Casarez v. State

HILL, Chief Justice,

dissenting.

I respectfully dissent, because the peremptory challenge of a citizen from jury service due to the citizen’s religion violates that citizen’s right to equal protection under the Fourteenth Amendment to the United States Constitution; and a criminal defendant, whether or not a follower of that religion, has standing to invoke that right on behalf of that juror. I would further hold that where a prosecutor states that religion was one of the reasons for a strike and also states a religion-neutral reason for the strike that is supported by the record, the strike must still fail because it was in part based upon religion.

There is no question that the Batson rule applies to the use of a peremptory challenge based on race. See Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). The major issue here is whether the rule also applies to religion.

The majority does not argue with the premise that ordinary equal protection analysis would lead to the conclusion that the exclusion of a juror on the basis of that juror’s religion would be a violation of that juror’s right of equal protection. Yet, despite the fact that the Supreme Court in Batson stated that its ruling as to race was based upon the Equal Protection Clause, id. at 89 , 106 S.Ct. at 1719 , 90 L.Ed.2d at 82 , the majority indicates that it will not use equal protection analysis in determining whether that ruling should be applied to religion as well as race.

Nothing in the Supreme Court’s opinion in Batson indicates that it has any intention of limiting the general principles at work solely to racial cases. The opinion is limited to race because that is the issue that was before the court. The majority derives its limitation from a dissenting opinion, that of Chief Justice Warren Burger. See id. at 112 , 106 S.Ct. at 1731 , 90 L.Ed.2d at 97 . Justice Burger urged that the peremptory challenge would be eliminated if ordinary equal protection analysis were to be employed. Id. at 127 , 106 S.Ct. at 1739 , 90 L.Ed.2d at 108 . His views were not part of the court’s opinion in Batson .

Even if we were to accept the views of Justice Burger that we are not to use conventional equal protection analysis in determining this issue, we must examine the factors that the Batson court used in reaching the decision that racial discrimination in the exercise of the peremptory strike was constitutionally prohibited, so as to determine what analysis we are to use.

*790 In examining the opinion in Batson , we find that the following factors were determinative:

1. The exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure — the State may not exercise its peremptory challenges in contravention of the Equal Protection Clause.

2. Purposeful racial discrimination in jury selection violates a defendant’s right to a representative jury.

3. Racial discrimination in jury selection undermines public confidence in the fairness of our system of justice.

4. There must be protection against State action through its administrative officials in effecting the prohibited discrimination.

5. The peremptory challenge may be and has been used to discriminate against African-American jurors.

Id. at 85-88 , 106 S.Ct. at 1716-18 , 90 L.Ed.2d at 80-82 .

As we examine those factors, we must note that every one is as equally applicable to religious discrimination in jury selection practices as it is to racial discrimination. Religious discrimination would be a primary example of a practice that the First Amendment, applied to the states by virtue of the Fourteenth Amendment, was designed to cure. Religious discrimination in jury selection violates the defendant’s right to a representative jury. Religious discrimination in jury selection is unfair and will undermine public confidence in the fairness of our system of justice. Venire-members must have protection against State action in effecting discrimination based upon their religion. Since this is not the first case that we have had where prosecutors have acknowledged exercising peremptory strikes against jurors because of their religion, we know that peremptory strikes are being exercised against our citizens based upon their religion. Because the factors utilized in Batson are as applicable to religion as to race, I would hold that the Equal Protection Clause also prohibits religious discrimination in the exercise of peremptory strikes.

The only possible basis for holding to the contrary is the belief that the United States Supreme Court intends to limit its holding in Batson to racial discrimination in order to preserve the peremptory challenge. The only reason that the Court might have for prohibiting one form of discrimination while allowing other types of discrimination would be that the history of racial discrimination in our country is so historically important, and its potential for social unrest is so great, if not held in check, that its correction outweighs the utility of the peremptory challenge.

As is the case with racial discrimination, religious discrimination is of great historical importance both in this country and in the world. Many of the founders of this nation came here to avoid religious persecution. Such persecution and discrimination continued in some of the colonies until the practice was outlawed by the Constitution. Today, headlines almost daily tell of some ghastly act carried out in the name of religion against those of other faiths. In our own country, the Ku Klux Klan has crusaded against those of the Jewish faith and those of the Roman Catholic faith, as well as against African-Americans and other racial groups.

This country may be the most religious and most religiously diverse in the world. Given the historic human tendency to be intolerant with respect to religion, and given the great diversity of the religious faiths of our citizens, and the importance that our citizens place on religious faith, I would suggest that discrimination in jury selection on the basis of religion is as repugnant to our ideals and has the potential to be as socially disruptive as racial discrimination if it is allowed to continue. Therefore, I would hold that the principles stated in Batson with respect to racial discrimination in the exercise of peremptory challenges are equally applicable to religious discrimination in the exercise of peremptory challenges.

The State argues that even if Batson applies to religious discrimination in the exercise of peremptory strikes, the trial court did not err in allowing it in this case *791 because the prosecutor had other, nonreligion based reasons that would justify such a strike. It relies on the case of Hill v. State, 827 S.W.2d 860 (Tex.Crim.App.1992).

In Hill , the majority concluded that a Batson objection was well taken because the prosecutor’s nonracial explanation for his strike was not supported by the record, and therefore was merely a pretext for discrimination. Id. at 870. In what I consider to be dicta, the majority indicated that the mention of a racial reason by the prosecutor was not conclusive in that the appellant was required to show that any nonracial reasons were merely a pretext for discrimination. Id. I would conclude, along with the concurring opinion in Hill , that the United States Constitution does not permit race as a factor in the State’s exercise of a peremptory strike, see id. at 873 , so that if race were included as a reason, the prosecutor’s stated reasons for peremptory strikes are not race-neutral. Assuming that the same rule would apply as to religion, in this case the prosecutor’s stated reasons for peremptory strikes are not religion-neutral.

I believe that the majority would concede that if the principles outlined in Batson are applicable to peremptory strikes based upon religion, the appellant has the standing to object to strikes based upon the religion of the veniremember whether or not the appellant is a member of that religion. See Powers v. Ohio, 499 U.S. 400 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991).

Based upon the principles stated in this opinion, I would sustain the appellant’s point of error number one, reverse the judgment, and remand this cause for trial.

Joined by HICKS, J.