Justice Alito highlights continued 'danger' of Supreme Court's same-sex 'marriage' ruling for religious Americans



For nearly a decade, Supreme Court Justice Samuel Alito has seen his concerns over the possible fallout of the court's ruling in Obergefell v. Hodges manifest in various ways, both in the public and private spheres.

In a statement Tuesday, the conservative justice renewed his criticism, stressing that the controversial 2015 decision continues to threaten and adversely impact religious Americans — particularly those who remain steadfast in their conviction that marriage is reserved for one man and one woman.

What's the background?

Michigan, Kentucky, Ohio, and Tennessee outlasted much of the nation in maintaining that marriage was a union between one man and one woman. Plaintiffs in the four states filed lawsuits, which ultimately culminated in Obergefell v. Hodges, heard by the Supreme Court in 2015.

Liberal justices determined in their 5-4 ruling that the right to marry is guaranteed to non-straight couples by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Alito joined Justices Antonin Scalia and Clarence Thomas in stressing that there was no textual basis in the Constitution or corresponding history for precluding states from developing their own definitions of marriage. The conservative justices also indicated that the majority changed the focus from what the four states were constitutionally required to do to what they supposedly should do.

Extra to indicating that the court's liberal majority adopted a "distinctively postmodern" understanding of liberty and accepted an eudaemonistic concept of marriage — one divorced from any traditional understanding — Alito stressed that the decision "usurps the constitutional right of the people to decide whether to keep or alter their traditional understanding of marriage."

"It will be used to vilify Americans who are unwilling to assent to the new orthodoxy," wrote Alito.

"In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women," continued the conservative justice. "The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent."

Alito underscored that "those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools."

Foreseen consequences

The Supreme Court declined Tuesday to hear the case Missouri Department of Corrections v. Jean Finney, concerning whether the Fourteenth Amendment protects jurors from being dismissed on the basis of stereotypes about religious views and whether, again in the context of jury selection, the amendment protects "both religious status and religious belief, religious status only, or neither," reported SCOTUSblog.

Finney, a lesbian employee of the Missouri Department of Corrections, alleged that after starting a non-straight relationship with a co-worker's former spouse, the co-worker made life and work difficult for her. She sued the MDOC, alleging it was responsible for her co-worker's actions.

The New York Times noted that during jury selection, Finney's lawyer grilled potential jurors about whether they attended a "conservative Christian church," particularly one that was not all in on the LGBT agenda. The lawyer proceeded to strike off two jurors on the basis of their responses, prompting concerns about religious discrimination.

Ultimately, the jury — purged of religious Americans with orthodox views — sided with Finney. The MDOC appealed, and the case then got kicked up to the Supreme Court's attention at the request of the Office of the Missouri Attorney General.

Justice Alito's renewed concern

Justice Alito wrote Tuesday that while he reluctantly agreed the court "should not grant certiorari in this case, which is complicated by a state-law procedural issue[,] ... I am concerned that the lower court's reasoning may spread and may be a foretaste of things to come."

The conservative justice noted that "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," continued Alito, "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."

Alito cast doubt on whether the Missouri Court of Appeals, which affirmed the religious jurors' dismissals, respected their "fundamental rights," including the right to the free exercise of religion and the right to the equal protection of laws.

"When a court, a quintessential state actor, finds that a person is ineligible to serve on a jury because of his or her religious beliefs, that decision implicates fundamental rights," wrote Alito, adding that state actions that single out the religious for disfavored treatment must survive the most rigorous scrutiny under the Free Exercise Clause.

Alito suggested that unless the jurors were somehow incapable of deciding the case "based on the law and the evidence," which the lower courts and Finney's lawyer apparently failed to demonstrate, he would "see no basis for dismissing a juror for cause base on religious beliefs."

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Virginia AG confirms validity of Youngkin's new school policy, which upholds parental rights and curbs gender ideology: 'It's not just common sense, it's the law'



Virginia Attorney General Jason Miyares confirmed in a Wednesday opinion the legitimacy and constitutionality of the model policies advanced by the Virginia Department of Education under Gov. Glenn Youngkin, which curb gender ideology and keep students' sports and bathrooms sex-segregated.

Miyares indicated the parental rights-affirming policies comply with the Virginia Human Rights Act, the Equal Protection Clause of the 14th Amendment, and Title IX of the Education Amendments Act of 1972, making clear that "school boards across the Commonwealth should support and implement them. It's not just common sense, it's the law."

While LGBT activists and school board officials have taken issue with the policies, Miyares indicated that "every single school district has to reckon with" the prospect that their failure to fall in line with the law will open them up to legal action by parents.

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The model policies

The VDOE's "Model Policies on Ensuring Privacy, Dignity and Respect for All Students and Parents in Virginia's Public Schools" highlights at the outset the pre-eminence of parental rights, particularly as it pertains to children and their education.

The VDOE noted that the activist policies under the previous administration "disregarded the rights of parents and ignored other legal and constitutional principles that significantly impact how schools educate students," so it has nullified them and started again.

This time around, the department defers to parents "to make the best decisions with respect to their children" and guarantees them they will remained informed about their children's well-being "without limitation."

This way, children will not needlessly suffer mental illnesses such as gender dysphoria or undergo transitioning behind their parents' backs.

According to the new model policies:

  • School personnel will refer to each student only by the name that appears in their student record or a nickname "commonly associated" with their official name;
  • School personnel "shall refer to each student using only the pronouns appropriate to the sex appearing in the student's official record - that is, male pronouns for a student whose sex is male, and female pronouns for a student whose sex is female";
  • Biologically incongruous pronouns and a different name are to be used only if a student's parents provide written instructions to that effect;
  • School personnel and students alike cannot be compelled to refer to other students "in any manner that would violate their constitutionally protected rights";
  • Biological sex, not so-called "gender identity," will be the determining factor for what sex-segregated school program, event, or activity a student participates in, including athletic activities;
  • Where federal law requires transvestites to share in otherwise sex-segregated facilities with students of the opposite sex, parents have the right to opt their children out of using such facilities and shall be provided alternatives; and
  • Locker rooms, bathrooms, and travel overnight accommodations will also be based on sex.

Parental rights-affirming care

Having detailed the various ways the policies conform to federal and state laws, Miyares stated his opinion "confirms what the overwhelming number of Virginians already know[:] parents have a fundamental right to the care, upbringing, and education of their children. Parents, not government, are in he best position to work with their children on important life decisions."

"No parent signs up to co-parent with the government," continued Miyares.

Following the AG's affirmation, Youngkin wrote on X, "In Virginia, we will always empower parents and always stand up for the privacy, dignity, and respect of all students in the commonwealth."

Last month, the governor stated these policies will "empower parents, prohibit discrimination, create a safe and vibrant learning environment by addressing bullying incidents immediately, and protect the privacy and dignity of all students through bathroom policies, athletic procedures, and student identification measures."

According to the Virginia Mercury, Spotsylvania County Public Schools became Virginia's first school district to adopt the policies. Roanoke County followed suit shortly thereafter.

Some districts are refusing to obey, instead following the policies advanced by former Democratic Gov. Ralph Northam, whom Virginians determined at the ballot box was undeserving of another term.

ABC News indicated that the 2020 state law that brought about the creation of the model policies is mute on the subject of enforcement.

Jack Preis, a law professor at the University of Richmond, noted that school districts that flout the model policies, like Arlington Public Schools and Fairfax County Public Schools, would indeed be violating the law, though it is unclear what can be done to bring them to heel.

"There could be political consequences, but in terms of specific legal consequences, those would only flow from a judicial decision. And we won't see a judicial decision unless Miyares or an unhappy parent has the power to demand judicial enforcement. It appears unlikely that either of them have that power," said Preis.

Leftist apoplexy

Equality Virginia, an LGBT activist group among the various leftist outfits that have decried the VDOE's new policies, previously suggested that they serve to "escalate a culture war and drop a policy that harms kids."

The ACLU of Virginia claimed they will "harm and endanger trans youth."

Breanna Diaz, policy and legislative counsel with the state ACLU, said last month, "We are horrified that VDOE opted to move forward with proposed model policies that at best invite – and at worst, require – discrimination, that violate state and federal law, and have no place in Virginia schools.

It appears the the ACLU was unswayed by Miyares' opinion.

ACLU of Virginia legal director Eden Heilman said in a statement Thursday, "VDOE’s proposed model policies are part of a coordinated, national effort to erase transgender and nonbinary students from the classroom. ... Attorney General Jason Miyares’ opinion defending the policies is every bit as cruel and misguided as the policies themselves."

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