Jurors can't be rejected for religious appearance, New Jersey court rules.

The New Jersey Supreme Court has ruled that jurors cannot be excluded because their clothing or manner suggests that they are religious.

The decision adds to a growing body of case law on whether peremptory challenges may be based on religion. In Batson v. Kentucky, the U.S. Supreme Court found that excluding jurors based on race constituted discrimination in violation of the Sixth and Fourteenth Amendments. (476 U.S. 79 (1986).) In J.E.B. v. Alabama ex rel T.B., the Court found that the use of peremptory challenges to exclude jurors solely because of their gender violated the Equal Protection Clause. (511 U.S. 127 (1994).)

In a 6-0 ruling, the New Jersey court ordered a new trial for a man who had been sentenced to 14 years in prison for armed robbery. (State v. Fuller, 862 A.2d 1130 (NJ. 2004).) During voir dire, the prosecutor used his first peremptory challenge to exclude a white man who said he was a missionary and the next four to exclude African-Americans, the last of whom was wearing a long, black garment and skullcap. The prosecutor believed he was Muslim. Neither the missionary nor the presumed Muslim was asked about his religious beliefs.

The defense questioned why four of the prosecutor's first five challenges targeted African-Americans. The prosecutor said he had excused the missionary and the man wearing the skullcap because he believed that "people who tend to be demonstrative about their religions tend to favor defendants to a greater extent than do persons who are, shall we say, not as religious." The trial court accepted this explanation.

The defendant appealed, arguing that the jurors' removal violated his rights under the Equal Protection Clause. A divided appellate court sided with the trial court, citing a distinction between peremptory challenges exercised to exclude members of particular religious groups and those used to exclude people the prosecutor believes have a pro-defendant bias because they are religious.

The appellate court relied on a 1986 decision, State v. Gilmore, in which the state supreme court had reasoned that the first type of challenge constitutes discrimination under the state constitution based on "religious principles," while the latter is permissible because people who demonstrate their religion are not part of a cognizable group that can be targeted for discrimination.

Reversing, the supreme court noted that "at this juncture, it simply is not clear whether the federal equal protection analysis of Batson and J.E.B. compel a similar result when a peremptory challenge is based on religion." However, the court found that the prosecutor's assumption that "demonstrably religious persons are all alike in sharing defense-minded sympathies" was too broad.

The court acknowledged a trend toward finding peremptory challenges based solely on religious affiliation to be unconstitutional, while challenges based on religious beliefs or activities are generally allowed. "New Jersey," wrote Chief Justice Deborah Poritz, "has chosen a different path."

Gilmore states that members of a jury must be drawn from a representative cross-section of the community and includes people who espouse "religious principles" among protected group classifications. The question before the Fuller court was whether potential jurors who wear religious garb or engage in religious activities fall within the protected group. Because some religions require outward expressions of faith or encourage missionary service more than others, said the court, if the prosecutor's actions were allowed, those religious groups would be discriminated against and underrepresented in juries.

The prosecutor, "by excluding such persons based merely on religious bias rooted in stereotypes, [serves] neither the purpose of the peremptory challenge nor of the representative cross-section rule," wrote Poritz. "The prosecutor's belief suggests the very stereotypes that have been used to justify a policy of blanket exclusion that the law condemns."

Other state and federal courts have reviewed the use of similar peremptory challenges. The Connecticut Supreme Court ruled that strikes based on religious belief related to a specific case and perhaps even based on general religious tenets are permissible. (Jean Hellwege, Religion-Based Peremptory Challenges Are Unconstitutional, Connecticut High Court Says, TRIAL, July 1999, at 15.)

The Third Circuit found no need to address whether a peremptory strike based on religions affiliation would be unconstitutional because the strikes at issue were properly based on religious activities. (Sara Hoffman Jurand, Third Circuit Upholds Faith-Based Peremptory Challenges, TRIAL, Jan. 2004, at 72.)