Casarez v. State

MANSFIELD, Judge,

concurring.

I agree with the Court’s conclusion that the Equal Protection Clause of the Fourteenth Amendment does not prohibit the State from peremptorily challenging a veni-reperson on the basis of religious belief. Accord State v. Davis, 504 N.W.2d 767 (Minn.1993), cert. denied, — U.S. -, 114 S.Ct. 2120 , 128 L.Ed.2d 679 (1994). I write separately to explain why I believe that conclusion is well-founded.

The Relevant Facts

Appellant, George Toby Casarez, was charged and found guilty by a jury of aggravated sexual assault. During the voir dire portion of appellant’s trial, appellant objected to the prosecutor’s peremptory challenges of two black venirepersons. Appellant contended that the challenges were racially motivated and thus prohibited by the Equal Protection Clause. See Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). The prosecutor responded that he struck the venirepersons not because they were black but because, among other things, they were Pentecostals:

It’s been my experience from a number of jury panels, in more than 70 felony jury trials and 27 misdemeanor jury trials, that people from that religion often have a problem in passing judgment on other persons, and that they often believe that that is a matter for God and not for man. And that they have trouble not so much, Your Honor, although some do, with the guilt *497 phase of the trial, but especially the punishment phase of the trial, and they are want to — want probation rather than to be responsible, in their eyes, for sending someone to the penitentiary, thereby judging them.

Appellant, unimpressed by the prosecutor’s race-neutral explanation, argued that the Equal Protection Clause also prohibited peremptory challenges on the basis of religious belief. The trial court allowed the peremptory challenges to stand, however.

On appeal, appellant reiterated his argument that the Equal Protection Clause forbade peremptory challenges on the basis of religion, but the Second Court of Appeals, sitting en bane, disagreed. Casarez v. State, 857 S.W.2d 779 (Tex.App.—Fort Worth 1998). We granted appellant’s petition for discretionary review to determine whether the court of appeals misinterpreted the requirements of the Equal Protection Clause.

Batson and J.E.B.

In Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , the United States Supreme Court held that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” The Court recognized the value of peremptory challenges in assuring the selection of a fair and impartial jury, id. at 90-92 , 106 S.Ct. at 1720 , but the Court also recognized that the “central concern of the ... Fourteenth Amendment was to put an end to governmental discrimination on account of race,” id. at 85 , 106 S.Ct. at 1716 . The Court then concluded that that “central concern” required that a potential juror not be denied an important opportunity to participate in civic life simply because of his race. Id. at 87-88 , 106 S.Ct. at 1718 .

In J.E.B. v. Alabama ex rel. T.B., 511 U.S. -, -, 114 S.Ct. 1419, 1430 , 128 L.Ed.2d 89 (1994), the Court went further and held that, consistent with the equal protection guarantee, litigants may not strike potential jurors solely “on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man.” The Court again recognized the value of peremptory challenges, id. at -, 114 S.Ct. at 1429 , but reasoned that “[w]hen state actors exercise peremptory challenges in reliance on gender stereotypes, they ratify and reinforce prejudicial views of the relative abilities of men and women,” id. at -, 114 S.Ct. at 1427 . The Court conceded that all peremptory challenges are based on stereotypes of some kind, but it argued that “where peremptory challenges are made on the basis of group characteristics other than race or gender (like occupation, for example), they do not reinforce the same stereotypes about the group’s competence or predispositions that have been used to prevent them from voting, participating on juries, pursuing their chosen professions, or otherwise contributing to civic life.” Id. at -, fn. 14, 114 S.Ct. at 1428, fn. 14 (emphasis added). Essentially the same point was made by a commentator three years before J.E.B. was handed down:

If the Court plans to keep peremptory challenges but satisfy the requirements of the equal protection clause, the only limitation to peremptory challenges, other than the prohibition against racial-based exclusion, should be the prohibition against gender-based exclusion. Prohibition of gender-based peremptory challenges is not only a logical extension of the Batson prohibition, but is also the logical place to end the restructuring of the peremptory challenge. Some commentators have argued that a distinction cannot be made between gender and other classifications. As [Chief] Justice Burger noted in his dissent in Batson , the conventional equal protection principles would have to include prohibition of peremptory challenges based not only on race and sex, but also on “religious or political affiliation, mental capacity, number of children, living arrangements, and employment in a particular industry.” However, while courts have held that the equal protection clause specifically requires that no person in a similar situation be treated disparately, the [Supreme] Court only applies heightened *498 scrutiny to members of suspect classes. The people belonging to the classifications mentioned by the Chief Justice are not accorded heightened scrutiny. The Court has never afforded the kind of protection it has given to classifications based on race or gender to the classifications mentioned by Justice Burger. The reason that higher ‘protection has been withheld from, the people belonging to the classifications that Justice Burger mentioned is because, according to the Supreme Court, those people have not experienced the kind of discrimination historically suffered by people belonging to a certain race or gender.

Comment, Reconstruction of the Peremptory Challenge System: A Look at Gender-Based Peremptory Challenges, 22 Pac.L.J. 1305, 1329 (1991).

In summary, it is clear from the text of the Batson and J.E.B. opinions that they are grounded on the need to address our Nation’s historical and uniquely painful and destructive patterns of race and sex discrimination. The constitutional guarantee of equal protection simply requires special protection in those contexts, even with respect to the use of “peremptory” challenges. The Batson and J.E.B. opinions do not suggest that the Equal Protection Clause prohibits peremptory challenges based on group characteristics that, like religion, have not been the focus of such pervasive and hurtful discrimination. In fact, the J.E.B. opinion suggests quite the opposite.

The First Amendment

The First Amendment guarantees the freedom of religion, speech, press, assembly, petition, and association. See generally R. Rotunda, et al., Treatise on Constitutional Law: Substance and Procedure § 18.40 (2nd ed. 1992). If the Equal Protection Clause forbids peremptory challenges based on religious belief, then there is no principled reason why it would not also forbid peremptory challenges based on the exercise of all the other First Amendment freedoms. Thus, if litigants may not strike a venireperson because of his religious beliefs, then they also may not strike a venireperson because, for example, he is a member of a white supremacists’ organization or because he advocates repeal of all laws criminalizing sex with minors. Such an extension of Batson would spell the utter destruction of the peremptory challenge, as the Court of Appeals for the Fifth Circuit recently recognized in United States v. Villarreal, 963 F.2d 725, 728-729 (5th Cir.), cert. denied, 506 U.S. 927 , 113 S.Ct. 353 , 121 L.Ed.2d 267 (1992). Nothing in the Batson or J.E.B. opinions suggests or implies that the Equal Protection Clause requires such a result.

Necessary to Achieve A Compelling State Interest

The Supreme Court has developed standards for determining the validity of state action that is challenged as violative of the Equal Protection Clause. The general rule is that state action is presumed to be valid and will be sustained if the classification drawn by the state action is rationally related to a legitimate state interest. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439-40 , 105 S.Ct. 3249, 3254 , 87 L.Ed.2d 313 (1985). If the classification is based on gender, then it will be presumed to be invalid and will be sustained only if it is substantially related to an important state interest. Id. at 441-42 , 105 S.Ct. at 3255 . Finally, if the classification is based on race, alienage, or national origin, or if the classification impinges on the exercise of a fundamental right, then it will again be presumed to be invalid and will be sustained only if it necessary to the attainment of a compelling state interest. Id. at 439-40 , 105 S.Ct. at 3254 .

Freedom of religion is a fundamental right. Dinkins v. State, 894 S.W.2d 330, 341, fn. 9 (Tex.Crim.App.1995); Clark v. State, 665 S.W.2d 476, 480, fn. 3 (Tex.Crim.App.1984). And, a fair and impartial jury is plainly a compelling state interest. See J.E.B., 511 U.S. at -, fn. 8, 114 S.Ct. at 1426, fn. 8 . Therefore, assuming arguendo that peremptory challenges based on venirepersons’ religious beliefs impinge on those venirepersons’ freedom of religion, the question becomes whether such peremptory challenges are nonetheless necessary to the attainment of a fair and impartial jury. If the answer is *499 “yes,” then the challenge is valid under the Equal Protection Clause. I believe the answer is “yes.”

A juror’s religious training and beliefs may seriously affect his views, either consciously or unconsciously, on many issues that might arise in a criminal case: abortion, extramarital sexual relations, homosexuality, divorce, prostitution, alcohol consumption, illicit drug use, gambling, capital punishment, even political affiliation. Furthermore, a juror’s religious training and beliefs may seriously affect his willingness or even his ability to sit in judgment or assess punishment. For these reasons, it is essential for litigants to question venirepersons about their conscious religious beliefs as well as the church teachings to which they might have been exposed over their lifetimes. It is equally essential, in order for a fair and impartial jury to be attained, for the litigants to be able to use peremptory challenges based on the information they acquire through this questioning.

The right of a criminal defendant, whose life or liberty may be at stake, to be judged by a fair and impartial jury far outweighs the peripheral burden placed on the free exercise of religion by an individual struck based on his religious beliefs. It would be absurd to suggest, for example, that an African American defendant should be barred from using a peremptory challenge to strike a venireper-son who adheres to a religion that advocates white supremacy. The State, as representative of the people, has an equally strong interest in assuring that criminal juries are fair and impartial, and it must be free to use peremptory challenges to strike venireper-sons whose religious beliefs reasonably call into question their ability to be fair and impartial.

With these observations, I join the opinion of the Court.