Full opinion text
OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW BAIRD, Judge. Appellant was convicted of aggravated sexual assault and sentenced to twelve years confinement. Tex.Penal Code Ann. §§ 22.011 and 22.021. The Court of Appeals affirmed. Casarez v. State, 857 S.W.2d 779 (Tex.App.—Fort Worth 1993). We granted appellant’s petition for discretionary review to determine whether the Equal Protection Clause of the Fourteenth Amendment prohibits the use of a peremptory challenge on the basis of religion. U.S. Const., amend. XIV. We will reverse. I. THE INSTANT CASE The State peremptorily challenged two black veniremembers. Appellant objected, contending the peremptory challenges were racially discriminatory and prohibited by Tex.Code Crim.Proc.Ann. art. 35.261 and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prosecutor contended the veniremembers were not struck on the basis of race, but on the basis of their Pentecostal religion. Appellant again objected, this time contending the use of a peremptory challenge on the basis of religion violates the Equal Protection Clause of the Fourteenth Amendment. The trial judge overruled the objection. On appeal, appellant argued Batson ⅛ application of the Equal Protection Clause should be expanded to include religion. The majority opinion of the Court of Appeals read appellant’s point of error as being limited to whether religion was of itself an impermissible reason for exercising peremptory strikes. Casarez, 857 S.W.2d at 783. The majority reasoned the Supreme Court’s limited application of the Equal Protection Clause to race-based peremptory challenges indicated an intent to confine Batson to race and overruled the point of error. Casarez, 857 S.W.2d at 783-784. II. EQUAL PROTECTION AND JURY SELECTION The Supreme Court first applied the Equal Protection Clause to the jury selection process in Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). Strauder, a black man, was convicted by an all-white jury under a West Virginia statute which prohibited blacks from serving on grand or petit juries. Id., 100 U.S. at 304, 25 L.Ed. 664. Strauder contended the statute violated the Equal Protection Clause of the Fourteenth Amendment. Id. The Supreme Court agreed and held the statute unconstitutional: ... The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others ... [T]he statute of West Virginia, discriminating in the selection of jurors ... amounts to a denial of equal protection of the laws to a colored man when he is put upon trial for an alleged offense against the State. Id., 100 U.S. at 308, 310, 25 L.Ed. 664. Importantly, Strauder restricted the application of the Equal Protection Clause to racially discriminatory practices affecting the composition of the venire. Id., 100 U.S. at 312. A. Almost a century later, the Supreme Court expanded the application of the Equal Protection Clause to peremptory challenges. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The Court held the Equal Protection Clause prohibits the racially discriminatory use of peremptory challenges but required criminal defendants to show the “systematic use” of such peremptory challenges over a period of time. Id., 380 U.S. at 227, 85 S.Ct. at 839. Under the “systematic use” burden a defendant was required to compile evidence from multiple trials demonstrating a racially discriminatory pattern. Id., 380 U.S. at 225-27, 85 S.Ct. at 838-839. B. Twenty years later the Supreme Court discarded the “systematic use” requirement in the landmark case of Batson v. Kentucky, 476 U.S. 79, 95, 106 S.Ct. 1712, 1722, 90 L.Ed.2d 69 (1986). In Batson, the State used its peremptory challenges to exclude every black from the jury. Id., 476 U.S. at 82-83, 106 S.Ct. at 1715. Recognizing a defendant was rarely entitled to relief under the crippling burden of Swain, the Court held the Equal Protection Clause prohibited the use of racially discriminatory peremptory challenges in an individual trial. Id., 476 U.S. at 92-95, 106 S.Ct. at 1721-22. Thus, criminal defendants were allowed to enforce the Equal Protection Clause’s prohibition of racial discrimination whenever the State exercised peremptory challenges in a racially discriminatory manner. Accordingly ... the State’s privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause. Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant. Id., 476 U.S. at 89, 106 S.Ct. at 1719 (footnotes and citations omitted). C. Since Batson, the Supreme Court has expanded the scope and application of the Equal Protection Clause to the use of peremptory challenges. In Powers v. Ohio, 499 U.S. 400, 401-03, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411 (1991), the Court considered whether Batson required the excluded veniremembers to be of the same race as the defendant. Because the Equal Protection Clause prohibits racially discriminatory classifications, the defendant’s race was irrelevant. The Fourteenth Amendment’s mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system ... The statutory prohibition on discrimination in the selection of jurors ... makes race neutrality in jury selection a visible, and inevitable, measure of the judicial system’s own commitment to the commands of the Constitution.... ... Racial identity between the defendant and the excused person might in some cases be the explanation for the prosecution’s adoption of the forbidden stereotype ... But to say that the race of the defendant may be relevant to discerning bias in some cases does not mean it will be a factor in others, for race prejudice stems from various causes and may manifest itself in different forms. Id., 499 U.S. at 415-16, 111 S.Ct. at 1373-74. In Edmonson v. Leesville Concrete, Co., the Supreme Court extended Batson’s application of the Equal Protection Clause to civil trials. Edmonson v. Leesville Concrete, Co., 500 U.S. 614, 629-33, 111 S.Ct. 2077, 2088-2089, 114 L.Ed.2d 660 (1991). However, in order for the Equal Protection Clause to apply, civil litigants had to be classified as state actors. Id., 500 U.S. at 618-20, 111 S.Ct. at 2082. The Court determined civil litigants were state actors because the litigants “make extensive use of state procedures with the ‘overt, significant assistance of state officials.’” Id., 500 U.S. at 622, 111 S.Ct. at 2083-84. Further, the Court held civil litigants have third-party standing to challenge the peremptory challenges of another party because the potential juror is unable to defend his or her participatory right and the integrity of the verdict is cast into doubt. Focusing on the harm caused by racial discrimination the Court stated: Race discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality ... If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury. Id., 500 U.S. at 628-31, 111 S.Ct. at 2087-2088. In Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), the Supreme Court considered whether the Equal Protection Clause applied to the peremptory challenges of criminal defendants. The Court held criminal defendants, like civil litigants, constructively effect state action during voir dire because they wield the power to choose the jury, “the institution of government on which our judicial system depends.” Id., 505 U.S. at 54, 112 S.Ct. at 2356. The Court then turned to the question of whether a criminal defendant’s Sixth Amendment right to a fair trial and the criminal defendant’s use of peremptory challenges defeated the State’s third-party standing to raise a Batson issue. McCollum, 505 U.S. at 54-59, 112 S.Ct. at 2357-2359. In holding criminal defendants may not use peremptory challenges in a racially discriminatory manner, the Court focused on the “harm done to the dignity of persons and the integrity of the courts:” We do not believe that this decision will undermine the contribution of the peremptory challenge to the administration of justice. Nonetheless, if race stereotypes are the price for acceptance of a jury panel as fair, we reaffirm today that such a price is too high to meet the standard of the Constitution ... The goal of the Sixth Amendment is jury impartiality with respect to both contestants. Id., 505 U.S. at 58, 112 S.Ct. at 2358 (citations and internal quotations omitted). III. AN ANALYTICAL FRAMEWORK The Supreme Court’s application of the Equal Protection Clause to peremptory challenges did not end with race. The Court next considered whether the Equal Protection Clause prohibited the use of peremptory challenges to exclude veniremembers on the basis of gender. J.E.B. v. Alabama ex rel. T.B., — U.S. -, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). In J.E.B. the Court developed an analytical framework to apply the Equal Protection Clause to the discriminatory use of peremptory challenges. To understand this analytical framework, we must first consider the traditional Equal Protection review of discriminatory classifications. A. The underlying tenet of the Equal Protection Clause is that the Government must treat citizens as individuals, not simply as components of a racial, religious, sexual, or national class. Accordingly, the Equal Protection Clause generally prohibits the government from using suspect classifications as a basis for discriminating between individuals. A violation of the Equal Protection Clause may occur when the government discriminates against the members of a class of individuals who have historically suffered discrimination, i.e., a “suspect” class, or when the government impairs the members of a class from exercising a fundamental right. To determine the constitutionality of discrimination between classes of individuals, the Supreme Court has historically employed two standards of review: (1) strict scrutiny review; and, (2) rational relationship review. Wygant v. Jackson Board of Education, 476 U.S. 267, 279-80, 106 S.Ct. 1842, 1849-50, 90 L.Ed.2d 260 (1986). To satisfy strict scrutiny review, the discriminatory classification must promote a compelling government interest and be narrowly tailored to achieve that interest. Metro Broadcasting, 497 U.S. at 602, 110 S.Ct. at 3029 (O’Connor, J., dissenting); Richmond v. J.A Croson Co., 488 U.S. 469, 493-97, 109 S.Ct. 706, 721-23, 102 L.Ed.2d 854 (1989). Stated another way, to survive strict scrutiny, the government must prove the classification is based upon an essential government objective which is achieved by the least intrusive means. Id. Strict scrutiny review has been employed with discriminatory classifications based upon race, national origin and alienage, or when a discriminatory classification burdens or impairs the ability of a class to exercise a fundamental right. On the other hand, under a rational relationship review the Court presumes the discriminatory classification is valid. Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074, 1082-1083, 67 L.Ed.2d 186 (1981). A discriminatory classification will be upheld so long as it bears a rational relationship to any legitimate governmental interest. Pennell v. City of San Jose, 485 U.S. 1, 14, 108 S.Ct. 849, 859, 99 L.Ed.2d 1 (1988). Historically, the Supreme Court has employed a rational relationship review with general economic or social welfare legislation. Id. Currently, the Supreme Court employs a rational relationship review whenever the discriminatory classification does not involve a fundamental right, suspect class or alienage, gender or legitimacy. Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 18.3 (2d ed. 1992). During the last twenty-five years the Supreme Court has developed a third standard of review, known as intermediate scrutiny. In order to prevail under an intermediate scrutiny review, the government must demonstrate the discriminatory classification is substantially related to an important governmental interest. See, Hogan, 458 U.S. at 724, 102 S.Ct. at 3336-87; and, Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979). An intermediate scrutiny review is employed to review classifications based upon gender or illegitimacy. Therefore, all discriminatory classifications must, at the very least, be rationally related to a legitimate governmental interest. Id. Moreover, discriminatory classifications which infringe on the exercise of a fundamental right, or which affect a suspect class, must satisfy the more stringent intermediate scrutiny or strict scrutiny review. Discriminatory classifications which are subject to strict scrutiny review or intermediate scrutiny review are said to be subject to a “heightened equal protection scrutiny.” J.E.B., — U.S. at -, 114 S.Ct. at 1424; and, Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 18.3, at 14-28 (2d ed. 1992). B. In J.E.B., the Supreme Court held the Equal Protection Clause prohibited the use of peremptory challenges to exclude venire-members on the basis of gender. Six justices held the same harm caused by racial discrimination in the jury selection process occurs with equal force to gender discrimination: Equal opportunity to participate in the fair administration of justice is fundamental to our democratic system. It not only furthers the goals of the jury system. It reaffirms the promise of equality under the law — that all citizens, regardless of race, ethnicity, or gender, have the chance to take part directly in our democracy ... When persons are excluded from participating in our democratic processes solely because of race or gender, this promise of equality dims, and the integrity of our judicial system is jeopardized. Id., — U.S. at -, 114 S.Ct. at 1430 (footnotes and citations omitted). Consequently, the Equal Protection Clause guarantees each person who is “granted the opportunity to serve on a jury ... the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination.” Id., — U.S. at -, 114 S.Ct. at 1428. For the first time the Supreme Court unequivocally attached Batson’s application of the Equal Protection Clause to those discriminatory classifications subject to “heightened equal protection scrutiny.” Id., — U.S. at -, 114 S.Ct. at 1425. Because discriminatory classifications based upon gender are subject to heightened equal protection scrutiny, Mississippi University for Women v. Hogan, 458 U.S. 718, 724-26, 102 S.Ct. 3331, 3336-37, 73 L.Ed.2d 1090 (1982) (applying intermediate scrutiny review to gender-based discriminations), the Court considered: J.E.B., — U.S. at -, 114 S.Ct. at 1425-1426 (footnotes omitted). Because gender alone is not an accurate predictor of juror attitudes, the Court held peremptory-challenges based upon gender failed to pass the heightened equal protection scrutiny analysis. The Court concluded, “[w]e shall not accept as a defense to gender-based peremptory challenges the very stereotype the law condemns.” Id., — U.S. at -, 114 S.Ct. at 1426 (internal quotations omitted). ... whether discrimination on the basis of gender in jury selection substantially furthers the State’s legitimate interest in achieving a fair and impartial trial ... [Or more precisely] whether peremptory challenges based on gender stereotypes provide substantial aid to a litigant’s effort to secure a fair and impartial jury. •As with the Batson line of cases, the J.E.B. Court continued to focus on the harm caused by the discriminatory use of peremptory challenges. Discrimination in jury selection ... causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. The litigants are harmed by the risk that the prejudice which motivated the discriminatory selection of the jury will infect the entire proceedings ... The community is harmed by the State’s participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders. J.E.B., — U.S. at -, 114 S.Ct. at 1427 (citations omitted). Under the analytical framework of J.E.B., the Equal Protection Clause prohibits the discriminatory use of peremptory challenges based on a classification which qualifies for, but fails to pass, “heightened equal protection scrutiny.” J.E.B., — U.S. at -, 114 S.Ct. at 1425. IV. RELIGIOUS DISCRIMINATION Today, we are asked to determine whether the Equal Protection Clause of the Fourteenth Amendment prohibits the use of peremptory challenges on the basis of religion. To resolve this issue, we must first determine whether discriminatory classifications based upon religion are subject to heightened equal protection scrutiny. A. Our democratic government arose from a period of severe religious discrimination. England suppressed all religious affiliations other than those with the Anglican Church. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv.L.Rev. 1410, 1421 (1990). Other religious groups were forbidden to practice their beliefs, imprisoned for practicing their beliefs, and barred from holding public office. Id.; and, The Test Act of 1672, 25 Car. 2, ch. 2 (restricting public and military office to Anglican church members). Therefore, many religious groups sought religious tolerance in the American colonies. The Origins and Historical Understanding of Free Exercise of Religion, supra, at 1422. However, religious discrimination flourished on this continent as well. The Puritans statutorily banished Baptists from the New England territories, and jailed or expelled other religious dissenters. Id. The Virginia Anglican Church horsewhipped, jailed and prevented other religious groups from preaching. Id., at 1423. Further, New York and New Jersey attempted to enforce Anglican intolerance, failing only because of their diverse religious constituencies. Id., at 1424. The Carolinas, Delaware, Maryland, Pennsylvania, and Rhode Island responded to religious discrimination by adopting a policy of religious toleration which guaranteed the “freedom of conscience.” Id., at 1424-1425; and, R.I. Charter of 1663, reprinted in 2 Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1595-96 (B. Poore 2d ed. 1878). These religious toleration policies are viewed as the predecessors to today’s constitutional provisions regarding religion. The Origins and Historical Understanding of Free Exercise of Religion, supra, at 1424-1425. The framers of the United States Constitution incorporated substantial religious protections into art. VI and the First Amendment of the United States Constitution to prevent religious discrimination. Id., at 1515-16; U.S. Const, art. VI; U.S. Const., amend. I. Art. VI and the First Amendment have prohibited discriminatory classifications based upon an individual’s religion since 1791, some seventy-five years pri- or to the adoption of the Fourteenth Amendment and its Equal Protection Clause. Compare, U.S. Const., amend. I with, U.S. Const., amend. XIV (ratified 1868). Almost seventy years ago we recognized the Equal Protection Clause prohibited discriminatory classifications based upon religion. Juarez v. State, 102 Tex.Crim. 297, 277 S.W. 1091 (Tex.Cr.App.1925). Juarez moved to quash his indictment because Catholics were prevented from serving as grand jurors because of their religious belief. The trial judge overruled Juarez’s motion and we reversed. In bringing about a violation of the provisions of the Fourteenth Amendment, the state cannot do indirectly through its officers or agents that which it could not do directly by legislative act. If the Legislature of the state should pass a law saying that hereafter no man holding to the Baptist religious faith, or the Methodist religious faith, should ever be permitted to serve on a grand jury in this state, and a party adhering to the religious faith so designated should claim that by such legislative act his rights under the Fourteenth Amendment had been violated, the validity of such a law could never be sustained. Juarez, 277 S.W. at 1094. B. In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Court considered the constitutionality of a South Carolina statute which allowed the State Unemployment Commission to deny benefits to Seven-Day-Adventists because of their religious prohibition of Saturday work. Id., 374 U.S. at 399-402, 83 S.Ct. at 1791-93. The Court held the freedom to hold or practice religious beliefs is a fundamental right subject to strict scrutiny review. Id., 374 U.S. at 403, 83 S.Ct. at 1793-94. The Court held the statute unconstitutional because it burdened a group’s free exercise of religion and was not justified by a “compelling government interest.” Id., 374 U.S. at 403-09, 83 S.Ct. at 1793-1796. In Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), the Supreme Court considered a Minnesota statute which required all religious groups who did not receive fifty per cent of their donations from members or affiliated organizations to file an extensive annual report. Id., 456 U.S. at 231, 102 S.Ct. at 1676. Valente argued the statute violated the Equal Protection Clause. Using a strict scrutiny review, the Supreme Court held Minnesota “failed to demonstrate that the fifty per cent rule ... is ‘closely fitted’ to further a ‘compelling governmental interest.’ ” Id., 456 U.S. at 251, 102 S.Ct. at 1687. Strict scrutiny review remains the uncontested standard for evaluating government infringements on religious freedom. In Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), the Supreme Court considered the constitutionality of five municipal ordinances which prohibited animal cruelty, ritualistic sacrifice of animals, and the slaughter of animals outside of areas zoned for slaughterhouses. Id., 508 U.S. at -, 113 S.Ct. at 2223-2224. The municipal ordinances were passed shortly after Lukumi Babalu Aye, Inc., a Santería Church, leased property within the city and announced plans to establish a house of worship. Id., 508 U.S. at -, 113 S.Ct. at 2223. An integral part of the Santería religion is the sacrifice of animals at “birth, marriage, and death rites, for the cure of the sick, for the initiation of new members and priests, and during an annual celebration.” Id., 508 U.S. at -, 113 S.Ct. at 2222. The Santería Church sought declaratory relief, contending the municipal ordinances violated the Free Exercise Clause in the First Amendment. Id., 508 U.S. at -, 113 S.Ct. at 2224. The Supreme Court held: A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests. The compelling interest standard that we apply ... really means what it says. A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases. It follows from what we have already said that these ordinances cannot withstand this scrutiny. Id., 508 U.S. at -, 113 S.Ct. at 2233 (citations and quotations omitted). The right to the free exercise of religion is unquestionably a fundamental right and any impairment of that right is subject to strict scrutiny review. Consequently, we hold the Equal Protection Clause of the Fourteenth Amendment prohibits the use of a peremptory challenge on the basis of religion absent a compelling governmental interest. IV. COMPELLING GOVERNMENTAL INTEREST A. Having found that discriminatory classifications based upon religion require heightened equal protection review, we must now decide whether the State has demonstrated a compelling governmental interest in the discriminatory use of a peremptory challenge on the basis of religion. The only interest asserted by the State in the instant ease is “[t]he historical importance of peremptory strikes.” State’s Brief pg. 23. The State contends, and we agree, that peremptory challenges fiirther our need for a “qualified and impartial jury,” and enable the parties to ascertain and act upon the possibility of bias. States Brief pg. 26. And we agree that peremptory challenges facilitate the impaneling of an impartial and unbiased jury. State’s Brief, pg. 27. However, as the Supreme Court noted in ... In making this assessment, we do not weigh the value of peremptory challenges as an institution against our asserted commitment to eradicate invidious discrimination from the courtroom. Instead, we consider whether peremptory challenges based on [religious] stereotypes provide [essential] aid to a litigant’s efforts to secure a fair and impartial jury. J.E.B., — U.S. at -, 114 S.Ct. at 1425-26 (footnotes omitted). The State offers no other reason, much less a compelling reason, to justify the discriminatory classification of veniremembers on the basis of religion. As with race and gender, religious affiliation is not an accurate predictor of jurors’ attitudes. As the Supreme Court stated: ... In our heterogeneous society policy as well as constitutional considerations militate against the divisive assumption — as a per se rule — that justice in a court of law may turn upon the pigmentation of the skin, the accident of birth, or the choice of religion. McCollum, 505 U.S. at 59, 112 S.Ct. at 2359 (emphasis added, quoting Ristaino v. Ross, 424 U.S. 589, 596, n. 8, 96 S.Ct. 1017, 1021, n. 8, 47 L.Ed.2d 258 (1976)). Consequently, we hold religion simply may not serve as a proxy for constitutionally prohibited bias. See, — U.S. at -, 114 S.Ct. at 1480. B. The Equal Protection Clause’s prohibition of peremptory challenges based upon religion does not herald the end of peremptory challenges. As the McCollum Court eloquently stated: We do not believe that this decision will undermine the contribution of the peremptory challenge to the administration of justice. Nonetheless, “if ... stereotypes are the price for acceptance of the jury panel as fair” we reaffirm today that such a “price is too high to meet the standard of the Constitution.” ... It is an affront to justice to argue that a fair trial includes the right to discriminate.... McCollum, 505 U.S. at 57, 112 S.Ct. at 2358 (quoting Edmonson, 500 U.S. at 629-31, 111 S.Ct. at 2088). Parties may still challenge veniremembers whom they feel are more prone to bias than other members of the jury panel. As the Supreme Court stated in J.E.B., a properly conducted voir dire “can inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular [religious group] unnecessary and unwise.” Id., — U.S. at -, 114 S.Ct. at 1429. However, the exclusion of such venire-members must be based upon bias held by the individual veniremember, not a perceived bias which arises solely as a result of the veniremember’s race, gender or religion. See, n. 15, supra. VI. PRESERVATION OF CLAIM The Supreme Court has developed a procedure to present claims of violations of the Equal Protection Clause when peremptory challenges are exercised on the basis of race or gender. We believe this framework should be applied when peremptory challenges are allegedly used to discriminate on the basis of religion. To prove a violation of the Equal Protection Clause, a litigant must make a prima facie showing of discriminatory classifications based upon religion. Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723. Once a prima facie case is made, the burden shifts to the opposing party to provide religion-neutral reasons for the peremptory challenge. Id. Such a justification need not rise to the level of a challenge for cause; rather it merely must be based on a juror characteristic other than religion, and the proffered explanation may not be pretextual. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). VII. CONCLUSION As with any constitutionally prohibited stereotype, the use of religion as a basis for exercising a peremptory challenge harms both the excluded veniremember and the judicial system. If we were to allow religion-based peremptory challenges, the Equal Protection Clause’s fundamental guarantee that the government will treat Americans as individuals rather than stereotypical components of a religious class would be meaningless. A juror sits not as a representative of a racial, religious, or sexual group but as an individual citizen. J.E.B., — U.S. at -, 114 S.Ct. at 1434 (Kennedy, J., concurring). The individual citizen’s opportunity to participate in the fair administration of justice is fundamental to our democratic system and reaffirms the promise of equality under the law. All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination. J.E.B., — U.S. at -, 114 S.Ct. at 1428. When persons are excluded from participation in our democratic processes because of race, religion or gender the promise of equality dims, and the integrity of our judicial system is jeopardized. J.E.B., — U.S. at -, 114 S.Ct. at 1430. The judgment of the Court of Appeals is reversed and this case is remanded to that Court for further proceedings consistent with this opinion. CLINTON, J., joins the opinion of the Court, observing that this decision as well as others by the Supreme Court serve to render obsolete Tex.Code Crim.Proc.Ann. art. 35.261, so the Legislature would be well advised to revise the same. MALONEY, J., concurs in the result. . Appellant's ground for review states: The Court of Appeals erred in ruling that the peremptory exclusion of potential jurors on the basis of their religion did not violate the principles of the Equal Protection Clause of the XIV Amendment to the United States Constitution in such a manner that required relief under the doctrine announced by the United States Supreme Court in Batson v. Kentucky. . The State offered other nonracial and nonreligious reasons for striking the veniremembers. Casarez, 857 S.W.2d at 782. . The majority opinion was limited to whether peremptory challenges on the basis on religion are permissible. Understandably, the majority did not address the State’s alternative argument that the peremptory challenges were permissible for the nonreligious reasons offered by the "State. See, n. 2, supra. The majority's holding that the Equal Protection Clause did not prohibit the use of peremptory challenges on the basis of religion rendered the State’s alternative argument moot. Because the majority opinion is limited, and because that limited holding is the sole basis of the appellant’s ground for review, see, n. 1, supra, the State’s alternative argument is not before us. We pause to note the alternative argument was addressed in a separate concurring opinion which also noted one of the veniremembers was the thirty-third member of the venire. According to the concurrence, no explanation was required because the thirty-third veniremember was not deprived of the privilege of jury service because the jury was obtained from the first thirty-two veniremembers. Casarez, 857 S.W.2d at 788-89 (Hopkins and Lattimore, JJ., concurring). . All emphasis is supplied unless otherwise indicated. .See, Wygant v. Jackson Board of Education, 476 U.S. 267, 279-80, 106 S.Ct. 1842, 1849-50, 90 L.Ed.2d 260 (1986) (applying equal protection scrutiny to racial classification); Anderson v. Celebrezze, 460 U.S. 780, 794, n. 16, 103 S.Ct. 1564, 1572, n. 16, 75 L.Ed.2d 547 (1983) (discussing application of heightened equal protection scrutiny to groups-affiliations based on the exercise of First Amendment rights); Mississippi University for Women v. Hogan, 458 U.S. 718, 724-26, 102 S.Ct. 3331, 3336-37, 73 L.Ed.2d 1090 (1982) (testing gender-based classifications under equal protection scrutiny); Plyler v. Doe, 457 U.S. 202, 216-17, 217, n. 15, 102 S.Ct. 2382, 2394-95, 2395, n. 15, 72 L.Ed.2d 786 (1982) (plurality decision) (deriving constitutionally suspect classifications from both historically oppressed classifications and group-affiliations which relate to First Amendment Rights such as religious exercise); and, United States v. Carolene Products, 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 783-784, n. 4, 82 L.Ed. 1234 (1938) (defining equal protection as applicable to "discrete and insular minorities” which relate to certain fundamental rights). See also, J.E.B. v. Alabama ex rel. T.B., - U.S. -, -, 114 S.Ct. 1419, 1434, 128 L.Ed.2d 89 (1994) (Kennedy, J., concurring); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 602, 110 S.Ct. 2997, 3028, 111 L.Ed.2d 445 (1990) (O'Connor, J., dissenting and joined by Rhenquist, Scalia, and Kennedy) (listing religious classifications as groups subject to equal protection’s prohibition on stereotyping); and, Arizona Governing Committee v. Norris, 463 U.S. 1073, 1083, 103 S.Ct. 3492, 3498, 77 L.Ed.2d 1236 (1983) (including religious groups with other heightened scrutiny classifications under Title VII). . See, n. 3, supra; and, Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 18.2, at 7 (2d ed. 1992). . See, n. 3, supra; and, Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 18.3 (2d ed. 1992). . Justice Blackmun wrote the four-justice plurality opinion extending Batson protection to gender-based peremptory challenges. J.E.B., — U.S. at -, 114 S.Ct. at 1429-30 (plurality opinion). Justice O’Connor concurred in the judgment and fully adopted the majority's rationale as it applied to criminal defendants. Id.U.S. at -, 114 S.Ct. at 1430-33. (O’Connor, J., concurring). Justice Kennedy concurred only in the result, but adopted a rationale very similar to the majority. Id. - U.S. at -, 114 S.Ct. at 1433-34 (Kennedy, J., concurring). . Justice O'Connor adopted the plurality’s rationale: I agree with the Court that the Equal Protection Clause prohibits the government from excluding a person from jury service on account of their gender. The State's proffered justification for its gender-based peremptory challenges are far from the ’exceedingly persuasive’ showing required to sustain a gender-based classification. J.E.B., — U.S. at -, 114 S.Ct. at 1430-1431 (O’Connor, J., concurring) (citations omitted). Despite her agreement with the heightened scrutiny rationale, Justice O’Connor wrote separately to reiterate her opinion that Batson protection should be limited to the State’s use of peremptory challenges in criminal trials. Id. See, n. 8, supra. . Judges McCormick and Meyers, while conceding that our application of J.E.B.'s analytical framework is correct, dissenting op., pg. 483 (McCormick, P.J., dissenting); dissenting op. pg. 494 (Meyers, J., dissenting), are "not persuaded that the United States Constitution forbids peremptory removal of prospective jurors on account of their religion.” Dissenting op. pg. 490 (Meyers, J., dissenting). Neither Judge McCormick nor Judge Meyers dispute that J.E.B. attached Batson’s constitutional protection to classifications which warrant heightened equal protection scrutiny. See, J.E.B., - U.S. at -, 114 S.Ct. at 1425. Further, Judges McCormick and Meyers do not, and indeed cannot, contend that religious classifications are not subject to heightened equal protection scrutiny. Instead, each Judge ignores J.E.B. and expresses his personal view of Batson. Judge McCormick urges "that the social experiment started in Batson be aborted ...” Dissenting op., pg. 484. Judge Meyers believes Batson should be limited to race and gender. However, even if we accepted the view of either Judge, it is clear the Supreme Court does not. The Supreme Court is the final arbiter of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. As judges on this honorable Court, we are bound to apply the United States Constitution as interpreted by the Supreme Court; we do not have the luxury or the liberty to ignore binding precedent. . The Minnesota Supreme Court rejected an attempt to extend the Equal Protection Clause to peremptory challenges based on religion. State v. Davis, 504 N.W.2d 767, 771-72 (Minn.1993). Notably, Davis was decided prior to J.E.B. when the Supreme Court had seemingly limited Batson to race. Id. However, J.E.B. undermined the Minnesota Court's rationale. Despite the Minnesota Court's faulty belief that Batson was limited to race, the United States Supreme Court denied certiorari. Davis v. Minnesota, - U.S. -, -, 114 S.Ct. 2120, 2120-22, 128 L.Ed.2d 679 (1994). Although the denial of a writ of certiorari imports no expression of opinion upon the merits of the case, and opinions accompanying the denial of certiorari do not have the same effect as decisions on the merits, Teague v. Lane, 489 U.S. 288, 296, 109 S.Ct. 1060, 1067-1068, 103 L.Ed.2d 334 (1989), it should be noted that Justices Scalia and Thomas dissented to the denial of certiorari, arguing: (1) the Minnesota Court’s holding should be vacated because it was based on the traditional restriction of Batson to racial discrimination; and, (2) J.E.B.'s reliance on "heightened equal protection scrutiny” opened the door to a broader application of equal protection than race and gender discrimination. Davis, - U.S. at -, 114 S.Ct. at 2121-2122. Several other jurisdictions have extended Bat-son protection to ethnicity and religion. See, State v. Alen, 616 So.2d 452 (Fla.1993); People v. Snow, 44 Cal.3d 216, 242 Cal.Rptr. 477, 746 P.2d 452 (1987); and, State v. Gilmore, 103 N.J. 508, 511 A.2d 1150, 1159 n. 3. (1986). . Article VI forbids the use of "religious tests” to exclude citizens from “public trusts.” U.S. Const, art. VI, cl. 3. The discriminatory classification of individuals based upon their religious belief is such a religious test. The peremptory challenge, however, allows religion to be used as a "test” for juror competence. Swain, 380 U.S. at 220, 85 S.Ct. at 836 (positing that religion is a routine basis for removing veniremembers on arbitrary grounds). See, State v. Gilmore, 103 N.J. 508, 511 A.2d 1150, 1167-1168 (1986) (Peremptory challenges exercised against Blacks based on the assumption that they were predominantly Baptists was a clear indication of group bias, both racial and religious.) Further, the Supreme Court has classified jury duty as a public trust of the highest order. ... ¡The jury is] an entity that is a quintessential governmental body, having no attributes of a private actor. The jury exercises the power of the court and of the government that confers the court’s jurisdiction ... [T]he juiy system performs the critical governmental functions of guarding the rights of litigants and insuring the continued acceptance of the laws by all of the people. Edmonson, 500 U.S. at 624, 111 S.Ct. at 2085 (citations and internal quotations omitted). Indeed, it is difficult to imagine a more sacred public trust than the proper adjudication of a criminal case. The First Amendment provides that Congress shall make no law prohibiting the free exercise of religion. U.S. Const., amend. I. The First Amendment is applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). . See also, Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 2148, 104 L.Ed.2d 766 (1989); Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 141, 107 S.Ct. 1046, 1049, 94 L.Ed.2d 190 (1987); Thomas v. Review Bd. of Ind. Employment Security Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981); McDaniel v. Paty, 435 U.S. 618, 626-29, 98 S.Ct. 1322, 1327-29, 55 L.Ed.2d 593 (1978); Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972); and, Gillette v. United States, 401 U.S. 437, 462, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971). Further, the Religious Freedom Restoration Act of 1993, P.L. 103-141, 107 Stat. 1488-89 (RFRA) defined religious exercise as a fundamental right and applied strict scrutiny review to infringements on this right. Accordingly, RFRA expressly guaranteed a strict scrutiny review to any infringement of the right to religious freedom: The framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution ... [Therefore,] [g]ovemment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability ... [unless] it demonstrates that application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest. Id. Thus, Congress has codified the Supreme Court’s historical treatment of the right to religious freedom. Finally, the Supreme Court applies strict scrutiny review to any violation of a fundamental right. See, Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 863-902, 112 S.Ct. 2791, 2813-33, 120 L.Ed.2d 674 (1992) (applying strict equal protection scrutiny to a woman's fundamental liberty interest to terminate pregnancy); R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 384-85 n. 4, 112 S.Ct. 2538, 2543-44 n. 4, 120 L.Ed.2d 305 (noting the need in constitutional jurisprudence to "fuse” the First Amendment with the Equal Protection Clause); Burson v. Freeman, 504 U.S. 191, 197 n. 3, 112 S.Ct. 1846, 1850-1851, n. 3, 119 L.Ed.2d 5 (1992) (plurality opinion) (observing interchangeability of the Equal Protection Clause and First Amendment rationales in applying strict scrutiny review); Austin v. Michigan State Chamber of Comm., 494 U.S. 652, 666-67, 110 S.Ct. 1391, 1401, 108 L.Ed.2d 652 (1990) (holding that strict scrutiny review necessary to analyze an abridgement of the First Amendment right to political expression); Lyng v. International Union, UAW, 485 U.S. 360, 365, 108 S.Ct. 1184, 1189, 99 L.Ed.2d 380 (1988) (recognizing that heightened equal protection scrutiny would attach to any infringement of the First Amendment Right to Association); Carey v. Brown, 447 U.S. 455, 459-463, 100 S.Ct. 2286, 2289-91, 65 L.Ed.2d 263 (1980) (strict scrutiny review applies to First Amendment "free speech” violations); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1975) (strict scrutiny review applies to violations of a fundamental right); San Antonio School District v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 1287, 36 L.Ed.2d 16 (1973) (strict scrutiny review applies to violations of a fundamental right); Bullock v. Carter, 405 U.S. 134, 142-45, 92 S.Ct. 849, 855-56, 31 L.Ed.2d 92 (1972) (strict scrutiny review applies to abridgment of fundamental right to vote); Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969) (strict scrutiny review applies to abridgement of fundamental right to travel); Williams v. Rhodes, 393 U.S. 23, 31-32, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968) (strict scrutiny review applies to violations of First Amendment); and, Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 18.3, at 15-19 (2d ed. 1992). . At times the rights guaranteed by the First Amendment become fused with those guaranteed by the Fourteenth Amendment. R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 385, 112 S.Ct. 2538, 2544, 120 L.Ed.2d 305 (1992) ("This Court itself has occasionally fused the First Amendment into the Equal Protection Clause ... but at least with the acknowledgment ... that the First Amendment underlies its analysis."). The most often cited example of the fusion of First Amendment rights into the Fourteenth Amendment is Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Mosely sought a declaratory judgment that Chicago's picketing ordinance was unconstitutional. The ordinance prohibited picketing within 150 feet of a school except peaceful picketing of any school involved in a labor dispute. The Supreme Court held the ordinance violated the Equal Protection Clause and the First Amendment, stating: ... the equal protection claim in this case is closely intertwined with First Amendment interests; the Chicago ordinance affects picketing, which is expressive conduct; moreover, it does so by classifications formulated in terms of the subject of picketing. Id., 408 U.S. at 95, 92 S.Ct. at 2290. See also, Niemotko v. Maryland, 340 U.S. 268, 272, 71 S.Ct. 325, 327-328, 95 L.Ed. 267 (1951) ("... [T]he right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body."). Additionally, in Lyng v. International Union, UAW, 485 U.S. 360, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988), the Court stated: ... Although the challenge in that case was brought solely on equal protection grounds, and not under the First Amendment, the Court was obliged to decide whether the statutory classification should be reviewed under a stricter standard than mere rational-basis review because it ... burdenfe] a fundamental right. Id., 485 U.S. at 366, 108 S.Ct. at 1189. . Judge Meyers states, "... the only significant matter that members of a religious faith genuinely have in common is their belief in certain principles, doctrines, or rules.” Dissenting Op., pg. 491. This statement assumes that all members of a religious group subscribe to and accept the formal teachings of their religion. Consequently, Judge Meyers argues that stereotypes of religious groups are accurate and may be relied upon to determine the attitudes and beliefs of the individuals who belong to those groups. Therefore, Judge Meyers believes peremptory challenges based on religious stereotypes should be permissible. Dissenting Op., pp. 491-92. This argument is faulty for several reasons. First, it perpetuates the use of stereotypes. The Equal Protection Clause clearly prohibits the use of peremptory challenges on the basis of a stereotype attributed to a class subject to heightened equal protection scrutiny. - U.S. at -, 114 S.Ct. at 1425. Such stereotyping retards our efforts to progress as a multicultural society. Edmonson, 500 U.S. at 629-31, 111 S.Ct. at 2088. Secondly, Judge Meyers ignores the axiom that jurors sit as individuals, not as representatives of a particular group. J.E.B., - U.S. at -, 114 S.Ct. at 1434 (Kennedy, J., concurring). Thirdly, Judge Meyers’ argument is fallacious. One cannot assume that every member of a certain religion believes the resolutions and views of their religious leaders. For example, although the Catholic Church condemns the use of artificial contraceptives, see, Bromley, Catholics and Birth Control 3-4 (1965); and, Maddox, The Pope and Contraception, 29 (1991), 84% of the members of the Catholic Church believe catholics should be allowed to use artificial contraceptives. Gallup, The Gallup Poll: Public Opinion 1993 145 (Wilmington, Del.: Scholarly Resources, 1994). In another context, we concluded that it would be irrational to conclude simply from membership that one is aware of all of the rules of an organization. Urbano v. State, 837 S.W.2d 114, 117 (Tex.Cr.App.1992). Finally, Judge Meyers ignores the rationale and reasoning of Batson and J.E.B.. Peremptory challenges of members of a class subject to heightened equal protection scrutiny on the basis of their personal beliefs are not constitutionally prohibited so long as those beliefs are related to the particular case being tried. Batson, 476 U.S. at 98, 106 S.Ct. at 1724. However, peremptory challenges exercised on the basis of a stereotype attributed to a class subject to heightened equal protection scrutiny are prohibited. We believe this is the true teaching of the Supreme Court; if the veniremember holds personal beliefs or attitudes that are unacceptable, that veniremember may be peremptorily challenged. However, the Equal Protection Clause prohibits peremptorily challenging a member of a class subject to heightened equal protection scrutiny based on stereotypical assumptions attributed to that class. Rather than make unfounded assumptions, the litigants should question the venire as to their beliefs. Such a properly conducted voir dire will inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular religion both unnecessary and unwise. J.E.B., — U.S. at -, 114 S.Ct. at 1429. In the instant case, had the individual veniremembers been questioned about their beliefs and expressed a belief unacceptable to the State, when viewed in relation to the instant case, they could have peremptorily challenged. Under those circumstances the venire-members would have been excused on the basis of their personal beliefs and not on a stereotypical assumption based on their religion. . J.E.B., - U.S. at -, 114 S.Ct. at 1425. Although in J.E.B., the Supreme Court conducted an intermediate scrutiny review, a strict scrutiny review is appropriate in the instant case. . To varying degrees, Judges McCormick, Campbell and White believe the instant case is controlled by Hill v. State, 827 S.W.2d 860 (Tex.Cr.App.1992). However, that issue is not before us. For the reasons stated in n. 3, supra, this opinion is limited to the Court of Appeals’ holding that the Equal Protection Clause does not prohibit the use of peremptory challenges on the basis of religion. Upon remand, the Court of Appeals is free to consider to what extent, if any, our plurality opinion in Hill applies.
McCORMICK, Presiding Judge, dissenting. At the risk of being accused of attempting to retard “efforts to progress as a multicultural society,” I dissent. The majority opinion represents yet another step backwards in the important business of insuring fair trials in criminal cases for what is perceived to be the “greater good” of making sure people do not exercise peremptory challenges based on improper thoughts. So we do not completely lose our focus here, I briefly set out the facts of the case. The evidence shows the twenty-one-year-old appellant and his friend sexually assaulted a fourteen-year-old girl, who testified she never had had sexual intercourse prior to this incident. During the assault, appellant threatened the victim more than once, he punched her in the nose and appellant’s friend cut off her shirt with a knife. Appellant and his friend did unspeakably horrible things to the child-victim. Contrary to the majority’s assertion, the voir dire record in this case actually reflects the prosecutor struck one of the venire-members because she had “a brother currently in the Texas penitentiary, she was a postal clerk and she expressed discomfort with the law as it regards sexual assault of a child.” Casarez v. State, 857 S.W.2d 779, 782 (Tex.App.—Fort Worth 1993). The prosecutor struck the other veniremember because his “brother had been arrested, he incorrectly completed his juror questionnaire, and the questioning during voir dire left the prosecutor with the impression that he was somewhat slow.” Id. The prosecutor struck both veniremembers also because they were Pentecostals. Id. The prosecutor explained that based on his experience, Pentecostals often had difficulty assessing punishment. Id. On this record, the peremptory challenges were proper, and this Court does not need to decide whether Batson should be extended to “religious-based” peremptory challenges. Cf. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Hill v. State, 827 S.W.2d 860, 866-68 (Tex.Cr.App.) (plurality op.), cert. denied, 506 U.S. 905, 113 S.Ct. 297-98, 121 L.Ed.2d 221 (1992) (race properly may be a factor coexisting with a nonracial reason for a peremptory strike); Casarez, 857 S.W.2d at 788-89 (Hopkins, J., concurring). I also dissent to the majority’s apparent holding that religious-based peremptory challenges are subject to strict scrutiny review under the Equal Protection Clause of the Fourteenth Amendment. The applicable rule is that “unless a classification warrants some form of heightened review because it jeopardizes [the] exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.” Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2332-33, 120 L.Ed.2d 1 (1992). The majority seems to find that religious-based peremptory challenges violate the First Amendment triggering a strict scrutiny review. The majority mostly relies on United States Supreme Court First Amendment cases dealing with statutes that burdened a group’s free exercise of its religion. However, in this case, the majority does not, and cannot, explain how religious-based peremptory challenges, directly or incidentally, burden the free exercise of religion. See Johnson v. Robison, 415 U.S. 361, 375, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389 (1974). At most, appellant can show only that some members of some religious groups may be excluded from sitting on juries in some, but not all, cases. And, the stricken veniremembers in this case offered no evidence the exercise of their religion was in any way affected by the strikes. The majority also cites Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). Larson held a Minnesota statute that granted a denominational preference implicated the Establishment Clause of the First Amendment because the statute preferred “one religion over another.” Larson, 456 U.S. at 245-56, 102 S.Ct. at 1684-89. Religious-based peremptory challenges do not constitute governmental action preferring one religion over another; therefore, Larson offers no support for the majority’s holding. But see J.E.B. v. Alabama, — U.S. -, -, 114 S.Ct. 1419, 1438, 128 L.Ed.2d 89 (1994) (Scalia, J., dissenting). The majority also relies on Juarez v. State, 277 S.W. 1091 (1925). Juarez stands only for the proposition that a state may not systemically exclude all members of religious groups from ever serving as grand jurors. Juarez, 277 S.W. at 1094. Juarez is factually distinguishable from this case. In addition, Juarez contains no standard for reviewing religious classifications, and the purposes for the religious classifications in Juarez would not withstand even a “rational relationship” standard of review. See Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 82-84, 108 S.Ct. 1645, 1653, 100 L.Ed.2d 62 (1988) (singling out a cognizable group in an arbitrary and irrational fashion violates the Equal Protection Clause even under the most deferential standard of review). Religious-based peremptory challenges do not violate the Establishment or the Free Exercise Clauses of the First Amendment, and it has never been held that any religious group is a “suspect class deserving special judicial protection” for Fourteenth Amendment purposes. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520 (1976) (a “suspect class” is one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process”); Johnson, 415 U.S. 361, 375, 94 S.Ct. 1160, 1169. Therefore, I would hold religious-based peremptory challenges are not subject to strict scrutiny review. Also, because the history of religious discrimination in this Country does not occupy the same plane as the history of race and sex discrimination, I would hold that religious-based peremptory challenges should be reviewed under a less exacting standard than either strict or intermediate scrutiny, and that a party’s valuable right in obtaining a fail- and impartial jury, and a jury the party believes is fair and impartial, justifies the use of peremptory challenges based on religious stereotypes. See State v. Davis, 504 N.W.2d 767 (Minn.1993), cert. denied, — U.S. -, 114 S.Ct. 2120, 128 L.Ed.2d 679 (May 23, 1994) (Batson not extended to religious-based peremptory challenges); cf. J.E.B., — U.S. at -, 114 S.Ct. at 1429; but see J.E.B., — U.S. at -, 114 S.Ct. at 1439 (Scalia, J., dissenting) (Batson applies to any peremptory challenge based on a classification that is accorded “heightened scrutiny” under the Equal Protection Clause “which presumably would include religious belief’). Therefore, religious-based peremptory challenges should be exempted from the “special rule of relevance” of Batson and the subsequent cases it spawned extending this rule to other situations. See Davis, 504 N.W.2d at 771. I also urge that the social experiment started in Batson be aborted, and that both parties in a criminal case be allowed the traditional free use of their peremptory challenges. See J.E.B., — U.S. at -, 114 S.Ct. at 1431-33 (O’Connor, J., concurring), and at 1437 (Scalia, J., dissenting); see generally Weatherspoon, 514 N.W.2d at 270-301. This is necessary to help insure fair and impartial juries for both sides in criminal cases, which is still supposed to be one of the paramount goals of a criminal trial. See J.E.B., — U.S. at -, 114 S.Ct. at 1431-33 (O’Connor, J., concurring); Weatherspoon, 514 N.W.2d at 270-301. Fair criminal trials are too important to the administration of justice in this State for the kind of nonsense Batson and its progeny promote. See Weatherspoon, 514 N.W.2d at 270-301, 274. Batson and its progeny should be read in light of this Country’s history of racial discrimination, and the precedents upon which Batson relies. In the light of this history and these precedents, Batson and its progeny are fundamentally flawed because they ignore the real purpose of the Equal Protection Clause, and the valid purposes for which peremptory challenges presently are exercised. Batson and its progeny pervert this Country’s quest for racial equality and an end to legal segregation in the really important affairs of public life into a misguided and counter-productive exercise of which private though