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Alito 'Concerned' Jurors Can Be Axed For Religious Beliefs

By Jack Karp · 2024-02-20 16:33:31 -0500 ·

U.S. Supreme Court Justice Samuel Alito said Tuesday he is "concerned" about the prospect of potential jurors being dismissed because of their religious beliefs, as the justices declined to hear a case in which Christian jurors were excused over their views on homosexuality.

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U.S. Supreme Court Justice Samuel Alito said the for-cause dismissal of three prospective jurors in a case over the Missouri Department of Corrections' alleged discrimination against a lesbian employee "raises a very serious and important question." (AP Photo/J. Scott Applewhite)

In a statement included with the court's order list, Justice Alito said the for-cause dismissal of three prospective jurors in a case over the Missouri Department of Corrections' alleged discrimination against a lesbian employee "raises a very serious and important question." 

But he agreed with the court's denial of certiorari since a state law procedural issue made the current case the wrong vehicle in which to address that question, he said in the statement.

"The judiciary, no less than the other branches of state and federal government, must respect people's fundamental rights, and among these are the right to the free exercise of religion and the right to the equal protection of the laws," Justice Alito said. "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," he added.

Jean Finney sued the Missouri DOC alleging that a coworker retaliated against her after she began a same-sex relationship with the coworker's former spouse. She argued that the DOC was responsible for that retaliation under the Missouri Human Rights Act, according to the DOC's petition for certiorari.

During voir dire, Finney's attorney moved to strike for cause three jurors who said they believe homosexuality is a sin, although they insisted that their views on homosexuality would not affect their ability to be impartial as jurors, Justice Alito explained. The trial judge decided to dismiss the jurors, noting that even though they said they could follow the law, the court should "err on the side of caution," according to Justice Alito.

The Missouri Court of Appeals affirmed the dismissals, finding that the jurors' belief "that Finney's conduct was sinful" was grounds for concluding that they couldn't be impartial in this case, and that the jurors were dismissed on the basis of their religious beliefs, not their religious status, the justice's statement explained.

But the Constitution's requirement that state actions singling out the religious for different treatment must survive rigorous scrutiny holds true regardless of whether the differential treatment is based on religious status, such as the fact that one is a Christian, or religious belief, such as one's belief that homosexuality is a sin, Justice Alito insisted.

The court's precedents make it clear that distinctions based on religious beliefs — just as distinctions based on religious status — must be narrowly tailored, according to Justice Alito.

"Jurors are duty-bound to decide cases based on the law and the evidence, and a juror who cannot carry out that duty may properly be excused. But otherwise, I see no basis for dismissing a juror for cause based on religious beliefs," the justice said.

The jurors' dismissal is the kind of issue Justice Alito anticipated in Obergefell v. Hodges , the 2015 ruling that legalized same-sex marriage, he wrote Tuesday. The justice said he had feared that ruling would lead to a situation in which Americans who claim LGBT relationships violate their religious beliefs will be labeled and treated as bigots 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," Justice Alito said Tuesday.

But the justice nevertheless "reluctantly" agreed with his colleagues not to review the case since the Court of Appeals had found that the DOC didn't properly preserve its objection to the potential jurors' dismissal.

"I agree that we should not grant certiorari in this case, which is complicated by a state-law procedural issue. But I write because I am concerned that the lower court's reasoning may spread and may be a foretaste of things to come," Justice Alito said.

A spokesperson for the Missouri attorney general told Law360 in a statement Tuesday that "while the Supreme Court didn't take our case because of concerns about a state-law issue, Justice Alito made clear that what happened here was a travesty and a serious violation of the right to religious liberty enshrined in the First Amendment."

"My office will continue to use every tool at our disposal to protect the right to religious liberty guaranteed to all Americans," the spokesperson added.

Alliance Defending Freedom senior counsel Chris Schandevel, who filed an amicus brief supporting certiorari in the case, said in a separate statement Tuesday that "American society has no place for religious tests for civic duty."

"What happened in Missouri is egregiously wrong and extremely troubling," Schandevel added. "So while we're disappointed that a procedural issue prevented the court from taking this case, we're thankful Justice Alito wrote separately to make clear that the decision below 'raises a very serious and important question' that the court should address in a future case."

Attorneys for Finney did not respond to requests for comment Tuesday.

The Missouri DOC is represented by Andrew Bailey, Joshua M. Divine, Maria A. Lanahan and Patrick Sullivan of the Office of the Missouri Attorney General.

Finney is represented by Christina J. Nielsen of the Nielsen Law Firm LLC, David A. Lunceford of the Lunceford Law Firm and Rachel C. Rutter of the Rutter Law Firm PC.

The case is Missouri Department of Corrections v. Jean Finney, case number 23-203, in the U.S. Supreme Court.

--Editing by Alanna Weissman.

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