DOES BATSON APPLY TO RELIGION?
QUERY – HOW DOES BATSON’S OPENING OF THE EQUAL PROTECTION FLOOD GATES EXCLUDE “PROTESTANTS AND CATHOLICS” JEWS AND BUDDHISTS:
The United States Supreme Court in Swain v. Alabama, forewarned that: “With these considerations in mind, we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and White, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to demands and traditional standards of the equal protection clause would entail a radical change in the nature and operation of the challenge.”
And yet the Court, later, in Batson, opened the equal protection floodgates on prosecutorial exercise of peremptory challenges.
“In this Court, petitioner has argued that the prosecutor’s conduct violated his rights under the Sixth and Fourteenth Amendments to an impartial jury and to a jury drawn from a cross section of the community. Petitioner has framed his argument in these terms in an apparent effort to avoid inviting the court directly to reconsider one of its own precedents. On the other hand, the state has insisted that petitioner is claiming a denial of equal protection and that we must reconsider Swain to find a Constitutional violation of this record. We agree with the State that resolution of Petitioner’s claim properly turns on application of Equal Protection principles and express no view on the merits of any of petitioner’s Sixth Amendment arguments.” Batson v. Kentucky,476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 61 n. 4 (1986).
