On Tuesday, Justice Samuel Alito gave another startling indication of how troubled he is by recent changes in American society and law. In an unusual “statement” about a case from Missouri, the justice was clear that, in his view, those changes have advanced an egalitarian and secular agenda at the expense of religious beliefs and practices.
The same day that Alito made his statement, Politico broke a story about what it called “an influential think tank close to Donald Trump” that is “developing plans to infuse Christian nationalist ideas in his administration should the former president return to power.” Politico suggested that “Christian nationalists in America believe that the country was founded as a Christian nation and that Christian values should be prioritized throughout government and public life.”
As the country has become less religious and more diverse, those advancing a Christian nationalist agenda think that “Christians are under assault” and hope to use political and legal means to turn the tide.
Enter Justice Alito. The statement he made this week offers a preview of what a Christian nationalist agenda might look like.
As the New York Times explains, Alito wrote to explain why the Supreme Court had rejected a request to hear a Missouri case about people who were not allowed to sit on a jury “after voicing religious objections to gay relationships.” Alito used the case to offer wide ranging comments about what he characterized as mistreatment of people who adhere to “traditional religious beliefs.”
The Missouri case involved jury selection in a suit brought by Jean Finney, a lesbian, who sued her employer, Missouri’s Department of Corrections, alleging employment discrimination. As the Times reports, Finney “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 sued the Department of Corrections, accusing the department of being responsible for the co-worker’s actions.”
At the start of the jury selection process, Finney’s lawyer asked all prospective jurors whether they “went to a conservative Christian church” and were taught that “people who are homosexual shouldn’t have the same rights as everyone else because what they did was a sin.” Several potential jurors answered the question in the affirmative.
Finney’s lawyer then questioned each of them individually after which he moved to strike three people who explained their belief that the Bible condemns homosexuality and brands it a “sin.”
There was nothing out of the ordinary about the question Finney’s lawyer asked. It was a pretty standard effort to identify people whose views might predispose them against their client’s contentions.
Indeed, a decade ago, a Florida court observed that lawyers have a duty during jury selection to help “ensure that our jury panels are comprised of only fair and impartial members.” Because public opinion research has repeatedly “shown that religious persons report more prejudice against homosexuality when compared to their non-religious counterparts,” it certainly seems reasonable that Finney’s lawyer would want to discharge that duty by asking about religiously-based views about homosexuality.
Missouri trial judge Kate Schaefer agreed with Finney’s lawyer that “there’s no way somebody who looks at a gay person and says… You are a sinner… Could ever fairly consider case involving a lesbian plaintiff.” The trial judge excused the three potential jurors, explaining that she wanted to “err on the side of caution.”
The Missouri Court of Appeals agreed with the trial judge. As Alito says, that court affirmed the jurors’ dismissal because “it reasoned that the jurors belief that Finney’s conduct was sinful (meaning immoral and wrong) provided a sustainable ground for concluding that they could not impartially and fairly decide her claim that she was unlawfully harassed due to her homosexuality.” The appellate court found that the elimination of the prospective jurors was “based on their views on homosexuality - which the court called ‘a central issue in the case’ - and not because they were Christians.”
But Alito saw things differently.
In his view, what the lower courts did was just the latest example of our political and legal institutions sending a message 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.”
Alito insisted that the jurors were excluded merely because of their religion. As he sees it, religious freedom does not end at the church door. Any American should be free to exercise their religious beliefs anywhere and everywhere, including into a jury room.
Alito traced what he characterized as growing prejudice against religion in cases involving the rights of gays and lesbians to the Supreme Court’s decision in Obergefell v Hodges, the case disallowing state and federal bans on same-sex marriage. He argued that that case had tilted the playing field and given permission for differential treatment “predicated on religious status or religious belief.”
Alito resisted the kind of careful balancing of interests done by the trial and appellate court in Missouri. He warned that religious discrimination of the kind he saw in the Finney case “may spread and may be a foretaste of things to come.”
Tuesday’s statement was not the first time that Alito has defended an extreme view of religious freedom against threats posed by secularism and the commitment to equal treatment under the law.
To take just one example, in a 2020 speech to the Federalist Society, Alito lamented that American society is no longer “inclusive enough to tolerate those with unpopular religious beliefs” and that many people saw any expression of sincere religious convictions just “an excuse for bigotry.”
“Religious liberty,” he complained, “is fast becoming a disfavored right.”
This classic culture war move resonates with the views of many of former President Trump’s most avid supporters. It fits with Trump’s frequent charges on the campaign trail that “Under crooked Joe Biden, Christians and Americans of faith are being persecuted and government has been weaponized against religion like never before.”
Trump has promised that “Upon taking office, I will create a new federal task force on fighting anti-Christian bias to be led by a fully reformed Department of Justice that’s fair and equitable. Its mission will be to investigate all forms of illegal discrimination, harassment, and persecution against Christians in America.”
Included in this Trumpian effort would be the kind of “bias” that Alito insists was at work in the Finney case. In the Christian nationalist state Alito and Trump want to fashion, the question of decisions about the rights of gays and lesbians would be left to people whose religions teach that “homosexuals shouldn’t have the same rights as everyone else.”
This includes not only whether they should be protected from workplace harassment and whether, as Slate’s Mark Joseph Stern notes, religious people should “sit in judgment of a person whose very identity they view as sinful,” but also and most importantly whether gays and lesbians should retain the right to marry members of the same sex. Such a Supreme Court under a second Trump term should serve as a terrifying prospect.
