by Kassie Dulin, Director of Government Affairs and Counsel • 5 min read
This week, the U.S. Supreme Court released an order list taking action on several cases we’ve been watching.
Most notably, the Court declined to review Missouri Department of Corrections vs. Finney. Justice Samuel Alito issued a five-page statement about the Court’s denial. This includes a direct reference to First Liberty’s Supreme Court victory in Carson v. Makin.
In this case, multiple conservative Christians were excluded from a jury in an employment discrimination case brought by a lesbian plaintiff. The plaintiff’s lawyer asked the court to strike the conservative Christians for cause, arguing that they could not be impartial due to their religious beliefs. The judge disagreed that they could not be impartial but struck the jurors anyway “to err on the side of caution.”
Justice Alito agreed with the denial of cert due to complications arising from state-law procedural issues. But he explained that this case is a clear example of how Obergefell v. Hodges, the Supreme Court’s ruling legalizing same-sex marriage, can be weaponized against people of faith, a danger he foresaw almost a decade ago:
“I write because I am concerned that the lower court’s reasoning may spread and may be a foretaste of things to come. In this case, 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 that I anticipated in Obergefell v. Hodges, 576 U. S. 644 (2015), 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. Id., at 741 (dissenting opinion). 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 also expressed his concern over how the lower court in the juror case believed people of faith could not be discriminated against for being people of faith (having religious status) but could be discriminated against for holding traditional religious beliefs:
“The Missouri Court of Appeals affirmed the dismissals for two reasons. First, it reasoned that the jurors’ belief ‘that Finney’s conduct was sinful (meaning immoral and wrong)’ provided a sustainable ground for ‘concluding that they could not impartially and fairly decide her claim that she was unlawfully harassed due to her homosexuality— even if those venire members claimed that their religious beliefs would not prevent them from serving.’ Id., at 78a. Second, the court concluded that the jurors had been dismissed, not on the basis of their religious status, but on the basis of their religious beliefs. And this distinction, it said, made all the difference because, in its view, while dismissals based on a juror’s ‘status as Christians’ must comport with strict scrutiny, dismissals based on a juror’s ‘views’ need not. Id., at 81a.”
Alito then explained that such reasoning violates the Supreme Court’s ruling in First Liberty’s 2022 Supreme Court victory, Carson v. Makin, which says the government is banned from discriminating against believers due to either their religious status or belief:
“Under the Free Exercise Clause, state actions that ‘single out the religious for disfavored treatment’ must survive ‘the ‘most rigorous’ scrutiny.’ Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449, 460, 466 (2017) (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993)). And that is true regardless of whether the differential treatment is predicated on religious status or religious belief. Cf. Carson v. Makin, 596 U. S. 767, 786 (2022). Our precedents make it clear that distinctions based on ‘religious beliefs,’ no less than distinctions based on religious status, must ‘advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests. Lukumi, 508 U. S., at 532, 546 (emphasis added).”
Other notable Supreme Court actions this week:
The Court declined to review Reilly v. City of Harrisburg, a case brought by our friends at Liberty Counsel challenging Hill v. Colorado, regarding free speech buffer zones around abortion clinics.
The Court will not review Felkner v. Nazarian, New Civil Liberties Alliance’s challenge to the qualified immunity of public university officials who violate students’ First Amendment rights.
Cases still pending on the Court’s docket:
The Court is scheduled to hear arguments in Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton on February 26, asking whether states can prevent social media companies from censoring speech based on the speech’s religious or political viewpoint. First Liberty filed a friend of the court (amicus) brief on behalf of The Babylon Bee, a satire site, as well as its sibling, Not the Bee, a Christian news website.
M.C. v. Indiana Dept of Child Services and John and Jane Parents 1 v. Montgomery County Board of Education both involve parental rights for religious parents. The Court has not yet issued a response on whether it will hear these cases. First Liberty filed amicus briefs in both of them. You can learn about them here and here.
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