Thou Shall Not Strike: Religion-based Peremptory Challenges Under the Washington State Constitution

• Publication year: 2001
• Citation: Vol. 25 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 1FALL 2001

COMMENTS

Thou Shall Not Strike: Religion-Based Peremptory Challenges under the Washington State Constitution

Justin Dolan (fn*)

I. Introduction

The United States Supreme Court has expressly recognized that state courts have the power to interpret state constitutions to be more protective of civil liberties than the Federal Constitution.(fn1) Many state courts have exercised this power by independently interpreting state constitutional provisions as a means to afford their own citizens greater individual rights than those guaranteed by the Federal Bill of Rights.(fn2)

Washington is among the many states whose courts have traditionally examined their own constitutions on issues involving individual rights without assuming that the United States Supreme Court is the final word on such matters.(fn3) Washington's courts and commentators alike have recognized that independent interpretation and application of the state's constitution is an obligation that all Washington courts owe to all Washington citizens.(fn4) In fact, the Washington State Supreme Court in State v. Gunwall(fn5) fashioned a framework to guide the state courts in determining whether to engage in independent state constitutional interpretation.(fn6)

In accordance with the principle that state courts may interpret their own constitutions more liberally than the Federal Constitution and grant broader protections to their citizens, numerous state courts have held that religion-based peremptory challenges are forbidden under their respective state constitutions.(fn7) These holdings deviate from the current stance of the United States Supreme Court, which has sub silentio recognized that religion-based peremptory challenges do not violate the Equal Protection Clause of the Fourteenth Amendment.(fn8)

Although Washington courts have yet to address the constitutionality of religion-based peremptory challenges, this Comment seeks to establish that such peremptory challenges violate Article I, § 11 of the Washington State Constitution.(fn9) The pertinent portion of that section provides that no person "shall ... be incompetent as a witness or juror, in consequence of his opinion on matters of religion . . . ."(fn10) Thus, notwithstanding the Supreme Court's refusal to directly rule on whether religion-based peremptory challenges violate the Equal Protection Clause, Article I, § 11 of the Washington State Constitution appears to provide independent state constitutional grounds for resolving the issue.

An analysis under State v. Gunwall, the Washington framework for independent state constitutional interpretation, demonstrates that it is appropriate for Washington courts not only to determine the constitutionality of religion-based peremptory challenges independently of the Federal Constitution, but also to extend greater protection to Washington citizens in this area of law. The command of Article I, § 11 and the results of a Gunwall analysis establish that, as an independent source of individual rights for all Washingtonians, the Washington State Constitution prohibits religion-based peremptory challenges. This Comment will first define the peremptory challenge and discuss its history and normative values. It will then examine the United States Supreme Court's treatment of the peremptory challenge, focusing on how the peremptory challenge has changed from a litigation device that lawyers could exercise without explanation to one that at times requires an explanation for it to survive constitutional challenge. Next, this Comment will discuss state courts' independent interpretation of fundamental rights, Washington courts' decisions in harmony with this principle, and State v. Gunwall, the guide to independent constitutional interpretation in Washington. This Comment will show that under a Gunwall analysis, religion-based peremptory challenges violate Article I, § 11 of the Washington State Constitution. Finally, this Comment will provide a new standard for evaluating religion-based peremptory challenges in Washington while ensuring that the peremptory challenge remains a useful instrument in jury selection.

II. The Federal Approach to Peremptory Challenges

A. Peremptory Challenges: Definition, History, and Normative Values

A peremptory challenge and a challenge for cause are the two methods by which a party may eliminate a prospective juror during voir dire.(fn11) Prior to the Supreme Court's decision in Batson v. Kentucky,(fn12) one could define a peremptory challenge as "one exercised without a reason stated, without inquiry and without being subject to the court's control."(fn13) In contrast, a challenge for cause permits a party to dismiss a member of the venire only "on a narrowly specified, provable and legally cognizable basis of partiality."(fn14)

While a peremptory challenge is designed to permit a party to strike a member of the venire on nothing more than a hunch regarding the juror's partiality,(fn15) a challenge for cause requires a party to demonstrate the prospective juror's objective bias before a judge will dismiss the individual.(fn16) Although a party can exercise an unlimited number of challenges for cause,(fn17) the requisite objective standard of proof makes them difficult to sustain.(fn18) Thus, peremptory challenges, though limited in number,(fn19) are a treasured tool for the party that desires to dismiss a juror but is unable to do so for cause.

The peremptory challenge originated in England approximately 700 years ago, arrived with the colonists in America, and soon found its way into federal and state statutes.(fn20) Although Congress has authorized the use of peremptory challenges in federal courts(fn21) and all states have authorized their use in state courts,(fn22) nothing in the Federal Constitution provides for the existence of peremptory challenges.(fn23) Therefore, unlike the challenge for cause, which is grounded in the Sixth Amendment right to a fair and impartial jury,(fn24) the power to employ a peremptory challenge emanates from various statutes, not from the Constitution.(fn25)

The lack of a constitutional basis notwithstanding, the peremptory challenge is still viewed as a useful instrument for molding a more impartial jury.(fn26) Justification for the peremptory challenge is based on the presumption that such challenge can help remove bias from the jury when the bias it purports to eliminate is inarticulable.(fn27) Parties on both sides of a case may exercise peremptory challenges to exclude those members of the venire who they suspect are either partial towards the other party or prejudiced against them.(fn28) By eliminating these extremes of partiality common to any venire, the parties' exercise of peremptory strikes results in a jury that is more likely to be impartial.(fn29)

In addition to creating a more impartial jury, the peremptory challenge contributes to the appearance of impartiality.(fn30) Although the claim that peremptory challenges actually create a more impartial jury is not universally accepted, there is less doubt that such challenges impress upon parties that the jury will decide the case impartially.(fn31) The mere process of striking members of the venire based on nothing more than a surmise of bias strengthens the litigants' belief that the selected jury will arrive at a fair result.(fn32)

Another beneficial feature of the peremptory challenge is the alacrity with which it allows voir dire to proceed.(fn33) The peremptory challenge expedites voir dire by reducing a litigant's need to extensively probe every juror for bias to justify a challenge for cause.(fn34) A party may forego a challenge for cause that is unlikely to succeed and remove the prospective juror with a peremptory challenge.(fn35)

Because a party need not justify every dismissal of a member of the venire, the peremptory challenge also makes extensive and potentially intrusive questioning during voir dire less necessary.(fn36) A lawyer who suspects that a potential juror is biased and that further questioning will fail to expose such bias may elect to use a peremptory challenge instead of pursuing a challenge for cause.(fn37) Also, if a party pursues a challenge for cause and fails to establish that a particular member is biased, the party may then strike the potential juror if for no other reason than to avoid placing an irritated member of the venire on the jury.(fn38)

As demonstrated above, the benefits flowing from the availability of the peremptory challenge are made possible by its unrestricted nature. Despite the benefits of an unrestricted peremptory challenge, the Supreme Court has nevertheless limited its exercise in instances where its use would violate the Equal Protection Clause.

B. Race-Based Peremptory Challenges at the Federal Level

The Supreme Court first confronted the issue as to whether the use of peremptory challenges may at times violate the Equal Protection Clause in its 1965 decision, Swain v. Alabama.(fn39) In Swain, a criminal defendant alleged that a prosecutor's use of peremptory challenges to prevent African Americans from sitting on a jury violated the Equal Protection Clause.(fn40) Justice White reasoned for the majority that "[i]n the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being...