Defending People

I blogged here about the exclusion from jury service of people who hold religious beliefs that prevent them from judging other people. I thought of it as a First Amendment problem and an Equal Protection problem under the U.S. Constitution. I haven’t given much thought to the Federal implications beyond Batson, Powers, and J.E.B., but it appears that there may be an even stronger argument under the Texas Constitution.

Article 1, Section 4 of the Texas Constitution provides:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

When a person is excluded from serving on a jury — so the argument would go — he is excluded from holding an office or public trust. When that exclusion is based on his religious sentiments, it violates Article 1, Section 4.

Further, Article 1, Section 6 of the Texas Constitution provides:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.

By barring people with certain religious beliefs (beliefs including the impropriety of people sitting in judgment over each other) from jury service, the law gives preference to those religious societies that do not hold these beliefs, in violation of Article 1, Section 6.

This is an issue that is ripe for litigation. The mere asking of the question, “do any of you have religious beliefs that forbid you from sitting in judgment” is arguably a religious test that violates Article 1, Section 4 and a preference that violates Article 1, Section 6. Object early and often.