Peremptory Pragmatism: Religion and the Administration of the Batson Rule

22 Pages Posted: 10 Jun 2010 Last revised: 10 Aug 2010

See all articles by Anthony Johnstone

Anthony Johnstone

University of Montana School of Law

Date Written: April 1, 1998


This Comment defends the pragmatic line drawn by courts at religion-based Batson challenges because it facilitates the efficient administration of fair trials while protecting important interests of those citizens called for jury duty. Unlike race or sex, religious affiliation can serve as a legitimate proxy for a juror’s beliefs and likely biases. Religion-based juror strikes, therefore, threaten neither the anti-discrimination principle of equal protection nor the integrity of the criminal justice system. In fact, if courts subjected religion-based peremptory challenges to standard Batson analysis, the difficulty of defining religious belief would raise the already substantial costs of determining the validity of challenges. Furthermore, accurately ascertaining prospective jurors’ religious beliefs in voir dire requires intrusive questioning which can alienate jurors and may infringe upon their constitutional rights. Religion-based peremptory challenges avoid these substantial administrative and privacy costs while allowing litigants to strike potentially biased jurors, thus vindicating the Constitution’s guarantee of a trial by an impartial jury.

Part I explains the pragmatic value of the peremptory challenge and how courts accommodate the peremptory challenge under equal protection principles as applied race, sex and variations thereof. Part II describes the Minnesota Supreme Court’s pragmatic refusal to extend Batson to religion in State v Davis, and other courts’ approaches to the religion question before and after the Supreme Court denied certiorari to Davis. Part III argues that State v Davis and Justice Ginsburg’s opinion in the certiorari denial to Davis correctly leaves religion out of the Batson regime.

Keywords: Equal Protection, Criminal Procedure, Peremptory Challenges, Batson Rule, Religion,

JEL Classification: K14, K41

Suggested Citation

Johnstone, Anthony, Peremptory Pragmatism: Religion and the Administration of the Batson Rule (April 1, 1998). University of Chicago Legal Forum, p. 441, 1998, Available at SSRN:

Anthony Johnstone (Contact Author)

University of Montana School of Law ( email )

Missoula, MT 59812-0002
United States


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