May 24, 2005
Race, Religion Etc. Part II
May 24, 2005 10:14 AM
As I was deleting old emails, I ran across a discussion I'd had with Will Baude last fall that was touched off by his post regarding the nullification of racist jury verdicts. He said there, "[T]he general argument is that juries fall quite clearly on the state- side of the state-private actor distinction. (Which helps explain the Batson 14th Amendment rule that you can't keep blacks off of juries, even via peremptory challenges.) [...] Under this analysis, then, are juries actually required to obey all of the strictures of government scrutiny? Leave aside the evidentiary questions for a moment: would it be unlawful for a jury to convict or acquit a defendant because the defendant or victim were female? jewish? a libertarian?"
From what I can tell through Lexis, the U.S. Supreme Court has extended Batson's holding regarding the unconstitutionality of racial discrimination in juror selection to gender discrimination (J.E.B. v. Alabama ex rel. T.B.), but not explicitly to religious and political discrimination. When the question came up in State v. Davis, 504 N.W.2d 767, SCOTUS denied cert over Thomas's dissent, joined by Scalia. However, some state courts have done so. Connecticut has tread a particularly thin line on this issue, declaring in State v. Hodge, 248 Conn. 207, that dismissing jurors based on their religious affiliation is unconstitutional, and in State v. Dehaney, 261 Conn. 336, that strikes based on religious belief are permissible. For example, one cannot strike a Catholic from a capital murder jury on the basis of identifying as a Catholic, only on the basis of actually agreeing with the Church's opposition to execution.
As I noted in this post, Scalia regards religious bias as being on the same level as racial bias, and the Connecticut distinction appears to be an attempt to distinguish between religion of the type that is comparable to race and gender, and religion of the type that is comparable to politics.
Your analysis looks good, but that's not what Baude was getting at. He was asking about the legality of discrimination BY the jury in reaching its verdict, not discrimination by the parties in picking the jury.
And I don't know the answer to his question. Typically, a jury verdict can be set aside in rare cases where it can be shown to be "manifestly contrary to the evidence" or some such, which might apply if it could be shown that there could be no other basis for the jury's verdict than prejudice. If the evidence was sufficient conflicting, though, that there was a plausible factual basis for the jury's verdict, I think it would be difficult to try to overturn it on these grounds.
Sorry, that was a bad way to introduce the post. I understood what Will was asking, and we had a length e-mail exchange about it last November. I just thought that the intersection of Batson and his queries about gender, religion and politics made it a good jumping off point for what I wanted to say.
2 of the questions on my crim pro exam were about the application of Batson to 1, lesbians, and 2, people who harbored political beliefs that same-sex marriage was a fundamental right.
I took a page from Professor Amar and argued that Batson should actually be seen as a 15th Amendment case, and therefore it should also apply to gender (19th Am.) and age, but not much else. (Jury service being a political rather than a civil right).
Of course, I then went on to argue that we should jetison Geduldig and that discrimination against lesbians (but not gay men) was unconstitutional gender discrimination.
Anyway, all of this does drive home some of the original questions about discriminatory juries. If Thomas and Scalia win and it becomes unconstitutional as a matter of federal law to discriminate among jurors on the basis of religion, does this imply that jurors must be totally religion-blind when considering the credibility of witnesses? I take it that we might then have a federal-constitutional rule of evidence forbidding any discussion of anybody's religion at trial.