Casarez v. State

¶1dissenting.

¶2According to syndicated columnist James Kilpatrick, defense attorney Clarence Dan-row’s jury selection methods were profoundly influenced by racial, sexual, and religious stereotypes. Darrow preferred Irishmen on his juries because he thought them to be “emotional, kindly and sympathetic.” He also “wanted Unitarians, Universalists, Jews and agnostics [, but] ... distrusted women.” 1

¶3While it might once have been considered routine to pick jurors as Darrow did, based mainly on criteria such as these, the practice is now constitutionally risky. Indeed, two of the three criteria mentioned here have already been condemned by the United States Supreme Court as offensive to the Equal Protection Clause of the Fourteenth Amendment. The question we decide today is whether the third also violates fundamental principles of fairness and equality.

¶4After giving the matter due consideration, I am not persuaded that the United States Constitution forbids peremptory removal of prospective jurors on account of their religion, as it does on account of their race or sex. A majority of this Court, however, is induced to a contrary opinion by its reading of J.E.B. v. Alabama ex rel. T.B., 511 U.S. -, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the United States Supreme Court’s most recent struggle with the constitutional status of peremptory challenges. See also Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In an already obtuse area, the Court’s reasoning in J.E.B. is even more difficult than usual to pry loose of its rhetorical matrix.

¶5Does the Equal Protection Clause prohibit merely “state-sponsored group stereotypes rooted in, and reflective of, historical prejudice?” 511 U.S. at -, 114 S.Ct. at 1421. Or does it forbid any irrational “proxy for juror competence and impartiality?” Id.Is a discriminatory classification unconstitutional only when it “serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes?” Id.at -, 114 S.Ct. at 1422. Or is any classification illegal that irrationally presumes certain persons “unqualified ... to decide important questions upon which reasonable persons could disagree?” Id.at -, 114 S.Ct. at 1428.

¶6I do not know the answers to these questions, and extracting them from J.E.B. is so confusing and uncertain a process that I am willing to claim very little confidence in my own conclusions. The majority herein fo-cusses on the history of religious discrimination in America, just as J.E.B. focussed on the history of sexual discrimination, concluding that, because religious classification in the law is subject to strict, or at least heightened, scrutiny under the United States Constitution, a peremptory challenge exercised on the basis of religious affiliation *491is constitutionally indistinguishable from a peremptory challenge exercised on the basis of race or sex. See Larson v. Valente, 456 U.S. 228, 244-246, 102 S.Ct. 1673, 1683-85, 72 L.Ed.2d 33 (1982); Davis v. Minnesota, — U.S. -, 114 S.Ct. 2120, 128 L.Ed.2d 679 (1994) (Thomas, J., dissenting). This process of reasoning is similar to that employed by the Supreme Court in J.E.B., and perhaps it is even correct. But my own interpretation of J.E.B. suggests that the Supreme Court contemplates a difference between religious discrimination and racial or sexual discrimination which permits us to regard them differently for purposes of the jury selection process. The overriding distinction that I have settled on is that religion, unlike race and sex, is typified by an official creed.

¶7With few exceptions, the only significant matter that members of a religious faith genuinely have in common is their belief in certain principles, doctrines, or rules. To the extent that religious believers have historically been the objects of discrimination, it is because of their beliefs and not on account of anything else. Yet discrimination on the basis of personal belief has always been considered appropriate in the jury selection context because a veniremember’s beliefs reveal especially important information about his suitability for jury service. Certain religious beliefs tell us what his sympathies and prejudices are.

¶8Persons of the same race or sex, on the other hand, are not distinguished by their beliefs, attitudes, or convictions. Because all varieties of political, moral, and religious tenets are commonly shared by people of many different races and by those of both sexes, race and sex clearly do not reveal anything especially relevant about a prospective juror’s beliefs. In short, discrimination against race and sex in American history was never based upon the proposition, rational or otherwise, that women and racial minorities subscribe to a disagreeable or undesirable belief system.

¶9To hold, therefore, that a veniremember may not be excluded on account of his religious preference is tantamount to a holding that he may not be struck on account of his beliefs. If pursued to its logical conclusion, such a holding would undercut the essential features of our jury selection system altogether because our form of government protects not only religious belief, but all manner of political, moral, social, and scientific conviction as well. The treatment of religious creed as an inappropriate basis for peremptory exclusion cannot rationally be distinguished from a similar treatment of persons on account of their Libertarian politics, their advocacy of communal living, or their membership in the Flat Earth Society.

¶10I am aware, of course, that J.E.B. limits application of the Batson rule to an exclusion of persons on account of a classification traditionally used for irrational discrimination in our culture. Plainly, libertarians, hippies, and flat-earthers have not been the subject of such historic discrimination, and I would not trivialize the profound social disabilities under which women and racial minorities were made to suffer in this country by comparing their history to that of an odd subculture. But, try as I may, I cannot reconcile the extension of Batson to religious belief without also extending it to constitutionally protected beliefs of other kinds. And, in turn, I cannot make myself accept that a venire-member’s belief, religious or otherwise, is an inappropriate subject for inquiry during jury selection or an impermissible basis for the exercise of peremptory strikes. In my view, if it is permissible to discriminate against prospective jurors on account of their beliefs, then it is necessarily permissible to discriminate against them on account of their religion, for discrimination on the basis of religion is discrimination on the basis of belief.

¶11The Supreme Court emphasized that its holding in J.E.B. “does not imply the elimination of all peremptory challenges.” 511 U.S. at -, 114 S.Ct. at 1420. One consequence of this holding is that litigants may continue to discriminate on the basis of classifications not subject to strict or heightened equal protection scrutiny. It does not follow, however, that discrimination on the basis of every classification subject to such scrutiny is necessarily forbidden. For a peremptory challenge to be objectionable under the Equal Protection Clause, according to J.E.B., it *492must not only be based upon a classification subject to strict or heightened scrutiny, but it must also ratify or perpetuate “invidious, archaic, and overbroad stereotypes.” 511 U.S. at -, 114 S.Ct. at 1422

¶12Attributing to women or African Americans as a group any specific moral, political, or social belief is overly broad because membership in the group does not depend upon subscription to the belief. It is invidious because individual members who do not share the belief are made to suffer the attribution anyway. But in the case of religion, the attribution is not overly broad, and therefore not invidious, when the belief is an article of faith. Because all members of the group share the same faith by definition, it is not unjust to attribute beliefs characteristic of the faith to all members of the group.

¶13Whatever may be said against the system of picking trial juries by striking individuals from a panel of eligible citizens, the practice is deeply entrenched in the American legal process, prescribed by Texas statute law, and constitutionally unobjectionable to the United States Supreme Court. Insofar as the practice was abused and has now largely been remedied by Batson and the State of Texas may not permit the peremptory exclusion of jurors on the basis of irrational prejudices which violate the Equal Protection Clause. But I do not read Supreme Court jurisprudence yet to condemn exclusion on the basis of belief.

¶14For the reasons given above, I would affirm the judgment of the Fort Worth Court of Appeals.

¶15Before the court en banc.