Alito argues that religious bias is better than any other kind

(RNS) — A couple of weeks ago, U.S. Supreme Court Justice Samuel Alito became wrought up about possible religious discrimination in a case involving a lesbian who successfully sued the Missouri Department of Corrections for discriminating against her because of her sexual orientation. What upset Alito was the fact that the trial judge had dismissed a couple of jurors on the grounds that their religious beliefs about homosexuality rendered their impartiality suspect.

During the phase of jury selection known as voir dire, the plaintiff’s counsel asked jurors, “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?”

A few said they had, and the court excused two for maintaining the belief that homosexual behavior is a sin, despite their claiming they could be impartial. 

“Any defense lawyer in a criminal case or a lawyer in a civil case would be committing malpractice if they failed to object,” said my former Trinity College colleague Glenn Falk, who spent 30 years as a legal aid attorney in Connecticut before becoming a college teacher.

To determine bias, he said, “You can ask all kinds of questions. Do you have any relatives that work in law enforcement? Have you had any run-ins with the police? Have you had problems with an insurance company?” 

The Missouri attorney general nevertheless thought he had grounds for appeal. Not so far as the Missouri appeals court was concerned. After shooting down the Department of Corrections’ case on a procedural point — the state lawyers at the voir dire had not properly objected to the exclusion of the two prospective jurors when it happened — the appeals court dismissed the case on its merits as well:

While voir dire unquestionably touched upon religion, contrary to DOC’s 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 [jury pool] who possessed strong feelings on the subject of homosexuality — a central issue in the case.

The U.S. Supreme Court then declined to hear the case because of the procedural defect the appeals court identified. But Alito saw cause to weigh in with a five-page opinion on the merits. He said the episode “exemplifies the danger” he warned of in his dissent in the court’s same-sex marriage 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.’”

In fact, nothing in the case record suggests that the two prospective jurors were labeled as bigots. What Alito has in mind, from a legal standpoint, is to have religious beliefs treated as equivalent to religious status — that is, to erase the distinction relied on by the Missouri appeals court for finding in favor of the trial judge. 

“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 in his opinion. “But otherwise, I see no basis for dismissing a juror for cause based on religious beliefs.”

The courts are not permitted to question a person’s religious beliefs on any basis other than their being sincerely held. If you sincerely believe that God forbids interracial marriage or consigns abortion providers to hell or mandates the killing of unbelievers, the courts must take your belief at face value — though it need not allow you to act on it.

The question here is whether religious beliefs should ipso facto receive greater deference than nonreligious beliefs when it comes to deciding if a potential juror can impartially carry out the duty of deciding cases based on the law and evidence. The answer is: They shouldn’t.