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An unwelcome vindication

Missouri courts display the bigotry that Justice Alito predicted in Obergefell

Justice Samuel Alito sits during a group photo at the Supreme Court in Washington, D.C., on April 23, 2021 Associated Press/Photo by Erin Schaff/The New York Times

An unwelcome vindication
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There’s no worse feeling than being proven right when you’ve predicted something would go wrong. You’re happy to see your forecast was accurate, but disappointed that the evil you feared has indeed visited its victims. With a jeremiad appropriate to an Old Testament prophet, Justice Samuel Alito is experiencing just such unwelcome vindication this week from his dissent in the gay marriage case, Obergefell v. Hodges. There, Alito predicted that a day would soon come when people of faith who held to traditional morality regarding sexuality would be “labeled as bigots and treated as such” by their government. Well, that day has come less than one decade later, at least for the Show-Me State.

A Missouri state employee who identifies as “a lesbian who presents masculine” sued her employer, the Department of Corrections, alleging she was “improperly stereotyped and discriminated against based on sex.” During voir dire, the portion of the pretrial process when the attorneys interview potential jurors, her attorney asked whether any prospective jurors “went to a conservative Christian church” where “it was taught that people [who] are homosexual shouldn’t have the same rights as everyone else” because “what they did” was “a sin.” Several jurors raised their hands, a colloquy ensued, and eventually the plaintiff’s attorney asked the judge to dismiss two jurors who said homosexuality was a sin (even as in the same breath both acknowledged it is one sin among many). The judge granted the motion, and the Missouri Court of Appeals upheld her, reasoning that the belief homosexuality is a sin meant “they could not impartially and fairly decide her claim that she was unlawfully harassed due to her homosexuality.”

Missouri appealed the case to the U.S. Supreme Court, where the justices issued an order on Tuesday declining to take the petition. But Justice Alito, after a short sentence acknowledging procedural issues with the case, then proceeded to launch full bore against religious discrimination targeting people of faith in jury pools. The idea is silly from the start: The Ten Commandments condemn murder, murder is clearly a sin, yet Christians who believe murder is a sin still sit on criminal juries all the time. It is rather this one cultural hot button issue, homosexuality, that has everyone in a tizzy. Rather than trusting that jurors can set aside their religious beliefs and focus on the facts of the case, the attorneys and judges here apparently set aside their common sense and decided that targeting people of faith was acceptable.

Discriminating based on religion violates the First Amendment just as much as discriminating based on race violates the 14th.

The Supreme Court and lower courts have issued scores of opinions condemning racial discrimination in jury pools, which used to be a real problem in many parts of the country. The courts rightly disproved such manipulation of jury pools from prosecutors who thought that only an all-white jury could render justice to a black man accused. That was deeply wrong, and the same principle should hold for hand-picking a jury based on religion—discriminating based on religion violates the First Amendment just as much as discriminating based on race violates the 14th.

Indeed, in another opinion issued on Tuesday, Alito charged hard after racial discrimination by a Virginia public high school. Thomas Jefferson High School in Fairfax County is a magnet school for gifted and talented science and math students. Many of the students who sought admission and scored well on its entrance tests were Asian. The school board then imposed new criteria to achieve greater racial balance in the student body. Parents sued, and the Fourth Circuit (one of the most liberal in the nation) upheld the new policy.

To this, Alito remonstrated, “The central purpose of the Equal Protection Clause is to prohibit official conduct discriminating on the basis of race.” The same could be said of the Free Exercise Clause, which prohibits official conduct discriminating on the basis of religion. The Fairfax school board and the Missouri judges both failed to honor these core constitutional commitments.

Daniel R. Suhr

Daniel R. Suhr is an attorney who fights for freedom in courts across America. He has worked as a senior adviser for Wisconsin Gov. Scott Walker, as a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, and at the national headquarters of the Federalist Society. He is a member of Christ Church Mequon. He is an Eagle Scout, and he loves spending time with his wife Anna and their two sons, Will and Graham, at their home near Milwaukee.

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