The Great Peremptory Strike Debate: Should the Batson Doctrine Extend to Religion?
Attorneys, in advocating for their clients, bear the responsibility of protecting the jury selection process from discrimination that could negatively affect the outcome of the case for their client. One tool available to attorneys to fulfill this responsibility is advancing a Batson challenge to challenge discrimination during the jury selection process.
The Batson challenge, derived from the 1986 Supreme Court case of Batson v. Kentucky, prohibits the use of peremptory challenges based on racially discriminatory motives. Under the Batson challenge, the challenging party must establish a prima facie case of purposeful discrimination and show a strong likelihood that potential jurors are being struck due to their group association rather than a specific bias.
A successful prima facie case of purposeful discrimination is established by “(1) making as complete a record of the circumstances as is feasible; (2) establishing that the persons excluded are members of a cognizable group; and (3) showing a strong likelihood that such persons are being challenged because of their group association rather than a specific bias.” Following the establishment of a prima facie case, the burden shifts to the prosecution to “present a race neutral explanation of the exercise of the peremptory challenges.” However, a mere statement from the prosecutor that they exercised a peremptory strike based on an assumption that the juror “will be partial to a defendant of the same race” will not be accepted by the court as a race-neutral explanation. The court then decides whether a “reasonable inference arises that peremptory challenges are being used on the ground of group bias alone.”
Through its Batson decision, the Supreme Court of the United States has theoretically abolished race-based peremptory strikes. The Court based its decision in Batson on the principle that race-based intentional discrimination violates the Equal Protection Clause.
However, as the Batson doctrine currently stands, the doctrine does not extend to protect against religious discrimination. Consequently, since Batson, a debate has arisen regarding whether the Supreme Court should extend similar protections to religion-based peremptory strikes, given the Court’s precedent of applying a strict scrutiny standard to religious discrimination.
Arguments in favor of extending Batson to religion-based peremptory strikes are often based on the need to protect prospective jurors of a certain religious class from being struck during voir dire solely because of their religious affiliations, rather than their religious beliefs that could potentially restrict the juror’s ability to participate in the trial fairly and impartially. Some have also argued that religion and ethnicity are so intertwined that to exclude religious discrimination from protections afforded to ethnic discrimination is illogical. For example, as one law review article describes it, “in post-9/11 discrimination, the terms ‘Arab’ and ‘Muslim’ are often used interchangeably, both by the discriminators and those condemning it… one common invidious stereotype is that all people from the Middle East are Muslims (and that all Muslims are from the Middle East) and further that they are all America-hating religious fanatics.” Furthermore, proponents of extending Batson to religion argue that the refusal to extend Batson to religion violates the First Amendment’s protection of religion freedom by creating an unjustified hierarchy of constitutional protection in protecting some constitutional rights while excluding others.
On the other hand, arguments against extending the Batson doctrine to religion are commonly founded on the principle that Batson protections should be limited to race and gender, as race and gender have a history of widespread discrimination and are uniquely positioned to receive special protections. A helpful starting point for understanding perspectives against extending Batson to religion is Justice Ginsburg’s memorandum concurrence to the denial of certiorari in Davis. In her concurrence, Justice Ginsburg raised two main arguments against extending Batson to religion: (1) that religious affiliation “is not as self-evident as race or gender,” and (2) “inquiry into a prospective juror’s religious beliefs is irrelevant and prejudicial, and to ask such questions is improper.” Many who argue against extending Batson to religion share Justice Ginsburg’s sentiment that religious affiliation is not as self-evident as race or gender. They argue that extending Batson protections to race and gender while not extending these same protections to religion is logical because race and gender can be differentiated from religion. While all three—race, gender, and religion—can be avenues for discrimination, many differentiate religion from race and gender on the basis that while race and gender are self-evident characteristics, religion often serves as a reflection of a juror’s beliefs and biases that are relevant to carrying out a fair trial. An additional argument against extending Batson to religion is that a prospective juror’s religious affiliations and beliefs involve the exercise of free will while a prospective juror’s race does not, thus supporting the sentiment that religious affiliation and belief cannot receive the same scrutiny standard as race.
While compelling arguments exist both for and against extending Batson to religion, the Supreme Court has left this issue unresolved. Given the seriousness of the issue, in that the issue touches on potential religious discrimination inflicted on citizens fulfilling their civic duties, the Court should address the issue and guide lower courts attempting to grapple with this issue.
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In an article titled “The Great Peremptory Strike Debate: Should the Batson Doctrine Extend to Religion?”, Sanaa Ghanim, Editor-in-Chief of the Muslim Legal Journal and recent graduate of Southern Methodist University’s Dedman School of Law, explores this debate in detail. The article discusses the background of peremptory challenges, the Supreme Court’s stance on extending Batson to religion, and the arguments for and against such an extension. Those interested in reading the full article should follow this link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4501870.