If a potential juror states their belief that homosexuality is a sin, should they be excused from serving on a jury in which a lesbian is suing her employer for discrimination? In Finney v. Missouri Department of Corrections, lesbian corrections officer Jean Finney sued the Missouri Department of Corrections (DOC), claiming that she was subjected to discrimination, retaliation, and a hostile environment because of her sexuality, in violation of Missouri anti-discrimination law. Because the trial judge excused from the jury pool some potential jurors who had stated during questioning their belief that homosexuality is a sin, DOC argued on appeal that the verdict in favor of Finney should be set aside and a new trial held. Missouri appeals courts rejected this argument, and the US Supreme Court declined to hear the case on February 20, provoking Justice Sam Alito, a firm opponent of LGBTQ rights, to issue a separate statement questioning the Missouri courts’ actions.
During the jury selection process, potential jurors are examined to determine whether they have any bias that would make it inappropriate for them serve as a juror. Finney’s lawyer asked the jury pool the following question: “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?” Several people raised their hands, and Finney’s lawyer asked them to explain their views, after which the lawyer asked that they be excused from the jury pool, and the trial judge removed them.
Three of the potential jurors stated that homosexuality is a sin, but all three of them explained that it was one of many sins. One said, “But you still have to love those people, and you still have to treat them right in society. You don’t have the right to judge them. Therefore, I think I could be a fair juror. Everybody sins. All of us here do. So that sin isn’t any more or worse than any other.”
Another potential juror, after making similar remarks, was specifically asked by the attorney for DOC if that would “impact your ability to be a fair and impartial juror in this case?” This potential juror replied, “Absolutely not. That has really nothing to do with — in a negative way with whatever this case is going to be about.”
Another potential juror stated: “I firmly stand on the word of God and what the word of God says. And much like what this other man said, a sin is a sin. And thank goodness they’re all the same. But, you know, none of us can be perfect. And so I’m here because it’s an honor to sit in here and to perhaps be a part of, you know, a civic duty. But, yes, homosexuality, according to the Bible, is a sin. So is gossiping, so is lying, so is — I mean, we could go on and on.”
After all the potential jurors were questioned, Finney’s lawyer asked that those who had stated their belief that homosexuality is a sin be excused from the jury pool “for cause.” The trial judge granted the request, stating that even though some of those jurors said they could be impartial and fair, she would err on the side of caution and excuse them. DOC’s lawyer did not formally object, although he stated that this “starts getting into the bounds of religious discrimination.”
The jury that was eventually picked rendered a verdict in favor of Finney on her discrimination and hostile environment claims, awarding her $175,000 in non-economic damages and $100,000 in punitive damages. The verdict was against DOC, not against the DOC employee whose misconduct, which DOC had failed to address appropriately, had provoked Finney’s lawsuit. In addition to these damages awarded to Finney, the court ordered that DOC pay substantial attorney fees to the three lawyers who had represented her at trial, which totaled substantially more than the damages. In addition, because interest was charged on what DOC would owe, its total bill for the case might run as high as $700,000.00.
DOC appealed the verdict, arguing that excluding the “religious” jurors violated their Equal Protection rights under the 14th Amendment of the federal constitution and the religious freedom provisions of the Missouri constitution, so the verdict should be set aside and a new trial held.
The Missouri court of appeals rejected DOC’s appeal and affirmed the full amount of damages and fees. That court reasoned, in an unpublished opinion, that the potential jurors were not excluded because they were religious Christians, but rather because of their opinions on an issue that would be part of the case. Also, because DOC had not objected to their removal during the jury selection process, the court of appeals said it would uphold the trial court’s decision to exclude them because it did not constitute a “plain error.” The Missouri Supreme Court rejected DOC’s appeal of this decision, and DOC petitioned the Supreme Court for review.
The Supreme Court usually does not say anything about why it declines to review a case. Under its operating procedures, it will grant review if at least four out of the nine justices vote to do so. Sometimes, however, a member of the court will write a brief opinion either explaining why they did not vote for review, or dissenting from the Supreme Court’s refusal to hear the case.
In this case, Justice Samuel Alito wrote a “statement respecting the denial of certiorari.” It was an “I told you so” statement referring back to his dissent in Obergefell v. Hodges, the Court’s 2015 marriage equality case.
“In this case,” he wrote, “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. That holding exemplifies the danger I anticipated in Obergefell, namely, 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. The opinion of the court in that case made it clear that the decision should not be used in that way, but I am afraid that this admonition is not being heeded by our society.”
Alito stated that the Missouri court of appeals’ reasoning “raises a very serious and important question that we should address in an appropriate case. The judiciary, no less than the other branches of state and federal government, must respect people’s fundamental rights, and among these are the right to the free exercise of religion and the right to the equal protection of the laws. When a court, a quintessential state actor, find that a person is ineligible to serve on a jury because of his or her religious beliefs, that decision implicates fundamental rights.”
But he explained that the Missouri Court of Appeals’ decision to apply “plain error” review because of DOC’s failure to object at the time raised a question of state law. “Because this state law question would complicate our review, I reluctantly concur in the denial of certiorari,” he concluded.
Alito has continued to raise objections to Obergefell in concurring and dissenting opinions, and Justice Clarence Thomas has called for it to be “reconsidered” in light of Alito’s opinion in the Dobbs abortion case, which adopted an approach to “substantive due process” under the 14th Amendment that could undermine the reasoning of the Obergefell decision. Alito’s continued raising of this “concern” helps to fuel talk that the rightward shift of the Court endangers same-sex marriage rights.
