Casarez v. State

neither, attorney ap- Neither nor their ground Smiths that misconduct would be for peared on the trial Apparently sanctions, date. antici- not dismissal or denial rein- occurrence, pating attorney Babcock’s statement. prepared came to with court motion to argues attorney Babcock that the Smiths’ dismiss the case prejudice with for want of obliged attempt postpone was to to the Free- prosecution, together with exhibits trial, Fischel, County citing stone Smock appeared, order. Lumbermen’s counsel ad- (1948). 146 Tex. 207 S.W.2d attorney vised the court that the Smiths’ was case that we held that a trial court did not County, trial in re-urged Freestone proceeding abuse its discretion trial the continuance. The court denied the con- when counsel trial in defendant’s was an- granted tinuance and Babcock’s motion because, county among things, other he dismiss. The court later denied the Smiths’ conflicting had made no effort to resolve the and Lumbermen’s motions to reinstate the settings judge and had failed to contact the appeals case. The court of affirmed. 915 day of trial to tell him of his where-

S.W.2d 22. contrast, By attorney abouts. the Smiths’ a ease When is dismissed for want by moving tried resolve conflict for prosecution, “[t]he court shall reinstate case, mistakenly continuance in this un- upon finding hearing case after that grant- that derstood a continuance would be attorney party failure or his [to explanation ed. His was reasonable. appear] was intentional or the result The denial of the Smiths’ and Lumber- conscious indifference but was due to an men’s for motions reinstatement was an accident or mistake the failure has Accordingly, majority abuse discretion. reasonably explained.” been otherwise Tex. grants application the Smiths’ 165a(3). operative R.Civ.P. standard is and, hearing for writ of error without oral essentially the setting same as that for argument, judgment reverses judgment. aside a default See Craddock appeals court and remands this case to the Lines, Bus Sunshine Tex. court trial with instructions to reinstate the S.W.2d 124 A failure appear Tex.R.App.P. 170. case. intentional due to conscious indiffer- meaning merely ence within the of the rule deliberate;

because it is must also adequate justification.

without Proof of justification accident, such oth- mistake or — explanation negates er in- reasonable

tent or conscious indifference for which re- One,

instatement can be denied. Bank Texas, Moody, N.A. v. 830 S.W.2d George Toby CASAREZ, Appellant, v. (Tex.1992). Also, conscious indifference negligence. Ivy means than more mere (Tex.1966). S.W.2d Carrell Texas, Appellee. The STATE of attorney reasonably The Smiths’ ex No. 1114-93.

plained appear failure He his trial. actually county was trial in another Texas, Appeals Court of Criminal believed, explanation, his credible En Banc. grant the court would a continuance for Dec. attorney Even if reason. the Smiths’ was not conscientious as he have should Opinion Granting Rehearing been, did his actions not amount conscious 13, 1995. Dec. Also, attor indifference. while Smiths’ ney wrong was in his state motion County

continuance the Freestone suit preferentially

was older and set when it was Harris, Worth, appel- Fort S.

William lant. Curl, Atty., David M. Curry, Dist.

Tim Worth, Hut- Atty., Robert Dist. Fort Asst. Austin, tash, Atty., State. State’s OPINION expanded religion. ON APPELLANTS PETITION to include should

FOR majority opinion Appeals DISCRETIONARY REVIEW of the Court of appellant’s point being error read limit- BAIRD, Judge. imper- ed whether was itself an Appellant aggravated was convicted of sex exercising peremptory missible reason for years ual assault and to sentenced twelve Casarez, strikes. at 783. The S.W.2d confinement. Ann. Tex.Penal Code majority Supreme reasoned the Court’s limit- §§ 22.011 and 22.021. Appeals The Court of application Equal ed Protection Clause affirmed. Casarez S.W.2d 779 peremptory challenges to race-based indicat- 1993). (Tex.App. Worth granted We — Fort an to race ed intent confine Batson to and appellant’s petition for discretionary review Casarez, point overruled the of error. Equal to determine whether the Protection S.W.2d 783-784.3 pro of Clause the Fourteenth Amendment challenge hibits the use of a on II. religion.1 Const., the of basis amend. We

XIV. will reverse. EQUAL PROTECTION AND JURY SELECTION I. applied Equal The Court first

THE INSTANT CASE jury pro- Protection Clause to the selection Virginia, peremptorily challenged The State cess Strauder West two (1879). Strauder, 25 L.Ed. 664 a black Appellant objected, black veniremembers. man, contending by jury was convicted an all-white un- peremptory challenges were Virginia racially prohibited a West which discriminatory prohibited by der statute and juries. serving grand petit blacks from art. Tex.Code Crim.Proc.Ann. 35.261 and Id., L.Ed. 664. Kentucky, U.S. at Strauder Batson Equal violated the prosecutor contended the statute The Protection Clause of the Fourteenth Amend- contended the veniremembers were race, agreed The ment. Id. struck the basis of but on the basis held the statute unconstitutional: religion.2 Appellant of their Pentecostal again objected, contending this time the use very people ... The fact that colored are peremptory challenge of a on the of basis singled expressly by a stat- out and denied religion Equal violates the Protection Clause participate ute all adminis- of the Fourteenth trial Amendment. The law, jurors, tration of the because of judge objection. overruled the citizens, color, though are their n appeal, appellant argued ap- respects fully qualified, On Batson is them, plication Equal practically upon by of affixed Clause a brand See, Appellant's ground majority's supra. holding 1. states: n. The that the review Appeals Equal prohibit ruling the use Court of erred in that the Protection Clause did jurors potential peremptory challenges religion exclusion of the basis religion princi- did basis their not violate the argument rendered the State’s moot. alternative ples of XIV Protection Clause of the limited, majority opinion Because the be- States Amendment to United Constitution holding cause that limited is the sole basis of the required in such a manner that relief under the review, see, appellant’s ground supra, n. doctrine announced the United States Su- argument us. the State’s alternative is not before Kentucky. preme Court in Batson v. pause argument We note the was alternative 2. State offered other nonracial and nonreli- separate concurring opinion addressed in striking gious reasons for the veniremembers. also one of the veniremembers was which noted Casarez, 857 S.W.2d According thirty-third member of the venire. concurrence, required explanation no was majority opinion was to whether limited thirty-third because the veniremember was not peremptory challenges on the basis on deprived privilege service because Understandably, majority permissible. thirty-two obtained the first was argument did not address the State’s alternative Casarez, permissible peremptory challenges veniremembers. 857 S.W.2d at 788-89 were that the Lattimore, JJ., (Hopkins nonreligious concurring). reasons offered the "State. for the prohibition inferiority, law, Protection Clause’s an assertion of ex the State prejudice whenever stimulant to that race racial discrimination and a racially securing in a impediment peremptory challenges which an ercised equal justice of the race that individuals manner. to all others the law aims secure which privilege to Accordingly ... State’s Virginia, dis- statute West [T]he jurors through perempto- strike individual jurors ... criminating in selection of challenges, subject to the commands ry equal protection amounts to a denial Although Clause. Equal Protection put he is the laws to a colored man when exer- ordinarily is prosecutor entitled alleged offense trial for challenges for permitted peremptory cise the State. all, long that reason any at as as reason

Id., 664. Im at 25 L.Ed. 100 U.S. concerning outcome his the view related application the Strauder restricted portantly, tried, Equal Protec- the of the case to be racially Equal the Protection Clause prosecutor to chal- the tion Clause forbids practices affecting compo discriminatory the jurors solely on account lenge potential Id., 100 312. the venire. U.S. at sition of black assumption that or on the race jurors impartially a will be unable A. against a black case to consider the State’s later, century Supreme a the Court Almost defendant.4 application Equal Pro- expanded the of the (foot Id., 89, 106 S.Ct. at 1719 476 U.S. at challenges. to peremptory tection Clause omitted). notes and citations Alabama, v. 380 U.S. 85 Swain (1965). L.Ed.2d 759 The Court held 13 C. Equal prohibits the Protection Clause the Batson, Supreme Court has ex- the Since discriminatory racially use scope application the panded the required challenges but criminal defendants per- use of Equal Protection Clause the peremp- “systematic the to show use” such Ohio, 499 emptory challenges. In Powers Id., tory period a challenges over of time. 1364, 1366, 400, 401-03, 113 111 S.Ct. U.S. 227, 85 the 380 at S.Ct. at 839. Under U.S. 411 the Court considered L.Ed.2d “systematic use” burden defendant was required the excluded whether Batson compile multiple required to from evidence to be of the same race as veniremembers discriminatory demonstrating racially trials Equal Protection Because the defendant. Id., 225-27, pattern. at racially discriminatory prohibits clas- Clause 838-839. sifications, irrele- the defendant’s race was vant.

B. Amendment’s mandate Fourteenth Twenty years later the Court from that race discrimination be eliminated “systematic requirement use” discarded proceedings of the official acts and all Kentucky, in the landmark case of Batson v. judicial compelling is most State 1712, 1722, statutory prohibition ... The system Batson, In the State jurors ... in the selection discrimination to exclude used its neutrality in makes race selection Id., every jury. black from the visible, inevitable, judi- measure of 82-83, Recognizing a de 106 S.Ct. at system’s the com- own commitment to cial rarely to relief under fendant was entitled mands of Constitution.... Swain, Court crippling burden identity between defendant Racial prohibited Equal Clause held the Protection might person excused some and the racially the use of prosecu- Id., explanation for the cases be trial. challenges in an individual stereotype Thus, adoption of the forbidden 92-95, tion’s at 1721-22. say of the defen- ... But to race allowed to enforce criminal defendants were emphasis supplied cated. All unless otherwise indi- may discerning Id., dant be relevant to bias 505 U.S. at 112 S.Ct. at 2356. The some cases does mean it will be a question then Court turned to whether others, factor in prejudice for race stems a criminal Sixth defendant’s Amendment may various causes and manifest it- to a criminal fair trial defen- self different forms. use of peremptory challenges dant’s defeated Id., standing 415-16, third-party the State’s raise U.S. at S.Ct. at 1373-74. McCollum, issue. Batson U.S. at Concrete, Co., In Edmonson Leesville holding 2357-2359. criminal appli- extended Batson’s defendants not use chal- cation of the Clause civil manner, lenges racially discriminatory in a Concrete, Co., trials. Edmonson Leesville “harm Court focused on the done 614, 629-33, 2088- dignity persons integrity (1991). However, courts:” order for the Protection Clause to apply, litigants civil had to be classified as doWe not believe that this decision will Id., state actors. U.S. at peremp- undermine the contribution S.Ct. at 2082. The Court determined civil tory challenge jus- to the administration of litigants were state actors because the liti- Nonetheless, stereotypes tice. if race gants proce- “make extensive use of state price for acceptance jury panel the a as ‘overt, dures significant with the assistance of fair, today price we reaffirm that such a Id., state officials.’” 500 U.S. at 111 high to too meet the of the Con- standard S.Ct. at 2083-84. goal ... stitution The of the Sixth Further, litigants the Court held civil have Amendment jury impartiality with re- third-party standing challenge per- the spect to both contestants. emptory challenges of party another because Id., (cita- 505 U.S. at potential juror the is unable his to defend or omitted). quotations tions and internal participatory right integrity her and the the Focusing verdict is cast into doubt.

the harm III. racial caused discrimination the Court stated:

Race discrimination within court- the AN ANALYTICAL FRAMEWORK questions room raises serious as the Supreme application Court’s proceedings fairness of the conducted Equal Protection Clause chal- integrity there. bias Racial mars the lenges did not end with race. The Court judicial system prevents the idea Equal next considered whether Protec- government becoming democratic from prohibited use of Clause If reality society a our is to continue challenges to exclude veniremembers progress a democracy, multiracial as it gender. v. basis J.E.B. Alabama ex rel. recognize must that the automatic invoca- —T.B., stereotypes prog- tion of race retards that (1994). L.Ed.2d In the Court de- J.E.B. injury. ress and causes continued hurt and analytical veloped apply framework Id., U.S. at 2087- Equal Protection Clause to the discriminato- ry peremptory challenges. use To under- McCollum, Georgia framework, analytical stand we must 120 L.Ed.2d 33 the Su- Equal first consider the traditional Protec- preme Equal Court considered whether the discriminatory tion review of classifications. applied Protection Clause to the

challenges of criminal defendants. A. defendants, Court held criminal civil liti- like gants, constructively underlying Equal effect state action dur- tenet of Protec- ing power voir dire because wield the tion Clause is that the Government must individuals, jury, govern- choose the “the simply institution of treat citizens as as judicial system depends.” racial, sexual, ment on which our components religious, of a or race, alienage, origin or national Accordingly, Pro- national class.5 discriminatory burdens gov- a classification generally prohibits the when tection Clause a ability of class to exercise impairs or a using suspect ernment from classifications right. fundamental discriminating a individu- basis for between A als.6 violation hand, a rela- under rational On the other government dis- may occur when the Clause presumes the dis- tionship the Court review against the of a class of criminates members Schweiker criminatory is valid. classification dis- historically who have suffered individuals Wilson, 221, 234, 101 S.Ct. class, crimination, i.e., “suspect” or when (1981). A dis- government impairs of a the members upheld so criminatory classification will be right.7 exercising class fundamental any relationship to a rational long as bears Pennell legitimate governmental interest. constitutionality To of dis- determine Jose, 1, 14, City San individuals, crimination between classes of (1988). Historically, 99 L.Ed.2d historically Supreme employed Court has employed a has rational Court (1) two standards of review: strict or relationship general with economic review review; and, (2) relationship rational review. Currently, legislation. Id. social welfare Education, Wygant v. Jackson Board of relation- employs a rational 267, 279-80, 1842, 1849-50, discriminatory ship whenever review satisfy To strict scruti- does not involve fundamental classification review, ny classification alienage, right, suspect gender class promote compelling government in- must E. legitimacy. D. & John Ronald Rotunda narrowly terest and be tailored achieve Nowak, Law: Treatise Constitutional Broadcasting, U.S. interest. Metro 497 (2d § ed. Substance and Procedure 18.3 602, (O’Connor, J., at dis- at 110 S.Ct. 3029 1992). Co., senting); Richmond v. J.A Croson 488 years 469, 493-97, 706, 721-23, twenty-five the Su- During 109 102 last S.Ct. U.S. way, developed has a third standard preme to L.Ed.2d 854 Stated another review, scrutiny. scrutiny, government must known as intermediate survive strict prove prevail an intermediate upon classification an es- In to under is based order review, government government objective scrutiny must dem- sential which is discriminatory classification achieved the least intrusive means. Id. onstrate the govern- scrutiny important to employed substantially has related Strict review been See, discriminatory Hogan, 458 at classifications based mental interest. U.S. with also, T.B., 5.See, Education, Wygant rights). ex rel. v. Jackson Board 476 See J.E.B. v. Alabama 267, 279-80, 1842, 1849-50, -, 1419, 1434, -, 106 U.S. S.Ct. 90 114 128 - U.S. S.Ct. (1986) equal protection (1994) J., (applying concurring); 260 (Kennedy, L.Ed.2d L.Ed.2d 89 classification); FCC, 547, scrutiny Ce to racial Anderson v. Broadcasting, U.S. Inc. v. 497 Metro lebrezze, 780, 794, 16, 1564, 2997, 3028, 460 U.S. n. 103 S.Ct. 602, 111 445 110 L.Ed.2d S.Ct. 1572, 16, (1983) (discussing n. 75 L.Ed.2d 547 J., (1990) (O'Connor, dissenting joined by and heightened equal application protection scruti Scalia, Kennedy) (listing religious Rhenquist, ny groups-affiliations to the exercise of equal protec groups subject as to classifications rights); Mississippi University First Amendment and, prohibition stereotyping); tion’s Arizona 718, Hogan, U.S. 102 Women v. 1073, Norris, Governing 463 U.S. Committee 3331, 3336-37, (1982) 73 L.Ed.2d 1090 3498, 3492, 1083, 103 S.Ct. L.Ed.2d equal (testing gender-based under classifications (1983) (including religious groups with other Doe, scrutiny); Plyler protection heightened scrutiny under Title classifications 2382, 2394-95, n. 102 S.Ct. VII). (1982) (plurality 72 L.Ed.2d 786 n. decision) (deriving suspect constitutionally classi and, See, 3, supra; & n. Ronald D. Rotunda historically oppressed classi fications from both Nowak, Constitutional Law: John E. Treatise on group-affiliations which relate to fications 18.2, (2d § ed. Substance and Procedure Rights such as exer First Amendment 1992). Products, cise); and, United States Carolene 778, 783-784, 144, 152, 4,n. n. 304 U.S. 4, See, and, (1938) supra; Rotunda & equal n. Ronald D. (defining protec 82 L.Ed. 1234 Nowak, Law: E. Treatise on Constitutional applicable minor John "discrete insular 1992). (2d § 18.3 ed. Substance and Procedure which relate to certain fundamental ities” 3336-87; and, 102 S.Ct. at part directly Personnel take democracy our ... Administrator Feeney, Mass. v. persons U.S. When are partici- excluded from 256, 273, pating processes solely our democratic (1979). An scrutiny intermediate review is gender, promise because of race or employed to review dims, classifications based equality integrity and the of our upon gender illegitimacy. judicial system jeopardized. Therefore, discriminatory all classifications —Id., -, U.S. at must, least, very at the rationally be related (footnotes omitted).8 and citations Conse legitimate governmental interest. Id. quently, guaran Protection Clause Moreover, discriminatory classifications person tees “granted oppor each who is infringe which on the exercise of a fundamen tunity serve on a not to right, class, tal or which suspect affect a summarily be excluded because of discrimi satisfy must stringent the more intermediate natory stereotypical presumptions scrutiny scrutiny or strict review. Discrimi reflect patterns and reinforce of historical natory subject classifications which are —Id., at -, discrimination.” scrutiny strict review or intermediate scruti S.Ct. at 1428. ny subject review are said to “height to a — For the first time the Court un- equal protection J.E.B., ened scrutiny.” equivocally application attached Batson’s and, 1424; Ronald Clause those dis- Nowak, D. Rotunda & John E. Treatise on criminatory subject “height- classifications Constitutional Law: Substance and Proce equal protection Id., scrutiny.”9 ened (2d 18.3, 1992). § dure at 14-28 ed. S.Ct. at 1425. Because classifications based B. gender heightened equal pro- Court held the scrutiny, Mississippi University tection Equal Protection prohibited Clause the use 718, 724-26, Hogan, Women v. peremptory challenges to exclude venire- (1982) 3331, 3336-37, members on gender. jus- the basis of Six (applying intermediate review to tices held the same harm caused racial discriminations), gender-based the Court jury discrimination in process the selection considered: equal gender occurs with force to discrimina- tion: ... whether discrimination on the basis of

Equal opportunity participate in gender jury the in substantially selection fur- justice fair administration of legitimate is fundamen- thers the State’s interest system. tal to our only democratic It not achieving impartial a fair ... trial goals furthers jury system. the precisely] It peremptory [Or more whether promise equality reaffirms the challenges under the gender stereotypes based on citizens, race, law—that all regardless of provide litigant’s substantial aid to a effort ethnicity, gender, have impartial jury. the chance to to secure a fair and four-justice plural agree Equal Justice Blackmun wrote the I with the the Court that Protec- ity opinion extending protection gen prohibits government Batson tion Clause the from ex- — J.E.B., peremptory challenges. cluding person jury der-based service on account at -, gender. proffered (plurali justifica- U.S. of their The State's 114 S.Ct. at 1429-30 gender-based ty opinion). peremptory tion for its Justice O’Connor concurred in the chal- lenges ’exceedingly judgment persua- are far from the fully adopted majority's the ratio showing required gender- sive’ to sustain a applied nale as it to criminal Id.U.S. defendants. -, based classification. 114 S.Ct. at 1430-33. — J.E.B., at -, U.S. (O’Connor, J., S.Ct. at 1430- concurring). Kennedy Justice (O’Connor, J., (citations concurring) omit result, adopted concurred but a ratio ted). Despite agreement heightened her with the very majority. nale similar to the Id. - U.S. rationale, scrutiny sepa Justice O’Connor wrote J., (Kennedy, 114 S.Ct. at 1433-34 rately opinion protec to reiterate her that Batson concurring). per tion should be limited to the State’s use of See, adopted plurality’s 9. Justice emptory challenges O'Connor the ratio- in criminal trials. Id. nale: supra. n. J.E.B., — stereotypes at -, ation of invidious U.S. omitted). (footnotes in our gen of confidence 1425-1426 Because inevitable loss the predictor accurate der alone is dis- judicial system that state-sanctioned attitudes, peremptory- juror the Court held engenders. in the courtroom crimination pass challenges upon gender failed to based — J.E.B., at -, heightened equal protection the (citations omitted). concluded, analysis. “[w]e The Court shall J.E.B., gender-based accept per defense analytical framework Under the very emptory challenges stereotype the prohibits Clause — Id., at -, law condemns.” challenges discriminatory use of (internal omitted). quotations at 1426 for, qualifies which based on a classification cases, protec (cid:127)As with the Batson line of equal J.E.B. pass, “heightened but fails to J.E.B., harm continued focus on the caused scrutiny.” tion by discriminatory use of at 1425.10 challenges. Discrimination selection IV. litigants, the communi-

causes harm the jurors ty, are and the individual who RELIGIOUS DISCRIMINATION wrongfully participation excluded from Today, are asked to determine whether we judicial process. litigants the Four- Protection Clause of prejudice harmed the risk that per- prohibits the use teenth Amendment discriminatory which motivated the selec- religion.11 emptory challenges the basis of pro- infect will the entire issue, must first determine community To resolve this we ceedings ... is harmed participation perpetu- classifications State’s whether religion. Judges State Meyers, con based on McCormick and while Davis, (Minn. 1993). ceding application analytical that our J.E.B.'s N.W.2d 771-72 correct, op., dissenting pg. 483 framework is Notably, prior was decided to J.E.B. when Davis P.J., (McCormick, dissenting); dissenting op. seemingly limited Batson Court had J., pg. (Meyers, dissenting), per are "not However, race. J.E.B. undermined Id. for suaded that the United States Constitution rationale. Minnesota Court's prospective jurors bids removal faulty Despite Minnesota Court's belief religion.” Dissenting op. on account of their race, J., the United States dissenting). Judge Batson was limited to pg. (Meyers, Neither Meyers dispute certiorari. Davis Judge Court denied McCormick nor Minnesota, U.S. -, -, protec - J.E.B. attached Batson’s constitutional heightened (1994). Although tion to which classifications warrant See, equal protection scrutiny. - U.S. imports expres no denial a writ certiorari Further, Judges at 114 S.Ct. at 1425. case, opinion upon merits and of sion not, Meyers and do indeed can McCormick not, and accompanying opinions of certiorari denial religious are contend classifications effect as decisions on do not have the same subject heightened equal protection scru merits, Lane, Teague Instead, ignores tiny. Judge J.E.B. and each 1060, 103 L.Ed.2d Judge expresses personal his view of Batson. and Thom it should be noted that Justices Scalia urges experiment McCormick "that social certiorari, arguing: to the denial of as dissented (1) Dissenting Batson be aborted ...” started in holding be va the Minnesota Court’s should Meyers op., pg. Judge believes Batson it was based on the traditional cated because gender. and should be limited to race Howev discrimination; Batson to racial restriction of er, accepted Judge, either even if we view of and, (2) equal "heightened reliance on J.E.B.'s Supreme does not. The it is clear the Court scrutiny” opened the to a protection door broad Equal Supreme Court is the final arbiter equal application protection than race and of er Amendment Protection Clause of the Fourteenth Davis, U.S. at -, gender - discrimination. judges Constitution. As of the United States 114 S.Ct. at 2121-2122. Court, apply we are bound this honorable jurisdictions Bat- have extended Several other interpreted as United States Constitution See, ethnicity religion. protection to and son Court; luxury we not have the do Alen, (Fla. 1993); People v. 616 So.2d 452 State Snow, binding precedent. ignore liberty 216, 477, Cal.Rptr. P.2d Cal.3d and, Gilmore, (1987); 103 N.J. rejected State v. 11. The Minnesota Equal A.2d 1159 n. 3. attempt Clause to to extend the upon religion Id., heightened equal 1424-1425; are “freedom of conscience.” protection scrutiny. and, 1663, reprinted R.I. Charter of 2in Constitutions, Federal and State Colonial

A. Charters, Organic and Other Laws of the government (B. Our democratic arose from a United States 1595-96 Poore 2d ed. period religious 1878). of severe discrimination. religious policies These toleration England suppressed religious all affiliations predecessors today’s viewed as consti- Anglican other than those with the Church. provisions regarding religion. tutional The McConnell, Origins Michael W. and Origins Understanding and Historical Understanding Historical Free Exercise Religion, supra, Free Exercise 1424- Religion, 103 Harv.L.Rev. of (1990). 1425. The framers of the United States religious groups Other were forbid- incorporated Constitution substantial reli- beliefs, practice den to imprisoned their gious protections into art. VI and the First beliefs, practicing their and barred from Amendment of the United Constitu- States Id.; and, holding public office. The Test Act prevent religious discrimination.12 (restricting public Car. ch. 2 Const, Id., 1515-16; VI; art. military Anglican office to church mem- Const., amend. I. Art. VI and the First bers). Therefore, many religious groups prohibited discriminatory Amendment have sought religious tolerance in the American upon classifications based an individual’s reli- Origins colonies. The and Historical Un- gion seventy-five years pri- since some derstanding Religion, Free Exercise adoption or to the of the Fourteenth Amend- However, supra, religious at 1422. discrimi- ment and its Protection Clause. nation flourished on this continent as well. Const., with, Compare, U.S. amend. I statutorily The Puritans Baptists banished (ratified 1868). Const., amend. XIV territories, England jailed from the New seventy years ago recognized Almost we expelled religious other dissenters. Id. prohibited Protection Clause dis- Virginia Anglican horsewhipped, Church criminatory upon classifications based reli- jailed prevented religious groups gion. Juarez v. 102 Tex.Crim. Id., Further, preaching. from at 1423. New (Tex.Cr.App.1925). S.W. 1091 Juarez moved Jersey attempted York and New to enforce quash his indictment because Catholics intolerance, Anglican failing only because of prevented serving grand jurors were Id., religious their diverse constituencies. religious because of their belief. The trial judge overruled Juarez’s motion and we re- Carolinas, Delaware, Maryland, Penn- versed. sylvania, and responded Rhode Island to re- ligious by adopting policy bringing pro- discrimination about a violation of the religious Amendment, guaranteed toleration which visions the Fourteenth "religious private power 12. Article VI forbids the use of tests” actor. The exercises the “public government to exclude citizens from trusts.” U.S. of the court and of the that confers Const, VI, jurisdiction juiy system art. cl. 3. The classifi- the court’s [T]he religious cation of individuals performs governmental the critical functions of belief is such a test. The guarding rights litigants insuring however, challenge, allows to be used as acceptance the continued of the laws all of Swain, juror competence. a "test” for 380 U.S. people. 220, (positing religion at 85 S.Ct. at 836 that is a Edmonson, 624, 500 U.S. at 111 S.Ct. at 2085 removing routine basis for veniremembers on (citations omitted). quotations and internal In- See, Gilmore, arbitrary grounds). State v. 103 deed, imagine it difficult to a more sacred 508, 1150, (1986) (Per- N.J. 511 1167-1168 A.2d public proper adjudication trust than the a emptory challenges exercised Blacks criminal case. assumption predomi- based on the that were provides Congress The First Amendment nantly Baptists was a clear indication of prohibiting shall make no law the free exercise of bias, religious.) both racial and Const., religion. U.S. amend. I. The First Further, applicable through Amendment is to the states Supreme Court has classified duty public highest the Fourteenth Amendment. Cantwell v. Con- necticut, as a trust of the order. 900, 903, ¡The quintessen- entity 310 U.S. 60 S.Ct. 84 is] ... that is a governmental body, having tial no attributes of L.Ed. 1213

477 scrutiny the uncon indirectly through review remains do its offi- Strict state cannot evaluating government agents cers or that which it could do tested standard for Legisla- In legislative religious freedom. directly by infringements act. If the City pass saying Aye law Babalu ture of the state should a the Lukumi Church 2217, Bap- Hialeah, 124 holding that hereafter no man 113 508 U.S. S.Ct. faith, (1993), religious tist or the Methodist reli- Court con 472 L.Ed.2d faith, gious permitted constitutionality municipal should ever be of five sidered state, grand jury cruelty, a and a serve on this prohibited animal ordinances which adhering faith party religious animals, to the so and the ritualistic sacrifice legis- such designated should claim that zoned slaughter outside of areas of animals at -, his Fourteenth rights Id., lative act under the slaughterhouses. 508 U.S. violated, validity Amendment had been municipal ordi 2223-2224. 113 S.Ct. at a law never sustained. of such could be shortly Lukumi passed after nances were Inc., Church, Aye, a leased Juarez, Babalu Santería 277 S.W. at 1094. plans city property within the and announced B. Id., worship. a 508 U.S. to establish house Verner, 83 Sherbert at -, integral part 2223. An 113 S.Ct. at (1963), the Court S.Ct. L.Ed.2d religion is sacrifice of Santería constitutionality of a South considered rites, “birth, marriage, at and death animals Carolina statute which allowed the State Un sick, for the initiation of for the cure deny employment Commission to benefits to during an priests, new and members Seven-Day-Adventists of their reli because Id., U.S. annual celebration.” Id., gious Saturday prohibition of work. 374 113 2222. The Santería Church at at U.S. at 1791-93. The relief, contending sought declaratory the mu practice Court held freedom hold or nicipal Free Exercise ordinances violated the religious beliefs is a fundamental sub Id., 508 in the First Amendment. Clause Id., ject scrutiny to strict review. -, at 2224. Su U.S. at 1793-94. The held 83 S.Ct. at Court preme held: it bur statute unconstitutional because religious practice burdening A law group’s dened a exercise free general application is not neutral or not of justified by govern “compelling was not undergo rigorous most of scruti- must Id., ment interest.” U.S. at ny. satisfy of the First To the commands S.Ct. at 1793-1796. Amendment, religious a law restrictive of Valente, In Larson v. practice must advance interests the Su narrowly highest order must tai- preme Court considered Minnesota statute pursuit lored in of those interests. The required religious groups which all who did apply that we compelling interest standard fifty per not receive cent of their donations really says. ... A law means what organizations from members or affiliated religious targets conduct distinctive Id., report. file an annual extensive legitimate govern- or advances treatment 231, 102 argued S.Ct. at Valente only against interests conduct with mental statute violated the Protection Clause. motivation survive strict will review, Using scrutiny a strict It in rare cases. follows “failed demonstrate Court held Minnesota already we said that these from what have fifty per ‘closely rule cent scrutiny. cannot ordinances withstand ‘compelling governmental fitted’ further ” Id., Id., at 2233 508 U.S. at interest.’ omitted).13 (citations quotations Div., Commissioner, also, Security Employment Bd. Ind. v. U.S. Review See Hernandez of 1425, 1432, 2148, 707, 718, 680, 699, 2136, 67 L.Ed.2d L.Ed.2d 766 U.S. 101 S.Ct. 109 S.Ct. 104 618, (1981); Paty, (1989); Appeals Unemployment 624 McDaniel v. 435 U.S. 626- Hobbie v. 29, 1322, 1327-29, Fla., 141, 136, S.Ct. 55 L.Ed.2d 593 U.S. 107 S.Ct. 98 Comm’n 480 of Yoder, 205, 215, 1049, (1987); (1978); 1046, U.S. v. Wisconsin v. 406 94 L.Ed.2d 190 Thomas right religion impairment right of that to strict to the free exercise of any scrutiny Consequently, unquestionably right a fundamental review.14 we hold the 1526, and, 1533, (1972); applies 92 S.Ct. 32 L.Ed.2d 15 review to violations of a fundamental States, 437, 462, Carter, 134, 142-45, Gillette v. right); United Bullock v. 405 U.S. 828, 842, (1971). 28 L.Ed.2d 168 849, 855-56, (1972) 31 L.Ed.2d 92 92 S.Ct. Further, Religious (strict Freedom Restoration abridgment scrutiny applies review to 1993, Act of P.L. 107 Stat. 1488-89 vote); right Shapiro Thompson, fundamental to v. (RFRA) defined exercise as fundamen- 618, 629-31, 1322, 1329, 394 U.S. 89 S.Ct. right applied scrutiny tal strict review to (1969) (strict scrutiny applies review L.Ed.2d 600 infringements right. Accordingly, RFRA on this travel); abridgement right to to of fundamental expressly guaranteed scrutiny a strict review to Rhodes, 23, Williams v. 5, 10-11, 393 U.S. any infringement right religious free- of the (1968) (strict scrutiny 21 L.Ed.2d 24 dom: Amendment); applies to violations of First review and, Constitution, recognizing The framers of the Nowak, Ronald D. Rotunda & John E. Trea- religion free as an unalienable exercise of Law: Substance and Pro- tise on Constitutional right, protection secured its in the First 18.3, 1992). (2d § cedure at 15-19 ed. [There- Amendment to the Constitution ... fore,] [g]ovemment substantially shall not bur- rights guaranteed by the First 14. At times the person’s religion if the den a exercise of even guaranteed Amendment become fused with those general applica- burden from a rule of results City v. the Fourteenth Amendment. R.A.V. bility applica- ... that [unless] it demonstrates Paul, Minnesota, 377, 385, St. 505 U.S. 112 S.Ct. (1) person tion of the burden to the is in 2538, 2544, (1992) ("This 120 L.Ed.2d 305 Court government compelling furtherance of a est; inter- (2) occasionally fused the First Amendment itself has is the least restrictive means of furthering compelling government Equal Clause ... but at least inter- into Protection est. acknowledgment with the ... the First Thus, Congress Supreme Id. has codified the analysis."). underlies its The most Amendment right Court’s historical treatment of the to reli- example Amend often cited of the fusion of First gious freedom. rights ment into the Fourteenth Amendment is Finally, applies strict scru- Court Mosley, Dept. City Chicago Police v. 408 U.S. tiny any review to violation of a fundamental 2286, 92, 33 L.Ed.2d 212 Mose See, right. Planned Parenthood Southeastern ly sought declaratory judgment Chicago's 833, 863-902, Casey, v. 505 U.S. 112 S.Ct. Penn. picketing was unconstitutional. The ordinance 2791, 2813-33, (1992) (applying 120 L.Ed.2d 674 prohibited picketing feet of ordinance within 150 equal protection scrutiny strict to a woman's except peaceful picketing any school a school liberty preg- interest terminate fundamental dispute. involved in a labor Paul, Minnesota, nancy); City v. St. R.A.V. Equal held the ordinance violated the Protection 377, 4, 2538, 384-85 n. 112 S.Ct. 2543-44 Amendment, stating: Clause and the First 4, (noting in consti- n. 120 L.Ed.2d 305 the need jurisprudence "fuse” the First Amend- tutional equal protection ... claim in this case is Clause); Burson ment with the closely in- intertwined with First Amendment Freeman, 191, 3, 504 U.S. 197 n. 112 S.Ct. terests; Chicago picket- ordinance affects 1846, 1850-1851, 3, (1992) n. 119 L.Ed.2d 5 conduct; moreover, ing, expressive which is (plurality opinion) (observing interchangeability in terms does so classifications formulated Protection Clause and First Amend- picketing. subject of applying scrutiny strict re- ment rationales also, Id., 95, See 408 U.S. at 92 S.Ct. at 2290. view); Michigan State Chamber Austin 268, 272, Maryland, 340 U.S. Niemotko v. Comm., 652, 666-67, 1391, 110 S.Ct. 325, 327-328, (1951) ("... L.Ed. 267 (1990) (holding that strict 108 L.Ed.2d 652 laws, right equal protection of the [T]he abridge- scrutiny necessary analyze review speech exercise of those freedoms of political Amendment ment of the First protected by the First and Fourteenth Amend- Union, UAW, Lyng expression); v. International ments, than the whims has a firmer foundation 1184, 1189, 485 U.S. 108 S.Ct. opinions governing personal of a local (1988) (recognizing heightened L.Ed.2d 380 body."). Additionally, Lyng v. International scrutiny any equal protection attach to would Union, UAW, 1184, 99 108 S.Ct. infringement Right Amendment of the First L.Ed.2d 380 the Court stated: Brown, Association); Carey 459- Although challenge in that case was 2286, 2289-91, L.Ed.2d 263 100 S.Ct. solely equal protection grounds, brought (1980) (strict applies to First review Amendment, the Court and not under First violations); speech” "free Massa- Amendment statutory obliged was to decide whether Murgia, 427 U.S. chusetts Board Retirement v. should be reviewed under a classification 307, 312, 2562, 2566, than mere rational-basis re- stricter standard (1975) (strict scrutiny applies review to violations burdenfe] view because it ... a fundamental right); School of a fundamental San Antonio 1, 16, right. Rodriguez, 411 U.S. District v. Id., (1973) (strict scrutiny 108 S.Ct. at 1189. 485 U.S. at pg. 23. The State Brief Equal Protection Clause the Fourteenth strikes.” State’s contends, peremptory prohibits agree, we that perempto- Amendment the use of a and “qualified for a ry challenge religion challenges fiirther our need on the basis absent a to jury,” parties compelling governmental impartial and and enable the interest.15 bias. upon possibility act ascertain and IV. that pg. agree we Brief 26. And States impan- peremptory challenges facilitate the COMPELLING GOVERNMENTAL jury. eling impartial and unbiased of an INTEREST However, Brief, pg. as the Su- State’s 27. preme noted in A. assessment, do not making we

Having that classifi- In found challenges weigh religion require height- peremptory value of upon cations based review, com- equal protection must as our asserted ened we now an institution to invidious discrimina- decide whether the State has demonstrated a mitment eradicate Instead, governmental con- compelling the courtroom. we interest dis- from challenges criminatory peremptory challenge use of a sider whether stereotypes [religious] provide religion. The interest the basis as- litigant’s se- by the aid to a efforts to [essential] serted State the instant ease is jury.16 importance impartial cure fair and historical a “[t]he states, Meyers organization. Judge only significant 15. "... of all the rules of an Urbano State, genuine religious (Tex.Cr.App.1992). matter that members of a faith 837 S.W.2d ly have in common is belief in their certain Judge ignores Finally, Meyers rationale doctrines, Dissenting principles, Op., or rules.” Peremptory reasoning and and J.E.B.. Batson pg. This all 491. statement assumes that mem subject challenges of a to of members class religious group accept a and bers of subscribe to heightened protection scrutiny equal the basis teachings religion. the formal of their Conse constitutionally personal of their beliefs are not Judge quently, Meyers argues stereotypes prohibited long to those beliefs are related religious groups may so are accurate be and relied Batson, particular being case tried. determine attitudes and beliefs of the However, belong groups. individuals who to those There fore, Judge Meyers believes chal stereotype the basis of exercised on lenges religious stereotypes based on should be heightened equal subject a class attributed to Dissenting Op., permissible. pp. 491-92. This protection scrutiny prohibited. We believe are First, argument faulty for several reasons. Court; teaching this is if the true perpetuates stereotypes. the use of personal atti the veniremember beliefs or holds clearly prohibits the Protection Clause use of unacceptable, tudes that veniremember peremptory challenges on of a the basis stereo However, challenged. peremptorily heightened type subject attributed to a class prohibits peremptorily Protection Clause - equal protection scrutiny. U.S. at challenging a member of class -, stereotyping at 1425. Such re heightened equal protection scrutiny based on progress tards our efforts as multicultural assumptions stereotypical attributed class. to that Edmonson, society. assumptions, make Rather than unfounded ignores Secondly, Judge Meyers at 2088. litigants question the venire as to their should individuals, jurors the axiom sit as not as properly will conducted voir dire beliefs. Such J.E.B., - representatives particular group. aof making potential jurors, litigants inform about -, J., (Kennedy, U.S. at 114 S.Ct. at 1434 upon stereotypical pejorative no and reliance concurring). Thirdly, Judge argument Meyers’ particular religion unneces tions about a both every cannot mem fallacious. One assume J.E.B., sary unwise. of a certain believes the resolutions ber case, the indi S.Ct. at 1429. the instant had For and views of their leaders. exam questioned about been vidual veniremembers although ple, the Catholic Church condemns the expressed unacceptable a belief beliefs see, contraceptives, Bromley, use of artificial when viewed in relation to and, (1965); Control 3-4 Catholics Birth case, they peremptorily chal instant could have Maddox, Pope Contraception, 29 lenged. the venire- Under those circumstances of the members of the Catholic Church 84% the basis would have been excused on members use believe catholics should be allowed to artifi stereotypi personal not on a of their beliefs and contraceptives. Gallup, Gallup cial Poll: religion. assumption cal based on their Opinion (Wilmington, Del.: Public Resources, 1994). context, Scholarly In another - J.E.B., at 1425. we concluded that it would be irrational con simply Although membership Court conducted clude that one aware J.E.B., — at -, stereotypical pejorative notions about a 114 S.Ct. at U.S. (footnotes omitted). unnecessary and particular [religious group] 1425-26 —Id., at -, at S.Ct. unwise.” U.S. reason, much The State offers no However, of such venire- the exclusion reason, compelling justify the dis- less a held upon be based bias members must criminatory classification of veniremembers veniremember, perceived not a the individual religion. As with race and basis solely result of the arises as a bias which gender, religious affiliation is not an accurate race, gender religion. veniremember’s predictor jurors’ attitudes. As the Su- See, 15, supra. n. preme Court stated: heterogeneous society policy ... In our VI. mi- as well as constitutional considerations assumption litate the divisive a CLAIM PRESERVATION OF —as per justice in a court of law se rule —that developed pro a Supreme Court has upon pigmentation may turn of the present of violations of the cedure to claims skin, birth, choice the accident of or the Equal Protection Clause when religion. of race challenges are exercised on the basis McCollum, gender. this framework at at 2359 or We believe S.Ct. Ross, added, applied peremptory chal (emphasis quoting Ristaino v. should be when 1017, 1021, lenges allegedly used to discriminate on n. n. are U.S. S.Ct. (1976)). religion. prove a violation of Consequently, we the basis of To Clause, litigant may proxy Equal Protection must religion simply hold not serve as a See, prima showing of discriminato constitutionally prohibited for bias. make a facie — at -, upon religion. Bat ry based S.Ct. at 1480. classifications son, at 1723. B. made, prima case is the burden Once a facie provide opposing party to reli shifts to the prohibition Protection Clause’s for gion-neutral reasons peremptory challenges upon religion based justification need not challenge. Id. Such a peremptory chal- does not herald the end of cause; challenge for level of a rise to the eloquently lenges. Court As McCollum juror merely must be based on a rather it stated: religion, other than characteristic will do not believe that this decision We pretextual. proffered explanation not be peremp- of the undermine the contribution York, 352, 111 v. New Hernandez jus- tory challenge administration of to the 1859, 114L.Ed.2d 395 Nonetheless, stereotypes ... “if tice. jury panel price acceptance VII. today such a as fair” we reaffirm “price high meet the standard of is too CONCLUSION It is an affront to the Constitution.” prohibited any constitutionally As with justice argue that a fair trial includes basis stereotype, the use right to discriminate.... challenge harms exercising McCollum, 57, 112 505 U.S. at ju- and the veniremember both the excluded Edmonson, 629-31, 111 (quoting 500 U.S. at religion- system. If we were to allow dicial 2088). challenges, Equal Pro- guarantee that fundamental challenge tection Clause’s may still veniremembers

Parties as indi- government will treat Americans prone to bias than they feel are more whom stereotypical components rather than panel. As the viduals other members of the meaningless. A would be properly of a class stated racial, representative of a litigants juror sits not as a “can inform conducted voir dire as an individual religious, but jurors, making reliance sexual potential about review, appropriate case. scrutiny in the instant review is a strict an intermediate citizen. J.E.B., focus completely lose our do not So we case. J., here, (Kennedy, briefly individ I set out the facts concurring). The opportunity participate twenty-one-year-old ual citizen’s shows The evidence justice sexually fair administration is fundamental his friend assaulted appellant and system democratic and reaffirms our nev- girl, testified she fourteen-year-old who promise per All equality under the law. to this prior er sexual intercourse had had sons, granted the to serve opportunity when assault, appellant During the incident. jury, on a have the not to be excluded once, he the victim more than threatened summarily because appellant’s punched in the nose and her stereotypical presumptions that reflect and Appel- knife. her shirt with a friend cut off patterns reinforce historical discrimina horrible unspeakably his friend did lant and — J.E.B., tion. child-victim. things to the par persons are 1428. When excluded assertion, the Contrary majority’s to the ticipation processes in our be democratic actually in this reflects race, record case religion promise voir dire gender cause of dims, integrity our struck of the venire- equality prosecutor and the one — judicial system jeopardized. cur she had “a brother members because at -, 114 penitentiary, was a rently in the Texas she postal expressed and she discomfort clerk judgment Appeals The Court of regards of a sexual assault with the law as this case to that reversed and is remanded State, child.” Casarez 857 S.W.2d proceedings Court for further consistent with 1993). (Tex.App. prosecu Worth — Fort opinion.17 other veniremember because tor struck the CLINTON, J., joins opinion arrested, incorrect had been he his “brother Court, observing that well as this decision as juror questionnaire, and the ly completed his others Court serve to render during prosecu voir questioning dire left Tex.Code art. obsolete Crim.Proc.Ann. some impression that he was tor with the 35.261, Legislature so the be well ad- would prosecutor struck both slow.” Id. what to revise the same. vised they were also veniremembers because explained The prosecutor Id.

Pentecostals. MALONEY, J., experience, concurs in the result. on his Pentecostals that based difficulty assessing punishment. often had McCORMICK, Presiding Judge, record, chal Id. On this dissenting. proper, and this Court does lenges were should be to decide whether Batson need being attempting risk of At the accused “religious-based” peremptory extended progress retard “efforts to as a multicul- Kentucky, 476 challenges.1 Cf. Batson v. society,” majority opin- I tural dissent. The (1986); 90 L.Ed.2d represents yet step ion another backwards (Tex.Cr. State, 827 S.W.2d 866-68 Hill important insuring business of fair trials denied, (plurality op.), App.) cert. perceived to be in criminal cases what is (1992) 297-98, 121 905, 113 L.Ed.2d good” of do “greater making people sure (race coexisting properly be a factor peremptory challenges exercise thoughts. with a nonracial reason for improper McCormick, But, discussing degrees, expend pages varying Judges we more than 50 17. To Campbell and White believe the instant case Equal these facts violate the Protection whether (Tex. Amendment, and, Hill 827 S.W.2d controlled Cr.App.1992). more Clause of the Fourteenth However, before that issue is not challenges specifically, whether the 3, supra, this the reasons stated in n. us. For constitutionally improper ster- were based on Appeals’ hold opinion is limited to Court of eotype Pentecostal the veniremembers' about ing does not that the Protection Clause faith! challenges prohibit the use of remand, religion. Upon Court of basis of extent, any, if Appeals to consider what is free plurality opinion applies. in Hill our Casarez, strike); (Hop Religious-based peremptory at 788-89 do S.W.2d kins, J., concurring). governmental preferring action not constitute therefore, another; one over Larson majority’s apparent I also dissent majority’s support holding. offers no for the holding religious-based peremptory chal- Alabama, U.S. -, But see J.E.B. v. lenges to strict review under the Clause applicable

Fourteenth (1994) Amendment. (Scalia, J., dissenting). rule is that “unless a classification warrants majority v. The relies on Juarez also heightened form of because some review it (1925). only 277 1091 stands S.W. Juarez jeopardizes [the] exercise of a fundamental may systemi- proposition a categorizes that state right or of an basis inher- characteristic, ently suspect Equal religious cally groups Pro- exclude all members requires only tection Clause that classifi- Juarez, jurors. serving grand from ever as rationally legitimate cation a further state factually 277 at 1094. distin- S.W. Juarez Hahn, Nordlinger 1, interest.” v. 505 U.S. addition, guishable from this case. Jua- 10, 2326, 2332-33, 112 S.Ct. reviewing no rez contains standard reli- (1992).2 classifications, purposes gious and the for the majority religious- seems to find that religious in Juarez would not classifications peremptory challenges based violate the relationship” withstand even a “rational stan- triggering First Amendment a strict dard of review. Bankers Cas. See Life majority mostly review. relies Unit- Crenshaw, 71, 82-84, 486 U.S. 108 Co. ed States First Amendment Court (1988) (sin- 1653, 1645, 62 S.Ct. 100 L.Ed.2d dealing cases with statutes that burdened a gling cognizable group arbitrary a in an out group’s religion. free exercise Howev- of its Equal and irrational fashion violates Pro- er, case, not, majority in this does tection under the most deferen- Clause even cannot, explain religious-based peremp- how review). tial standard incidentally, tory challenges, directly bur- or religion. den the free exercise of See John- challenges Religious-based do peremptory Robison, 375, 361, 415 94 son v. U.S. S.Ct. not violate the or Free Establishment most, 39 At Amendment, First Exercise Clauses of the appellant can show that some members any religious and it has never held that been religious groups of some excluded deserving special “suspect group is a class some, juries all, sitting on but not judicial protection” for Fourteenth Amend- And, cases. the stricken veniremembers purposes. ment See Massachusetts Bd. of offered no the exercise this case evidence 313, 307, Murgia, 96 Ret. v. 427 U.S. S.Ct. religion any way was in affected (1976) (a 2562, 2566-67, 49 L.Ed.2d 520 “sus- strikes.3 one such pect class” is “saddled with disabili- Valente, majority also cites Larson ties, history subjected pur- to such L.Ed.2d U.S. treatment, unequal relegated poseful (1982). Larson a Minnesota held statute position political powerlessness such a preference granted a denominational im- extraordinary protection from to command plicated the Establishment Clause Johnson, majoritarian political process”); pre- Amendment the statute First because 94 S.Ct. Larson, “one another.” ferred over Therefore, religious-based per- I hold at 1684-89. would challenges inapplicable simply peremptory ex- Protection 2. Most U.S. case). opinions discussed in the various here any particular cases ercised in statutory generally dealt with classifications cognizable groups. ap- difficult to affected It is prove Appellant burden to assumed the challenges ply these cases to exer- peremptory challenges the exercise of burdened Batson, See, single e.g., trial. U.S. cised in religion, and he has not met the veniremembers’ C.J., (Burger, at senting) at 1737 dis- this burden. (traditional analysis equal protection 128 L.Ed.2d emptory challenges are not to strict 1994) (Batson to reli (May not extended scrutiny review.4 challenges); cf. gious-based Also, history religious because the dis — 1429; J.E.B., at -, Country occupy in this crimination does — but see as the and sex plane history same of race (Batson (Scalia, J., applies dissenting) discrimination, religious- I would hold on a clas challenge based any peremptory challenges re should be scruti “heightened sification that accorded exacting a less standard than viewed under Clause ny” under scrutiny, and either strict or intermediate religious include presumably would “which obtaining valuable party’s belief’). Therefore, peremp religious-based jury, party impartial fail- and and a challenges exempted from tory should be impartial, justifies the use believes is fair and “special rule of relevance” of Batson and the based on extending spawned subsequent cases Davis, Davis, stereotypes.5 State See rule to other situations. See denied, (Minn.1993), cert. N.W.2d 767 at 771.6 N.W.2d exacting THAN majority apply 4. errs to A LESS EXACTING STANDARD also a more DER ap- religious-based peremptory standard of review to challenges HEIGHTENED SCRUTINY. This standard (strict scrutiny) ap making parently than the standard is the line drawn in the sand for (inter plied peremptory challenges lawyers explain strikes; peremptory to sex-based the reasons for their Alabama, therefore, scrutiny) unnecessary mediate J.E.B. v. is decide it to - U.S. -, -, 1419, 1425, scrutiny applies 128 L.Ed.2d to exactly which standard of J.E.B., (1994). According history to of dis challenges. religious-based peremptory This Country against in this women is a crimination opinion ad- also concludes this Court need not history close second to the against of discrimination plurality opinion the issue the addresses dress people heightened justifying black disposition unnecessary because it is to the peremp of review standard to sex-based case; petition this Court should dismiss the this tory challenges. respect See id. to With grant- discretionary improvidently review as practices, has not selection Briggs Cf. S.W.2d 806-807 ed. yet decided which is three in this number (constitutionality (Tex.Cr.App.1987) of a statute hierarchy preferences. of racial and See sexual determi- not be determined unless such a should Weatherspoon, 514 State v. N.W.2d absolutely necessary case to decide the nation (Randall, J., (Minn.App.1994) specially concur raised). issue is in which the ring). opinion opinion plurality this also asserts application "analytical concedes its of J.E.B.’s However, Juarez, 5. dif under Crenshaw and opinion makes framework” is "correct.” This conceptualize peremptory how chal ficult to lenges because, Judge Meyers, I no such concession like any group stereotype would not really "analyt- am not sure I understand J.E.B.'s Equal Protection a rational violate even under What about J.E.B. ical framework.” I do know of review of that basis standard since members practice party used is that it addressed where being singled arbitrary group are out "in an and men, Su- all its strikes on and the Batson, fashion.” See 476 U.S. at irrational history preme Court relied on the of discrimina- C.J., (Burger, 106 S.Ct. dissent country against to condemn tion in this women (traditional ing) equal protection analysis has no peremp- practice and to that announce sex-based application peremptory challenge to the because challenges tory violate Amend- the Fourteenth arbitrary capricious right); it is an but see "analytical apply to ment. Were I J.E.B.'s U.S. at -, J.E.B., (per - 114 S.Ct. at 1429 framework,” I would the Constitution conclude challenges stereotypes emptory based on sexual my personal own More reflect views. should scrutiny equal analysis heightened protection fail J.E.B., guise importantly, under substantially an im because do not further Protection, supports proposition that dubious interest, portant government parties may but still challenges parties not use their stereo based on exercise single arbitrary irrational fash- out in types groups subject a "ra members of about parties may do groups, of some but ion members review). appears, with It at least tional basis” respect groups subject respect so with to members of practices, some selection - J.E.B., U.S. at basis" review. a "rational equal groups. groups than See are more at 1429. ask whether this I must id. longer Fourteenth Amendment no also means the passing single ten, prohibits out states laws plurality this dis- asserts Footnote arbitrary groups in an members of these latter senting opinion cannot contend See, Plessy Fergu- e.g., fashion? heightened and irrational scru- are not classifications tiny. son; HOWEVER, OPINION, Virginia, v. West CON- Strauder THIS infra. Also, plurality erroneously asserts this dis- PEREMPTORY CLUDES RELIGIOUS-BASED ignores binding precedent. senting opinion It UN- SHOULD BE REVIEWED CHALLENGES Clause, purposes for which and the valid urge experiment I the social also aborted, and that both challenges presently started Batson be are exer parties in a criminal case be allowed the pervert progeny and its cised. Batson peremptory chal free use of their traditional equality racial and an Country’s quest for — J.E.B., at -, lenges. See U.S. impor really legal segregation end to (O’Connor, J., concur 114 S.Ct. at 1431-33 misguided into a public life tant affairs (Scalia, J., dissenting); see ring), and at 1437 private of which counter-productive exercise Weatherspoon, 514 N.W.2d at 270- generally tolerate, and thoughts the Constitution will necessary help insure fair 301. This is thoughts it will not tolerate. private which juries in criminal impartial for both sides — at -, J.E.B., See cases, supposed to be one of the which still (Scalia, J., dissenting). trial.7 paramount goals of a criminal See purpose of the Fourteenth The central 114 S.Ct. at Equal “is Amendment’s Clause (O’Connor, J., concurring); 1431-33 Weather conduct discriminat- prevention of official Fair criminal spoon, 514 N.W.2d at 270-301. Washington v. ing on the basis of race.” important trials are too to the administration Davis, justice in for the kind of non this State (1976).8 Protec- progeny promote. sense Batson and its See prevent disparate is intended to Weatherspoon, 514 N.W.2d at tion Clause by all the resources of a state of treatment read in progeny and its should be Batson cognizable groups which is “motivated racial Country’s history racial dis- light of this “purpose or a by racial considerations” crimination, precedents upon which and the Davis, 426 segregate.”9 intent history light relies. In the of this Batson 240, racially An “invidious” 96 S.Ct. at 2048. proge- its precedents, and these Batson and segre- discriminatory purpose or an intent to fundamentally they ny flawed because Equal implicate Pro- Equal gate Protec- must exist ignore purpose the real groups for binding precedent, juries members of various of because there is no does not discriminatory purposes any. plurality to the dishon- plurality cited invidious and the has not religious-based obviously guilty allowing purpose how of an still has not demonstrated orable rights challenges fairly Amend- peremptory ment, violate the First defendant to assert the and tried per- groups the cases cited in Footnote fourteen who were not members of various support plurality opinion of its "fusion in emptorily stricken for invidious holding analysis” support because even do not its Extending purposes. to other situations Batson occasionally though Supreme Court "has beginning impose a burden on this state’s Pro- resources, the First Amendment into fused judicial especially when one under- Clause"; it has done so because “the tection generally nothing has to do stands that Batson analysis." its R.A.V. First Amendment underlies a fair a defendant has received with whether Minn., 377, 385, Paul, 112 City 505 U.S. v. St. dissenting opinion suggests the Con- trial. This (1992) (the 120 promote a not be used to social stitution should government’s is not a interest reason nothing agenda really to do with the has legitimate Amend- one that it violates the First Country's this To do so trivializes Constitution. ment) plu- (Emphasis Supplied). Central to the struggle racial histoiy to end invidious religious-based perempto- rality's analysis is that discrimination. Amendment, ry challenges implicate but the First explained plurality how. still has recognizes majority use of also the free 7. The suggests, dissenting opinion re- Finally, this challenges impaneling "facilitate the promoting spectfully this and in the interest However, impartial jury.” and unbiased of an providing legitimate fair and interests in State's qualify compelling governmen- this does not as a impartial juries in criminal cases to both sides interest! tal obviously protecting from the its citizens guilty, That that Batson should reexamined. Appeals, 847 8. Cf. v. Fourteenth Court Lanford why opinion the facts of the case. sets out 581, (primary (Tex.Cr.App.1993) S.W.2d law, powers and to a certain extent pro- interpretation goal of a constitutional Constitution, granted governments under the give appar- effect to the vision is to ascertain and protect the obvious- citizens from are intended it). adopted ent intent of the voters who Batson, however, guilty, appellant. ly like this fairly obviously guilty defen- tried entitles sys- state-sponsored, Historically, this meant though 9. not been even have dants to relief people. See black temic discrimination honorable traveled from the harmed. We have Juarez, at preventing systemic 277 S.W. purpose exclusion Davis, challenges even where See at 238- of its tection Clause.10 U.S. 44, actually “Discriminatory at 96 S.Ct. 2047-49. the defendant’s race members of implies See, “more as voli- purpose” than intent jury. e.g., Keeton v. serve consequences;” tion or intent as awareness of 861, (Tex.Cr.App.1988); 862-63 749 S.W.2d implies sovereign “selected Texas, 398, 405, 65 v. 325 U.S. but cf. Akins in particular reaffirmed a of action course (1945). 1276, 1280, L.Ed. of, of, not its part merely spite because in effect, say progeny, its now Batson and group.”11 effects adverse identifiable party to Equal Protection for a it violates Personnel Administrator Massachusetts solely peremptory challenges based exercise 256, 278-80, Feeney, 442 aban stereotypes, and sexual which (1979) (internal racial inquiry omitted). Equal Protection dons the traditional quotation marks peremptory challenges are mo into whether this under Batson seemed reaffirm discriminatory purposes. tivated invidious standing be Protection Clause See only attempted cause Batson to lessen a But, extension of 1426-30. Batson was an proof establishing defendant’s burden Virginia, 100 U.S. Strauder West prima facie case of discrimi invidious racial a West L.Ed. 664 which invalidated prosecution’s peremp nation in the use of its peo Virginia statute that excluded all black tory pri- than under what existed ple impanelment initial of the venire from the Batson, or law. See Alabama, pool. Swain See also Batson, S.Ct. at 1716-25. the defendant L.Ed.2d black, prosecution peremptorily was overruled, And, Swain, which Batson later veniremember, every struck black per practice prosecutors addressed a where “jury composed only of persons was white every every Batson, emptorily person struck black selected.”12 person no black ever sat on Now, Batson, case so that at 1715. at least under Swain, petit it, jury.13 See U.S. at interpreted as this Court has a defendant 837-40; Weatherspoon, see prima can make a of invidious 85 S.Ct. at also facie case prosecution’s racial use relies discrimination 514 N.W.2d Even J.E.B. Bolden, Mobile, Alabama, prosecutor See also But in a City charged. when the crime 55, 62, 1497, case, county, 446 U.S. 100 64 S.Ct. whatever the circum- in case after (1980); Village Arlington Heights stances, L.Ed.2d 47 the whatever the crime and whoever be, Metropolitan Housing Corp., Development responsible victim defendant or the is 252, 266-67, 564-65, U.S. S.Ct. Negroes been for the removal who have qualified jurors by jury as the commis- selected challenges for and who have survived sioners generally apply 11. These considerations to indi cause, Negroes with the result that ever serve no cognizable "though groups well as viduals as the Fourteenth Amendment petit juries, on are disabilities sometimes the mechanism (Citation significance. added claim takes on Omitted) by right which the State violates the individual circumstances, giving In these even J.E.B., - U.S. at -, question.” 114 S.Ct. at leeway operation the widest to of irrational the J., (Kennedy, concurring). suspicions antagonisms, it but trial-related and appear purpose peremp- the would that of the Ohio, 429- 12. See also Powers v. challenge tory being perverted. If the (1991) 31, 111 S.Ct. single Negro State has not seen to on leave a fit J., (it (Scalia, dissenting) intolerably offensive case, presumption the any jury ain criminal imprison person a on basis of a conviction the prosecutor may protecting the well be over- by jury rendered a from members of which proof might support come. Such a reasonable excluded). carefully defendant’s race were Negroes juries are excluded inference from wholly unrelated to the outcome reasons problem court 13. The Swain addressed peremp- particular case on trial and that the follows: being Negro tory system deny used opportunity participate and same permissible decided "We have that it is justice enjoyed white Negroes administration inquiry from removal of insulate population. peremptory particular jury These ends the chal- a assumption from designed justify.” lenge acting is not prosecutor acceptable consider- facilitate 223-24, Swain, 380 U.S. at 85 S.Ct. at 837-38. partic- trying, related to the case he is ations (Emphasis Supplied). particular involved ular and the defendant sitting on a group from ever totally racial or sexual on eases women were excluded where purpose.15 discriminatory jury, an invidious impanelment the initial of the veni- Swain, See, re, e.g., life.” voting and other forms of “civic — (one J.E.B., at -, purpose peremptory at 835-36 impar extremes of challenge is to eliminate precedents dealt with state 1422-26. These sides).16 Peremptory chal tiality on both action motivated invidious surely do “not violate “cognizable lenges so motivated purposes generally affected impartially.” See sovereign’s duty govern groups.”14 Communications, Inc., 508 v. Beach F.C.C. practices selection do not occur These systemically exclude now. States do not (1993) (Stevens, J., concurring). L.Ed.2d sitting ju blacks and women from ever stereotypes upon peremp ries, which parties Even and do not exercise from the tory are based are different discriminatory pur strikes challenges for invidious stereotypes out in “officially disapproved” set their case. poses; exercise them to win J.E.B., - U.S. at -, and See, many the cases which Batson e.g., (the primary (Scalia, J., rely. The evil identified dissenting) pattern of J.E.B. at 1437 classifications, which were displayed sys these cases was peremptory challenges ratify and usually statutory, that served “to de temic sex-based animus but each side’s archaic, invidious, and overbroad perpetuate get jury favorably disposed to its sire to case); Swain, stereotypes about the relative abilities 380 U.S. at women” and whites and blacks. exercising men and (acceptable considerations challenges related to See are those now, case, 1422. But particular defendant particular stereotypes usu involved, charged); on race and sex-based particular crime and the particular ally something to do with the have spoon, 514 at 286-301. Weather N.W.2d lawyer to believe the causes the on a case which party exercises When impartial will not be a fair and group stereotype, veniremember based on a veniremember juror. challenges are not based These usually because he feels the he does so any stereotypes about the relative abilities will be biased favor veniremember whites, and and blacks side, not because men women purpose, a valid same practice does not “reinforce the segregate” or or intent to “purpose it is his womens’] com stereotypes [blacks’ about that veniremember’s keep all members of Weatherspoon, N.W.2d at 296: historically dissenting opinion in the 15. See lone 14.The Plessy Ferguson case illustrates relevant prosecutor suggest strongly neither nor "I Protection Clause conditions which attorney in discrimina- defense are interested remedy. Plessy Ferguson, was intended to against any person, for its own tion or bias 537, 554-57, 41 L.Ed. ques- throughout opinion, sake. As stated J., (1896) (Harlan, dissenting): creed, [sex], race, color, religion, eth- tions of argument that the statute of “It was said in status, age, origin, occupational economic nic discriminate either Louisiana does not status, experiences, that life are factors race, applicable prescribes alike to but a rule attorney’s through competent trial filter argument But this and colored citizens. white they attempt judge who would be mind as difficulty. Every one knows does not meet the only juror client. is the better for their That origin question its the statute in had that used, way peremptory strikes are persons exclude white purpose, not so much to future, regardless way they will be used in the blacks, occupied by toas from railroad cars (Em- progeny’s] rhetoric.” and its [Batson occupied people from coaches exclude colored Original) phasis in assigned persons. Railroad to white or dis- corporations did not make of Louisiana 278-80, Feeney, S.Ct. 442 U.S. at 16. See also among the matter of whites in crimination (discriminatory implies purpose more at 2296 thing to ac- for travelers. accommodation as volition or intent as awareness than intent was, giving equal guise complish under the sovereign se- consequences; implies that the it blacks, to com- for whites and accommodation particular course of action or reaffirmed a lected trav- pel keep themselves while the latter to of, of, spite merely in part because at least in No one eling passenger coaches. in railroad group) adverse effects an its wanting as to assert the in candor would be so identifiable omitted). (internal quotation marks (Emphasis Supplied). contrary.” — J.E.B., U.S. at group. have been See petence predispositions or (since subject voting, participat groups all prevent used to them from at 1437 S.Ct. juries, pursuing profes to see ing challenge, their chosen it is hard peremptory sions, contributing to civic life.” or otherwise protection). equal any group is denied how J.E.B., - fn. 14, 114 at S.Ct. See group And, particular of a although members 85-86, 106 14; Batson, at 1428fn. 476 U.S. at case, particular jury in a may not serve on a (it Equal Protection to at 1717 violates This juries in other cases. they do serve on from the venire on exclude members require.18 is all Constitution should assump account of race based on false challenges are not The use of that members that race as as by race or sex discrimination motivated jurors); qualified are not to serve as Weath such, “ultimately be traced they cannot erspoon, 514 N.W.2d at 270-801. discriminatory purpose” racially to a challenges, they are used Peremptory really Equal Protection Clause was type the now, not be held to be based should Batson, 476 at prohibit. meant to See constitutionally impermissible purposes or (the quali- ‘invidious at 1721 constitutionally impermissible thoughts.17 ra- action claimed to be ty1 governmental ill-advisedly like Batson and J.E.B. Cases ultimately discriminatory ‘must be cially apply involving systemic ex precedents racially discriminatory purpose’). to a traced of blacks and women from ever sit clusion progeny cross the line from Batson and its juries prac ting these to situations where “cogni- preventing systemic exclusion of Batson, Compare do not occur. tices sitting petit on a groups” from ever zable 1718, with, 86-88, 106 Bat U.S. at right.” making people sure “think son, 120-24, 106 at 1736-37 476 U.S. at 276, 278. Weatherspoon, 514 See N.W.2d C.J., (Burger, dissenting). Equal Pro Most statutory classi precedents tection deal with Also, overemphasized it cannot generally affected all members fications time-tested, per- free use of the traditional group. one would ar identifiable No right to both emptory challenge is a valuable gue it violates a statute sides in a criminal trial: groups of all more or less to treat members principal “The value same, although not with exact mathemat impartial helps produce fair and peremptory chal precision. ical This is how Omitted) (Citations Peremptory juries. groups lenges operate of all since members ex- challenges, by enabling each side to in all cases are to a jurors most those it believes will be challenge stereotype based on a about that clude situation, And, removing person degree changing one's progeny to a Batson and its do regulate private thoughts place di attempt one’s own inclination the most whatsoever rect, restraint, lawyers, imprisonment even if there is truth to these unless trial some without Id., thoughts. See - U.S. at - fn. 114 due course of law.” (a peremptory challenge fn. 11 S.Ct It is difficult to understand 16 S.Ct. at ” gender-based stereolype any based even on a "true violate how the use of Protection), violates "personal we have histori citizen’s freedom” as J., (Scalia, (even dissenting) if sex was a cally at 1436 what the term means. come to understand cases, good predictor And, would in certain the Court especially how hard to understand it is unconstitutional); peremptories find its use in challenges peremptory can withstand (Batson Weatherspoon, 514 N.W.2d at stereotypes groups about some and not based on require progeny trial courts to be and its stereotypes scrutiny when based on withstand "thought police” gives power and them the supra; groups. See Footnote about other — right” by, punish for J.E.B., at -, those who "don’t think If 114 S.Ct. at 1429. U.S. juror upon example, placing a whom on a challenges personal peremptory these violate the peremptory chal the defendant has exercised groups, the members of the latter freedom of lenge). personal they freedom of the then also violate the groups. See Foot members of the less favored 82-84, Crenshaw, 5, supra; at note intended to Fourteenth Amendment is 18. The (singling cogniza members of a S.Ct. at 1653 out rights pertaining protect civil to freedom all the 554-57, arbitrary capricious group and manner Plessy, ble in an citizenship. 163 U.S. at and (Harlan, J., Clause even under dissenting). violates the Personal S.Ct. at 1145 review). locomotion, of power of the most deferential standard "consists in the of freedom side, partial produce jury, and some circum- the other are a means an unfair toward fairness); eliminat[ing] of of partiality extremes on stances it increase see also sides, Powers, 429-31, thereby assuring both the selection at (Citation (Batson jury. (Scalia, J., of qualified dissenting) and unbiased Omitted) peremptory’s importance The though relief even guilty error entitles persistence: them); confirmed its it was well the error not harmed Batiste v. has (Mot. the time of and State, established at Blackstone (Tex.Cr.App.1994) S.W.2d to endure in all 31,1994). And, continues the States.” reh’g many for filed October — at -, J.E.B., U.S. at 1431 Country blacks serve and women J., (O’Connor, concurring). juries, participate otherwise in civic vote and life; decided, they Batson was did so when its nature “an arbi peremptory they to do so with will continue or with- trary capricious right; it must be out Batson. freedom, or its exercised with full fails of — omitted).” J.E.B., (citations purpose full expressed justifications advanced (Scalia, J., at -, U.S. continuing valuable party’s to limit a supplied); dissenting) (emphasis see also challenges freely peremptory use are that his — at -, J.E.B., at 1431 peremptorily struck a veniremember who is (essential J., (O’Connor, concurring) nature stereotype might get his based challenge is peremptory that it is one feelings community as a whole hurt and stated, a reason exercised without without justice might respect lose for the criminal its being subject inquiry without to the system; important the reasons the these are Batson, control); court’s U.S. at criminal trial has become a business of a C.J., (Burger, dissenting). 106 S.Ct. at 1737 hearings. sideshow “mini-Batson” See understanding of the With an value of — J.E.B., 1439; 114 S.Ct. at challenge purposes and the peremptory valid Weatherspoon, at 289. 514 N.W.2d Howev used, free use perempto- it is which er, feelings” outweigh “hurt should ry challenges should withstand even strict freely party’s important right to exercise his protection analysis. See scrutiny equal And, it peremptory challenges. borders on (free use Weatherspoon, 514 N.W.2d precedents dealing with absurd to extend prece- should take invidious, systemic discrimination experiments dence selec- over social important blacks and women affairs tion). not, But, and we ask for it does must protect people life from “hurt feel public reason, making sure important what besides ings.” challenges are not on im- progeny produce Batson also will and its proper contin- thoughts, the juries parties do believe are per- ues to limit the traditional free use truly impartial can diminish confi which emptory challenges. Does free use system. justice dence the criminal See challenges deprive a defendant Weatherspoon, at 286. The real 514 N.W.2d practice totally of a fair trial? Does justification progeny and its for Batson “cogni- excluding and women other blacks challenges, including those impanelment zable from the initial groups” invidious not exercised for parties using Are venire continue? “improper” purposes, not be based should peremptories to strike blacks and women practice thoughts if this time-tested even “cognizable groups” in ev- members trials, if helps produce and even there is fair petit ery never on a so that will sit case “improper” truth to these some measure of jury? thoughts.19 See these questions, to all of answer - f.n. 11, 114 f.n. 11. S.Ct. at 1427 course, is, See, e.g., v. Illi- “no.” Holland matter, nois, 480-488, 803, Finally, 474, practical Batson as (1990) discarded because the progeny its should be (peremptory 107 L.Ed.2d impossi- makes it experience truth human stereotypes on racial do challenges based Therefore, deny litigators in some circumstances! requires the "truth” the Constitution concurring opinion in Hill. Id. at Weatherspoon, Baird’s ble to follow them. See (Batson (Baird, J., defendant, concurring). at 297 hurts a N.W.2d attorneys by making humiliates the two them the Applying rationale set forth the Hill, prohi- play pretend,” majority “let’s and frustrates the trial the Batson in should by making judge pretend and not court the racial discrimination bition truth). Lawyers laundry challenges later be the use lists of exercise prohibition against re- explanations plug into to include “whatever-neutral” extended discrimination, suggested by “three-step ligious second-step the of the Batson macabre,” dissenting opinion, laundry Hill in the danse and these lists are Chief Justice Hill, hold that supra, I follow would taught even at CLE seminars. See Weather as reasons for religious beliefs or affiliation spoon, 514 297. When the N.W.2d nonreligious and may co-exist with judicial strikes resolving in Batson claims resources nonracial reasons in the exercise of strikes. appellate are the trial and levels consid view, case, State, my ered, present In the the reap the dubious benefits we under nonracial and nonreli- just enunciated sufficient progeny and its “not worth Batson gious for exercise of the reasons the candle.” black, Pentecos- State’s strikes two progeny Batson and its should be discard- including venirepersons, the fact that tal Meanwhile, litigators ed. who don’t think currently was incarcerated one’s brother right had better watch out because venireperson expressed discomfort and the thought police might you your for come applicable with the law to the offenses next, law-abiding clients citizens should i.e., aggravated charged, sexual assault safety may understand their be at risk for appel- of a child. The and sexual assault Powers, folly of Batson. See explanations lant did not show that these (Scalia, J., 111 S.Ct. at 1381-82 dis- merely pretext were for discrimination. senting). respect to the facts of this With “It should be noted that one of the veni- case, may experience the victim relive her repersons appeared struck as number thir knowledge retrial secure that some list, ty-three and that twelve “greater good” being accomplished. jurors thirty- were obtained from the first venirepersons. Although prosecu two CAMPBELL, J., joins paragraph 3 of this nonreligious gave tor similar nonracial and dissent. stinking thirty-three, reasons for number required striking none because num were WHITE, Judge, dissenting. thirty-three impact did not have an ber I Hopkins’ concurring realize that Justice jurors composition since the below; however, opinion published I want thirty-two from the first were obtained quote “right it verbatim as it is panel, members of the venire nor did it ”mark in this case: venireperson thirty-three deprive number State, (Tex. privilege jury. of service on See “In Hill v. 827 S.W.2d 860 (Tex. State, Gambel S.W.2d majority Crim.App.1992), opinion1 con App. pet.); [14th no Dist.] following: may tained the be a ‘[R]ace —Houston State, Rodriguez v. 832 S.W.2d coexisting factor with nonracial for reason (Tex.App. no strike, however, [1st Dist.] race not be the — Houston State, pet); Henderson v. 816 S.W.2d (empha reason for the strike.’ Id. at 866 pet.).” added). (Tex.App. Worth no ‘[Ajppellant must sis show — Fort prosecutor’s explanations for his State, S.W.2d, at 788-789. Casarez challenge merely pretext dis were majority opinion never reveals all of crimination.’ Id. at 869. regarding the other reasons the facts striking adopted prosecutor gave prospective the so-called “Texas has not Judge jurors fact one ‘bright-line’ suggested rule and does address the opinion. respect Hopkins, plurality due to Justice was a Hill 1. With all S.W.2d, by Judge Maloney opinion v. State at 860. written Hill juror today question In prospective was never reached. a ment. The we decide is to responding appel- letter brief this Court the third also fundamental whether violates review, petition urged lant’s State equality. fairness principles of and reject appellant’s arguments this Court consideration, giving the due After matter he “question analysis because failed to I persuaded am the United States that below”, concurring opinion noting peremptory removal Constitution forbids justifications several offered prospective jurors on account of reli “unchallenged for its State strikes were and gion, their race as it does account of clearly proper.” granted After this Court however, Court, majority sex. A is this appellant’s petition, argued the State in its contrary opinion by reading its induced to a reply appellant failed brief that to show that T.B., Alabama J.E.B. v. ex rel. solely alleg- the two strikes made on an were -, basis, edly impermissible citing Hill v. most United States Court’s re 827 S.W.2d 860. struggle cent with the status constitutional Similarly, argued also the State before this challenges. See also Batson v. if in Hill that even Court v. State one of Kentucky, 476 U.S. identity relied establish factors already In an L.Ed.2d obtuse race, shared it also offered reasons for its area, reasoning in is even the Court’s J.E.B. strike which non-racial and were established pry more than difficult usual to loose its Hill, identity. plurality opinion at 866. The rhetorical matrix. argument, holding in Hill addressed co-existing prohibit “race factor a non- Does the Protection Clause with strike”, contrast, “state-sponsored group stereotypes merely racial reason for the id. of, in, preju Judge ignore Baird and reflective historical has chosen to the State’s rooted case, at -, dice?” argument instant as he chose to any “proxy it ignore argument concurring in his Or does forbid irrational State’s juror Id. opinion plurality opin- competence impartiality?” in Hill and Is v. State. ” classification unconstitution ion is all “SMOKE AND MIRRORS. ratify perpetu al it and only when “serves to respectfully I dissent. invidious, archaic, ate and overbroad stereo types?” Id. Or is MEYERS, dissenting. Judge, irrationally pre any illegal classification According syndicated columnist James ... persons “unqualified certain sumes attorney Kilpatrick, defense Clarence Dan- questions upon important decide which rea profoundly row’s selection methods were persons disagree?” could Id. at sonable sexual, by racial, religious influenced and at 1428. stereotypes. preferred Darrow Irishmen on juries thought his he them to be because ques- I know the to these do not answers “emotional, kindly sympathetic.” He tions, extracting them J.E.B. so Unitarians, Universalists, also “wanted Jews I confusing process uncertain am [, agnostics but] distrusted wom- very my willing to claim little confidence en.” majority own herein fo- conclusions. might history religious have been discrimina- While once considered cusses America, did, just pick tion focussed on jurors routine to as Darrow as J.E.B. these, discrimination, mainly practice history of sexual conclud- on criteria such Indeed, that, risky. ing constitutionally two of because classification is now strict, have al- least the three criteria mentioned here law heightened, by the under the United ready been United States condemned Constitution, challenge as offensive States religious affiliation the Fourteenth Amend- on the basis of Protection Clause of exercised Kilpatrick, Prejudice 1. James at A-13. is crucial in selec- American-Statesman, May jurors, Austin conclusion, pursued logical constitutionally indistinguishable If to its from beliefs. holding undercut the essential peremptory challenge exercised on the basis such a would Valente, jury system alto- of our selection of race or sex. See Larson v. features 228, 244-246, 1673, 1683-85, pro- gether government form of because our (1982); Minnesota, belief, all manner only religious Davis v. tects not but moral, social, U.S. -, scientific con- political, L.Ed.2d of (1994) (Thomas, J., religious dissenting). This The treatment of viction as well. peremp- for process reasoning inappropriate to that em as an basis is similar creed J.E.B., rationally be distin- ployed by Supreme tory Court in exclusion cannot persons my treatment of perhaps guished it is even correct. But own from a similar politics, their interpretation suggests that on account of their Libertarian of J.E.B. living, or their mem- contemplates advocacy a difference of communal Court Society. religious bership and racial in Earth between discrimination the Flat permits or sexual discrimination which us to aware, course, limits I am that J.E.B. differently purposes regard them for application of the Batson rule to an exclusion jury process. overriding dis selection of classification tradi- persons on account tinction that I have settled on is that reli in tionally irrational discrimination used for sex, typified by an gion, unlike race and libertarians, Plainly, hippies, culture. our official creed. subject and flat-earthers have not been the exceptions, only significant With few discrimination, I not such historic and would religious faith matter that members of a un- profound social disabilities trivialize genuinely have common is their belief and racial minorities were der which women doctrines, principles, certain or rules. To country by comparing made to suffer in this religious extent that believers have histori- history that of an odd subculture. their discrimination, objects cally been the it is But, I try may, as I cannot reconcile because of their beliefs and not on account religious extension of Batson to belief with- anything else. Yet discrimination on the ba- constitutionally extending pro- out it to also personal always sis of belief has been consid- And, turn, kinds. I tected beliefs of other appropriate context ered selection myself accept cannot make that a venire- because a veniremember’s beliefs reveal es- belief, otherwise, religious member’s is an pecially important information his suit- about subject inquiry during jury inappropriate ability religious service. Certain impermissible for the selection or an basis sympathies preju- beliefs tell us what his view, my strikes. In exercise of dices are. against permissible if it is discriminate beliefs, jurors prospective on account of their sex, Persons of same race or necessarily permissible to discrimi- then it is hand, distinguished by are not against of their reli- nate them on account attitudes, beliefs, all convictions. Because gion, for on the basis of reli- discrimination moral, political, ten- varieties gion is on the basis of belief. discrimination commonly many people ets are shared sexes, races and those of different both emphasized its clearly anything race and sex do not reveal holding imply not the elimina J.E.B. “does ju- especially prospective relevant about a peremptory challenges.” 511 tion of all short, discrimination ror’s beliefs. consequence 114 S.Ct. at 1420. One history in American was never race and sex holding litigants may of this is that continue upon proposition, rational or other- on the basis of classifications discriminate wise, minorities sub- that women and racial subject heightened equal pro not to strict or disagreeable to a or undesirable belief scribe follow,however, scrutiny. It tection does system. every on the basis of discrimination therefore, subject hold, to such is nec that a veniremember classification To essarily peremptory chal of his reli- forbidden. For a may not be excluded on account objectionable holding lenge under the gious preference tantamount to a to be Clause, according of his Protection that he not be struck on account Maga- reprinted Esquire must be based a classification 1936). “Unitarians, heightened scrutiny, (May strict or but He also zine liked “invidious, ratify perpetuate Universalists, must also Congregationalists, it and Jews archaic, stereotypes.” and overbroad agnostics.” Id. at 43. But he distrust- at -, 114 women, opinion having ed “formed a fixed and, absolutely dependable” were Attributing to women or African Ameri- therefore, to the unlikely sympathetic to be moral, specific political, group any cans as a Id. defense. overly or social is mem- belief broad because bership group depend upon in the does not might it once have considered While been subscription the belief. It is invidious did, jurors acceptable pick Darrow who do because individual members not these, mainly criteria such as share the belief are made to the attri- suffer risky. In- practice constitutionally is now anyway. religion, But in the of bution case deed, three mentioned two of the criteria broad, overly the attribution is not and there- by already here have been condemned invidious, arti- fore not when belief is an Supreme Court. Batson v. United States all of cle of faith. Because members Kentucky, definition, by share faith the same (1986); ex rel. L.Ed.2d 69 J.E.B. Alabama unjust not to attribute beliefs characteristic T.B., group. faith to all members of the (1994). question we decide may system Whatever be said today the third fun- is whether also violates picking juries by striking of trial individuals equality. principles of fairness and damental citizens, panel practice eligible from a of Appellant in the instant cause was convict- legal deeply entrenched the American pun- aggravated of sexual assault and his ed law, process, prescribed by Texas statute peni- at confinement in the ishment assessed unobjectionable constitutionally to the United dire, tentiary years. During for voir twelve prac- Supreme as the States Court. Insofar prosecutor two of used his largely has been tice was abused and now challenges remove black veniremembers by of remedied Batson and State objected, jury panel. Appellant from the permit Texas exclu- challenges racially claiming were jurors preju- of the basis of irrational sion But the motivated in violation Batson. dices which violate the Protection prosecutor replied that his were reli- motives I not read Court Clause. But do racial, opted gious, not and that had he jurisprudence yet to condemn exclusion on veniremembers, not because remove both the basis belief. black, they were they were but because above, given I af- For the reasons would Appel- members of Pentecostal Church. judgment firm the of the Fort Worth Court objected lant then exclusion Appeals. religion, like service basis en banc. Before the court race, by is forbidden exclusion the basis FOR OPINION ON STATE’S MOTION Clause of the United PE- REHEARING OF APPELLANT’S Const, amend. Constitution. U.S. States RE- DISCRETIONARY TITION FOR objection by the His was XIV. overruled VIEW judge trial without elaboration. 13, 1995] [December appellant removal appeal, On direct cited MEYERS, Judge. reversing of the Pentecostals as a basis for equal attorney argued Bar- his conviction. He

Famed defense Clarence Batson, keenly forbidding ra- protection methods were rationale row’s selection racial, sexual, religious cially challenges, is motivated influenced motivated equally applicable stereotypes. preferred Irishmen because He Ap- “emotional, thought kindly prejudice. The Court to be he them however, Darrow, concluding that Attorney peals disagreed, sympathetic.” Clarence holding in intended its Defense, Litigation, Winter convincing require particularized more apply only peremp Batson to case Thus, official justification. example, an tory challenges based on race. Casarez strictly scruti- (Tex.App. classification based on race 783-84 S.W.2d 1993). incompatible with granted appellant’s nized and considered —FortWorth We is a principles unless there discretionary equal protection because it petition for review Wygant v. Jackson likely compelling reason for it. presents important question, to re Education, cur, judges intermedi Board which the (1986). Similarly, dis- appellate disagreed. ate court this case sex, 200(c)(2), original criminatory practices based on while Tex.R.App.Proc. On standard, submission, nevertheless ground held to so strict a are appellant’s we sustained level of more than the usual for review and remanded the cause to the viewed with Appeals proceedings suspicion prohibited and are unless substan- Court of for further But, accomplishment of an opinion. tially related to the consistent with our on consid Mississippi rehearing, important government purpose. eration of the State’s motion for Hogan, original opinion University that our v. 458 U.S. we have decided Women 3336, 3331, signifi 73 L.Ed.2d misapprehended the constitutional 102 S.Ct. (1982). peremptory challenges cance of based on implicating criteria First Amendment liber ju system according to which Accordingly, judg ties. we now affirm the by in the courts rors are selected service Appeals. of the ment Court of allowing litigants to exercise The Fourteenth Amendment to the Unit- challenges against individual veniremembers provides ed States Constitution that no subject government practice to these “deny any person State shall to its within equal protection rules. Edmonson v. Lees

jurisdiction equal protection of the Co., 614, 618-28, 111 ville Concrete 500 U.S. very process governing laws.” Yet the 2077, 2081-87, 660, S.Ct. L.Ed.2d 672-78 Laws, requires regulations, discrimination. (1991). party may prospective No exclude a practices government, in to order juror from service if the basis for exclusion is goals, achieve desirable social must often offensive to the United States Constitution. classify people so that the official treatment McCollum, 42, Georgia 505 U.S. S.Ct. person depend each receives is made to (1992). 2348, per 120 L.Ed.2d 33 Because upon the class into which he falls. For ex- emptory challenges are an established and ample, required able-bodied citizens part adversary system, how valuable forces, in in- serve the armed while the ever, preserving method of Implementation firm Equal are not. of the legitimate selection is interest Protection in Clause therefore varies each Batson, government. 476 U.S. at instance with basis of the official classifi- Accordingly, peremp at 1723-24. most S.Ct. cation. constitutionally tory challenges are not ex ceptionable. government’s But the interest general, government In has system peremptory challenges gen in a performance broad discretion of its erally great enough support exclusion functions, may usually and it structure its persons service on the basis of a any way bearing rational laws some rela classification which is to strict or tionship legitimate purposes, to its even heightened scrutiny under the Protec though advantage disadvantage may per tion Clause. It is for this reason that thereby class. inure members a certain emptory challenges based on race or sex Jose, City Pennell v. San 485 U.S. 14- violate United States Constitution. 849, 858-59, 99 L.Ed.2d 511 U.S. (1981). government But classifies when Batson, 89; 79, 106 L.Ed.2d 476 U.S. historically individuals on a basis used Alabama, 1712; Swain v. illegal group prefer enforce or irrational (1965). 824, 13 way inhibit the ences or such religious rights, constitutional its dis a classification based on exercise of basic Whether cretion is more limited and its classifications affiliation also meets the conditions for more Constitution, religion, prohibiting

exacting under the establishment examination Const, thereof[.]” and if so whether it can survive such an free amend. exercise examination, Verner, questions presented See, e.g., I. Sherbert Long instant The United States Su cause. 10 L.Ed.2d 965 preme yet has not addressed this is minorities rights civil of racial before the sue, although some members of the Court recognized, women were and before ratifica Amendment, expressed individual have views a cate tion of the Fourteenth Minnesota, U.S. -, matter. Davis gorical prohibition the disenfran (1994) basis of his any person on the chisement of (Thomas, J., Scalia, J., joined by dissenting religious the First was made belief certiorari). to denial Amendment. breaking the barrier between classifica- Clause is But the equal protection tions that merit strict clas powerful also a disincentive scrutiny and that receive we those what government, since discrimi sification “heightened” or

have termed “intermedi- religious belief or nation the basis of on scrutiny, ate” would seem to have J.E.B. extended Batson n the only with free not interferes affiliation protection analy- equal religion by favoring religion one of exercise catego- sis to all strikes on the latter based another, necessarily it treats over but also ry category pre- of classifications —a which others on differently than some individuals sumably would include classifications based practice. religious account of their belief Valente, religion. on Cf. Larson 456 US so, by the rights protected the When this is 228, 244-246, 72 LEd2d SCt are virtu First and Fourteenth Amendments Batson, US, (1982); [1683-1684] ally indistinguishable, the constitutional LEd2d 1712 [at 1737] 106 SCt analysis government’s reli applicable to the C.J., (Burger, dissenting). It least is at same, whether gious is the classification obvious, given reasoning in not the a equal protection claim as an raised as religious why peremptory based on strikes religion See Larson v. complaint. of freedom equal protection affiliation would survive Valente, 456 U.S. analysis. suggests, is a As Justice Thomas thus there jurisprudence

plausible basis constitutional it precedent makes clear believing official discrimination on for that that are constitution- religious classifications be the religion the basis of should treated ally an unusual- impermissible there is unless as discrimination on basis of sex same compelling, persuasive, a ly perhaps even purposes of Clause. justification for them. Id. Scalia, But, unlike Thomas and we Justices context, of present S.Ct. at 1684-85. persuaded are not that United States course, justification begins with now that necessarily therefore forbids Constitution accepted proposi- generally well-known jurors prospective of on removal promote challenges se- tion that Al- religious their affiliation. account of impar- fair and lection that will be of a treating differ- though the basis for is, objective of parties. This tial to both ently race under these circum- than or sex jury system as course, fundamental to immediately apparent, may not be we stances method long as our presently conceived. So further reflection. think it becomes clear on adversarial, not it is essential litigation of only neutral and the triers of fact be between individu- that Laws which discriminate objective, perceive them religious parties that the affiliation but als on the basis of their unarticulated Implementing litigation of much be so. have not been the parties achieves preferences This is individual Protection Clause. under can, way method purpose in a no other undoubtedly States Con- because the United evaluate de- religious permits it them to protects persons from because stitution jurors according to sirability prospective mainly gov- prejudice by providing subjective respecting criteria. no law an own ernment “shall make otherwise, that ultimately per proposition, rational or But it not the value emptory challenges “as an subscribe institution” and racial minorities women against the of invidious system. must be balanced evil disagreeable or undesirable belief Rather, discrimination. the extent hold, therefore, that a veniremember To challenges par on a which reli of his may not excluded account actually signifi ticular classification make holding to a gious preference is tantamount securing a fair and im cant contribution his may account of that he not be struck on jury. J.E.B., partial rigor, pursued If with even modest beliefs. at 1425-26. The use of holding the essential would undercut such persons to exclude certain system alto features of our selection sex make a contribu race or does not such pro government implication per gether such our form because the because belief, impartial religious cannot be fair or will not be all manner sons but tects social, or atti implicitly moral, attributes to them beliefs con political, and scientific tudes on account their race or sex which viction as well. See United States v. Villar they actually “Striking hold. indi (5th Cir.1992), real, denied 963 F.2d 725 cert. jurors assumption vidual L.Ed.2d particular simply views of their hold because jurors (peremptory prospective exclusion of gender denigrates [race or] [therefore] political belief does not offend on account dignity juror” of the excluded without equal protection principles). The treatment significantly improving the chances of fair inappropriate creed basis impartiality jury. ness Id. rationally be peremptory exclusion cannot -, distinguished from a of similar treatment poli persons account of their Libertarian excluding prospective jurors on But on tics, religious advocacy living, of communal or pro- basis of their affiliation does their impartiality jury. Society. mote and membership fairness in the Earth their Flat denigrating digni- does And it so without aware, course, that J.E.B. limits We are of ty any of individual veniremembers. With an application of the Batson rule to exclusion exceptions, only significant thing few of a tradi- persons of on account classification religious of faith in members a have common tionally used for irrational discrimination in doctrines, is principles, their belief certain libertarians, hippies, Plainly, culture. our or rules. his- To extent have is and believe the earth flat have those who torically objects discrimination, been the of it subject not of such historic been discrimi- is on account these beliefs and not on nation, and it would be insensitive to trivial- anything account else. discrimination Yet profound ize the under social disabilities personal on always the basis of has belief women and racial minorities once which were appropriate jury been considered se- by country comparing a in this lection context because veniremember’s be- made suffer especially important history liefs reveal an bit their to that of an odd subculture. suitability But, information about his for ser- try may, as we we cannot reconcile the They sympa- tell us what his vice. some of religious extension of Batson to belief with- prejudices thies are. constitutionally pro- extending out also it And, turn, tected beliefs of other kinds. sex, Persons the same race or accept make we cannot ourselves hand, by distinguished are not their otherwise, belief, or religious veniremember’s beliefs, attitudes, or all convictions. Because subject during inappropriate inquiry an for is moral, political, religious tenets kinds impermissible or selection basis many commonly people shared it the exercise of strikes. If is sexes, those of both different races permissible against prospec- to discriminate clearly not race and sex do reveal much beliefs, jurors on account of their then it tive anything juror’s prospective beliefs. about necessarily permissible short, to discriminate against race sex discrimination history upon religion, for in American was never based them on account of their discrimination on the basis of by litigants is dis- choices made persons to exclude crimination on the basis of belief. juries from service on in individual cases on religious basis affiliation. emphasized its holding in J.E.B. imply “does not the elimina above, given For the reasons the State’s peremptory challenges.” tion of all rehearing motion granted judg- and the consequence 1429. One ment of Appeals the Fort Worth Court of holding of this litigants may is that continue affirmed. to discriminate on the basis of classifications McCORMICK, P.J., adhering to the views subject heightened equal to strict or pro expressed my dissenting opinion origi- follow, scrutiny. however, tection It does not submission, join opinion I majority nal that discrimination on every the basis of rehearing. classification to such is nec essarily forbidden. For chal CLINTON, OVERSTREET and lenge objectionable to be under the MALONEY, JJ., dissent. Clause, according must be based a classification MANSFIELD, Judge, concurring. subject to heightened scrutiny, strict or but agree I with the Court’s conclusion that it must also fail scrutiny by to survive such Protection Clause of the Four ratifying “invidious, archaic, perpetuating teenth Amendment prohibit does not stereotypes.” and overbroad peremptorily challenging State from veni- 114 S.Ct. at 1422. reperson on the basis of belief. Ac Attributing to women African Ameri- Davis, (Minn.1993), cord State v. 504 N.W.2d 767 moral, group any specific cans as a political, denied, U.S. -, rt. ce overly or social belief is broad because mem- sepa I write bership depend upon does not rately explain why I believe that conclu subscription to the belief. It is invidious sion is well-founded. because individual members who do not share the belief are made to suffer the attri- The Relevant Facts anyway. bution religion, But in the case of broad, overly the attribution not and there- Casarez, Appellant, George Toby was invidious, fore not when the belief is an arti- charged guilty by jury aggra and found of cle of faith. Because all members of the During vated sexual assault. the voir dire definition, group share the same faith it is trial, portion appellant’s appellant objected of unjust not to attribute beliefs characteristic prosecutor’s peremptory challenges to the of of the faith to all of them. venirepersons. Appellant two black contend challenges racially ed that the were motivat may against Whatever be said the prohibited by Equal ed and thus the Protec system picking juries by striking trial Kentucky, tion Clause. See Batson citizens, panel eligible individuals from a 79, 106 practice deeply the entrenched in the prosecutor responded that he struck the legal process, prescribed by American Texas venirepersons they not because were black law, constitutionally unobjection statute because, among things, they but were practice able. Insofar as the has com been Pentecostals: promised by Batson and the State of permit Texas not my experience the exclu It’s been from a number of jurors preju jury panels, felony sion of on the basis of irrational in more than 70 trials, Equal dices which violate the trials and misdemeanor that people But Clause. we do not read Court from that often have a jurisprudence yet problem passing judgment per- to condemn exclusion on on other sons, they the basis of belief. We therefore hold that and that often believe that that system per the interests served is a matter for God and not for man. And emptory challenges sufficiently much, they Texas are that have trouble not so Your Honor, great do, justify implementation although guilt State some with the for no reason trial, particular in a case phase especially pun- biased but happens trial, person that they other than the fact phase of ishment a man.” happens or be probation want to—want rather than to be a woman per again recognized the responsible, eyes, sending in their for value Court at -, thereby penitentiary, judg- emptory challenges, id. someone ing them. state actors “[w]hen reasoned but on challenges reliance exercise Appellant, unimpressed by prosecutor’s they ratify reinforce gender stereotypes, argued explanation, race-neutral prejudicial of the relative abilities views Equal prohibited per- Protection Clause also women,” at -, id. men and emptory challenges the basis of peremp The Court conceded all perempto- The trial court allowed the belief. stereotypes tory challenges are stand, ry challenges to however. kind, per argued that some but it “where argu his appeal, appellant On reiterated emptory challenges are made on the basis of Equal for ment that the Protection Clause gen than race or group characteristics other challenges on the basis of bade (like example), do occupation, der Appeals, religion, but the Second Court of stereotypes about the the same reinforce bane, disagreed. sitting en Casarez v. competence group’s predispositions or (Tex.App. 857 S.W.2d 779 Worth — Fort prevent voting, them have been used to 1998). granted appellant’s petition We juries, pursuing chosen participating on discretionary review to determine whether professions, contributing to civic otherwise misinterpreted of appeals the court the re fn. life.” Id. quirements Protection Clause. added). Essentially (emphasis fn. by a commentator point Batson and J.E.B. same was made down: years before J.E.B. was handed three Kentucky, 476 In Batson v. Supreme Court the United States plans keep peremptory If the Court held for- that “the Protection Clause satisfy requirements of challenges but prosecutor potential challenge bids the clause, equal protection limi- jurors solely on account of their race peremptory challenges, other tation to jurors assumption that black as a prohibition against than the racial-based impartially will be unable to consider the exclusion, prohibition should be case State’s black defendant.” against gender-based Prohibi- exclusion. recognized value gender-based peremptory chal- assuring the selection of fair lenges only logical extension of the impartial jury, id. at 106 S.Ct. at prohibition, logical also but is Batson recognized but Court also that the restructuring per- place to end the “central concern of the Fourteenth challenge. emptory commentators Some put govern- an end to Amendment was argued cannot be distinction have race,” discrimination on account mental id. gender and other classifica- made between The 1716. Court then Burger As Justice noted in [Chief] tions. concluded that that “central concern” re- Batson, his dissent conventional juror quired potential that a not be denied an equal protection principles have to would participate in important opportunity to civic chal- prohibition include 87-88, simply life because of his race. Id. at sex, only lenges on race and but based affiliation, “religious political or also on children, T.B., capacity, living number In v. Alabama ex rel. mental J.E.B. 1419, 1430, 128 partic- -, -, arrangements, employment in a L.Ed.2d However, industry.” while courts went further and held ular the Court equal protection clause that, equal protection have held that consistent with the person in potential specifically requires that no guarantee, litigants may not strike disparately, the jurors solely gender, or similar situation be treated “on the basis of only heightened applies assumption [Supreme] individual will be suspect organization to members of classes. cists’ or because he advocates people belonging to the repeal criminalizing classifications of all laws sex with mi by mentioned the Chief Justice are not nors. Such an extension of Batson would heightened scrutiny. accorded spell The Court the utter destruction of the protection has never afforded the kind of it challenge, Appeals as the Court of for the given has to classifications based on race recently recognized Fifth Circuit in United gender Villarreal, to the classifications mentioned States 963 F.2d 728-729 by (5th Burger. higher Cir.), denied, Justice The reason that cert.

‘protection (1992). from, peo- has been withheld Nothing L.Ed.2d 267 ple belonging to the opinions suggests the Batson or J.E.B. classifications because, Burger Justice mentioned is ac- implies Equal that the Protection Clause re Court, cording to the people those quires such a result. experienced have not the kind discrimi- historically

nation people be- Necessary Compelling A to Achieve suffered longing gender. to a certain race or State Interest Comment, Peremptory Reconstruction developed Court has stan Challenge System: A Look at Gender-Based determining validity dards for of state Peremptory Challenges, 22 Pac.L.J. challenged action that is as violative of the (1991). general Protection Clause. The rule is that presumed

In state action is to be summary, it valid is clear from the text of the and will be if sustained the classification opinions Batson and J.E.B. rationally drawn the state action is grounded on related the need to address our Na- legitimate City to a state tion’s interest. Cle uniquely painful historical and and de- burne, Center, Living Tex. v. patterns Cleburne structive of race and sex discrimina- 432, 439-40, 3249, 3254, guarantee tion. The equal constitutional If the classification protection simply requires special protection contexts, gender, presumed based on then it will be respect those even with to the only be invalid and will be if sustained it is “peremptory” challenges. use of The Batson substantially important related to an opinions state suggest J.E.B. do not that the interest. Id. at S.Ct. at 3255. prohibits perempto- Protection Clause Finally, race, if ry the classification is based on characteristics alienage, that, origin, or national or if the classifi religion, like have not been the focus of impinges cation pervasive the exercise of a funda such and hurtful discrimination. fact, right, again presumed mental then it will opinion suggests quite the J.E.B. to be invalid and will be sustained if opposite. necessary compelling to the attainment of a state The First Amendment interest. Id. at guarantees First Amendment religion, speech, press, freedom of assembly, Freedom right. is a fundamental petition, State, generally and association. See R. Dinkins v. 894 S.W.2d fn. 9 Rotunda, al., et (Tex.Crim.App.1995); Treatise on Constitutional Clark v. (2nd §

Law: Substance and Procedure (Tex.Crim.App.1984). 18.40 S.W.2d fn. 3 1992). And, ed. If the impartial jury plainly Protection Clause a fair and is a peremptory challenges forbids compelling based on reli- state interest. See belief, gious principled then there is no rea- U.S. fn. S.Ct. at fn. 8. why Therefore, assuming son it arguendo peremp would also forbid that challenges tory challenges based on the exercise of all the venirepersons’ based on reli Thus, gious other First if impinge venirepersons’ Amendment freedoms. beliefs on those litigants may venireperson religion, not strike a question be- freedom of becomes beliefs, religious they peremptory challenges cause of his then also whether such are because, may venireperson necessary not strike a for nonetheless to the attainment of a example, suprema- impartial jury. he is a member of a white fair and If the answer is BAIRD, Judge, dissenting. challenge under the “yes,” then the is valid I the an Equal Protection Clause. believe we original On submission held “yes.” swer is Amend- of the Fourteenth Protection Clause peremptory chal- the use of prohibits ment juror’s training may religious A beliefs granted religion. lenges We on the basis views, consciously seriously affect his either issue of rehearing to the limited determine unconsciously, many might or on issues that ju- misapplied First Amendment whether we abortion, arise in a criminal case: extramari- holding. risprudence reaching that The relations, divorce, homosexuality, tal sexual seeking resolve that majority, purportedly to consumption, drug illicit prostitution, alcohol issue, original sub- opinion our on states that use, polit- gambling, capital punishment, even misapprehended constitutional mission Furthermore, juror’s affiliation. ical a reli- challenges significance seriously gious training af- and beliefs lib- First Amendment implicating on criteria willingness ability to fect his his sit even Ante majority ultimate- 498. The erties.1 at judgment punishment. or assess For ly governmental served holds the interests reasons, litigants is for to these it essential by challenges sufficiently are question venirepersons their conscious compelling permit about discrimination Ante religion. To achieve religious basis of as well the church teach- beliefs as opinion majority this rests on result ings they might exposed to which have been first, fundamentally flawed theories: three essential, equally It over their lifetimes. is religion by a held all that the beliefs of are impartial jury for a fair and order be 496; religion, ante sec- members of that attained, litigants for to be able use ond, governmental a compelling that there is based on the informa- on permits discrimination interest acquire through questioning. 496; and, third, religion, ante basis of defendant, right ground The for proper a criminal whose focus resolve the rehearing religious is be- stake, the veniremember’s liberty may judged life be at to be lief(s) rather than the veniremember’s by impartial jury outweighs far fair jury. on will discuss each serve We peripheral placed burden free exercise theory seriatim. by religion an individual struck based on religious It his beliefs. would be absurd to I.

suggest, example, an Ameri- African using can defendant should barred majority religion, religious uses affilia- peremptory challenge venireper- creed, tion, to strike a religious group, religious reli- religion gious preference son who adheres to that advocates inter- faith and changeably. I will use the term supremacy. representa- white used in the First because term people, equally strong tive of the has majority states: “Because Amendment. assuring juries interest that criminal [religious] group share all members of the impartial, fair and and it must be free to use definition, unjust the same faith peremptory challenges venireper- strike of the faith to attribute beliefs characteristic reasonably religious beliefs call sons whose Ante Consequently, to all of them.” question ability into to be fair and necessarily permissible “it discriminate impartial. of their veniremembers account observations, join opinion I With these on the basis of religion, discrimination religion is discrimination of be- the basis of the Court. requires peremp- majority quite means United States which 1. I am not sure what the States, significance "the challenge. constitutional tory 583, Stilson v. United challenges.” presented in this case 28, 30, (1919). The issue 63 L.Ed. 1154 involves the classification of right, namely Constitutional Therefore, notwithstanding majority's state- religion, against a stat- freedom of contrary, challenge ment to utory right, namely challenges. the exercise of significance.” has no “constitutional nothing in the Constitution There premise lief.” Ibid. fundamentally This rights Jewish citizens of secured flawed for at least three reasons. United States Constitution.2 The defendants Blacks, moved to Hispanics, exclude all and A. venire, arguing Jews from the such venire-

First, precedent members, class, there is from this Court as a could not be fair or holding contrary. to the impartial. motion, Urbano v. judge The trial denied the (Tex.Cr.App.1992), S.W.2d Appeals we and the Court of affirmed. The held it is irrational to simply conclude unwilling Court was to hold that all members membership that one religious is aware of all of of a class should be excluded in organization. rules of an cases where members of that class are the Instead, required victims. the Court a show- Additionally, authority there is decisional ing of individual bias. Id. 968 F.2d at 435. jurisdictions. from other In Coleman v. though And the defendants contended the States, United (D.C.Ct.App A.2d 951 Jewish only veniremembers could harbor .1977),the charged defendants were with rob bias, Appeals the Court of pertinent held the bing priests patrons and of a Catholic question whether the was individual venire- rectory. trial, At the defendants moved to any members harbored bias. exclude all jury. Catholics from the This premised motion was assumption Finally, Sheedy, in Rose v. 134 S.W.2d Catholics impartially would be unable to (Mo.1939), Missouri Court judge falsity testimony truth or religious held affiliations constitute neither a judge Catholic clerics. The trial overruled qualification disqualification nor a the motion Appeals and the af Consequently, inquiry service. into a venire- firmed, holding: religious proper member’s beliefs is on voir ... No presented evidence was to the trial religious dire expressly where issues are support court to this Ap- bald assertion. case, presented in religious orga- where a pellants single out regard Catholics this party nization is a litigation, to the or where argued when it could equal be with force inquiry necessary is a predicate to the prevalence that because of the religious peremptory challenges. exercise of Cole- country, many belief this members of man, 379 A.2d at 954. But for perempto- society generally our of whatever faith ry challenge permissible, to be it must follow predisposed be to believe that clerics inquiry individual of the veniremember. can always be trusted to tell the truth. In Only way can the chal- words, appellants what contend with lenge knowingly intelligently made regard specifically to Catholics could be prevent serve to ex- regard contended anyone as well with clusion of veniremembers based on unconsti- acknowledges who a belief in some reli- stereotypes. tutional The United States Su- gious faith when confronted with a cleric preme emphasized importance Court has as a witness. asking specific questions designed to un- Id., continued, 379 A.2d at 953. The Court prospective jurors. earth the views of Mor- potentiality “mere for bias based reli- Illinois, gan 719, 729-31, gious justify affiliation cannot the elimination juror.” of a prospective Ibid. Probing inquiry into the individual venire- Greer, In United States 968 F.2d necessary. member’s views or beliefs is As (5th Cir.1992), Greer, belonged the defendants stated in the determination of whether Hammerskins, to the Confederate a white particu- individual veniremember holds a supremacy group, charged prime were with lar belief is a function of voir dire Black, conspiring deprive Hispanic Id., examination. F.2d n. 3.3 charges peremptorily challenged Some of the resulted from the vandal- for their be- izing temples. of Jewish Rather, liefs. the veniremembers were excluded prosecutor’s stereotypical because of the view ignored 3. The cases discussed in this section are difficulty sitting judg- that Pentecostals have majority just majority ignores at the propensity impose ment of others and have a fact that the Pentecostal were veniremembers policy statements currently contains official

B. subjects in hundred approximately on two Second, matter, empirical as an we know usage by of United cluding: reduction water every given religion member of a has Methodists, for care-giving persons teams adopted the of their lead- views AIDS, donation, sexual organ with and tissue original pointed this out on submis- ers. We Hispan of and access pornography, violence sion, repeating ante at n. but it bears education, higher African-American ics to and elaboration here. The Catholic Church life, housing, family available and affordable officially con- condemns the use of artificial persons who have communications access Maddox, traceptives, Pope and Contra- hearing sight impairments, Native- and ception, 29 84% of the members but drug ministries, confronting the American of the Catholic Church believe Catholics abuse, crisis, violence sexual domestic contracep- be use should allowed to artificial racism, women, equal rights of of eradication Gallup, Gallup Poll: tives. Public busing, by year school health for all Opinion (Wilmington, 1993 145 Del.: Schol- education, suicide, rights bilingual gambling, 1994). Resources, Consequently, if arly a abuse, workers, control, grand jury gun of party peremptorily challenged a Catholic police policies, con unemployment, firearms party veniremember because attributed Salvador, military pres El cern for the U.S. to the veniremember the Church’s Catholic recognition of Cuba. ence Bolivia and condemnation of the use of artificial contra- just categories represent sampling a of These party ceptives, wrong would 84% of adopted by religion. policies one the time. assume, majority It is absurd to as the C. does, that all Methodists are even aware Finally, positions housing, illogical every it is attribute Church’s to Methodist gun majority by religion busing held a to control. belief its members. We And many religions explain too reli fails how Methodist Church’s have to list. Some to gions complex pornography necessarily positions, position hold views and while formal is beliefs, very simple namely of its beliefs on the same others hold those reflective members every solely tax ex Is it to established to achieve an IRS issue. reasonable assume that Salvador, Typically, religions El Bolivia emption. which hold Methodist has a view on so, complex positions is to views reduce them to Cuba? If it reasonable assume writing. example, For that those Methodists who have such views United Methodist publishes necessarily Church The Book Resolutions.4 hold the same views as respect gambling The book of all current and sui- is collection and Methodists with policies, majority’s adopted precisely official But is and other resolutions cide? by holding: [reli- General Conference The United “Because all members gious] policies Methodist These share the same faith defini- Church. reso tion, many unjust change lutions are is attribute beliefs char- changed every years. faith all of Ante at four The Book Res acteristic them.” holding begs reality. published olutions first and 496.5 The was Cir.1992), showing proposition peremptorily probationary sentences. There no religion challenging their veniremembers on account of these are the Pentecostal beliefs of protection ques- political equal individually does not offend beliefs nor were the veniremembers misplaced. principles Ante Villarreal those as a tioned determine held if beliefs precedential was is of limited value because it membership in the Pentecostal reli- result Batson had been delivered rationale of assump-

gion. Rather than make unfounded before tions, beyond extended race. question litigants the venire as to should properly conducted voir their beliefs. Such Church, The Book of Resolution United Methodist litigants potential jurors, dire will inform about Church (United Methodist of the United Methodist pejora- making upon stereotypical and reliance 1992). Pub. House religion particular about both un- tive notions See, J.E.B., necessary 511 U.S. at and unwise. unanimity majority’s 5. notion of belief at 1429. contrary all our members of religion. Additionally, majority’s free I reliance fundamental exercise believe (5th Villarreal, F.2d 725 As the Court has held: United States v. below, D. can be majority’s seen holding dispassionate can not withstand analysis. A fundamental tenet of the Protec- tion Clause is government must A. individuals, treat citizens as simply components racial, religious, sexual, of a Supreme or developed Court has three national class.6 This teaching fimdamental levels of review to determine whether the especially important governmental context of our interest permit is sufficient to jury system juror because a sits not as a practice pass constitu- representative of a order, but as an individual tional descending muster. In those T.B., citizen. J.E.B. v. review, Alabama ex reí. scrutiny levels are strict intermedi- -, -, 1419, 1434, U.S. review, scrutiny 128 ate relationship and rational (1994) J., (Kennedy, L.Ed.2d 89 concurring). scrutiny review.7 the context of strict re- majority ignores permits view, this tenet and pass discrimination will not constitu- discrimination on the mistaken notion that all tional compelling govern- muster absent a religion necessarily members of a hold the mental interest. Racial discrimination must contrary same beliefs. This is pass scrutiny context, settled strict review. In this precedent, empirical data and common sense. Court has held that the need to Nevertheless, this stereotyping is the prohibit founda- greater racial discrimination is than which majority opinion governmental rests. permitting interest of peremptory challenges.

race-based Batson 79, 1712, Kentucky, v. 476 U.S. 106 S.Ct. II. (1986); McCollum, Georgia L.Ed.2d 69 original submission, 42, On relying 2348, 505 U.S. 112 S.Ct. 120 L.Ed.2d 33 authority reasoning (1992); Co., J.E.B. Edmonson v. Leesville Concrete McCollum, we compel- 614, 629-631, held there was no 2077, 2088, 500 U.S. 111 S.Ct. ling governmental permits (1991); and, interest that dis- 114 L.Ed.2d 660 Hernandez v. York, crimination on the religion. 352, basis of Ante 1859, New (1991). Today’s majority finds such a com- L.Ed.2d 395 Discrimination on the pelling governmental interest, 496, ante at religion subject basis of is also to the strict authority but cites no holding. scrutiny for its As Consequently, standard of review.8 expression Products, 144, religion opinion, ... If all or lene 778, 304 U.S. 58 S.Ct. however, subject (1938). also, were to the discretion of au- 82 L.Ed. 1234 See thority, dynamic thoughts our T.B., -, unfettered J.E.B. v. Alabama ex rel. 511 U.S. impulses might 1419, moral 1434, made colorless (1994) 114 S.Ct. 128 L.Ed.2d 89 force, give and sterile ideas. To them life an J., and, (Kennedy, concurring); Govern Arizona protects the Constitution their use. No differ- Norris, 1073, ing Committeev. 463 U.S. 103 S.Ct. importance ence of view as to the of the free- 3492, 77 L.Ed.2d 1236 press religion They doms of exist. are fun- personal rights damental and liberties. subject scrutiny 7. Classifications to strict review al., City Opelika. Jones v. Bowden et 316 U.S. or intermediate review are said to be 584, 594, 1231, 1237, 62 S.Ct. 86 L.Ed. 1691 "heightened Equal Protection scruti- (1942). By permitting peremptory challenges Ante, (on ny.” original 913 S.W.2d at 474 sub- religion, majority based on "in effect makes mission). abandonment of one's own or conformi others, ty religious price beliefs of of” opinion addressing right In its latest Division, to free Employment Dept. service. Human Re religion, Smith, exercise of 872, 897, Court reiterat- sources v. 494 U.S. 110 S.Ct. 1595, 1610, affecting ed that classifications (1990) (O’Connor the fundamental 108 L.Ed.2d 876 J., satisfy freedom must Concurring). strict scru- tiny. Aye City Church the Lukumi Babalu 6.See, Education, Wygant v. Jackson Board Hialeah, 520, 508 U.S. 113 S.Ct. (1986); 106 S.Ct. 90 L.Ed.2d 260 (1993): L.Ed.2d 472 Celebrezze, 780, 794, Anderson v. (1983); satisfy 75 L.Ed.2d 547 To the commands of the Missis First Amendment, sippi University Hogan, religious prac- Women v. a law restrictive of (1982); highest tice must advance interests of the order Doe, Plyler narrowly pursuit and must be tailored in (1982); and, compelling United States v. Caro those interests. The interest Stan- argument has answer has been no. government if the failed it follows turn, most rejected every perhaps at compelling a reason for discrimina- been establish McCollum, race, forcefully in 505 succinctly government on the basis of the the likewise, 112 at where will, to com- S.Ct. be unable establish a justice to affront to “It is an on the basis Court stated: pelling reason discrimination right to fair trial includes the religion. argue that a citi- against discriminate scrutiny- In context of intermediate the _”9 zens review, pass discrimination con the will muster unless stitutional the discrimination B. govern substantially important related to holding majority’s fear is that our objective. true ment Gender discrimination ultimately lead subject original submission to this standard of review. will 1419, 1429. But U.S. -, -, challenges. peremptory 114 In end of S.Ct. the context, Supreme Court gender- held As the Supreme this the fear is unfounded. liti- challenges conclusion peremptory were not sub stated J.E.B.: “Our based solely may potential jurors any important govern gants not strike stantially related to Id., imply gender objective. at - n. does not mental 511 U.S. basis challenges.” Consequently, peremptory if the all 114 S.Ct. at n. 6. elimination of Id., at 1429. government failed to establish a constitution ally permissible under reason discriminate Batson, J.E.B. be clear from should What scrutiny, follows that the this lower level it is that opinion original submission and our prevail government cannot under the strict challenges still under are viable scrutiny standard of accorded reli review Equal Protection Clause. gious put slight To discrimination. only forbids the exclusion Protection Clause context, prove ly party different if a cannot stereotypes basis of veniremembers on the evidence, by preponderance case its race, religion.10 gender, or associated with necessarily party that the cannot follows Supreme Court stated Edmonson As the prove beyond its case a reasonable doubt. Co., Leesville Concrete (Tex.Cr. Tarver, parte Ex S.W.2d sanctioning discrimina- if the App.1986). stereotypes price accep- are the tion and fair, Batson, jury panel price as is too tance of

Since whenever high the standard the Constitu- govern- Court has been asked whether meet weigh the constitutional permitted fair tion. When we ment’s interest in a trial discriminatory challenges, guarantee of freedom from discrimination use of personal really beliefs are not apply we ... means what it on the basis of their dard that long says. targets religious so as those beliefs relat- A law that conduct for unconstitutional being only legitimate particular to the case tried. distinctive treatment or advances ed challenges governmental only against are those interests conduct unconstitutional stereotype attributed with a motivation will survive strict on the basis of a exercised protection scrutiny subject heightened equal in rare cases. class to a (citations Id., personal scrutiny. at 2233 If the veniremember holds omitted). quotations unacceptable, that are that veniremember beliefs However, challenged. may peremptorily Ross, 8, 96 In n. Ristaino prohibits peremptorily Equal Protection Clause n. L.Ed.2d subject challenging of a class a member Court stated: heightened equal protection scrutiny based on stereotypical assumptions attributed to that class. society policy heterogeneous well our as case, had the individual venire- In the instant militate constitutional considerations questioned about their beliefs and members been against assumption per se the divisive a—as unacceptable expressed to the a belief justice law turn in a court of rule—that case, they in relation to the instant when viewed skin, pigmentation of the accident of peremptorily challenged. Un- have been could birth, religion. or the choice of der those circumstances veniremembers [Emphasis added.] of their would been excused on the basis have stereotypical personal on a as- class beliefs and not Peremptory of members of a religion. scrutiny sumption heightened equal on their subject protection

against governmental however, per- follow, interest It does not that discrimi- emptory challenge, justice the scales of must every nation on the basis of classification lean in favor of Simply the Constitution. to such necessarily for- stated, protection constitutional bidden. important discrimination is more than the Ante, added). (emphasis at 496 S.W.2d statutory right to exercise chal- lenges in a manner.11 purposefully change This is done analysis

focus of the peremp- to whether the III. tory strike interferes with the venire- right religion.12 members’ to free exercise of We now turn to the third fundamental flaw religion The free exercise of only is relevant majority opinion, change of focus to the determination of whether the discrimi- misapplication which results in the natory peremptory challenges use of is analytical sub- framework of J.E.B.

ject heightened Equal Protection scruti- ny.13 A. majority agrees provides that J.E.B. hand, majority’s sleight done analytical framework to in- resolve the applying analytical framework, avoid J.E.B.’s majority stant issue. The states: intellectually is dishonest. In Davis v.

We are aware ... that J.E.B. limits Minnesota Justice Thomas stated: application of the Batson rule to an exclu- scope logic Once the in J.E.B. is persons sion of on account of a classifica- honestly acknowledged, glibly it cannot be traditionally used for irrational dis- asserted that the decision implica- has no crimination our culture. tions for strikes based on clas- Ante, Ante, 913 Compare, S.W.2d at 495. sex, sifications other than or that it does 913 (opinion original S.W.2d at 474-75 imply not further restrictions on the exer- submission). agreement Given our cise of the strike outside the analytical adopted by framework the Su- context of race and sex. preme might the reader ask —Id., today’s U.S. -, -, 2120, majority 2122, how could reach a different (1994) rehearing. quite (Thomas, J., result on The reason is 128 L.Ed.2d 679 dissent simple, majority certiorari) ing does not (emphasis follow J.E.B. to the denial of added). majority states: right 11. Our purpose fundamental to the free exercise of Court said if the is to ... "discriminate religion "zealously protected religions, constitutionally must be ... even at between law is expense admittedly high though may of ... social inter- invalid even the burden be charac Yoder, 205, 215, being only (Quoting ests.” Wisconsin v. terized as U.S. indirect." Ibid. 1526, 1533, Brown, (1972). 599, 607, 32 L.Ed.2d 15 366 U.S. 81 S.Ct. Braunfeld 1144, 1148, (I960).) 6 L.Ed.2d 563 Indirect opportunity harm is sufficient because the 12. This misdirected focus an obvious rabbit jury right serve on a is a civil afforded to all trail because the unconstitutional exclusion of a citizenship, citizens as incident of their veniremember does not affect the venire- allowing party potential juror solely to strike a member’s affiliation. The Pentecostal religion showing spe because of without a more veniremembers were still Pentacostals after their imposes cific bias on behalf veniremember just unconstitutional exclusion as the venire- juror's religion. a burden on the free exercise of unconstitutionally members excluded in Batson Levinson, 492, 845, State v. 71 Haw. 795 P.2d were still African-Americans and the male (1990). unconstitutionally veniremembers excluded in Consequently, J.E.B. were still males. as seen in is, right if 13.That the veniremember’s to the free B, part infra, III the focus must be on whether fundamental, exercise of Cantwell v. heightened Equal their class was entitled to Pro- Connecticut, 296, 303, 900, 310 U.S. 60 S.Ct. scrutiny. tection 903, (1940), infringement 84 L.Ed. 1213 then the peremptory challenge right heightened The unconstitutional of that Pro- directly need scrutiny. affect the Living veniremember's reli tection Center, Cleburne Cleburne Verner, 398, 404, gion. 432, 440, 3249, 3254, In Sherbert v. 473 U.S. 105 S.Ct. (1985). 10 L.Ed.2d 965 87 L.Ed.2d 313 Powers, right only to the to vote.

B. second 1369; and, 407, Carter v. U.S. proper Our focus should be whether County, Greene Jury Commission right Pentecostal veniremembers held (1970) against not be discriminated in the selection (“Whether right, deemed a service be jury. appellant’s have the Veniremembers duty, may no more privilege, or a the State right discriminated in the be deny it to to some of its citizens and extend it challenges. use Powers v. invidi- grounds on racial than Ohio, others offering also, J.E.B., ously and with- discriminate See franchise.”).14 (“All Jury holding persons of the elective 114 S.Ct. at citizen- responsible [from have not to excluded service is an exercise community, summarily ship by service] because of discrimi and is often stereotypical natory presumptions opportunity citizens have contribute some Powers, patterns reflect and reinforce of historical community. to the discrimination.”). 111 S.Ct. at 1369.15 litigants enjoy Veniremembers as as well Discriminatory jury selection harms the equal rights jury pro protection to selection because it denies the excluded veniremember free Hernan cedures from discrimination. jury right participate to veniremember’s York, 352, 355, dez New 500 111 U.S. S.Ct. Indeed, Supreme the held service.16 Court 1864, 1859, (1991); 114 L.Ed.2d 395 Edmon community is the dis the entire harmed Co., 614, son v. Leesville Concrete 500 U.S. criminatory jury from exclusion citizens (1991); and, 2077, 111 114 L.Ed.2d Powers, service. U.S. McCollum, 42, 112 505 U.S. jury Discriminatory se 1368-1369. (1992). ordinary opportunity citizens “public undermine confi practices lection participate justice to in the administration jus system fairness of dence in the our long recognized has princi been as one of the 87-88, 106 Batson, tice.” 476 U.S. at S.Ct. at justifications pal jury system. for the Bowman, 1718; and, Curry v. 885 S.W.2d ordinary ... It affords citizens a valuable McCollum, (Tx.Cr.App.1993). the Su opportunity participate process of to in a preme Court stated: government experience fostering ... a juror the to [I]f court allows respect for the law. For most citizens bias, it excluded because of is a jury privilege duty honor and is their willing participant in a scheme that could significant opportunity participate most only very undermine the foundation our process. in the democratic system justice citizens’ confidence —our Powers, S.Ct. at in it. Louisiana, (quoting Duncan Id., 1444, 1469, 112 S.Ct. at 2354. 20 L.Ed.2d 491 Thus, (1968) J., discriminatory jury practices (Harlan, selection dissenting)). And the Su- justice sys preme recognized right has cast a shadow over the criminal Court tem, litigants jury harming not but the participate right service to be a basic judicial citizenship country process. incident to in our which is entire McCree, Jury perhaps powerful is service most 16.In Lockhart ordinary perform. function an citizen will Here Supreme Court stated: equal sovereign. juror’s It is vote jury large service of [T]he exclusion juror may validate invalidate the here the inability groups of individuals not on their governmental power. exercise of jurors, on basis im- serve as but of some race, gender, mutable characteristic such as study by William Pabst found A R. Jr. 90% background, undeniably gave to an ethnic rise favorably jurors im- those who served were "appearance Finally, such ex- of unfairness.” pressed jury duty and felt more favorable with deprived improperly clusion members of these Myth toward it than before their service. The historically disadvantaged groups of their often Juror, Unwilling 60 Judicature right juries serve in criminal as citizens to cases. Because, each equal citizen right gion holds an heightened Equal Protec participate service it follows that Ante, tion review. 913 S.W.2d at 475-79. the Pentecostal veniremembers in the instant finally And we determined there was not a to not be discriminated case held the compelling governmental interest in exclud appellant’s selection of jury. ing veniremembers on the religion. basis of Id., 913 S.W.2d at opinion 479-80. The IV. original grounded submission was on estab said, This opinion becomes clear that our Supreme lished authority.17 I believe original correctly submission addressed analysis type analysis contem the issue before the Court. We traced the plated by Court under the ana application Protection Clause to lytical framework of J.E.B.18 process selection from Strauder v. Virginia, West 25 L.Ed. 664 (1879), through Court’s latest V. Ante, pronouncements in J.E.B. 913 S.W.2d mistake, Let today there be no majority at 492-95. We reviewed and its ana sanctions, of this Court encourages, even lytical prohibits framework which the use of discrimination of our citizens on the basis of to exclude venire- religion. type This of discrimination members on the basis of classifications sub will harm litigants, the excluded venire-

ject heightened scrutiny. judicial system. members and our By allow- Id., 913 S.W.2d at 472-75. We traced reli ing peremptory challenges religion, based on gious discrimination from country’s our in we violate the Protection Clause’s fun- ception through Court’s latest guarantee damental government that our Church the Lukumi Babalu statements in will Aye Hialeah, City v. treat 520, its citizens as individuals rather than 113 2217, 124 stereotypical components religious and de of a class. termined that discrimination based forget juror reli We that a repre- serves not as a holding Snow, original 216, 17. Our 477, on submission that reli Cal.Rptr. 44 Cal.3d 242 746 P.2d gious (1987) place jury discrimination has no (Peremptory challenges may 452 not be process selection jury was not novel. distinguished State v. Levin used to exclude from a citizens son, 492, 845, (1990) racial, ethnic, religious, 71 Haw. grounds.); 795 P.2d on 849 or similar (Improper 1075, People peremptory challenge Fudge, to exercise Cal.Rptr.2d v. 7 Cal.4th on 31 321, 332, affiliation.); religious State, 36, (1994) Joseph (may 875 v. 636 P.2d 47 So.2d not ex (Fla. 1994) solely 777 (Improper peremptor religious 3d DCA clude veniremembers on and, Gilmore, grounds); 508, ily challenge a State v. 103 veniremember on the basis N.J. 1150, faith.); (1986) ("... Eason, Jewish 511 A.2d North Carolina 1158 defendant is v. 336 N.C. 730, 917, (1994) impartial jury entitled to trial without (Improper 445 S.E.2d discrim religious principles_’’). ination peremptorily challenge use on basis of solely because venire- also, Lucas, 352, Brandborg F.Supp. See v. member was a Jehovah’s Witness. Discrimina- (U.S.Dist.Ct. 1995) (Questions strongly judicial system so any taints the — E.D.Texas concerning dire.); improper are proceeding flawed.); at voir appears fatally in which it Willis, Soares, State v. Ohio Misc. 293 N.E.2d Commonwealth v. 377 Mass. (1972) (”[N]o person (1979) ("... shall be denied the generic group N.E.2d affil- race, to serve on a because of status of may permissibly iations which form the basis sex, religion, age long compe so sex, are race, color, for exclusion: creed [reli- tent.”); and, Daily, United States v. 139 F.2d 7 gion] Wheeler, origin.”); People or national v. (7th Cir.1943) (The parties may inquire into Cal.Rptr. Cal.3d 748, 583 P.2d dire.). religious during affiliation voir (1978) ("... peremptory challenges may jury, not be used solely to exclude from a bias,’ presumed ‘group because of a all or most authority 18. I am astounded at the lack of ad- members of identifiable of citizens distin- majority support vanced its ultimate racial, guished religious, holding. ethnic or similar majority The reader will observe the State, grounds.”); opinion Walker v. provides authority 611 So.2d only when it is in (State (Ala.Cr.App.1992) agreement not use holding original reli- with our submis- gious However, explanation affiliation as a race neutral majority departs sion. when the blacks.); objection Batson original holding, to the exclusion of our the reader is left baffled as Riley (Del.1985) legal authority 496 A.2d help to its to do so. I cannot but (Peremptory challenges religious analysis based on affilia- believe that such an was never contem- generally impermissible.); People plated by tion are Court. racial, sexual or sentative some participat-

group but as an individual citizen govern-

ing important in an function of our ignore that the individual citizen’s

ment. We

opportunity participate the fair adminis- justice our is fundamental to demo-

tration promise of system and reaffirms the

cratic

equality the law. When citizens under democratic participation

excluded from our

processes such invidious discrimi- because

nation, promise equality dims and judicial system jeopar-

integrity of our

dized. analysis dispassionate

A review reveals original was correct. Accord- submission rehearing should

ingly, the State’s motion not, it is I dissent.

be overruled. Because Angelo SOTELO, Jr., Appellant,

Joe Texas, Appellee.

The STATE of

No. 0915-94. Texas, Appeals of Criminal

En Banc.

Nov.

Discretionary Denied Review Jan.

Case Details

Case Name: Casarez v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 13, 1995

Citation: 913 S.W.2d 468

Docket Number: 1114-93

Court Abbreviation: Tex. Crim. App.