Religion-based peremptory challenges are unconstitutional, Connecticut high court says.

The peremptory challenge, which lawyers use routinely to strike prospective jurors from venire panels without needing to give a reason, has taken another hit. In a recent decision, the Supreme Court of Connecticut ruled that strikes based on religion violate the U.S. Constitution. (State v. Hodge, No. 15266, 1999 WL 167561 (Conn. Apr. 6, 1999).)

The peremptory challenge has been weakened in recent decades by U.S. Supreme Court decisions holding that strikes based on either race or gender violate the Equal Protection Clause of the Fourteenth Amendment. But the Court has not yet considered the constitutionality of religion-based challenges.

The Connecticut court's decision appears to be the first of its kind at the state court level. Several state appellate courts have ruled or hinted in dicta that religion-based peremptory challenges violate the constitutions in those states. And a few courts have ruled that these challenges are not prohibited by the U.S. Constitution. But the Connecticut court is the first state appellate court to conclude that religion-based strikes cannot withstand scrutiny under federal constitutional law.

The split in authority indicates that the issue is ripe for review by the U.S. Supreme Court, according to Erwin Chemerinsky, a professor at the University of Southern California School of Law. "The Supreme Court is going to have to make a decision on this issue," he said, to relieve the tension created by the mixed decisions.

The core question, Chemerinsky noted, is whether a person's religious beliefs should be considered relevant to how they will behave as a juror. "In some cases, religion is a better predictor [than race or gender] of someone's ideological beliefs. But on the other hand, we say that people should be free from discrimination, and that should include discrimination based on religion, too," Chemerinsky said.

In the Connecticut case, the defendant, Dennis Hodge, was on trial for allegedly murdering two men. During jury selection, the prosecution struck several prospective jurors, including M.F., who had said during voir dire that he was Muslim.

Hodge, who was ultimately convicted of murder and manslaughter, appealed, claiming the prosecution's use of a peremptory challenge to strike M.F. violated the equal protection provisions of the U.S. Constitution because it was religiously motivated.

The prosecutor said he removed M.F. because he had a criminal record and had said that he would consult a Muslim religious leader for guidance if the court's instructions conflicted with his faith.

The Connecticut court ruled that any peremptory challenge based on religion alone would violate the U.S. Constitution's Equal Protection Clause. Although the U.S. Supreme Court had not yet ruled on the issue, the Connecticut court said, the reasoning in the Court's earlier decisions invalidating strikes based on race and gender applied to this case.

"Although one's religious beliefs may render a prospective juror unsuitable for service in a particular case, one's religious affiliation, like one's race or gender, bears no relation to that person's ability to serve as a juror," the court wrote. "To allow the exclusion of an otherwise qualified venire person simply on account of that person's religious affiliation would amount to permitting jury selection procedures that promote state-sponsored group stereotype rooted in, and reflective of, historical prejudice, a practice that the U.S. Supreme Court expressly has rejected as violative of the Equal Protection Clause."

However, the court concluded, M.F.'s removal from the jury panel was not unconstitutional because the prosecution had valid reasons for striking him.

M.F. had "expressly indicated that, in the event of a conflict between the court's instruction and his religious beliefs, he would seek guidance from his religious leader about how to handle the situation. This response alone provided a reasonable basis for the state's attorney to doubt whether [M.F.] could follow the court's instructions, including the requirement that he not discuss the case with anyone during the pendency of the trial," the court wrote.

"To the extent that the state's attorney had excused M.F. for reasons related to his religion, those reasons were not based upon M.F.'s religious affiliation, but rather upon certain views that could impair his ability to decide the case solely on the facts and the applicable law," the court wrote.

The upshot of the decision is that "it makes peremptory challenges less peremptory," Chemerinsky said. But he disagrees with some legal experts who say the ruling is another step toward eliminating peremptory challenges altogether.

"I think we're a long way from that," he said, noting that the Supreme Court has limited its restrictions on peremptory challenges to types of discrimination that receive heightened scrutiny under equal protection analysis--race and sex. It's unclear, Chemerinsky said, whether the Court would include religion in that list.

Mark Rademacher, the public defender who argued Hodge's appeal, said he plans a habeas corpus appeal to the U.S. district court, but has not yet decided whether to file a petition for certiorari with the U.S. Supreme Court. In the meantime, Rademacher said, "I think people will think twice before executing a challenge when a juror has expressed religious scruples on a topic. They will now articulate a [valid] reason [for striking the juror] to themselves before they do it."