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Card v. United States6/28/2001
oup," see supra note 5, and counsel argued that the strike was "because of their religious views or . . . presume . . . views," see supra note 7. Counsel cast their challenges to the religion-based strike in terms of its involving a "suspect" category, a clear indication of the equal protection basis for their claim. See supra note 7. They also made clear that their objections were based in part on the First Amendment. See supra note 5. Further, counsel at several times distinguished between impermissible discrimination based on religious affiliation and religious beliefs that could justify a strike, see supra notes 5, 6, & 7, noting that the proper procedure would be to inquire about the juror's religious affiliation and, more importantly, his religious beliefs to ascertain whether they are incompatible with jury service.
Finally, the trial court's ruling shows that the judge was aware that counsel's objections were not limited to race. Upon hearing the various defense counsel's race and religion-based challenges to the prosecutor's peremptory strikes, the trial court ruled:
With respect to the strikes about which [the prosecutor] was asked to give his explanation, if with 1 exception I indicated that [the prosecutor's] explanation was appropriate and demonstrated a justifiable reason for the striking of those jurors with his peremptory challenges.
With 1 juror [no. 333], I indicated that the justification given by [the prosecutor] was less than acceptable. However, out of 30 strikes, I am allowing [the prosecutor] to have 1 gut feeling on a strike. Even though the justification was less than acceptable with respect to that one juror, I am permitting it.
The trial court's clear statement that the prosecutor's justification for striking Juror 333 was "less than acceptable" must be understood in the context of the race and religion-based challenges made by defense counsel. The trial court definitely ruled that the strike was not race-based. Having satisfied the trial judge that there was no racial animus to the peremptory strike, the prosecutor would have had no need for further explanation of the strike unless it was understood that there was another basis for the challenge, different than the one based on race. Therefore, the trial court's statement that the prosecutor's explanation was "less than acceptable" must have referred to the challenge that the strike was impermissibly based on religious affiliation. The trial court decided, nonetheless, to let one out of thirty strikes go without further scrutiny " ven though the justification was less than acceptable with respect to that one juror." On this record, therefore, I conclude that the objection to a religion-based peremptory strike was presented to and decided by the trial court, and is reviewable on the merits on appeal.
The Peremptory Strike Based on Presumed Religious Affiliation and Beliefs is Unconstitutional
The Equal Protection Clause of the Fourteenth Amendment (as well as the equal protection doctrine embodied in the Due Process Clause of the Fifth Amendment) prohibits the state from discriminating on the basis of suspect classifications, such as religious affiliation, which is protected by the First Amendment. See Plyler v. Doe, 457 U.S. 202, 216-17 (1982); Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 886 n.3 (1990). In Batson and its progeny, the Supreme Court has recognized that the exclusion of a juror based on race, also a suspect classification, offends the equal protection rights of the excluded juror and undermines "public confidence in the fairness of our system of justice." See Batson, 476 U.S. at 87. The Supreme Court has extended Ba
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