Casarez v. State

BAIRD, Judge,

dissenting.

On original submission we held the Equal Protection Clause of the Fourteenth Amendment prohibits the use of peremptory challenges on the basis of religion. We granted rehearing to determine the limited issue of whether we misapplied First Amendment jurisprudence in reaching that holding. The majority, purportedly seeking to resolve that issue, states that our opinion on original submission misapprehended the constitutional significance of peremptory challenges based on criteria implicating First Amendment liberties. 1 Ante at 498. The majority ultimately holds the governmental interests served by peremptory challenges are sufficiently compelling to permit discrimination on the basis of religion. Ante at 496. To achieve this result the majority opinion rests on three fundamentally flawed theories: first, that the beliefs of a religion are held by all members of that religion, ante at 496; second, that there is a compelling governmental interest that permits discrimination on the basis of religion, ante at 496; and, third, that the proper focus to resolve the ground for rehearing is the veniremember’s religious belief(s) rather than the veniremember’s right to serve on a jury. We will discuss each theory seriatim.

I.

The majority uses religion, religious affiliation, religious group, religious creed, religious faith and religious preference interchangeably. I will use the term religion because that is the term used in the First Amendment. The majority states: “Because all members of the [religious] group share the same faith by definition, it is not unjust to attribute beliefs characteristic of the faith to all of them.” Ante at 496. Consequently, “it is necessarily permissible to discriminate against veniremembers on account of their religion, for discrimination on the basis of religion is discrimination on the basis of be *500 lief.” Ibid. This premise is fundamentally flawed for at least three reasons.

A.

First, there is precedent from this Court holding to the contrary. In Urbano v. State, 887 S.W.2d 114, 117 (Tex.Cr.App.1992), we held it is irrational to conclude simply from membership that one is aware of all of the rules of an organization.

Additionally, there is decisional authority from other jurisdictions. In Coleman v. United States, 379 A.2d 951 (D.C.Ct.App.1977), the defendants were charged with robbing of the priests and patrons of a Catholic rectory. At trial, the defendants moved to exclude all Catholics from the jury. This motion was premised on the assumption that Catholics would be unable to impartially judge the truth or falsity of the testimony of Catholic clerics. The trial judge overruled the motion and the Court of Appeals affirmed, holding:

... No evidence was presented to the trial court to support this bald assertion. Appellants single out Catholics in this regard when it could be argued with equal force that because of the prevalence of religious belief in this country, many members of our society generally of whatever faith may be predisposed to believe that clerics can be trusted to always tell the truth. In other words, what appellants contend with regard to Catholics specifically could be contended as well with regard to anyone who acknowledges a belief in some religious faith when confronted with a cleric as a witness.

Id., 379 A.2d at 953 . The Court continued, “mere potentiality for bias based upon religious affiliation cannot justify the elimination of a prospective juror.” Ibid.

In United States v. Greer, 968 F.2d 433, 435 (5th Cir.1992), the defendants belonged to the Confederate Hammerskins, a white supremacy group, and were charged with conspiring to deprive Black, Hispanic and Jewish citizens of their rights secured by the United States Constitution. 2 The defendants moved to exclude all Blacks, Hispanics, and Jews from the venire, arguing such venire-members, as a class, could not be fair or impartial. The trial judge denied the motion, and the Court of Appeals affirmed. The Court was unwilling to hold that all members of a religious class should be excluded in cases where members of that class are the victims. Instead, the Court required a showing of individual bias. Id. 968 F.2d at 435 . And though the defendants contended the Jewish veniremembers could only harbor bias, the Court of Appeals held the pertinent question was whether the individual venire-members harbored any bias.

Finally, in Rose v. Sheedy, 134 S.W.2d 18, 19 (Mo.1939), the Missouri Supreme Court held religious affiliations constitute neither a qualification nor a disqualification for jury service. Consequently, inquiry into a venire-member’s religious beliefs is proper on voir dire only where religious issues are expressly presented in the case, where a religious organization is a party to the litigation, or where the inquiry is a necessary predicate to the exercise of peremptory challenges. Coleman, 379 A.2d at 954 . But for the peremptory challenge to be permissible, it must follow individual inquiry of the veniremember. Only in this way can the peremptory challenge be knowingly and intelligently made and serve to prevent the discriminatory exclusion of veniremembers based on unconstitutional stereotypes. The United States Supreme Court has emphasized the importance of asking specific questions designed to unearth the views of prospective jurors. Morgan v. Illinois, 504 U.S. 719, 729-31 , 112 S.Ct. 2222, 2230 , 119 L.Ed.2d 492 (1992). Probing inquiry into the individual venire-member’s views or beliefs is necessary. As stated in Greer , the determination of whether the individual veniremember holds a particular belief is a prime function of voir dire examination. Id., 968 F.2d at 435, n. 3 . 3

*501 B.

Second, as an empirical matter, we know that every member of a given religion has not adopted the views of their religious leaders. We pointed this out on original submission, ante at 479, n. 15, but it bears repeating and elaboration here. The Catholic Church officially condemns the use of artificial contraceptives, Maddox, The Pope and Contraception, 29 (1991), but 84% of the members of the Catholic Church believe Catholics should be allowed to use artificial contraceptives. Gallup, The Gallup Poll: Public Opinion 1993 145 (Wilmington, Del.: Scholarly Resources, 1994). Consequently, if a party peremptorily challenged a Catholic veniremember because the party attributed to the veniremember the Catholic Church’s condemnation of the use of artificial contraceptives, the party would be wrong 84% of the time.

C.

Finally, it is illogical to attribute every belief held by a religion to its members. We have too many religions to list. Some religions hold complex views and positions, while others hold very simple beliefs, namely those established solely to achieve an IRS tax exemption. Typically, religions which hold complex views and positions reduce them to writing. For example, the United Methodist Church publishes The Book of Resolutions. 4 The book is a collection of all current and official policies, and other resolutions adopted by the General Conference of The United Methodist Church. These policies and resolutions are subject to change and many are changed every four years. The Book of Resolutions was first published in 1968, and currently contains official policy statements on approximately two hundred subjects including: reduction of water usage by United Methodists, care-giving teams for persons with AIDS, organ and tissue donation, sexual violence and pornography, access of Hispanics to higher education, African-American family life, available and affordable housing, communications access for persons who have hearing and sight impairments, Native-American ministries, confronting the drug crisis, domestic violence and sexual abuse, equal rights of women, eradication of racism, health for all by the year 2000, school busing, suicide, bilingual education, gambling, rights of workers, gun control, grand jury abuse, unemployment, police firearms policies, concern for El Salvador, the U.S. military presence in Bolivia and recognition of Cuba. These categories represent just a sampling of policies adopted by one religion.

It is absurd to assume, as the majority does, that all Methodists are even aware of the Methodist Church’s positions on housing, busing or gun control. And the majority fails to explain how the Methodist Church’s formal position on pornography is necessarily reflective of its members beliefs on the same issue. Is it reasonable to assume that every Methodist has a view on El Salvador, Bolivia or Cuba? If so, is it reasonable to assume that those Methodists who have such views necessarily hold the same views as other Methodists with respect to gambling and suicide? But this is precisely the majority’s holding: “Because all members of the [religious] group share the same faith by definition, it is not unjust to attribute beliefs characteristic of the faith to all of them.” Ante at 496. 5 The holding begs reality.

*502 D.

A fundamental tenet of the Equal Protection Clause is that the government must treat citizens as individuals, not simply as components of a racial, religious, sexual, or national class. 6 This fimdamental teaching is especially important in the context of our jury system because a juror sits not as a representative of a group but as an individual citizen. J.E.B. v. Alabama ex reí. T.B., 511

U.S. -, -, 114 S.Ct. 1419, 1434 , 128

L.Ed.2d 89 (1994) (Kennedy, J., concurring). The majority ignores this tenet and permits discrimination on the mistaken notion that all members of a religion necessarily hold the same beliefs. This is contrary to settled precedent, empirical data and common sense. Nevertheless, this stereotyping is the foundation upon which the majority opinion rests.

II.

On original submission, relying on the authority and reasoning in J.E.B. and McCollum, we held there was no compelling governmental interest that permits discrimination on the basis of religion. Ante at 480. Today’s majority finds such a compelling governmental interest, ante at 496, but cites no authority for its holding. As can be seen below, the majority’s holding can not withstand dispassionate analysis.

A.

The Supreme Court has developed three levels of review to determine whether the governmental interest is sufficient to permit a discriminatory practice to pass constitutional muster. In descending order, those levels are strict scrutiny review, intermediate scrutiny review, and rational relationship review. 7 In the context of strict scrutiny review, discrimination will not pass constitutional muster absent a compelling governmental interest. Racial discrimination must pass strict scrutiny review. In this context, the Supreme Court has held that the need to prohibit racial discrimination is greater than the governmental interest of permitting race-based peremptory challenges. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986); Georgia v. McCollum, 505 U.S. 42 , 112 S.Ct. 2348 , 120 L.Ed.2d 33 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 629-631 , 111 S.Ct. 2077, 2088 , 114 L.Ed.2d 660 (1991); and, Hernandez v. New York, 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991). Discrimination on the basis of religion is also subject to the strict scrutiny standard of review. 8 Consequently, *503 it follows that if the government failed to establish a compelling reason for discrimination on the basis of race, the government will, likewise, be unable to establish a compelling reason for discrimination on the basis of religion.

In the context of intermediate scrutiny-review, the discrimination will not pass constitutional muster unless the discrimination is substantially related to an important government objective. Gender discrimination is subject to this standard of review. J.E.B., 511 U.S. -, -, 114 S.Ct. 1419, 1429 . In this context, the Supreme Court held gender-based peremptory challenges were not substantially related to any important governmental objective. Id., 511 U.S. at - n. 6, 114 S.Ct. at 1425 n. 6. Consequently, if the government failed to establish a constitutionally permissible reason to discriminate under this lower level of scrutiny, it follows that the government cannot prevail under the strict scrutiny standard of review accorded religious discrimination. To put this in a slightly different context, if a party cannot prove its case by a preponderance of the evidence, it necessarily follows that the party cannot prove its case beyond a reasonable doubt. Ex parte Tarver, 725 S.W.2d 195 (Tex.Cr.App.1986).

Since Batson , whenever the Supreme Court has been asked whether the government’s interest in a fair trial permitted the discriminatory use of peremptory challenges, the answer has been no. The argument has been rejected at every turn, perhaps most succinctly and forcefully in McCollum, 505 U.S. at 57-58 , 112 S.Ct. at 2358 , where the Court stated: “It is an affront to justice to argue that a fair trial includes the right to discriminate against a group of citizens _” 9

B.

The majority’s true fear is that our holding on original submission will ultimately lead to the end of peremptory challenges. But their fear is unfounded. As the Supreme Court stated in J.E.B.: “Our conclusion that litigants may not strike potential jurors solely on the basis of gender does not imply the elimination of all peremptory challenges.” Id., 511 U.S. at -, 114 S.Ct. at 1429 .

What should be clear from Batson, J.E.B. and our opinion on original submission is that peremptory challenges are still viable under the Equal Protection Clause. The Equal Protection Clause forbids only the exclusion of veniremembers on the basis of stereotypes associated with race, gender, or religion. 10 As the Supreme Court stated in Edmonson v. Leesville Concrete Co., 500 U.S. at 630, 111 S.Ct. at 2088 , if the sanctioning of discrimination and stereotypes are the price for acceptance of a jury panel as fair, the price is too high to meet the standard of the Constitution. When we weigh the constitutional guarantee of freedom from discrimination *504 against the governmental interest in the peremptory challenge, the scales of justice must lean in favor of the Constitution. Simply stated, the constitutional protection against discrimination is more important than the statutory right to exercise peremptory challenges in a discriminatory manner. 11

III.

We now turn to the third fundamental flaw of the majority opinion, the change of focus which results in the misapplication of the analytical framework of J.E.B.

A.

The majority agrees that J.E.B. provides the analytical framework to resolve the instant issue. The majority states:

We are aware ... 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.

Ante, 913 S.W.2d at 495. Compare, Ante, 913 S.W.2d at 474-75 (opinion on original submission). Given our agreement on the analytical framework adopted by the Supreme Court in J.E.B., the reader might ask how today’s majority could reach a different result on rehearing. The reason is quite simple, the majority does not follow J.E.B. The majority states:

It does not follow, however, that discrimination on the basis of every classification subject to such scrutiny is necessarily forbidden.

Ante, 913 S.W.2d at 496 (emphasis added).

This is done purposefully to change the focus of the analysis to whether the peremptory strike interferes with the venire-members’ right to free exercise of religion. 12 The free exercise of religion is relevant only to the determination of whether the discriminatory use of peremptory challenges is subject to heightened Equal Protection scrutiny. 13

The majority’s sleight of hand, done to avoid applying J.E.B.’s analytical framework, is intellectually dishonest. In Davis v. Minnesota Justice Thomas stated:

Once the scope of the logic in J.E.B. is honestly acknowledged, it cannot be glibly asserted that the decision has no implications for peremptory strikes based on classifications other than sex, or that it does not imply further restrictions on the exercise of the peremptory strike outside the context of race and sex.

Id., — U.S. -, -, 114 S.Ct. 2120 , 2122, 128 L.Ed.2d 679 (1994) (Thomas, J., dissenting to the denial of certiorari) (emphasis added).

*505 B.

Our proper focus should be whether the Pentecostal veniremembers held a right to not be discriminated against in the selection of appellant’s jury. Veniremembers have the right to not be discriminated against in the use of peremptory challenges. Powers v. Ohio, 499 U.S. 400, 409 , 111 S.Ct. 1364, 1370 , 113 L.Ed.2d 411 (1991). See also, J.E.B., 511 U.S. at -, 114 S.Ct. at 1434 (“All persons ... have the right not to be excluded [from jury service] summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination.”).

Veniremembers as well as litigants enjoy equal protection rights to jury selection procedures free from discrimination. Hernandez v. New York, 500 U.S. 352, 355 , 111 S.Ct. 1859, 1864 , 114 L.Ed.2d 395 (1991); Edmonson v. Leesville Concrete Co., 500 U.S. 614 , 111 S.Ct. 2077 , 114 L.Ed.2d 660 (1991); and, McCollum, 505 U.S. 42 , 112 S.Ct. 2348 (1992). The opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for the jury system.

... It affords ordinary citizens a valuable opportunity to participate in a process of government an experience fostering ... a respect for the law. For most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.

Powers, 499 U.S. at 407 , 111 S.Ct. at 1369 (quoting Duncan v. Louisiana, 391 U.S. 145, 187 , 88 S.Ct. 1444, 1469 , 20 L.Ed.2d 491 (1968) (Harlan, J., dissenting)). And the Supreme Court has recognized the right to participate in jury service to be a basic right incident to citizenship in our country which is second only to the right to vote. Powers, 499 U.S. at 407 , 111 S.Ct. at 1369 ; and, Carter v. Jury Commission of Greene County, 396 U.S. 320 , 90 S.Ct. 518 , 24 L.Ed.2d 549 (1970) (“Whether jury service be deemed a right, a privilege, or a duty, the State may no more extend it to some of its citizens and deny it to others on racial grounds than it may invidiously discriminate in the offering and withholding of the elective franchise.”). 14 Jury service is an exercise of responsible citizenship by the community, and is often the only opportunity some citizens have to contribute to the community. Powers, 499 U.S. at 407 , 111 S.Ct. at 1369 . 15

Discriminatory jury selection harms the excluded veniremember because it denies the veniremember’s right to participate in jury service. 16 Indeed, the Supreme Court held the entire community is harmed by the discriminatory exclusion of citizens from jury service. Powers, 499 U.S. at 407-408 , 111 S.Ct. at 1368-1369 . Discriminatory jury selection practices undermine “public confidence in the fairness of our system of justice.” Batson, 476 U.S. at 87-88 , 106 S.Ct. at 1718 ; and, Curry v. Bowman, 885 S.W.2d 421 (Tx.Cr.App.1993). In McCollum , the Supreme Court stated:

... [I]f the court allows a juror to be excluded because of a group bias, it is a willing participant in a scheme that could only undermine the very foundation of our system of justice — our citizens’ confidence in it.

Id., 505 U.S. at 49-50 , 112 S.Ct. at 2354. Thus, discriminatory jury selection practices cast a shadow over the criminal justice system, harming not only the litigants but the entire judicial process.

*506 Because, each citizen holds an equal right to participate in jury service it follows that the Pentecostal veniremembers in the instant case held the right to not be discriminated against in the selection of appellant’s jury.

IV.

This said, it becomes clear that our opinion on original submission correctly addressed the issue before the Court. We traced the application of the Equal Protection Clause to the jury selection process from Strauder v. West Virginia, 100 U.S. 303 , 25 L.Ed. 664 (1879), through the Supreme Court’s latest pronouncements in J.E.B. Ante, 913 S.W.2d at 492-95. We reviewed J.E.B., and its analytical framework which prohibits the use of peremptory challenges to exclude venire-members on the basis of classifications subject to heightened Equal Protection scrutiny. Id., 913 S.W.2d at 472-75. We traced religious discrimination from our country’s inception through the Supreme Court’s latest statements in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 , 113 S.Ct. 2217 , 124 L.Ed.2d 472 (1993), and determined that discrimination based upon religion is subject to heightened Equal Protection review. Ante, 913 S.W.2d at 475-79. And finally we determined there was not a compelling governmental interest in excluding veniremembers on the basis of religion. Id., 913 S.W.2d at 479-80. The opinion on original submission was grounded on established Supreme Court authority. 17 I believe that analysis is the type of analysis contemplated by the Supreme Court under the analytical framework of J.E.B. 18

V.

Let there be no mistake, today a majority of this Court sanctions, even encourages, the discrimination of our citizens on the basis of their religion. This type of discrimination will harm the litigants, the excluded venire-members and our judicial system. By allowing peremptory challenges based on religion, we violate the Equal Protection Clause’s fundamental guarantee that our government will treat its citizens as individuals rather than stereotypical components of a religious class. We forget that a juror serves not as a repre *507 sentative of some racial, sexual or religious group but as an individual citizen participating in an important function of our government. We ignore that the individual citizen’s opportunity to participate in the fair administration of justice is fundamental to our democratic system and reaffirms the promise of equality under the law. When citizens are excluded from participation in our democratic processes because of such invidious discrimination, the promise of equality dims and the integrity of our judicial system is jeopardized.

A dispassionate review reveals the analysis on original submission was correct. Accordingly, the State’s motion for rehearing should be overruled. Because it is not, I dissent.

. I am not quite sure what the majority means by "the constitutional significance of peremptory challenges.” The issue presented in this case involves the classification of a Constitutional right, namely freedom of religion, against a statutory right, namely the exercise of peremptory challenges. There is nothing in the Constitution of the United States which requires the peremptory challenge. Stilson v. United States, 250 U.S. 583, 586 , 40 S.Ct. 28, 30 , 63 L.Ed. 1154 (1919). Therefore, notwithstanding the majority's statement to the contrary, the peremptory challenge has no “constitutional significance.”

. Some of the charges resulted from the vandalizing of Jewish temples.

. The cases discussed in this section are ignored by the majority just at the majority ignores the fact that the Pentecostal veniremembers were not peremptorily challenged for their religious beliefs. Rather, the veniremembers were excluded because of the prosecutor’s stereotypical view that Pentecostals have difficulty sitting in judgment of others and have a propensity to impose *501 probationary sentences. There is no showing that these are beliefs of the Pentecostal religion nor were the veniremembers individually questioned to determine if they held those beliefs as a result of their membership in the Pentecostal religion. Rather than make unfounded assumptions, litigants should question the venire as to their beliefs. Such a properly conducted voir dire will inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular religion both unnecessary and unwise. See, J.E.B., 511 U.S. at -, 114 S.Ct. at 1429 .

Additionally, I believe the majority’s reliance on United States v. Villarreal, 963 F.2d 725 (5th Cir.1992), for the proposition that peremptorily challenging veniremembers on account of their political beliefs does not offend equal protection principles is misplaced. Ante at 495. Villarreal is of limited precedential value because it was delivered before the rationale of Batson had been extended beyond race.

. United Methodist Church, The Book of Resolution of the United Methodist Church (United Methodist Pub. House 1992).

. The majority’s notion of unanimity of belief by all members of a religion is contrary to our fundamental right to the free exercise of religion. As the Supreme Court has held:

*502 ... If all expression of religion or opinion, however, were subject to the discretion of authority, our unfettered dynamic thoughts or moral impulses might be made only colorless and sterile ideas. To give them life an force, the Constitution protects their use. No difference of view as to the importance of the freedoms of press or religion exist. They are fundamental personal rights and liberties.

Jones v. City of Opelika. Bowden et al., 316 U.S. 584, 594 , 62 S.Ct. 1231, 1237 , 86 L.Ed. 1691 (1942). By permitting peremptory challenges based on religion, the majority "in effect makes abandonment of one's own religion or conformity to religious beliefs of others, the price of” jury service. Employment Division, Dept. Human Resources v. Smith, 494 U.S. 872, 897 , 110 S.Ct. 1595, 1610 , 108 L.Ed.2d 876 (1990) (O’Connor J., Concurring).

.See, Wygant v. Jackson Board of Education, 476 U.S. 267 , 106 S.Ct. 1842 , 90 L.Ed.2d 260 (1986); Anderson v. Celebrezze, 460 U.S. 780, 794 , 103 S.Ct. 1564, 1572 , 75 L.Ed.2d 547 (1983); Mississippi University for Women v. Hogan, 458 U.S. 718 , 102 S.Ct. 3331 , 73 L.Ed.2d 1090 (1982); Plyler v. Doe, 457 U.S. 202 , 102 S.Ct. 2382 , 72 L.Ed.2d 786 (1982); and, United States v. Carolene Products, 304 U.S. 144 , 151-154, 58 S.Ct. 778, 783-784 , 82 L.Ed. 1234 (1938). See also, J.E.B. v. Alabama ex rel. T.B., 511 U.S. -, -, 114 S.Ct. 1419, 1434 , 128 L.Ed.2d 89 (1994) (Kennedy, J., concurring); and, Arizona Governing Committee v. Norris, 463 U.S. 1073 , 103 S.Ct. 3492 , 77 L.Ed.2d 1236 (1983).

. Classifications subject to strict scrutiny review or intermediate scrutiny review are said to be subject to "heightened Equal Protection scrutiny.” Ante, 913 S.W.2d at 474 (on original submission).

. In its latest opinion addressing the right to free exercise of religion, the Supreme Court reiterated that classifications affecting the fundamental right to religious freedom must satisfy strict scrutiny. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 , 113 S.Ct. 2217 , 124 L.Ed.2d 472 (1993):

... To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests. The compelling interest Stan *503 dard that we apply ... really means what it says. A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.

Id., 508 U.S. at -, 113 S.Ct. at 2233 (citations and quotations omitted).

. In Ristaino v. Ross, 424 U.S. 589, 596, n. 8 , 96 S.Ct. 1017, 1021, n. 8 , 47 L.Ed.2d 258 (1976), the Supreme Court stated:

... In our heterogeneous society policy as well as constitutional considerations militate against the divisive assumption — as a per se rule — that justice in a court of law may turn upon the pigmentation of skin, the accident of birth, or the choice of religion.

[Emphasis added.]

. Peremptory challenges of members of a class subject to heightened equal protection scrutiny on the basis of their personal beliefs are not unconstitutional so long as those beliefs are related to the particular case being tried. The only unconstitutional peremptory challenges are those exercised on the basis of a stereotype attributed to a class subject to heightened equal protection scrutiny. If the veniremember holds personal beliefs that are unacceptable, that veniremember may be peremptorily challenged. However, the Equal Protection Clause prohibits peremptorily challenging a member of a class subject to heightened equal protection scrutiny based on stereotypical assumptions attributed to that class. In the instant case, had the individual venire-members been questioned about their beliefs and expressed a belief unacceptable to the State, when viewed in relation to the instant case, they could have been peremptorily challenged. Under those circumstances the veniremembers would have been excused on the basis of their personal beliefs and not on a stereotypical assumption based on their religion.

. Our fundamental right to the free exercise of religion must be "zealously protected ... even at the expense of ... admittedly high social interests.” Wisconsin v. Yoder, 406 U.S. 205, 215 , 92 S.Ct. 1526, 1533 , 32 L.Ed.2d 15 (1972).

. This misdirected focus is an obvious rabbit trail because the unconstitutional exclusion of a veniremember does not affect the venire-member’s religious affiliation. The Pentecostal veniremembers were still Pentacostals after their unconstitutional exclusion just as the venire-members unconstitutionally excluded in Batson were still African-Americans and the male veniremembers unconstitutionally excluded in J.E.B. were still males. Consequently, as seen in part III B, infra, the focus must be on whether their class was entitled to heightened Equal Protection scrutiny.

The unconstitutional peremptory challenge need not directly affect the veniremember's religion. In Sherbert v. Verner, 374 U.S. 398, 404 , 83 S.Ct. 1790, 1794 , 10 L.Ed.2d 965 (1963), the Court said if the purpose is to "discriminate ... between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect." Ibid. (Quoting Braunfeld v. Brown, 366 U.S. 599, 607 , 81 S.Ct. 1144, 1148 , 6 L.Ed.2d 563 (I960).) Indirect harm is sufficient because the opportunity to serve on a jury is a civil right afforded to all citizens as an incident of their citizenship, and allowing a party to strike a potential juror solely because of religion without showing a more specific bias on behalf of the veniremember imposes a burden on the juror's free exercise of religion. State v. Levinson, 71 Haw. 492 , 795 P.2d 845, 849 (1990).

.That is, if the veniremember’s right to the free exercise of religion is fundamental, Cantwell v. Connecticut, 310 U.S. 296, 303 , 60 S.Ct. 900, 903 , 84 L.Ed. 1213 (1940), then the infringement of that right is subject to heightened Equal Protection scrutiny. Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 , 105 S.Ct. 3249, 3254 , 87 L.Ed.2d 313 (1985).

. Jury service is perhaps the most powerful function an ordinary citizen will perform. Here the juror’s vote is equal to the sovereign. It is here the juror may validate or invalidate the governmental exercise of power.

. A study by William R. Pabst Jr. found 90% of those who served as jurors were favorably impressed with jury duty and felt more favorable toward it than before their service. The Myth of the Unwilling Juror, 60 Judicature 164, 165 (1976).

.In Lockhart v. McCree, 476 U.S. 162, 175 , 106 S.Ct. 1758, 1766 , 90 L.Ed.2d 137 (1986), the Supreme Court stated:

[T]he exclusion from jury service of large groups of individuals not on their inability to serve as jurors, but on the basis of some immutable characteristic such as race, gender, or ethnic background, undeniably gave rise to an "appearance of unfairness.” Finally, such exclusion improperly deprived members of these often historically disadvantaged groups of their right as citizens to serve on juries in criminal cases.

. Our holding on original submission that religious discrimination has no place in the jury selection process was not novel. State v. Levinson, 71 Haw. 492, 795 P.2d 845, 849 (1990) (Improper to exercise peremptory challenge on religious affiliation.); Joseph v. State, 636 So.2d 777 (Fla. 3d DCA 1994) (Improper to peremptorily challenge a veniremember on the basis of Jewish faith.); North Carolina v. Eason, 336 N.C. 730 , 445 S.E.2d 917, 921 (1994) (Improper to use peremptorily challenge solely because venire-member was a Jehovah’s Witness. Discrimination so strongly taints the judicial system that any proceeding in which it appears is fatally flawed.); Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499, 516 (1979) ("... generic group affiliations which may not permissibly form the basis for jury exclusion: sex, race, color, creed [religion] or national origin.”); People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890, 902 , 583 P.2d 748, 761 (1978) ("... peremptory challenges may not be used to exclude from a jury, solely because of a presumed ‘group bias,’ all or most members of identifiable group of citizens distinguished on racial, religious, ethnic or similar grounds.”); Walker v. State, 611 So.2d 1133, 1141 (Ala.Cr.App.1992) (State may not use religious affiliation as a race neutral explanation for Batson objection to the exclusion of blacks.); Riley v. State, 496 A.2d 997, 1006 (Del.1985) (Peremptory challenges based on religious affiliation are generally impermissible.); People v. Snow, 44 Cal.3d 216 , 242 Cal.Rptr. 477 , 746 P.2d 452 (1987) (Peremptory challenges may not be used to exclude from a jury citizens distinguished on racial, religious, ethnic, or similar grounds.); People v. Fudge, 7 Cal.4th 1075 , 31 Cal.Rptr.2d 321, 332 , 875 P.2d 36, 47 (1994) (may not exclude veniremembers solely on religious grounds); and, State v. Gilmore, 103 N.J. 508 , 511 A.2d 1150, 1158 (1986) ("... defendant is entitled to trial by impartial jury without discrimination on basis of religious principles_’’). See also, Brandborg v. Lucas, 891 F.Supp. 352, 358 (U.S.Dist.Ct.—E.D.Texas 1995) (Questions concerning religion are improper at voir dire.); State v. Willis, 33 Ohio Misc. 159 , 293 N.E.2d 895, 896 (1972) (”[N]o person shall be denied the right to serve on a jury because of status of race, religion, sex, or age so long as they are competent.”); and, United States v. Daily, 139 F.2d 7 (7th Cir.1943) (The parties may not inquire into religious affiliation during voir dire.).

. I am astounded at the lack of authority advanced by the majority to support its ultimate holding. The reader will observe the majority opinion provides authority only when it is in agreement with our holding on original submission. However, when the majority departs from our original holding, the reader is left baffled as to its legal authority to do so. I cannot help but believe that such an analysis was never contemplated by the Supreme Court.