Justice Samuel Alito wants you to know he still hates marriage equality

On Tuesday, the Supreme Court declined to hear an appeal of a workplace-bias lawsuit against the Missouri Department of Corrections, and Justice Samuel Alito is hopping mad about it. Not because they’re not hearing the case—he agreed with his colleagues that for procedural reasons, the lower court ruling has to stand. No, he’s mad because the court allowed for same-sex marriages nationwide and now the LGBTQ+ community is demanding their full share of rights. 

Alito took this opportunity to write a five-page screed against the 2015 Obergefell v. Hodges marriage-equality case, a decision he’s been railing against ever since. Lower courts are taking that ruling too far, he said in this statement, and are ignoring his warnings about “the danger … 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.” That warning, he wrote, “is not being heeded by our society.”

At issue in the original workplace-bias lawsuit is the dismissal of potential jurors. Jean Finney, an employee for the Missouri Department of Corrections, began a same-sex relationship with a co-worker’s ex-spouse, and because of this, Finney claimed that the co-worker retaliated against her at work. She then sued her employer, claiming it was complicit in the coworker’s actions. During the jury selection process for this lawsuit, Finney’s lawyer asked potential jurors if they were taught in church that “people that are homosexuals shouldn’t have the same rights as everyone else because it was a sin with what they did?” The lawyer then asked the judge to remove three potential jurors who had answered yes, and the judge agreed. Finney eventually won her suit, and the Missouri Department of Corrections appealed all the way to the Supreme Court, arguing that the would-be jurors were unconstitutionally discriminated against because of their religion.

As legal analyst Mark Joseph Stern explains, the appeal was doomed from the beginning because “the defense attorney failed to preserve an objection to the [juror] strikes” in the first place. Alito’s beef is with the judge who allowed those strikes and with the courts that upheld the initial ruling. Alito wrote that when a person “is ineligible to serve on a jury because of his or her religious beliefs, that decision implicates fundamental rights,” including the rights to equal protection and the free exercise of religion. That’s just a slippery slope, he wrote. “I am concerned that the lower court’s reasoning may spread and may be a foretaste of things to come.”

The appeals courts did, however, consider those issues. Stern explains, “The Missouri appeals court concluded that the strikes in dispute did not run afoul of free exercise because they focused on religious beliefs, not religious ‘status’ or ‘affiliation.’” But apparently, that wasn’t good enough for Alito, who is looking for every angle possible to reconsider—and overturn—Obergefell, and who is making sure there are writings from a Supreme Court justice that challengers can use to bring those cases.

He, of course, isn’t alone in issuing this invitation for challenges. In his concurrence in Dobbs v. Jackson Women’s Health—the 2022 decision that overturned the constitutional right to abortion—Justice Clarence Thomas included Obergefell in his laundry list of decisions the court should revisit. “In future cases,” Thomas wrote, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” So, in order, those are the rights for couples to use birth control, for same-sex couples to have sex, and for everyone to marry the person of their choice.

Alito and Thomas are using their opinions and statements to invite future challenges. Just how determined they are to do that shows in the fact that while Alito agreed with the rest of the court in turning this one case down, he made sure that this statement exists to invite future challenges.


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