S5, Ep. 19: Still smarting over Obergefell, Justice Alito calls for a new case

Justice Samuel Alito’s 5-page statement agreeing with the denial of cert in one case seems to be asking for another case

Mar 7, 2024

The Supreme Court declines to hear thousands of cases a year, but one recent denial included a troubling statement from Justice Samuel Alito. Amanda Tyler and Holly Hollman look at a case out of Missouri about potential jurors being struck from the jury pool because of their anti-LGBTQ beliefs, and they break down Justice Alito’s 5-page statement that seems to be asking for another case with the same issue at stake. What could this mean for the future, and why is Justice Alito still hung up on the Obergefell v. Hodges decision from 2015? 

Segment 1 (starting at 00:38): What happened in this case?

Holly mentioned this resource from The Washington Post that shows an update on cases as the term progresses: The Supreme Court Trump-Colorado ruling, and big 2024 decisions to come

Amanda and Holly discussed Donald Trump’s plan to create a task force fighting anti-Christian bias in episode 13 of this current season ‘God Made Trump,’ Biden campaigns at a church, and more news from the campaign trail

Amanda read from this article in The New York Times by Abbie VanSickle describing the factual background of the lawsuit: Justice Alito Renews Criticism of Landmark Ruling on Same-Sex Marriage

Segment 2 (starting at 14:33): Why did Justice Alito write this statement?

You can read Justice Alito’s statement on the denial of cert on page 25 of this PDF document of the order list from the Supreme Court on Feb. 20, 2024.

Amanda mentioned three cases invoked by Justice Alito:

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Transcript: Season 5, Episode 19: Still smarting over Obergefell, Justice Alito calls for a new case (some parts of this transcript have been edited for clarity) 


Segment 1: What happened in this case? (starting at 00:23)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. Today, we’re looking at a case from Missouri about potential jurors being struck from the jury pool because of their anti-LGBTQ beliefs. The Supreme Court declined to hear the case, but Justice Samuel Alito issued a five-page statement, decrying what he sees as anti-religious bias toward people who hold anti-LGBTQ views.

AMANDA: So, Holly, great to be with you again this week. And hard to believe, but this is our first episode this season talking about this Supreme Court taking any kind of action on a religion in law case this term.


AMANDA: And it’s not even a full case, as we’ll get to soon.

HOLLY: Yeah. Not so fortunately, the Court did so much work in church-state relations, First Amendment, in the past several years that we’ve had plenty of policy and legal conversations without relying on a major case from the Court this term.

It’s interesting, though. People have asked, you know, “What are you all following at the Court?” And I get to tell them, there’s not a religious liberty case before the Court this term. But, of course, the Court has a pretty important docket this term, with a lot of other issues, Amanda, that I know you and I follow with great interest.

AMANDA: Absolutely. We are not upset that the Court did not take a religion and the law case this term, especially given what we view as really damage to religious freedom doctrine over the last several terms. So taking a break is a good thing in this area of the law.

And there are some major cases before the Court this term, including, of course, some cases that have to do with the upcoming election and Donald Trump’s eligibility to be a candidate for the election, as well as presidential immunity.

And, you know, Holly, we talk about being podcast hosts but also podcast listeners, so I have been a regular listener to the Prosecuting Donald Trump podcast, where I have kept up to date on all of those legal developments, but also to other legal podcasts that are covering the Court.

HOLLY: Well, those cases that you mentioned dealing with the former president show us that we are not the only lawyers dealing with very novel issues, because we’ve never — our country’s never seen anything like that.

So in addition to the cases about former President Donald Trump, there are cases about abortion pills, medication abortion, social media, guns, a lot of really important issues. And there’s a Washington Post article we can link to in the show notes that has a quick summary of these important cases so you can kind of keep up. If this is your main source for legal news, you can look at the article and kind of see what else is going on at the High Court.

AMANDA: Right. But today we are going to discuss this recent development on religion in the law from the Supreme Court, and it is this statement of Justice Alito that was issued in the case Missouri Department of Corrections v. Finney, and in addition to the specific statement from the Court, Holly, we are also going to talk some about concerns about Justice Alito’s views from the Court’s 2015 landmark decision in Obergefell v. Hodges, which made same-sex marriage the law of the land.

HOLLY: Leave it to Justice Alito to pack a lot into his five pages, not even a dissent from denial but a statement respecting the denial of cert. But he had some things to say, and there’s plenty for us to talk about here, Amanda.

And, yes. A major concern for Court-watchers has been whether this Court is really committed to Obergefell and how solid precedent that case is. And so this statement respecting the denial of cert properly got some people’s attention.

And let’s just note off the top, Amanda, that we, as religious liberty advocates and Court-watchers, do not think Obergefell has led to the persecution of Christians in the United States. We disagree with Alito and think false claims about anti-Christian persecution in the U.S. really do a disservice to our work on religious freedom.

AMANDA: And we’ve discussed that previously in the context of former President Trump also trying to use the U.S. Justice Department to address anti-Christian bias in the United States. We think that that is a wrongheaded and, frankly, dangerous idea.

HOLLY: Well, our listeners will certainly hear that theme as we talk about this statement from Justice Alito. As you noted, the case is called Missouri Department of Corrections v. Finney. We should first start with a short summary of the case.

AMANDA: Yeah. And I’m going to quote directly from the New York Times article describing the facts that led to this lawsuit. “Jean Finney, an employee of the Missouri Department of Corrections, claimed that after beginning a same-sex relationship with a co-worker’s former spouse, that co-worker made Ms. Finney’s job intolerable. The colleague spread rumors about her, sent demeaning messages, and withheld information she needed to complete her work duties, Ms. Finney said. Ms. Finney sued the Department of Corrections, accusing the Department of being responsible for the co-worker’s actions.”

HOLLY: That does not make me miss my days as an employment attorney, because employment relationships can be kind of tough. And, man, that sounds like a doozy.

Well, the case proceeded to trial with Ms. Finney arguing, of course, that she’s been discriminated against based on sex under the law.

And it went to a jury trial, and of course, to prepare for a jury trial, the attorneys first must pick a jury, and they go out to all of the citizens — and I’m sure lots of our listeners have had that pleasure of serving on a jury or the boredom of waiting forever and then being dismissed.

The process for selecting a jury is called voir dire, and the attorneys issue questionnaires and then follow up with questions of each of the potential jurors to see if they are fit to serve on the jury.

And during this particular process, the plaintiff, Finney’s attorney, asked potential jurors this: 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?

AMANDA: And that kind of question is one that the attorneys ask to try to get at a sense of if the people in the panel, the jury panel, might have beliefs that would make it difficult for them to serve as impartial jurors. And I have to say, Holly, I’m so happy you said “voir dire.” That is definitely how we say it [pronounce it] in Texas. I have learned since then that people in other parts of the country call it “voir dire” or something a little bit — maybe a little closer to the original, but it’s definitely “voir dire” here.

HOLLY: [Laughing.]

AMANDA: And so the process is you ask questions like this, and then people in the jury pool, they might have a paddle, almost like they’re at an auction or something else, that they would raise their hands. And so several of the people in the jury pool raised their paddle on that question about whether they went to a church or other religious organization that taught that homosexuality was a sin.

But that alone is not enough to strike a juror for cause, and so the attorney followed up with another question and said, Could you set aside those views. And, you know, if you can set aside your views, drop your paddle. Well, some paddles remained up. And so then that allowed the attorney to ask some follow-up questions. And one person, one potential juror, juror number 13 in this case, said in that follow-up, said, “Homosexuality is a sin, but you still have to love those people and you still have to treat them right in society.”

And, you know, so imagine the peer pressure of being in a jury room. It’s hard to admit, unless you’re really just trying to get out of jury duty, that you couldn’t set aside views to be impartial. And so you try to ask these follow-up questions to gauge it.

So Ms. Finney’s lawyer thought, after listening to this answer, not convinced that this juror could be an unbiased juror, and so then moved to strike potential juror number 13 and two others for cause, that is, claiming that the person could not be an impartial juror based on their beliefs.

HOLLY: Just a side note, Amanda, I think it is fascinating to think about a group of private citizens all coming together for their civic duty. The way we did it in Tennessee where I practiced law, they’re out in the courtroom, in the open courtroom, and so it’s this very formal, and you have bailiffs and security people around. And I’m just thinking about the vulnerability of the juror to say that. You might be working with the rest of these jurors, and, you know, you have to say out loud what you believe, but she did it in a way that she thought felt right.

So the plaintiff’s lawyer is trying to dismiss these jurors to maximize the plaintiff’s case — or at least the attorney’s thinking in the plaintiff’s case — of getting the fairest jury for his client. On the other hand, the lawyer for the Department of Corrections stated as part of his objection, “I would have a categorical exclusion like that. It starts getting into the bounds of religious discrimination.”

AMANDA: So, I mean, this is what we have on the record — right? — of how they objected to it. Well, the judge eventually ruled with Finney and did strike the three potential jurors for cause, which just means they were not selected to serve on the jury. Finney went on to win a jury verdict of $275,000 in damages, and so as often happens after these trials, the losing side appeals.

The Department of Corrections made a motion for a new trial and argued that “the Court’s blanket exclusion of potential jurors during voir dire based on their religious background and beliefs, despite such jurors testifying that they could be fair and 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.”

HOLLY: The trial court denied the motion for a new trial, and the state appeals court affirmed that decision. The appellate court ruled that the Department of Corrections lawyers had not properly preserved the issue for a review of the constitutional issue. Here’s a portion of that ruling.

“Counsel never stated an objection on the basis of religious discrimination, claimed that exclusion of the three potential jurors would actually constitute religious discrimination, or identified the legal authority which would prohibit such discrimination. Counsel’s ambiguous and ambivalent statement falls well short of the specificity required to preserve a constitutional objection.”

AMANDA: Right. And this is not just “gotcha,” you know, in the legal term. There’s a reason that you have to properly state your objection, because that’s the only way that the trial court can take everything into consideration in making their ruling on the case. And so since this issue wasn’t properly preserved for the appellate court, the level of review before the appellate court was for something called “plain error.” And the appellate court found no plain error on the facts presented. Here’s the relevant part of the appellate court’s decision.

The court wrote, “While voir dire unquestionably touched upon religion, contrary to the Department of Corrections’ assertion, it did not serve to identify and exclude prospective jurors of certain religious persuasions. Rather, the questioning was appropriately focused on identifying those members of the venire who possessed strong feelings on the subject of homosexuality, a central issue in the case. Department of Corrections’ efforts to narrowly cast the challenged strikes for cause as being based on the prospective jurors being Christians, as opposed to an issue-based determination founded on their views on homosexuality, is further undermined by the fact that several other prospective jurors who identified as religious or Christian but did not express strong views on homosexuality were not struck for cause.”

HOLLY: So it’s interesting that the court really addressed this. The appellate court upheld the lower court, basically actually kind of diving into this issue that Justice Alito is going to talk about. In doing so, it’s just not a big deal. Basically the Court is saying that this was not plain error that had to then be reversed. It was well founded.

So that was the decision of the lower court, and the Department of Corrections sought certiorari to the U.S. Supreme Court, and the U.S. Supreme Court declined to hear the case.



Segment 2: Why did Justice Alito write this statement? (starting at 14:33)

HOLLY: Well, the Court denied cert, but still we’re talking about this case, Amanda.

AMANDA: That’s right. This is a very unusual circumstance, as you noted off the top, where — you know, sometimes we’ll see a dissent from a denial of cert.

HOLLY: Yeah.

AMANDA: But this is — Justice Alito evidently agreed with the other justices who denied cert and yet still had some words in him, so he wrote a five-page statement respecting the denial of certiorari.

And he begins by saying, “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.” Sounds ominous.

HOLLY: It does. I think if you just read it to me, I think I would say, That’s Justice Alito, if you just read that out of context. It sounds like him. Right? Right off the top here, he says, he’s concerned about the foretaste of things to come. [omniously] Dumm-dumm-dummm.

AMANDA: I think that’s part of our just overall takeaway.

HOLLY: Yes. We’re reacting because we’ve read the whole thing. So it sounds like Justice Alito at the beginning, and we know what’s coming, because we’ve listened to him a lot before.

AMANDA: And in the very next paragraph, he says that the holding from the appellate court “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.'”

HOLLY: Yeah. And you’re quoting from the dissenting opinion in Obergefell v. Hodges. That’s the case, of course, that found a constitutional right to marriage that extends to same-sex couples, and it is a decision that elicited a lot of reaction, a lot of celebration and, as the dissenting opinion showed, a lot of concern. Some of that concern was this idea that if same-sex marriage is protected, then those who oppose same-sex marriage would be treated as bigots.

AMANDA: Right. And this is obvious hyperbole in this case where we just went over the facts of the case, and nothing about the appellate court’s decision, nothing about the district court’s sustaining the striking for cause by Ms. Finney’s lawyer, none of that indicated that any of these government authorities were labeling these potential jurors as bigots. So Justice Alito right off the top has taken this to a 10 in an area where it’s not necessary and that we don’t have any evidence of anti-religious bias.

HOLLY: Yeah. We could see it coming, because we know Justice Alito, and we’ve read his dissenting opinion in Obergefell. But there’s absolutely no reason, as you’re noting, in him taking it to a 10. I can imagine a case where that is a concern, but on the facts of this case, it didn’t seem to be one. It’s just a process where the attorneys have to do their job to try — you want to get the people off the jury that you think won’t be fair to your client. You do your best to try to remove any jurors that you think would be biased against your client.  That’s just the work that you do.

AMANDA: Yeah. And this idea of striking jurors for cause based on their beliefs, whether they’re religious or not, this is not a new thing. Right? You want to be sure that as you’re selecting your jury, that they can decide a case impartially.

And the example that came immediately to my mind was jury selection in death penalty cases. You know, if someone expresses any kind of belief, whether it’s based on a religious view or not, that they think that the death penalty is wrong, pretty much any prosecutor is going to strike that juror from their jury pool, and they can do so for cause, and there are unlimited — when you’re striking people from your jury pool to serve on the jury, when it’s done for cause — in other words, when it’s done with an argument that that juror cannot be impartial and you state your particular reason — you can do that an unlimited number of times. And so those jurors are always struck from death penalty cases.

And so, of course, this is not a criminal case. This is in the civil courts. But this is an analogous situation of, Can this juror hear the case of my client fairly, or because of their beliefs, are they going to be automatically predisposed to rule against my client.

HOLLY: It’s so frustrating in these conversations that we have, you know, that we have to read from a Supreme Court justice saying something that he says the court decided, and it’s not what the court decided. So, you know, he just — he starts off saying that people with these beliefs are presumptively unfit to serve on juries, and that really does a disservice to the actual case and lawyering that was happening in the court below, and, you know, at the trial court and then at the appellate court. Kind of strange to see that from the highest court in the land.

AMANDA: Yeah. Shaping the facts after the case to fit your argument, rather than working on an argument that actually matches the case in front of the justice. And Justice Alito did it again later in his statement when he 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.”

Again, it’s not the beliefs themselves but whether those beliefs and the statements and answers that the prospective juror makes during questioning, whether it raises a concern to the level that this person could not be impartial to the case and the facts before that person. It is not that their religious beliefs themselves make them ineligible to serve on the jury – but, are you ineligible to hear this particular case because you could not set your beliefs aside to be impartial?

HOLLY: It’s a really serious legal issue, whether one’s religion can disqualify somebody from jury service. It’s just not an issue that seems particularly relevant in this case.

AMANDA: But Justice Alito is hoping that this question comes before the Court and seems to be actually asking advocates to send him another case that would be a better vehicle. You know, again, he agreed that this case was not the proper case to consider it, but later said, “I would vote to grant review in this case were it not for the fact that the court of appeals concluded that the Department of Corrections did not properly preserve an objection to dismissal.”

HOLLY: Yeah. It’s common to write — as a long statement — of Justice Alito, “Bring me a case.” You know, that’s the shorthand version of page 3. It’s actually just a short statement, five pages. I mean, it’s long, in that it didn’t need a statement. But, anyway, we’ll link to it in the show notes, and you can take a look.

But I want to quote from another part of it where he said, “The court” — talking about the lower court — “concluded that the jurors had been dismissed not on the basis of their religious status” — which would clearly be discriminatory, so that’s the point he’s making — “but on the basis of their religious beliefs, and this distinction, it said” — the court said — “made all the difference because in its view, while dismissals based on a juror’s status as Christian must comport with strict scrutiny, dismissals based on a juror’s views need not.”

And interestingly, you know, the attorneys, of course, are concerned with their beliefs, but not like beliefs in general; beliefs that affect how their clients will be judged by the jury. So there’s nothing specifically about religious beliefs necessarily going on here, but it certainly is implied in the way Justice Alito sees it.

AMANDA: He also here invoked several cases from religion clause jurisprudence, particularly Trinity Lutheran Church, the Lukumi case, and Carson v. Makin, which is really curious, Holly, because again, reading between the lines, I think he’s making the argument that these jurors have been singled out based on their religion, when, in fact, to go with — I believe to go with Justice Alito’s argument, it would actually give preferential treatment to jurors who have beliefs that are based on religion.

HOLLY: I mean, I think that’s just another example of him taking it to a 10, as you said, citing these recent cases that stand for the proposition that state actions cannot single out, you know, religion for disfavored treatment. We, of course, agree with that rule. We’ve just taken the position that it’s not particularly applicable to cases like Trinity Lutheran.

Court-watchers are properly worried when you see in Alito’s writing something that indicates that he wants a case, because it shows, you know, he’s made up his mind what the problem is, the issue is, and something that he feels really needs to be corrected. So I think that that’s really concerning, and we’ll see. We’ll see if the Court gets a case on this, but I think we feel pretty confident in assessing Justice Alito’s writings that seem to equate what he would call traditional views of marriage as, you know, really under threat.

AMANDA: Yeah. And, I mean, he’s constructed a straw man argument here. He said, Look, I warned you about this in Obergefell. I warned you that people with, quote/unquote, traditional views of marriage were going to be ostracized in society. And, see, look what happens.

HOLLY: They get kicked off jury pools. Yeah.

AMANDA: Right. When nothing in this case indicates that it was because they hold traditional views of marriage but rather because it was determined that they couldn’t be impartial in this particular case to these particular facts. And so given this Court’s lack of commitment to precedent, including in the Dobbs decision — which Justice Alito wrote — and because of the very different make-up of the Court from when Obergefell was decided in 2015, I think a lot of people are worried that this is just laying the groundwork for further erosion of what the Court previously has determined to be constitutional rights.

HOLLY: Well, at the time of the Obergefell decision, we noted that it was a landmark civil rights case, but that it was not a First Amendment religious liberty case, though we also noted it had a lot of ramifications for religious liberty and would be perceived that way for many people. Some of those ramifications were discussed in the majority opinion, and, yes, some of them were discussed much more forcefully in the dissenting opinion.

It is troublesome that Justice Alito seems to continue to be smarting from this Obergefell decision which he clearly disagreed with, and he’s at odds with most Americans that would certainly uphold the right to civil marriage for same-sex couples.

AMANDA: And in the wake of Dobbs, he may also be emboldened, because in the Dobbs decision, he wrote a majority decision that is also at odds with where the majority of Americans are when it comes to having some kind of legal right to an abortion. So I think he might be pressing the boundaries here, testing the waters, whatever metaphor you want to use, fishing for a case. But I think for Court-watchers, we are right to be alert to what might be coming down and what Justice Alito is trying to signal with his statement here.

HOLLY: Well, that brings us to the close of this episode of Respecting Religion. Thanks for joining us. For more information on what we discussed, visit our website at RespectingReligion.org for show notes and a transcript.

AMANDA: Respecting Religion is produced by Cherilyn Guy with editorial assistance from Guthrie Graves-Fitzsimmons.

HOLLY: Learn more about our work at BJC, defending faith freedom for all, by visiting our website at BJConline.org.

AMANDA: We’d love to hear from you. You can send both of us an email by writing to [email protected]. We’re also on social media at BJContheHill, and you can follow me on X, which used to be called Twitter, @AmandaTylerBJC.

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HOLLY: Join us on Thursdays for new conversations Respecting Religion.