Striking Out Bias: A Path Toward Ending Religion-Based Peremptory Strikes

Peremptory strikes, while designed to craft fair and impartial juries, carry with them the potential for discriminatory use. Cognizant of this, the Court has imposed limitations on their use, producing over time the Batson line of case law. While Batson and its progeny aimed to eliminate discriminatory peremptory strikes, the consensus forty years later is that this goal remains unfulfilled—largely due to the continued acceptance of ostensibly race-, gender-, and ethnicity-neutral justifications. Religion has emerged as a frequent rationale, creating uncertainty about its permissibility and producing a circuit split.

Despite repeated calls for finality on the question of religion-based peremptory strikes, the Supreme Court has remained silent, most recently by denying certiorari in a case poised to address it. As a result, religious discrimination persists unchecked in courtrooms, carrying with it the consequence of contributing to race-based discrimination and undermining the aims of Batson. This Comment asserts that the Court should set forth a definitive answer to the question of religion-based peremptory strikes, ultimately contending that they should receive Batson-level protections and be deemed impermissible. Otherwise, courts leave jurors vulnerable to multiple levels of discrimination, while threatening the Constitution’s guarantee of fair and impartial juries.