Monday, November 21, 2005

Alito Sez -- A Regular Feature

Now that the ugliness of last week is behind us, let me proceed to our first installation of "Alito Sez," a regular feature of this blog. While I know many of you are eager to hear what I think about abortion or detention, today instead I will be discussing the issue of wrongful termination over a first amendment issue: Shelton v. University of Medicine and Dentistry.

It’s true that at the end of the day I agreed that Ms. Shelton’s termination was legal, but employers should note: Ms. Shelton's actions threatened the lives of her patients (she refused to perform operations that she believed were abortions, when they were non-elective measures being taken to save women’s lives in a clinic that did not, in fact, perform elective abortions). Even so, she was given the option to sit out the surgeries as a general rule, and was only offered transfer after two separate women's lives were jeopardized by her refusal to scrub in. At that point, she was still offered transfer to another unit, and she was only terminated when she refused the accommodation. If you read her "letter" explainaing her views, it's further clear that she is, in legal jargon, a "crackpot."

So if you reading this, for example, are an employer thinking of firing an employee for something he has written, said, or done, think first about whether he (or she) caused the kind of life-threatening danger that Ms. Shelton did, and whether you have bent over backwards to accommodate him like the clinic did. This is of particular importance if you are a public employer.

So be very careful. I may be the judge hearing the case when it comes. Or the Justice.


Mary, M of G said...

Hey Sam! Great Blog!

Half Sigma said...

What if the employee doesn't threaten anyone's life, but just refuses to do his job properly? Like a drugstore employee who refuses to sell condoms to coustomers because it offends his religious values.

SamuelAlito said...

It's important to remember that Ms. Shelton had long ago come to an arrangement with her employer to not scrub in on these procedures, and that she had skipped many before. She only faced transfer once she had risked people's lives.

In your example, the drugstore could allow the employee to send people to another register when they wanted to buy condoms. It would be an inconvenience to some customers, but nothing as serious as the women whose lives were endangered by Ms. Shelton.

This does not mean that all employers can allow all exemptions (for example, a strip club would be allowed to refuse to hire a dancer who refused to strip, citing religious values, because that is essential to the job). But qualified people who make a good faith argument that they cannot perform part of the job (or, for example, that they like to gossip anonymously about people they work with) should be respeted.

Half Sigma said...

Well this is a lot of BS Judge Alito.

If I own a drugstore, I expect all my employees to do their jobs properly. A religious nut who won't sell condoms to customers will just scare them away to another drugstore with employees who do their job.

What kind of "libertarian" are you?

Justice Thomas wouldn't let employees pull stunts like that.

copy editor said...

Love the feature, your Honor.

SamuelAlito said...


who ever said I was a "libertarian"?

I am a judge and rely on stare decisis. You may not like the 1964 Civil Rights Act, but I am in no position on the 3rd Circuit to strike it down.

Please refer to the title vii claim in Protos v. Volkswagen of Am., Inc., (3d Cir. 1986).

I fail to find "undue hardship" in your drugstore case

so ruled

RHSAA, jr.

ps -- clarence thomas is a nut who would overturn marbury v madison and therefore put himself out of a job

Patrick J. Fitzgerald said...

Sam, r u 4 86? How about 69 in the state of Texas?

Anonymous said...

I dutifully looked up respete[d], but it seems to be a word used mainly by those whose c key is malfunctioning...

I do, of ourse, have the greatest respet for you, sir.

Half Sigma said...

The world is screwed up if you can't fire an employee for being a slacker.

I couldn't read Protos, it's not available for free online.

SamuelAlito said...


So your real fear is that the person is not in fact acting on a religious belief, but is feigning religious belief because he is in fact "a slacker."

If this is the case, you are indeed correct. However, by my judgement, to prove one's faith is serious, one can provide a note such as this one:

The ultimatum given me however, doesn't align with the response I am unctioned to submit. The decision is not ours to make but the Lords'{sic}. The Living God is in control of that which concerns my life and job. "Many are the plans in a mans {sic} heart but it's Gods plan/purpose that will prevail."

bluewild said...

When God wants to punish us, He answers our prayers.

Old saying from Great Mother India

Laci the Chinese Crested said...

Sammy, I have a question for you as a dog who has seen the inside of more courtrooms than Harriet Miers--AND TOLD HER SO.

You probably know the security in Doylestown was nonexistant until about six months ago, which is part of my success in sneaking into courtrooms. Not to mention I used to go into certain civil courtrooms within the First Judicial district, which is just putting in security. But those are only a few of the many courtrooms I have been in.

Anyway, in your dissent in U.S. vs. Rybar, 103 F.3d 273 (3rd Cir. 1996), you neglect to address the the Second Amendment defence made by Rybar.

Is this because you believe the Second Amendment is a collective right (I.e., belongs to the militia, or National Guard), or just an oversight on your part?

Inquiring dogs wish to know!

Next question, how in the heck could you argue that anything was not in interstate commerce? Do you think all people are peasants who don't leave their hometowns?

Not to mention, I may be presenting a case before you at the SCOTUS! Pro bone publico, of course!

After all, I am smarter than the President of the United States!

Laci the Chinese Crested said...

I would like to think your reply on my blog means my supposition is correct and you are indeed a collective rights follower.

That's OK, because everyone who knows you has said you were an excellent choice.

This court has some serious potential.

Come on, lighten up and laugh about my having been in more courtrooms than Harriet Miers. The sherrifs in Doyletown laughed when they found out I was coming in. It's one of the worst kept secrets that I sneak into courtrooms.