Still More on Nonjudgmental Jurors


Anne Reed over at Deliberations has picked up on my posts about the jurors who can’t judge, and taken the research a lot farther here. Anne points out the potential clash between the Batson cases (which bar the exclusion of jurors because of race and sex, and which can arguably be extended to bar the exclusion of jurors because of religion) on the one hand, and Witherspoon v. Illinois and Wainwright v. Witt (which allow the exclusion of jurors whose beliefs “substantially impair” the performance of their duties as jurors in accordance with their instructions and oaths) on the other.

Anne points us toward a 2004 Seton Hall Law Review article discussing the future of religion-based strikes; there is also a a Michigan Law Review Note by (now-) University of Tennessee law professor Benjamin Hoorn Barton entitled Religion-Based Peremptory Challenges after Batson v. Kentucky and J. E. B. v. Alabama: An Equal Protection and First Amendment Analysis (it’s on JSTOR; you will need a login to read the whole article online. I got access through my Houston Public Library account. The cite, if you have a law library handy, is 94 Mich. L.Rev. 191 (1995)). Like John Mansfield of Harvard, who wrote the Seton Hall Article, Barton argues that religion-based peremptory challenges don’t pass Equal Protection muster.

Several lower courts have distinguished between strikes made because of religious “beliefs” and strikes made because of religious “affiliation,” suggesting that strikes may be made because of beliefs but not because of affiliation. See, for example, U.S. v. DeJesus (3rd Cir. 2003). In other words, you are free to claim that you belong to any religion, even one that has tenets that the government finds offensive, but if you actually believe in those tenets you may be punished by being excluded from participation in government through jury service.
Back in Texas, however, the Texas Court of Criminal Appeals doesn’t even find that distinction necessary. It has held that exercising peremptory challenges against jurors because of their religious affiliation does not violate the Equal Protection clause: “[T]he interests served by the system of peremptory challenges in Texas are sufficiently great to justify State implementation of choices made by litigants to exclude persons from service on juries in individual cases on the basis of their religious affiliation.” Casarez v. State, 913 S.W.2d 468, 496 (Tex. Crim. App. 1994) (upholding prosecutor’s peremptory challenge of jurors for their mere Pentecostality).

The Texas Constitution, with its prohibition on religious tests for public offices and public trusts (Article 1, Section 4) and its strongly-worded “Freedom of Worship” clause (Article 1, Section 6), was not raised in Casarez.


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