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Justice Alito Renews Criticism of Landmark Ruling on Same-Sex Marriage
In a statement, the justice raised concerns that those with “traditional religious views” would be “‘labeled as bigots and treated as such’ by the government.”

Feb. 20, 2024Updated 5:02 p.m. ET
People holding signs and rainbow flags in front of the Supreme Court.
The Supreme Court in 2015, after it ruled that the Constitution provides same-sex couples the right to marry. The case that Justice Samuel A. Alito Jr. addressed on Tuesday involved a dispute over the dismissal of jurors who voiced religious concerns about gay relationships.Joshua Roberts/Reuters
Justice Samuel A. Alito Jr. on Tuesday renewed his criticisms of the Supreme Court’s landmark decision recognizing the right to same-sex marriage, saying that people who oppose homosexuality risk being unfairly “labeled as bigots and treated as such.”

The justice included his warning in a five-page statement explaining why the court had rejected a request to hear a Missouri case about people removed from a jury after voicing religious objections to gay relationships. The case, Justice Alito added, “exemplifies the danger” from the court’s 2015 decision, Obergefell v. Hodges.

The ruling, he added, shows how “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 statement appeared to offer a glimpse into Justice Alito’s continued discontent with Obergefell v. Hodges, in which the court, by a 5-to-4 vote, guaranteed a right to same-sex marriage, a long-sought victory in the gay rights movement.

In the years since, Justice Alito and Justice Clarence Thomas, who both dissented from the 2015 decision, have appeared to urge the court to reconsider the ruling. The court, they have contended, invented a right not based in the text of the Constitution and said it had cast “people of good will as bigots.”

Only two members of the court who ruled in favor of Obergefell remain on the bench — Justices Sonia Sotomayor and Elena Kagan. The court has since transformed under the presidency of Donald J. Trump with the addition of three conservative justices who have solidified a conservative supermajority.

The case at issue on Tuesday, Missouri Department of Corrections v. Jean Finney, No. 23-203, involved a dispute over the dismissal of jurors who voiced religious concerns about gay relationships during jury selection in an employment discrimination case.

Jean Finney, an employee of the Missouri Department of Corrections, claimed that after beginning a same-sex relationship with a co-worker’s former spouse, that co-worker made Ms. Finney’s job intolerable. The colleague spread rumors about her, sent demeaning messages and withheld information she needed to complete her work duties, Ms. Finney said. Ms. Finney sued the Department of Corrections, accusing the department of being responsible for the co-worker’s actions.

During jury selection, Ms. Finney’s lawyer questioned potential jurors about their religious beliefs about sexuality. Among the questions: “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?”

The trial lawyer moved to strike certain jurors on the basis of his questions, according to the legal brief filed by the Department of Corrections. The brief took issue with the trial lawyer’s tack, saying that it essentially endorsed the idea that “a person with traditional religious beliefs should never sit on a jury when a party has been in a same-sex relationship because when a prospective juror believes as a religious matter ‘that is a sin, there’s no way to rehabilitate.’”

The lawyer for the Department of Corrections objected, saying that such a request edged into religious discrimination.

The trial judge granted Ms. Finney’s lawyer’s request to strike the jurors, and the jury sided with Ms. Finney, prompting the Department of Corrections to ask for a new trial.

The Department of Corrections asserted that by excluding the jurors who voiced their religious beliefs, the trial judge had violated the 14th Amendment.

After the Missouri Court of Appeals upheld the verdict and the state Supreme Court declined to review the case, the Office of the Missouri Attorney General asked the United States Supreme Court to take up the case.

Even as Justice Alito wrote that he reluctantly agreed that the court should not take up the case, he said he remained troubled by the issue.

“I am concerned that the lower court’s reasoning may spread and may be a foretaste of things to come,” he wrote.

A correction was made on
Feb. 20, 2024

:
Because of an editing error, an earlier version of this article misstated which justices were on the bench when the court ruled in Obergefell v. Hodges in 2015. Justices Sonia Sotomayor and Elena Kagan are the only justices still on the court who voted in the majority, not the only current justices who participated in the case.

A version of this article appears in print on Feb. 21, 2024, Section A, Page 15 of the New York edition with the headline: Alito Renews Criticism of Decision on Same-Sex Marriage. Order Reprints | Today’s Paper | Subscribe
 

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The Quiet Way Democrats Hope to Expand Their Power at the State Level
The Democratic Governors Association is beginning a multimillion-dollar effort aimed at appointing more state judges.

Feb. 20, 2024Updated 2:30 p.m. ET
Protesters holding signs with pictures of the Supreme Court justices in front of the Supreme Court during the hearing for Dobbs v. Jackson Women’s Health Organization in 2021.
The Supreme Court’s Dobbs decision, which overturned Roe v. Wade, turbocharged the attention paid to state courts.Gabriela Bhaskar/The New York Times
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Locked out of power on the Supreme Court and still playing catch-up against Republicans in the federal judiciary, Democrats are hoping to gain a political advantage on a less visible but still important playing field: the state courts.

After flipping the Arizona governor’s seat from Republican to Democratic last year, Gov. Katie Hobbs has appointed 15 judges to the state’s Superior Courts. In five years leading deeply red Kansas, the Democratic governor, Laura Kelly, has named six justices to the Court of Appeals and three to the State Supreme Court.

Governors have the power to appoint judges in nearly every state. These responsibilities are set to take center stage in political campaigns this year, as the Democratic Governors Association begins a multimillion-dollar effort, called the Power to Appoint Fund, aimed at key governor’s races.

The fund, with a $5 million goal, will focus especially hard on two open seats in 2024 battlegrounds: New Hampshire, where the governor has the power to appoint state court justices, and North Carolina, which elects its justices; the next governor will appoint at least one State Supreme Court justice because of the state’s age limit rules.

“Before we had our own abortion amendment issue here in the state of Kansas, I honestly didn’t hear much about court appointments except from attorney groups,” Governor Kelly said in an interview. “But since the Dobbs decision and then our own decision here in the state of Kansas, it’s become more of a forefront issue with folks. People, I think, recognize now more than ever the impact that the courts can have on their daily lives.”

Pointing to the rightward tilt of the Supreme Court and important statewide court battles, Meghan Meehan-Draper, executive director of the Democratic Governors Association, said that voters needed to be reminded of the power “Democratic governors have to appoint judges who are going to uphold the rule of law.”

The group’s effort could bring the judiciary further into the political fray, with a presidential race already exacerbating polarization. It also underscores how both parties see state courts, once a relative political backwater and often spared from some of their harshest attacks, as increasingly critical in cementing policy, and ripe for combative electoral politics.

The Supreme Court’s Dobbs decision, which overturned Roe v. Wade, turbocharged the attention paid to state courts. Donations flooded into races for state court judges who are directly elected by voters; during the 2022 cycle, more than $100 million was spent, nearly twice the spending seen in any previous midterm cycle, according to a study by the Brennan Center for Justice.

And in Wisconsin in 2023, more than $50 million poured into a single race for a State Supreme Court seat, dwarfing any other state high court race in history and injecting a highly partisan tilt into the race, with candidates weighing in on issues including abortion.

From left, four Wisconsin Supreme Court justices, Jill Karofsky, Rebecca Dallet, Janet Protasiewicz and Ann Walsh Bradley raise their arms together celebrating a Protasiewicz victory.
The race in Wisconsin won by Janet Protasiewicz featured far and away the most spending ever for a state Supreme Court seat.Jamie Kelter Davis for The New York Times
Experts on the independence of the judiciary have long argued for appointments rather than direct elections. They suggest that candidates campaigning on the issue could help inform voters as they choose their governors.

But once policy proclamations and litmus tests — such as then-candidate Donald J. Trump pledging in 2016 to nominate only “pro-life judges” — enter the campaigns, it could also threaten judicial independence.

“There’s a line here, and it’s not crystal clear where that line is,” said David F. Levi, a former dean of the Duke University Law School. “Where it can go off the rails is if this just becomes indistinguishable from partisan politics such that you get statements, for example, that the governor is going to make sure that appointees have committed to deciding cases in a certain way or from a certain vantage point. That would be very bad.”

Democratic governors have sought to make clear that they are only looking for fair-minded jurists.

“We do massive due diligence,” Gov. Tim Walz of Minnesota, the chair of the Democratic Governors Association, said in an interview. “If they’re prosecutors, we talked to opposing counsel, we talked to judges, we talked to staff that are in there about what is the demeanor of this judge? Do they have a judicial temperament? Do they have a vision of making the judiciary more inclusive and fair? Do they recognize that there are systemic racial issues in our justice system and working to try and fix those? And we don’t ask litmus-test questions.”

The Republican Governors Association said it had no plans to run a similar campaign. The Republican State Leadership Committee, an R.N.C.-affiliated organization that focuses on state legislatures, runs a fund called the Judicial Fairness Initiative that has raised and spent more than $29 million over the past 10 years on state court elections.

“Every dollar the D.G.A. wants to spend advocating for appointing liberal, out-of-touch judges whose actions have already resulted in less safe communities is a dollar Republicans can spend talking to voters about Democrats’ failure to address the top issues that are affecting Americans today — out-of-control crime and adequate cost of living,” said Courtney Alexander, a spokeswoman for the group.

The Dobbs decision has also put more political pressure on appointments made by governors. In New York, Democrats in the State Senate rejected a nomination by Gov. Kathy Hochul, also a Democrat, because they viewed Hector LaSalle, the nominee, as hostile to unions, abortion rights and other liberal positions.

“There’s absolutely discomfort among some judges and justices at the state level at the increased attention that selection processes” are now receiving, said Douglas Keith, the senior counsel in the Brennan Center’s Judiciary Program. But, Mr. Keith said, programs like the Democratic Governors Association’s could clarify issues for voters.

State courts have also proven to be a pipeline for positions on the federal bench; 20 percent of the judges that Mr. Trump appointed to the federal courts were state court justices, according to a study by the Democratic group.

Mr. Walz, who has appointed more than 100 judges during his tenure, including three to the State Supreme Court and nine to the state Court of Appeals, said that his record on state judges would be critical to his legacy, and voters are starting to notice.

“When I was running, I theoretically understood I could be appointing judges,” Mr. Walz said. “Operationally, it’ll probably be one of the most important things that I do as governor, of making sure that these are independent jurists who follow the rule of law — not supporting me, not supporting an ideology, but rule of law. And I think once you start to explain that to people, and we did it here in Minnesota, it makes a huge difference to understand who you put in the governor’s office.”
 
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