Missing Faith in Batson: Continued Discrimination Against African Americans Through Religion-Based Peremptory Challenges

Abstract

African Americans continue to be routinely and disproportionately excluded from juries over a quarter of a century after the United States Supreme Court, in Batson v. Kentucky, set forth a framework for flushing out racial discrimination in the exercise of peremptory challenges. Since that decision, the weaknesses of the Batson framework and its application have been revealed, including routine judicial acceptance of peremptory challenge explanations without sufficient inquiry into whether they are pretexts for racial discrimination. Because the Supreme Court has not yet held religion-based strikes unconstitutional, one common pretextual reason includes the religious affiliation or activity of the prospective black juror. This article explores the intersection of race and religion in the exercise of peremptory challenges against Protestant African Americans and argues that permitting peremptory challenges based on religious affiliation or activity only serves to further weaken Batson’s protections against racial discrimination. This article argues against such religion-based strikes because they disproportionately affect African Americans, are more easily employed as a racial pretext against African Americans, undermine the integrity of the judicial system, and “denigrate[] the dignity” of the religious black prospective juror.