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jurybox222I’m sitting in the jury pool in downtown Atlanta, trying not to splash too much. Eavesdropping on conversations around me, mostly devoted to what we have to say to be disqualified.


Favorite overheard conversation:

GUY 1: I was here two years ago. Got on an assault case. Got all the way to the questioning part. The “voy dear,” something like that, where the lawyers figure out who they want on the jury.

GUY 2: Huh. Wha’d they ask?

GUY 1: They asked if there’s any reason you couldn’t hear the evidence and pass judgment on somebody if they broke the law.

GUY 2: Huh.

GUY 1: This one lady said, “I follow Jesus, who said, ‘He that is without sin among you, let him cast the first stone.'”

GUY 2: Really.

GUY 1: Yeah.


GUY 2: They booted her?

GUY 1: Hell yeah. Gone.

The question of peremptory challenges based on a prospective juror’s religious views is a lively topic in the legal community.

The Supreme Court outlawed peremptory challenges based on race in 1986 and on gender in 1994. Some argue that the same protection should be extended to religion.

In the wonderfully-named case United States v. DeJesus, the Third Circuit Court of Appeals created an interesting distinction: “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.”

So you can’t be dismissed for belonging to (say) a Baptist church, but you can be dismissed for holding Baptist beliefs.

Anthony Foti, author of Could Jesus Serve on a Jury?, explains — and objects:

Attorneys fear deeply religious people. Defense lawyers worry that deep religious beliefs signal a conservative, law-and-order orientation, while prosecutors are concerned that intensely religious jurors will be overly compassionate and hesitant to sit in judgment of others.

So defense attorneys worry about the Old Testament, while prosecutors worry about the New.

“Heightened religiosity” has become a proxy to allow lawyers to exclude jurors based on their religious affiliation. For example, few lawyers would challenge a non-practicing Catholic or Protestant on a jury, but issues will often arise with Orthodox Jews, Jehovah’s Witnesses and Muslims. By definition, these groups exhibit “heightened religious involvement,” and now, according to DeJesus, a lawyer may exercise a peremptory challenge against nearly any member of these groups on the basis of heightened religious belief.

This effectively destroys any protection for religious affiliation because the groups most in need of protection are the same groups that can be excluded [on the basis of] “heightened religious involvement.”

I’m sure my atheism would also be considered a “heightened” thing. It’s a Goldilocks situation, then: In God We Trust, but only if you’re not too serious about it.

As for Jesus — who Foti calls “a definitive example of ‘heightened religiosity'” — he would almost certainly be headed home in time for Oprah. In that way, I’m hoping to be Christlike today.


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Dale McGowan is the author of Parenting Beyond Belief, Raising Freethinkers, and Atheism for Dummies. He holds a BA in evolutionary anthropology and a PhD in music.