Reading First Things may disqualify you from sitting on a jury, at least if a lawyer decides that such reading shows that you are too involved in the practice of your religion. Just ask the United States Court of Appeals for the Third Circuit, the federal appellate court with jurisdiction for Pennsylvania, New Jersey, and Delaware
First, some facts. As anyone who has been through the process knows, selecting a jury is a complex business. The court starts with a large pool of prospective jurors and the judge and lawyers for the parties interview them, rejecting some and choosing others until they have a full panel, usually twelve. If, in the course of this process, a lawyer thinks that there is a good reason to exclude a prospective juror (e.g., that the juror would favor one side or the other), the lawyer may object to this person “for cause”; if the judge agrees, the juror will be excused. In addition, each side in the case is entitled to a limited number of “peremptory challenges” (the exact number of these depends on the nature and complexity of the case), which allow the lawyers to strike jurors without having to state any reason whatsoever. Writing in 1769, William Blackstone described this ancient practice of the common law as being typical of “that tenderness and humanity for which our English laws are justly famous.” According to Blackstone, we must all be “sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,” and so a man on trial for his life should be given the chance to keep off the jury someone “against whom he has conceived a prejudice, even without being able to assign a reason for his dislike.”
So the practice continued in the United States—until 1986, when the United States Supreme Court decided, in Batson v. Kentucky, that litigants should not be permitted to exercise peremptory challenges based on a juror’s race. Such discrimination, the Court said, would violate the equal protection clause of the Fourteenth Amendment. Given the history of racism in the United States, and especially because in some Southern states litigants might collude to exclude blacks from juries entirely, there was something to be said for Batson. But the Supreme Court did not stop there. In J.E.B. v. Alabama (1994), the Court decided that sex, too, would be an impermissible basis for the use of peremptory challenges. There was much less justification for this decision, not only because litigants were less likely to try to exclude women as a class, but also because there are usually too many women among potential jurors for litigants to remove them all using their limited number of peremptory challenges. But regardless, the Supreme Court had spoken.
One consequence of this development is the so-called Batson hearing, a proceeding in which, after a lawyer has peremptorily challenged a juror, the other side to the litigation, if it suspects that the strike was based on race or sex, may contest the challenge and force the opposing counsel to explain a basis for the challenge unrelated to race and sex. Of course, since peremptory challenges were originally intended to be exercisable for any reason or for no reason, Batson hearings can be absurd, as lawyers try to explain the unexplainable and give good reasons for actions that they were allowed to take without good reasons. Moreover, requiring courts to decide which explanations for the use of peremptory strikes are acceptable has produced a significant amount of legal mischief.
Which brings us to a lawyer striking jurors on the basis of their religious practices. In a recent federal case in New Jersey, United States v. De Jesus, the defense counsel demanded a Batson hearing after the prosecutor used peremptory challenges to strike two black jurors. The prosecutor then explained that he struck the jurors, not on the basis of their race, but because of their “heightened religious involvement.” One of the jurors had said that he participated in civic activities at his church, read the Christian Book Dispatcher, taught Sunday school, and sang in the church choir; the other juror had stated that he was an officer and trustee of his church and that he read the Bible and related literature. The prosecutor concluded that these jurors would have difficulty sitting in judgment on another human being and so would be reluctant to convict.
This reasoning is in itself rather curious, since the usual stereotype about religious people is just the opposite—namely, that they tend to impose their values on others. Indeed, many secular people suppose that those who read the Bible are eager to sit in judgment, to say with St. Paul, “Those who do such things deserve death” (Romans 1:32). But however this may be, the judge accepted the prosecutor’s explanation, and the Court of Appeals for the Third Circuit affirmed, holding that, while challenges based on mere affiliation with a particular religious denomination may violate the Constitution, challenges based on a juror’s “heightened religious involvement” do not. Quoting the trial judge, the Court of Appeals said that it is rational for a prosecutor to challenge a juror who reveals “a rather consuming propensity to experience the world through a prism of religious beliefs.” You may thus be struck from a jury not for being a Christian, a Jew, or a Muslim, but only for being a rather devout Christian, Jew, or Muslim.
Perverse as it sounds, this outcome was predictable. Peremptory challenges have always been about prejudice, or, at best, about inferences based upon the meager and superficial information that lawyers can gather during brief discussions with prospective jurors. Prior to Batson, the messy and sometimes discreditable thought processes of lawyers who exercised peremptory challenges were shielded from public view, and thus any form of prejudice—whether against black men or Harvard graduates or women in tight clothes—was allowed to go unspoken and so unexamined. But once the Supreme Court decided that race may not be a factor in the process, it committed our courts to determining which forms of prejudice lawyers would be allowed to use in exercising peremptory challenges. It committed them, in other words, to elaborating and justifying a theory of morally acceptable prejudices.
Everyone recognizes that some forms of prejudice are worse than others, the basis for such distinctions generally being historical. In the United States, for example, where we have a long history of both de facto and de jure racial discrimination, we rightly think that such prejudice is gravely wrong and should be ruthlessly eliminated from our society. But beyond this and a handful of similar verities, people are apt to disagree about the relative moral badness of various forms of prejudice. One’s judgments about such things will depend strongly on the details of one’s moral philosophy. Pope John Paul II and Gloria Steinem, for example, will likely have different judgments about the relative badness of sex discrimination and religious discrimination and even about what kinds of conduct constitute forms of such discrimination. Hence we should expect that the theory of acceptable prejudices that the federal courts develop will largely reflect the values of federal judges—many of whom share the moral sensibilities of the secular liberalism that prevails, for instance, on the editorial page of the New York Times.< br />
Not surprisingly, then, the theory of acceptable prejudices that the courts are developing prohibits peremptory challenges on the basis of race or sex, for racial and sexual prejudice are just about the only sins that cannot be forgiven in the church of aggressive progressiveness. Votaries of that sect will apologize occasionally for murderers, often for thieves, and always for adulterers, but never for racists or sexists. Sooner or later we can also expect a court to prohibit peremptory strikes made on the basis of sexual orientation; arguments to this effect have already begun appearing in the law reviews.
But what about religion? Liberalism was originally a theory of the state based on representative democracy and individual rights—a theory that was compatible and even harmonious with religion. There can be powerful religious justifications for such a system. But contemporary liberalism is much more than a theory of the state and its limits. Whereas the older liberalism required the state to allow individuals to pursue, within certain bounds, their differing understandings of the objective good for man, the newer liberalism requires individuals, at least in their role as citizens, to be entirely subjective in their understanding of the good. That is, in the newer liberalism, the supreme good, at least for all public purposes, is personal autonomy—a person choosing for himself, without any objective constraint, what shall be good and what shall be evil. The Supreme Court decreed this kind of liberalism to be the official ideology of the United States in 1992, when, in reaffirming the right to abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey, it gave us what Justice Antonin Scalia calls the “sweet-mystery-of-life passage”: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the state.”
And so, as Stephen L. Carter has written in these pages (March 2002), liberalism has a “religion problem” because religion, when taken seriously, provides a comprehensive view of God, man, and the universe; it is thus a natural competitor to this form of ideologically aggressive liberalism. The liberal state and religion, Carter says, “are in competition to explain the meaning of the world.” Hence, Carter concludes, “The basic response of liberal theory to serious religion is to try to speak words that seem to celebrate it (as a part of the freedom of belief, or conscience, or the entitlement to select one’s own version of the good) while in effect trying to domesticate it—or, if that fails, to try to destroy it.”
Carter’s conclusion may sound hyperbolic, but this is just what the Court of Appeals for the Third Circuit did in the De Jesus case. When the court suggested that peremptory challenges made on the basis of mere religious affiliation would violate the equal protection clause, it did so because secular liberalism regards all religions as equally good (or at least equal); it would thus be wrong, on the liberal view of things, to allow a litigant to discriminate on such a basis. Here we have liberalism trying to speak some words to celebrate religion. But when it comes to a person displaying a “propensity to experience the world through a prism of religious beliefs,” constitutional protections apparently disappear. As soon as religion becomes a serious competitor to liberal ideology, liberals are prepared to act against it. Religion that can be domesticated deserves toleration; religion that cannot be domesticated must be destroyed, and so the court allowed peremptory strikes on the basis of “heightened religious involvement.”
Though the number of devoutly religious persons excluded from juries will probably be small, the symbolic significance of De Jesus is enormous. Call it yet another victory for the liberalism of personal autonomy in constitutional law—and another defeat for those who would like to prevent the denuding of the American public square.
Robert T. Miller is a John M. Olin, Jr. Research Fellow in Law at the Columbia University Law School.