Religion-based peremptory challenges after Batson v. Kentucky and J.E.B. v. Alabama: an equal protection and First Amendment analysis.

• Author: Barton, Benjamin Hoorn

INTRODUCRION

During voir-dire(1) examination in a criminal trial, the prosecutor notices that a black venire person is wearing a cross. Without asking any further questions, the prosecutor uses one of her peremptory challenges(2) to remove this venire person from the jury panel. In response to this strike, the defense counsel raises an objection under Batson v. Kentucky(3) that the peremptory challenge is race-based and therefore impermissible. The court asks the prosecutor to state a race-neutral explanation for the challenge. The prosecutor explains that the defendant is Christian and that the venire person may be biased.

This explanation is likely to be found legitimate under current law. Batson and its progeny eliminated race-based peremptory challenges, but courts have generally limited Batson to race and permitted religion-based peremptories.(4) Courts have allowed peremptory challenges of black potential jurors(5) because of the juror's "fringe religious group preference,"(6) the juror's choice to "omit[ an answer to the religious preference question on the juror information card,"(7) and on the basis that the juror "carried a Bible."(8) In all of these cases, the lawyer who exercised the peremptory challenge failed to present any connection between the potential juror's religious affiliation and the case at hand, nor was there any information about the potential juror's specific beliefs.

The analysis relied upon by these courts must be reassessed, however, in fight of the Supreme Court's ruling in J.E.B. v. Alabama ex rel TB.,(9) which extended Batson's protections to gender-based peremptory challenges. J.E.B. opens the question whether Batson should be extended further to eliminate religion-based peremptory challenges. At present there is a split in authority concerning the constitutionality of religion-based peremptory challenges.(10)

This Note argues that under Batson, J.EB., the First Amendment,(11) and the Equal Protection Clause,(12) religion-based peremptory challenges are unconstitutional. This Note asserts that the analysis of governmental religious discrimination, such as a peremptory challenge, is the same under either the First Amendment or the Equal Protection Clause because both apply strict scrutiny to purposeful government discrimination.

Part I examines Batson and J E. B. in greater detail and states a model for analyzing discriminatory peremptory challenges in which such challenges are treated as intentional governmental discrimination subject to heightened scrutiny. Part II argues that under the First Amendment, intentional governmental religious discrimination, such as a peremptory challenge, is strictly scrutinized. Part III asserts that strict scrutiny is applied to religious discrimination under the Equal Protection Clause as well. Part IV applies the strict scrutiny standard to religion-based peremptory challenges and concludes that such challenges are not narrowly tailored and therefore are unconstitutional. Part V addresses the practical difficulties involved in finding religion-based peremptory challenges unconstitutional and argues that they are not significant enough to preserve the use of religion-based peremptory challenges.

1. THE BATSON-J.E.E. MODEL

   In assessing the constitutionality of religion-based peremptory challenges, it is important first to understand the Court's precedents concerning race- and gender-based peremptory challenges and the Court's general approach under the Equal Protection Clause. Section I.A argues that Batson did not apply traditional equal protection analysis and left the possibility of expanding Batson beyond race unclear. Section I.B argues that the cases following Batson establish that peremptory challenges are subject to traditional equal protection analysis and that J.E.B. sets the model for such analysis.

   1. Batson and Traditional Equal Protection Jurisprudence

      Batson did not apply traditional equal protection analysis to race-based peremptory challenges. Batson departed from traditional equal protection analysis in two ways. First, Batson created a unique structure for establishing intentional governmental discrimination in the use of peremptory challenges, and second, once intentional discrimination was established, Batson did not apply strict scrutiny to race-based peremptories.

      Batson's treatment of peremptory challenges was unusual because of the mechanism the Court used to establish purposeful government discrimination. Under traditional equal protection analysis, the Court requires proof of intentional discrimination to invalidate government race discrimination.(13) To find intentional discrimination, the Court usually differentiates between government acts that facially discriminate(14) and government acts that are facially neutral but have a disparate impact(15) upon a racial group. If an act is facially discriminatory, the Court infers intent to discriminate.(16) If the government act is facially neutral but disparately impacts a racial group, the Court requires a separate showing of intent.(17) Batson never stated whether race-based peremptory challenges constituted facial discrimination.(18)

      Instead, Batson stated a three-part test to establish purposeful discrimination in the use of a peremptory challenge.(19) First, the defendant must establish a prima facie case of race discrimination.(20) Then the burden shifts to the prosecutor to state a race-neutral explanation.(21) Finally, the trial court must determine whether the peremptory challenge is race-based and improper.(22)

      The second Batson Equal Protection Clause irregularity is that the Court never applied strict scrutiny(23) after establishing a framework for finding intentional discrimination. Under the Equal Protection Clause, the Court applies strict scrutiny to intentional discrimination prior to invalidation.(24) Once Batson created a framework to find intentional discrimination, strict scrutiny should have been applied.(25) Because of these irregularities, it was unclear whether Batson should be analyzed as part of the Court's equal protection tradition and, if so, whether it could be expanded beyond race.(26)

   2. The J.E.B. Model for Assessing Religion-based Peremptory Challenges

      The cases that followed Batson clarified its ambiguous relationship to the Equal Protection Clause. These cases did three things. First, they expanded Batson, which addressed only prosecutorial peremptories in criminal trials, to race-based peremptory challenges by nongovernment litigants and to civil trials.(27) Second, they established that potential jurors themselves have an equal protection right to nondiscriminatory jury-selection procedures.(28)

      Third, J.E.B. v. Alabama ex rel. T.B. established that Batson is not limited to race and that traditional Equal Protection principles are applicable to the peremptory challenge. In L.E.B., the Court applied "equal protection jurisprudence" to extend Batson to gender.(29) The Court applied intermediate scrutiny(30) to peremptory challenges on the basis of gender(31) and held that such peremptories were unconstitutional.(32) J.E.B. followed Batson in applying a three-part test for establishing intentional gender discrimination in the use of a peremptory challenge.(33)

      J.E.B. sets the model for assessing the constitutionality of peremptory challenges. Individual jurors have a right to nondiscrimination in jury selection procedures. The Batson three-part test is used to establish the requisite showing of discriminatory intent. If a peremptory challenge is used to exclude groups protected by the Equal Protection Clause, it is analyzed under traditional equal protection principles, and heightened scrutiny is applied.

2. STRICT SCRUTINY UNDER THE FIRST AMENDMENT

   In order to assess the constitutionality of religion-based peremptory challenges, it is necessary to establish the level of scrutiny applied to government acts which discriminate on the basis of religion. Part Il argues that under the First Amendment, governmental religious discrimination must be strictly scrutinized. Part III argues that under traditional equal protection jurisprudence, governmental religious discrimination must be strictly scrutinized. This Note first analyzes religious discrimination under the First Amendment because the Equal Protection Clause offers no new constitutional rights: instead, it requires states to protect other constitutional rights held by their citizens. Therefore, an understanding of the First Amendment implications of religion-based peremptory challenges must precede any equal protection analysis.

   Part II.A argues that under either the Free Exercise Clause or the Establishment Clause of the First Amendment, intentional governmental religious discrimination is subject to strict scrutiny under an analysis which is similar to equal protection jurisprudence. The Court searches for antireligious animus, relying on the familiar categories of facial discrimination and disparate impact. If intentional discrimination is found, the Court applies strict scrutiny. Part II.B argues that strict scrutiny is especially appropriate for religion-based peremptory challenges because the Court has repeatedly stated the need for government neutrality in the selection of government officials.

   1. Intentional Government Religious Discrimination Under the First Amendment

      This section argues that the analysis of government religious discrimination is the same under either clause of the First Amendment: the Court searches for intentional discrimination and applies strict scrutiny to such discrimination.(34) The First Amendment states "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof .... "(35) The Court has generally separated the amendment into the Establishment Clause and the Free Exercise Clause. Governmental religious discrimination violates both clauses of the First Amendment. Under both clauses, the...