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In the last months of 2003, two circuit courts gave divergent answers to a question that had never before been squarely addressed by a federal appellate court: Does the equal protection clause allow litigants to use peremptory strikes to exclude potential jurors from a panel on the basis of religion? In October’s U.S. v. DeJesus, 347 F.3d 500, the 3d U.S. Circuit Court of Appeals said, “Even assuming that the exercise of a peremptory strike on the basis of religious affiliation is unconstitutional, the exercise of a strike based on religious beliefs is not.” In December’s U.S. v. Brown, No. 02-1135, the 2d Circuit also gave its blessing to some religiously tinged peremptory challenges, but drew a different dividing line between the saved and the damned. Instead of affiliation versus beliefs, the 2d Circuit focused on the distinction between affiliation and activities. The court held that it would be impermissible to strike “a juror because she was Muslim, or Catholic, or evangelical.” But it was not unconstitutional, the court went on to say, for a prosecutor to act on his hunch that potential jurors who are active in their congregations would be likely to have “sympathy for people in distress, including criminal defendants.” Race, gender and . . . ? In Batson v. Kentucky, 476 U.S. 79, the Supreme Court ruled in 1986 that striking jurors on the basis of race violates the equal protection clause. In 1994, the high court extended that reasoning to gender-based peremptories. In J.E.B. v. Alabama, 511 U.S. 127, the high court said that a woman who sought to establish the paternity of her child could not use peremptory challenges to remove men from the jury merely because she thought men would be more sympathetic to the putative father. A number of courts have read J.E.B. as foreshadowing the eventual extension of Batson to all “suspect classifications,” including classifications based on religion, that are generally permitted only if they can withstand “heightened scrutiny.” DeJesus and Brown were the first instances in which federal appellate courts have gone beyond speculation to firm holdings (although a few state appellate courts had made the leap before them, with splits of their own). In DeJesus, a prosecutor in a firearms possession case struck three jurors on religious grounds, despite the fact that all swore they would be able to uphold the law. One was active in church affairs and said he had come to forgive the murderer of his cousin. A second was an officer in his church and read the Bible and other religious literature in his spare time. A third was a trustee in his church. In Brown, a prosecutor in a mail fraud case dismissed a potential juror because, in his words, “she’s very active in local and I guess regional church.” (Although he offered a second reason for striking her, the circuit court considered the religious ground in isolation.) In both cases, race is a complicating factor. Two out of the three DeJesus potential jurors were black. The removal of the black potential juror in Brown left an all-white jury sitting in judgment of a black defendant. Nonetheless, both circuit courts rejected the defendants’ contention that prosecutors had used religion as a proxy for race. There are ambiguities in both decisions that leave some doubt about how their differing approaches will play out in the future. For instance, while the DeJesus court highlighted the distinction between broad affiliation and particular beliefs, it sometimes spoke of church activities as if that were the basis for a legitimate strike. In fact, a dissenting judge in DeJesus characterized the challenges at issue as being based on church activism, not particular beliefs. Meanwhile, the Brown court made note of the DeJesus court’s differing method of dividing the field, but declined to pass judgment on it, as if to suggest that the two approaches can exist side by side. Young’s e-mail address is [email protected].

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