Justice Alito’s delusions of persecution

Prejudice against conservative Christians is a real thing. But so is the tendency to see prejudice where it isn’t, and that is Supreme Court Justice Samuel Alito’s special talent.

Prejudice against conservative Christians is a real thing. But so is the tendency to see prejudice where it isn’t. That is Supreme Court Justice Samuel Alito’s special talent.

Alito’s talent was on display this week, in a case involving anti-gay discrimination. Jean Finney worked for the Missouri Department of Corrections. When she began a same-sex relationship with a coworker’s former spouse, that coworker spread nasty rumors about her, sent vicious messages and kept her from receiving information she needed to do her job. In her suit, she claimed that the department was responsible. The jury agreed and awarded her $275,000.

Two jurors were dismissed after they reported that they believed, for religious reasons, that homosexuality was a sin. The Department of Corrections appealed, claiming that excusing those jurors was improper religious discrimination that warranted a new trial.

Alito agreed that there was antireligious bias. He wrote — read this carefully — that “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.”

Here’s what actually happened. Finney’s attorney asked the potential jurors, “How many of you went to a religious organization growing up where it was taught that people that are homosexuals shouldn’t have the same rights as everyone else because it was a sin with what they did?” A number of them raised their hands. Then the lawyer asked them if they could set those views aside. Three of them said they couldn’t, and they were dismissed.

Alito complains, accurately, that the lawyer’s questions “conflated two separate issues: whether the prospective jurors believed that homosexual conduct is sinful and whether they believed that gays and lesbians should not enjoy the legal rights possessed by others.” But that meant that, by raising their hands, the jurors indicated that they believed both.

The Missouri Court of Appeals thought that this was sufficient evidence of possible bias to justify excusing the jurors. It noted that they were rejected, not for being religious, but for their beliefs. If they thought Finney’s homosexuality was sinful, then they might have a problem protecting it.

Contra Alito, that doesn’t mean that a person with those views “is presumptively unfit to serve on a jury in a case involving a party who is a lesbian.” It does mean that their impartiality was questionable if the trial involved a law protecting the very behavior that they regarded as sinful. The Court of Appeals observed that the jurors were disqualified based on their “views relevant to the predominant issue in the case.”

Alito thundered in response: “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.” The Constitution rejects “distinctions based on ‘religious beliefs,’ no less than distinctions based on religious status.”

That makes it sound as though, if a belief is religious, it can’t ever be the basis for jury exclusion. That’s crazy. It would mean that if someone has religious reasons for his racism — and there have been plenty of such people — he still gets to sit on a jury, even in a racial discrimination case.

But at the end of his statement, Alito admits that beliefs that really do impair a juror’s impartiality are a legitimate basis for exclusion. So what is he fussing about?

His real concern is made clear when he declares that the court’s action “exemplifies the danger that I anticipated in Obergefell v. Hodges [the 2015 decision legalizing same-sex marriage], 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 Obergefell, same-sex couples merely asked for the same legal recognition when filing taxes as Alito’s own family enjoys. Alito dissented, objecting that the decision to give them that recognition “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” More recently, he and Justice Clarence Thomas complained that recognition of same-sex couples’ right to marry “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots.” The branding certainly happens, but it is silly to think it is caused by Obergefell or would stop if that decision were overturned.

More importantly, the movement for same-sex marriage is not a conspiracy against those religious conservatives. When same-sex couples people seek recognition for their families, they don’t do it because they want to diss others. It is not okay to attack other people’s families because their existence makes people think less well of you.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed“ (St. Martin’s Press). Follow him @AndrewKoppelman.