Casarez v. State

OPINION ON STATE’S MOTION FOR REHEARING OF APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

[December 13, 1995]

MEYERS, Judge.

Famed defense attorney Clarence Barrow’s jury selection methods were keenly influenced by racial, sexual, and religious stereotypes. He preferred Irishmen because he thought them to be “emotional, kindly and sympathetic.” Clarence Darrow, Attorney for the Defense, Litigation, Winter 1981, at 41, 43 (1981), reprinted from Esquire Magazine (May 1936). He also liked “Unitarians, Universalists, Congregationalists, Jews and other agnostics.” Id. at 43. But he distrusted women, having “formed a fixed opinion that they were absolutely dependable” and, therefore, unlikely to be sympathetic to the defense. Id. at 44.

While it might once have been considered acceptable to pick jurors as Darrow did, based mainly on criteria such as these, the practice is now constitutionally risky. Indeed, two of the three criteria mentioned here have already been condemned by the United States Supreme Court. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. -, 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994). The question we decide today is whether the third also violates fundamental principles of fairness and equality.

Appellant in the instant cause was convicted of aggravated sexual assault and his punishment assessed at confinement in the penitentiary for twelve years. During voir dire, the prosecutor used two of his peremptory challenges to remove black veniremembers from the jury panel. Appellant objected, claiming that the challenges were racially motivated in violation of Batson . But the prosecutor replied that his motives were religious, not racial, and that he had opted to remove both veniremembers, not because they were black, but because they were members of the Pentecostal Church. Appellant then objected that peremptory exclusion from jury service on the basis of religion, like exclusion on the basis of race, is forbidden by the Equal Protection Clause of the United States Constitution. U.S. Const, amend. XIV. His objection was overruled by the trial judge without elaboration.

On direct appeal, appellant cited removal of the Pentecostals as a basis for reversing his conviction. He argued that the equal protection rationale of Batson , forbidding racially motivated peremptory challenges, is equally applicable to challenges motivated by religious prejudice. The Court of Appeals disagreed, however, concluding that the Supreme Court intended its holding in *493 Batson to apply only in the case of peremptory challenges based on race. Casarez v. State, 857 S.W.2d 779, 783-84 (Tex.App.—Fort Worth 1993). We granted appellant’s petition for discretionary review because it presents an important question, likely to recur, upon which the judges of the intermediate appellate court in this case disagreed. Tex.R.App.Proc. 200(c)(2), (4). On original submission, we sustained appellant’s ground for review and remanded the cause to the Court of Appeals for further proceedings consistent with our opinion. But, on consideration of the State’s motion for rehearing, we have decided that our original opinion misapprehended the constitutional significance of peremptory challenges based on criteria implicating First Amendment liberties. Accordingly, we now affirm the judgment of the Court of Appeals.

The Fourteenth Amendment to the United States Constitution provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” Yet the very process of governing requires discrimination. Laws, regulations, and practices of government, in order to achieve desirable social goals, must often classify people so that the official treatment each person receives is made to depend upon the class into which he falls. For example, able-bodied citizens may be required to serve in the armed forces, while the infirm are not. Implementation of the Equal Protection Clause therefore varies in each instance with the basis of the official classification.

In general, the government has broad discretion in the performance of its functions, and it may usually structure its laws in any way bearing some rational relationship to its legitimate purposes, even though an advantage or disadvantage may thereby inure to members of a certain class. Pennell v. City of San Jose, 485 U.S. 1, 14-15 , 108 S.Ct. 849, 858-59 , 99 L.Ed.2d 1 (1981). But when the government classifies individuals on a basis historically used to enforce illegal or irrational group preferences or in such a way as to inhibit the exercise of basic constitutional rights, its discretion is more limited and its classifications require a more particularized and convincing justification. Thus, for example, an official classification based on race is strictly scrutinized and considered to be incompatible with equal protection principles unless there is a compelling reason for it. Wygant v. Jackson Board of Education, 476 U.S. 267 , 106 S.Ct. 1842 , 90 L.Ed.2d 260 (1986). Similarly, discriminatory practices based on sex, while not held to so strict a standard, are nevertheless viewed with more than the usual level of suspicion and are prohibited unless substantially related to the accomplishment of an important government purpose. Mississippi University for Women v. Hogan, 458 U.S. 718, 724 , 102 S.Ct. 3331, 3336 , 73 L.Ed.2d 1090 (1982).

The system according to which jurors are selected for service in the courts by allowing litigants to exercise peremptory challenges against individual veniremembers is a government practice subject to these equal protection rules. Edmonson v. Lees ville Concrete Co., 500 U.S. 614, 618-28 , 111 S.Ct. 2077, 2081-87 , 114 L.Ed.2d 660, 672-78 (1991). No party may exclude a prospective juror from service if the basis for exclusion is offensive to the United States Constitution. Georgia v. McCollum, 505 U.S. 42 , 112 S.Ct. 2348 , 120 L.Ed.2d 33 (1992). Because peremptory challenges are an established and valuable part of the adversary system, however, preserving the right to this method of jury selection is a legitimate interest of the government. Batson, 476 U.S. at 98-99 , 106 S.Ct. at 1723-24 . Accordingly, most peremptory challenges are not constitutionally exceptionable. But the government’s interest in a system of peremptory challenges is generally not great enough to support exclusion of persons from jury service on the basis of a classification which is subject to strict or heightened scrutiny under the Equal Protection Clause. It is for this reason that peremptory challenges based on race or sex violate the United States Constitution. J.E.B., 511 U.S. -, 114 S.Ct. 1419 , 128 L.Ed.2d 89 ; Batson, 476 U.S. 79 , 106 S.Ct. 1712 ; Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965).

Whether a classification based on religious affiliation also meets the conditions for more *494 exacting examination under the Constitution, and if so whether it can survive such an examination, are the questions presented in the instant cause. The United States Supreme Court has not yet addressed this issue, although some members of the Court have expressed their individual views of the matter. Davis v. Minnesota, — U.S. -, 114 S.Ct. 2120 , 128 L.Ed.2d 679 (1994) (Thomas, J., joined by Scalia, J., dissenting to denial of certiorari).

In breaking the barrier between classifications that merit strict equal protection scrutiny and those that receive what we have termed “heightened” or “intermediate” scrutiny, J.E.B. would seem to have extended Batson ⅛ equal protection analysis to all strikes based on the latter category of classifications — a category which presumably would include classifications based on religion. Cf. Larson v. Valente, 456 US 228, 244-246 , 72 LEd2d 33 , 102 SCt 1673 [1683-1684] (1982); Batson, 476 US, at 124 , 90 LEd2d 69 , 106 SCt 1712 [at 1737] (Burger, C.J., dissenting). It is at least not obvious, given the reasoning in J.E.B., why peremptory strikes based on religious affiliation would survive equal protection analysis.

As Justice Thomas thus suggests, there is a plausible basis in constitutional jurisprudence for believing that official discrimination on the basis of religion should be treated the same as discrimination on the basis of sex for purposes of the Equal Protection Clause. But, unlike Justices Thomas and Scalia, we are not persuaded that the United States Constitution therefore necessarily forbids peremptory removal of prospective jurors on account of their religious affiliation. Although the basis for treating religion differently than race or sex under these circumstances may not be immediately apparent, we think it becomes clear on further reflection.

Laws which discriminate between individuals on the basis of their religious affiliation have not been the subject of much litigation under the Equal Protection Clause. This is undoubtedly because the United States Constitution protects persons from religious prejudice mainly by providing that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]” U.S. Const, amend. I. See, e.g., Sherbert v. Verner, 374 U.S. 398 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 (1963). Long before the civil rights of racial minorities and women were recognized, and before ratification of the Fourteenth Amendment, a categorical prohibition against the disenfranchisement of any person on the basis of his religious belief was made by the First Amendment.

But the Equal Protection Clause is also a powerful disincentive to religious classification by the government, since discrimination on the basis of religious belief or affiliation not only interferes with the free exercise of religion by favoring one religion over another, but it also necessarily treats some individuals differently than others on account of their religious belief or practice. When this is so, the rights protected by the First and Fourteenth Amendments are virtually indistinguishable, and the constitutional analysis applicable to the government’s religious classification is the same, whether raised as an equal protection claim or as a freedom of religion complaint. See Larson v. Valente, 456 U.S. 228 , 102 S.Ct. 1673 , 72 L.Ed.2d 33 (1982).

Supreme Court precedent makes it clear that religious classifications are constitutionally impermissible unless there is an unusually persuasive, perhaps even a compelling, justification for them. Id. at 246-47 , 102 S.Ct. at 1684-85. In the present context, of course, that justification begins with the now well-known and generally accepted proposition that peremptory challenges promote selection of a jury that will be fair and impartial to both parties. This objective is, of course, fundamental to the jury system as presently conceived. So long as our method of litigation is adversarial, it is essential not only that the triers of fact be neutral and objective, but that the parties perceive them to be so. Implementing the unarticulated individual preferences of the parties achieves this purpose in a way no other method can, because it permits them to evaluate the desirability of prospective jurors according to their own subjective criteria.

*495 But it is not ultimately the value of peremptory challenges “as an institution” that must be balanced against the evil of invidious discrimination. Rather, it is the extent to which peremptory challenges based on a particular classification actually make a significant contribution to securing a fair and impartial jury. J.E.B., 511 U.S. at -, 114 S.Ct. at 1425-26. The use of peremptory challenges to exclude persons of a certain race or sex does not make such a contribution because the implication that such persons cannot be fair or will not be impartial implicitly attributes to them beliefs or attitudes on account of their race or sex which they may not actually hold. “Striking individual jurors on the assumption that they hold particular views simply because of their [race or] gender ... [therefore] denigrates the dignity of the excluded juror” without significantly improving the chances of fairness and impartiality on the jury. Id. at -, 114 S.Ct. at 1428.

But excluding prospective jurors on the basis of their religious affiliation does promote fairness and impartiality on the jury. And it does so without denigrating the dignity of any individual veniremembers. With few exceptions, the only significant thing that members of a religious faith have in common is their belief in certain principles, doctrines, or rules. To the extent that they have historically been the objects of discrimination, it is on account of these beliefs and not on account of anything else. Yet discrimination on the basis of personal belief has always been considered appropriate in the jury selection context because a veniremember’s beliefs reveal an especially important bit of information about his suitability for jury service. They tell us what some of his sympathies and prejudices are.

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

To hold, therefore, that a veniremember may not be excluded on account of his religious preference is tantamount to a holding that he may not be struck on account of his beliefs. If pursued with even modest rigor, such a holding would undercut the essential features of our jury selection system altogether because our form of government protects not only religious belief, but all manner of political, moral, social, and scientific conviction as well. See United States v. Villarreal, 963 F.2d 725 (5th Cir.1992), cert. denied 506 U.S. 927 , 113 S.Ct. 353 , 121 L.Ed.2d 267 (peremptory exclusion of prospective jurors on account of political belief does not offend equal protection principles). The treatment of religious creed as an inappropriate basis for peremptory exclusion cannot rationally be distinguished from a similar treatment of persons on account of their Libertarian politics, their advocacy of communal living, or their membership in the Flat Earth Society.

We are aware, of course, that J.E.B. limits application of the Batson rule to an exclusion of persons on account of a classification traditionally used for irrational discrimination in our culture. Plainly, libertarians, hippies, and those who believe the earth is flat have not been the subject of such historic discrimination, and it would be insensitive to trivialize the profound social disabilities under which women and racial minorities were once made to suffer in this country by comparing their history to that of an odd subculture. But, try as we may, we cannot reconcile the extension of Batson to religious belief without also extending it to constitutionally protected beliefs of other kinds. And, in turn, we cannot make ourselves accept that a veniremember’s belief, religious or otherwise, is an inappropriate subject for inquiry during jury selection or an impermissible basis for the exercise of peremptory strikes. If it is permissible to discriminate against prospective jurors on account of their beliefs, then it is necessarily permissible to discriminate against them on account of their religion, for *496 discrimination on the basis of religion is discrimination on the basis of belief.

The Supreme Court emphasized that its holding in J.E.B. “does not imply the elimination of all peremptory challenges.” 511 U.S. at -, 114 S.Ct. at 1429. One consequence of this holding is that litigants may continue to discriminate on the basis of classifications not subject to strict or heightened equal protection scrutiny. It does not follow, however, that discrimination on the basis of every classification subject to such scrutiny is necessarily forbidden. For a peremptory challenge to be objectionable under the Equal Protection Clause, according to it must not only be based upon a classification subject to strict or heightened scrutiny, but it must also fail to survive such scrutiny by ratifying or perpetuating “invidious, archaic, and overbroad stereotypes.” 511 U.S. at -, 114 S.Ct. at 1422.

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

Whatever may be said against the system of picking trial juries by striking individuals from a panel of eligible citizens, the practice is deeply entrenched in the American legal process, prescribed by Texas statute law, and constitutionally unobjectionable. Insofar as the practice has been compromised by Batson and J.E.B., the State of Texas may not permit the peremptory exclusion of jurors on the basis of irrational prejudices which violate the Equal Protection Clause. But we do not read Supreme Court jurisprudence yet to condemn exclusion on the basis of belief. We therefore hold that the interests served by the system of peremptory challenges in Texas are sufficiently great to justify State implementation of choices made by litigants to exclude persons from service on juries in individual cases on the basis of their religious affiliation.

For the reasons given above, the State’s motion for rehearing is granted and the judgment of the Fort Worth Court of Appeals is affirmed.