unfit to serve on a jury in a case involving a party who is a lesbian. That holding exemplifies the danger that I anticipated in Obergefell v. Hodges…, namely, 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... The opinion of the Court in that case made it clear that the decision should not be used in that way, but I am afraid that this admonition is not being heeded by our society.

In short, while you can’t exclude potential jurors on the basis of race or gender, Alito said this case excluded them on the basis of religion, which shouldn’t be allowed either.

That’s where he’s wrong. The trial judge was right to strike those jurors out of caution after they admitted their opposition to homosexuality. It shouldn’t matter that they said they could be impartial, because we know exactly how anti-gay churches treat this matter: Everything is a sin, but some sins matter more than others. The Catholic Church, for example, will immediately fire teachers at Catholic schools if it’s discovered they’re in same-sex relationships, but if a teacher quietly has an abortion or gets divorced (both of which are forbidden in the faith), they routinely look the other way. White evangelical churches regularly say homosexuality is no different a sin than all the other ones, but in practice, they fight against LGBTQ rights and spread malicious lies about that community—something they never do when it comes to gluttony, laziness, or greed.

Notice Alito’s euphemism, too. He describes the view that LGBTQ behavior is sinful as “traditional religious views on questions of sexual morality.” As if anti-gay bigotry is somehow acceptable because it’s been going on for a really long time. He later refers to it as “traditional religious beliefs about homosexual conduct.”

Those views, to be clear, involve the belief that practicing homosexuals should be put to death. Even if most modern Christians wouldn’t approve of that, they certainly believe sinners deserve to be tortured for eternity in Hell. Just because it’s “traditional” doesn’t make it okay.

If someone said they believed homosexuality was a problem for reasons not involving religion, then any assurances they would set that aside if put on the jury would easily be ignored. Just because your bigotry is based on your religious views doesn’t mean people should let it slide.

To be clear, no one is suggesting Christians be excluded from juries—indeed, there were many Christians in the jury pool in this case who were not opposed by either side. But if someone openly admits that certain sexual orientations are sinful, then their promise to be impartial (in a case where that’s central to the issue) carries very little weight.

It’s not that complicated: Bigots shouldn’t serve on a jury when the case involves the thing they’re bigots about.

Author and constitutional scholar Andrew Seidel was more concerned about another aspect of Alito’s statement—the part focusing on the Obergefell ruling, which Alito dissented from and which he still views as dangerous. He said in a statement to me:

Alito's attack on Obergefell, the decision which finally recognized marriage equality, is a haunting signal that he wants to drag our country back to a time when straight, white, conservative Christian men ruled and everybody else was a second class citizen. Many of the scholars and experts in this space count six votes on the high court for overturning marriage equality, which would be a cruel and vicious attack on so many families. 

I share his concern, which is why it’s so concerning to see Alito going out of his way right now to act like removing bigoted Christian jurors from a case is an act of religious persecution.