Card v. United States6/28/2001
tson's reasoning to exclusion of jurors based on sex, which is accorded "heightened" scrutiny, somewhat less than the scrutiny required for exclusion based on a suspect classification. See J.E.B. v. Alabama, 511 U.S. 127, 134 (1994). As the Court held in J.E.B.,
Today we reaffirm what, by now, should be axiomatic:
Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women. Id. at 130-131.
The same reasoning applies to exclusion based on religious affiliation. See United States v. Somerstein, 959 F. Supp. 592, 595 (E.D.N.Y. 1997) (Batson applies to religious discrimination but "there must be a determination as to whether the religion of the juror is relevant to the issues of the case . . . only if the religion of the jurors is directly relevant to the crimes at issue, can such a [strike] be proper."); People v. Martin, 75 Cal. Rptr. 2d 147, 151 (Cal. Ct. App. 1998) (Batson extends to religious discrimination, but a "peremptory challenge of a juror on the basis of the juror's relevant personal values is not improper even though those views may be founded in the juror's religious beliefs."); Connecticut v. Hodge, 726 A.2d 531, 550 (Conn. 1999) (peremptory challenges based on religious affiliation are unconstitutional), cert. denied, 528 U.S. 969 (1999); North Carolina v. Eason, 445 S.E.2d 917, 923 (N.C. 1994) (peremptory strike legitimate when the prosecutor inquired how religious beliefs, not affiliation, might affect ability to follow law), cert. denied, 513 U.S. 1096 (1995); United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir. 1998) (noting the necessity "to distinguish among religious affiliation, a religion's general tenets, and a specific religious belief"), cert. denied, 525 U.S. 849 (1998). But see Casarez v. State, 913 S.W. 2d 468, 492 (Tex. Crim. App. 1995) (refusing to extend Batson to religious affiliation " ecause 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]"); State v. Davis, 504 N.W. 2d 767, 771 (Minn. 1993) (refusing to extend Batson to religious affiliation "because religious bigotry in the use of the peremptory challenge is not as prevalent, or flagrant, or historically ingrained in the jury selection process as is race"), cert. denied, 511 U.S. 1115 (1994).
As in J.E.B., the record in this case shows that Juror 333 was excluded, not for any substantive reason that disqualified him from the jury, but based entirely on the prosecutor's and trial court's assumption that, because of his haircut (cropped) and mode of dress (white shirt and bow tie), the young black man must be a Muslim and a follower of Louis Farrakhan, who, in the words of the prosecutor, "could not be fair to the government." The prosecutor acknowledged that there was "no indication on the record" of Juror 333's religious affiliation, much less his beliefs. See supra note 3. Such judgment about a person's beliefs based on nothing more than supposition drawn from superficial characteristics is the kind of rank discrimination that the Supreme Court said in J.E.B. is "axiomatic," violating the Constitution's guarantee of equal protection because it fails the relevant constitutional standard of "whether discrimination on the basis of gender in jury selection substantially furthers the State's legitimate interest in achieving a fair and impartial trial." J.E.B., 511 U.S. at 136. In the case of "suspect" classifications such as religion, the standard is even higher: the state must sho
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