When a prospective juror says “I believe homosexuality is a sin” just like stealing, may that person be the “fair and impartial” juror? In a case brought by a lesbian prison guard whose claim is harassment on the job? The default answer should be “no.”
Yet according to Justice Samuel Alito the answer is presumptively “yes,” as long as the belief is religion-based. He expressed this February 20 when the Supreme Court declined to hear an appeal, wanting to voice his concern about what he saw as anti-religious [Christian] discrimination.
To understand how he got it so wrong the story behind the trial needs to be told.
It starts with who the plaintiff is, a story largely omitted from Justice Alito’s telling. A prison corrections officer, this is how their lawyer described them:
she carries herself more like a man, and wears her hair short in a style similar to that of a typical man.
The alleged harasser was a male co-worker, and things grew worse when plaintiff began a love affair with the co-worker’s female spouse. The affair was background but might add a second ‘sin’ to the mix. It was in this context that the trial judge kept three people – all who viewed homosexuality as sin – off the jury.
To Justice Alito, the sin in this case was that of the trial judge committing an error of law and potentially a First Amendment violation.
Where did this come from? Rehashing old grievances, he reminds us of his dissent in the marriage equality case 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.”
A bigot is a person who “who regards or treats the members of a group (such as a racial or ethnic group) with hatred and intolerance” https://www.merriam-webster.com/dictionary/bigot or “has strong, unreasonable ideas, esp. about race or religion, and who thinks anyone who does not have the same beliefs is wrong.” https://dictionary.cambridge.org/dictionary/english/bigot
Dismissing these potential jurors did not band them as “bigots;’ rather it occurred because in this case, on these facts, those beliefs would “substantially impair” the ability to fulfill the jurors’ function – to decide the case on the proof and not on who the parties are (or love). People who view homosexuals as sinners like people who steal are not likely to be impartial in deciding whether abusive comments were made, did they violate the law, and what would be fair compensation.
Alito’s statement has at least two other errors. To him, “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.” But this was not just an auto accident case where one party is lesbian. Rather, being a lesbian is at the root of the claim of why they were mistreated.
A more egregious and scary error comes from his assessment that bias from a religious belief gets greater protection. If a prospective juror says “I am an atheist, but ethically and morally homosexuality is a sin but I can still be fair,” a deferential review of the decision to exclude that person will be fine. But if a second person says “ my religion has taught me that homosexuality is a sin but I can still be fair,” the Alito view is that the strictest scrutiny must be applied before exclusion may occur and the decision upheld on appeal.
Elevating religion over the right to a fair trial has no place in our constitutional scheme, even as the ‘wall’ between church and state erodes. Putting religion first is not about fair trials but instead about protecting the right to despise ‘the other,’ regardless of cost.