Noah Feldman: Alito is worried gay rights could upstage religious ones

Noah Feldman, Bloomberg Opinion on

Published in Op Eds

Supreme Court Justice Samuel Alito is still fretting about the consequences of Obergefell v. Hodges, the court’s landmark 2015 decision establishing a right to same-sex marriage. In practice, the precedent is safe for the foreseeable future. There are, at most, only two justices on the court who would vote to overturn it.

But Alito’s concerns nevertheless raise an important question that keeps bubbling up to the court in one way or another: In a post-Obergefell world, how should the law treat people who still believe that God considers homosexuality a sin? Does that religious view inherently constitute bigotry or bias? And should a sincere religious belief be treated any differently than secular homophobia?

This week, the court decided not to hear the case of Missouri Department of Corrections v. Finney, a state-law sex discrimination suit by brought an employee of the state’s prison department against her employer. Alito expressed his concerns in a comment accompanying that denial.

Finney, who described herself in court papers as “a lesbian who presents masculine,” alleged that she was “improperly stereotyped and discriminated against based on sex.” Her lawyers argued that it counts as sex discrimination to treat a masculine-presenting woman differently than a masculine-presenting man. If that legal logic sounds familiar, it should: It matches the reasoning of the Supreme Court’s 2020 Title VII anti-determination decision, Bostock v. Clayton County, which Alito fiercely opposed in dissent.

During the voir dire part of the jury selection process, when the lawyers question potential jurors, Finney’s lawyer asked all the potential jurors if any of them attended “a conservative Christian church” teaching that gay people “shouldn’t have the same rights as everyone else” because “what they did” was “a sin.”

Two potential jurors said yes, and on further questioning expressed the view that the Bible prohibits homosexuality. But both provided context for their answers. One, a pastor’s wife, explained that gossiping and lying are also sins — as she put it, “None of us can be perfect.” The other portrayed the struggle against sin as universal and lifelong, saying, “Every one of us here sins … it’s part of our nature.” Both suggested that their religious beliefs would not dictate how they interpreted state employment law and that they could be impartial.

Finney’s lawyer asked the judge to dismiss these two jurors from the jury pool “for cause,” meaning that the judge should conclude they couldn’t be impartial. The judge indeed struck the jurors, saying she wished to “err on the side of caution.”

What should the law be? Did the judge get it right? This issue is sure to recur in future cases. Should lawyers be able to question jurors about their religious beliefs and get them disqualified based on their theology? Should it matter if the jurors say, as they did here, that sin is a ubiquitous state for all of us mere mortals? And what if the jurors get their anti-gay beliefs not from the Bible, but from Fox News?

From the standpoint of common sense, it’s easy to credit Finney’s lawyer’s argument that “somebody who looks at a gay person and says … you are a sinner” would necessarily be biased in a case involving discrimination against a gay person. In general, the law of voir dire is mostly in the hands of trial judges, who typically give attorneys tremendous leeway in choosing their questions, all in the interests of getting an impartial jury.


Alito wrote his statement about the case to make the opposite point, namely that considering homosexuality a sin is not a form of bigotry. He recalled his worry in his Obergefell dissent that finding a constitutional right to same-sex marriage would lead to treating religiously motivated condemnation of homosexuality as hate.

And he suggested that asking potential jurors about their religious beliefs “implicates fundamental rights” under the free exercise clause of the Constitution. The only basis for dismissing a juror for their religious beliefs, he said, was if jurors’ religious beliefs make it impossible for them to carry out their function as impartial jurors. That, he implied, was not the case here.

A nuanced analysis of the jurors’ expressed beliefs does, to me, suggest that the judge might have been wrong to dismiss them for cause. It is one thing to say that you believe someone else to be a sinner and therefore couldn’t judge them fairly. It is another thing to say sincerely that we are all sinners — and that although you think homosexuality is a sin, you could set aside that religious belief to focus on what civil law says about their employment rights.

The best solution, however, would be to bar lawyers in voir dire from asking about potential jurors’ religious beliefs, then using their theology as grounds for disqualification. A proper question would be to ask jurors whether they hold any belief, on any basis, religious or otherwise, that would render them unable to judge fairly and without bias. That would provide a constitutionally kosher way of raising the question, one that treats religious and nonreligious beliefs equally.

Our system, after all, depends on people giving true answers under oath. The questions should be ones that can be answered in good conscience, by both religious and nonreligious people.


This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

©2024 Bloomberg L.P. Visit bloomberg.com/opinion. Distributed by Tribune Content Agency, LLC.


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