Alito warns against religious test for jury duty

The U.S. Supreme Court declined to hear a Missouri lawsuit last Tuesday, leading one of the justices to raise concerns the case could affect religious expression. Justice Samuel Alito issued a five-page opinion agreeing with the court’s denial of review but stating the case brought up a “very serious and important question” on whether jurors can be excluded from duty based on religious beliefs.

The case in question, Missouri Department of Corrections v. Jean Finney, involved a dispute in which three jurors were dismissed from hearing an employment discrimination case after voicing that they believed homosexuality is a sin.

Jean Finney, a self-identified lesbian, worked as an officer at the Missouri Department of Corrections. She sued the department, claiming that it subjected her to discrimination, retaliation, and a hostile environment because of her sexuality in violation of Missouri anti-discrimination law.

While selecting a jury to hear her case, Finney’s attorney asked potential jurors if they had attended religious organizations that taught “homosexuals shouldn’t have the same rights as everyone else because it was a sin with what they did.”

Several people raised their hands, and the attorney asked them to explain their views. Two potential jurors explained that yes, homosexuality was a sin, but it was one of many sins. They said that their view wouldn’t affect their ability to rule on the case.

“A sin is a sin. And every one of us here sins. And I don’t imagine any of you would deny it,” one of the potential jurors said. “Homosexuality isn’t any worse sin than stealing something. It’s all—a sin is a sin. It’s all on the same level.”

Despite this, the attorney asked that, in all, three potential jurors be excused from the pool.

The judge granted the request, stating that even though some of those potential jurors said they could be impartial, she would err on the side of caution and excuse them.

The selected jury ultimately sided with Finney in 2021, awarding her a total of $275,000 for her sexual discrimination and hostile work environment claims.

The department appealed the ruling, arguing that the verdict in favor of Finney was invalid because of the juror dismissals. The Missouri Court of Appeals rejected the argument, and the state Supreme Court declined to review the decision. The department then took its case to the Supreme Court, only to be rejected, which effectively allowed the Court of Appeals ruling to stand.

Alito “reluctantly” agreed with the court’s decision to not hear the case, saying the department did not properly preserve an objection to the dismissal. But he raised concerns about the dismissal of the two jurors who said that their view wouldn’t impair their ability to decide fairly.

“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,” Alito wrote. “But otherwise, I see no basis for dismissing a juror for cause based on religious beliefs.”

He said this is an issue that future cases should address and the court’s decision to remove jurors based on religious beliefs affects fundamental rights. He added that courts need to be sure to protect “fundamental rights, and among these are the right to the free exercise of religion and the right to the equal protection of the laws.”

Alito said that this case “exemplifies the danger” he previously anticipated in Obergefell v. Hodges, the 2015 case that legalized same-sex marriage across the country. In his Obergefell dissent, Alito wrote 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.”

Brad Jacob, associate dean at Regent University School of Law, said Alito’s opinion delves into the “culture wars” between people who morally disagree with homosexuality yet have to accept the legality of gay marriage and LGBTQ people who have to accept opposing moral views.

Jacob added that the potential jurors’ dismissal was not normal. Potential jurors are typically questioned about possible connections to the defendant and whether something in their life demonstrates they can’t approach the case fairly.

In 2017, a judge dismissed a juror after he made statements about divine guidance during the corruption trial of former U.S. Rep. Corrine Brown, D-Fla. The juror said he had prayed and was told by the Holy Spirit that Brown was innocent.

When Brown was convicted, she appealed her case to the 11th U.S. Circuit Court of Appeals. In 2021, that court overturned Brown’s conviction and ruled that the juror’s removal invalidated the trial’s result.

Attorneys and judges shouldn’t try to do a “psychological profile” on potential jurors to see if they are fit for the case, Jacob said. There is no evidence that a person with different moral beliefs can’t fairly decide a case like Finney’s.

Jacob expressed concern that other courts will dismiss jurors for similar reasons.

“If this starts happening in other courts around the country, it’s going to get back to the Supreme Court,” Jacob said. However, he believes the current Supreme Court will “be much stronger than the Obergefell court was in that idea that it’s okay to disagree with same-sex marriage.”