Godless juries.

Author:Smith, Hugh M., Jr.
Position:Correspondence - Letter to the Editor

I read with much dismay Robert T. Miller's "A Jury of One's Godless Peers" (March). How the Third Circuit Court of Appeals could hold in United States v. De Jesus that a peremptory challenge based on religion (as opposed to a challenge based on race or gender) does not violate the Constitution is baffling.

The puzzling part of the court's reasoning is the distinction between belonging to a certain religious denomination and "heightened religious involvement." If the same reasoning were invoked to allow discrimination on the basis of race or gender, there would be a public outcry. But, then again, I am quite sure that no judge would try to justify a black man being held off a jury on the grounds that his membership in the National Association for the Advancement of Colored People demonstrated "heightened racial involvement," which would, in turn, make it impossible for him to judge the facts of a case impartially.

Even without conducting an analysis of the relative evils of racial, sexual, or religious discrimination, this type of reasoning is repugnant and legally wrong. According to the Supreme Court, governmental action that discriminates on the basis of gender is subject to an "intermediate scrutiny" standard of review, while discrimination based on race and religion are subject to "strict scrutiny," which requires that a compelling state interest be at stake. In view of this high standard, it is not apparent why seeing the world through the prism of heightened religious involvement should disqualify one from jury service.

Hugh M. Smith, Jr.

New York, New York

Robert T. Miller replies:

I agree with the conclusions of Hugh M. Smith, and I have one additional observation about the Third Circuit's distinction between mere affiliation with some particular religious denomination and "heightened religious involvement," regardless of confession. This distinction is not so puzzling when we remember two facts about ideological secularism.

First, the primary tenet of ideological secularism is that the ultimate good for man consists in something...

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