So Help Me God

April 12, 2004 | 12 comments
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We take oaths in this country when we testify. Nowadays, anybody can do it, and perjury is the only penalty. Used to be that hellfire also awaited the liar. That was the theory, anyway, and under that theory until well into the 20th Century, the several states wouldn’t let atheists testify because the atheists didn’t believe in future rewards and punishments. I don’t know what the states did about Universalists or cheap grace evangelicals, or even what they’d do with us–our discussion below about having too little hellfire in our beliefs got me wondering, though I eventually concluded that one-thousand years of suffering sufficed. You can see how difficult this could all get (‘Before you take the oath, can you tell us whether you think you can sin a little and God will just punish you with a few stripes?’ ‘Is it your belief that you can stop sinning and repent whenever you want to?’ ‘Does your priest usually only impose light penances?’), so you can understand why it’s gone. We both know, too, that keeping atheists out of the witness box looks pretty discriminatory.

Similar reasoning is probably also behind our rule that you can’t question a witness about his religion in order to undermine his credibility. Seems, however, that one can exclude jurors on the basis of being too religious, presumably as long as one discriminates equally against the faithful of all sects.

12 Responses to So Help Me God

  1. Nate Oman on April 12, 2004 at 7:09 pm

    Come on Adam! You are a lawyer! This case doesn’t say that overly religious people can’t serve on juries! It says that premtory challenges — which properly speaking don’t have to be justified at all — can be exercised on the basis of religion. Furthermore, this cases is probably best read as a way of circumventing Batson, which held that one couldn’t exercise pre-emptory challenges on the basis of race. The juror struck was prominent in a black church. The prosecutor was using religion as a proxy to get at race. As it happens, I am far from persuaded that Batson was correctly decided in the first place, since so long as the prosecution and the defendant can exercise the same number of preemptory challenges, then I don’t see why we shouldn’t let people use race for preemptory challenges. Challenges for cause are another matter, and it is far from clear to me that there is anything wrong with striking a juror on the basis of religion for cause. Is it unreasonable for the government to say that a Catholic nun should not be allowed to sit in a capital murder case? I don’t think so…

  2. Adam Greenwood on April 12, 2004 at 7:11 pm

    I disagree with Batson–seems to me that peremptory means peremptory. But if it doesn’t then stuff like this is a problem.

  3. Greg Call on April 12, 2004 at 7:19 pm

    I haven’t read the case linked to, but I just wanted to stick up a bit for the idea behind Batson. It is a total mess, but to me the solution is get rid of peremptory challenges altogether, rather than allow them to be used in a racially discriminatory manner. I think Justice Marshall made this point in the original Batson dissent, and he has only been proved prophetic.

  4. Ivan Wolfe on April 12, 2004 at 9:05 pm

    My father was once excluded from a jury because he was Mormon.

    Of course, the case involved drunk driving, and since Mormons don’t drink, the court decided my father would be too prejudiced to be a good jury member.

  5. MDS on April 12, 2004 at 9:23 pm

    Jury selection war story:

    Non-LDS Attorneys from a firm I worked at were representing the defendant/employer in a Title VII sexual harassment case. Plaintiff’s attorney submitted his voir dire questions. He wanted to ask the jurors if they were LDS. The judge wanted to know why he wanted to ask that question. He explained that the low value placed on women by the LDS church would be prejudicial to his client if any members were seated on the jury. First, they would wonder what she was doing in the workplace in the first place, since LDS women aren’t supposed to be there. Secondly, their low opinion of women who do have the gall to venture into the workplace would lead them to conclude that she “had it coming” or something along those lines. The judge was not amused and disallowed that line of questioning.

    The non-LDS attorneys enjoyed telling me the story. I, on the other hand, was not nearly as amused as they that someone who calls himself a legal professional could make assertions of this nature before a judge.

  6. William Morris on April 12, 2004 at 9:44 pm

    I too was excluded from serving on a jury in a drunk driving case. Even after asserting [in response to questioning] that I understood that I understand that you can drink alcohol and still be fit to drive — both legally and in the sense of not being impaired — and stating that I had even been a passenger in a car driven by a co-worker who had had alcohol with lunch and not seen any problem with it.

    I understand why the defense lawyers used one of their peremptory challenges on me. However, I did feel cheated. Not that I wanted to serve on the jury. I was happy to get out of that duty. But I couldn’t help but feel a little miffed that the lawyers thought that I was so prejudiced that I wouldn’t be able to judge the case on its merits [not that jury selection is about finding those who will judge the case on its merits].

  7. Dave on April 12, 2004 at 10:08 pm

    Adam,

    Nice article. I looked for a cite to Davis v. Beason (http://members.aol.com/TestOath/Beason.htm) in the article, but didn’t find one. Too bad–Christians might look back and realize their co-religionists were once only too happy to abridge Mormon civil rights (to vote or hold office, real abridgements that truly infringed Mormon civil rights). And now they face a little tiny, almost hypothetical, Batson challenge scenario potentially affecting their right to serve on a jury, and look how they squirm! And they expect my sympathy?

    As religion becomes more and more disfavored in the public domain, Christian thinkers will sooner or later rethink the 19th-century Mormon experience with a bit more understanding, if not sympathy, and start to give the Mormon arguments more consideration.

  8. Adam Greenwood on April 13, 2004 at 1:01 am

    Given our history, Dave, we of all people ought to be sympathetic. A little schadenfreude is too much schadenfreude.

  9. Dave on April 13, 2004 at 2:57 am

    Adam, your good-hearted and indefatigable ecumenicism is duly noted. I guess I was just trying to point out that this is a teaching opportunity for encounters with aggrieved Christian attorneys.

  10. Randy on April 13, 2004 at 1:34 pm

    In answer to Nate’s question, I suppose I could live with excluding the nun in capital cases, so long as this were done as a preemptory challenge, putting the prosecution and the defense on equal footing. The problem, in my opinion, is that the law allows prosecutors to exclude from the jury all those who oppose the death penalty, even if the reasons are religious in nature. The reason this is problematic is that studies have shown that “death-qualified juries” are more likely to convict than those who are not. I think it is unconscionable that prosecutors are given that type of advantage in a case involving the ultimate penalty of death.

  11. cooper on April 13, 2004 at 2:52 pm

    All I can say is Thanks Adam for adding to my jury dodging quiver! Not that I don’t think jury service is good or an obligation of a citizen, I just don’t want to do it.

  12. Aam Greenwood on April 13, 2004 at 4:21 pm

    Point taken, Dave.

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