Levine, J.
In this case, the state and the trial court ratified the striking of a potential juror based not on her views, but merely because of her membership in a particular religious group. For this reason and for the reasons stated below, we reverse.
First, the trial court should not have found the states reason for the strike to be genuine and race-neutral because the state did not question the juror regarding her religion before exercising the strike and, even after questioning, nothing in the record showed her religion would prevent her from being a fair and impartial juror. Second, even if the strike were genuinely based on the jurors religion, a member of a religion that is a cognizable class is protected from being struck from a jury based solely on her faith where there is no evidence that her faith would prevent her from being a fair and impartial juror. Third, striking a potential juror based entirely on her particular religious affiliation, without any evidence that her religion would prevent her from being fair and impartial juror, is an impermissible religious test in violation of the United States and Florida Constitutions.
The state charged appellant and codefendants with first-degree murder and conspiracy to commit first-degree murder. After a joint trial, the jury found appellant guilty as charged. The trial court sentenced appellant to life imprisonment. Appellant raises several issues on appeal, including that the trial court erred in granting a peremptory strike of a prospective juror. Because we find this issue dispositive, we need not address the other issues.
A trial courts decision on whether a peremptory strike has been exercised in a racially discriminatory manner will be affirmed on appeal unless clearly erroneous. Melbourne v. State , 679 So.2d 759, 764-65 (Fla. 1996).
During voir dire, the prospective juror at issue, who is black, completed a juror questionnaire answering questions concerning her occupation, previous juror experience, and the like. On that questionnaire, she listed her hobbies as reading, witnessing a Jehovah Witness.
In response to the courts questioning during voir dire, the prospective juror stated that she had worked in customer service, that she was not currently working, and that she wanted to serve on the jury. She was previously on a civil jury that reached a verdict for the plaintiff. She had been the victim of a burglary and her brother was in jail for armed robbery, but that would not impact her ability to be fair and impartial in this case. She confirmed that she was able to serve, that she wanted to serve, and that she would do a good job as a juror.
The prospective juror agreed with various hypotheticals presented by the prosecutor, acknowledging that it was reasonable to conclude that a pen is a pen by looking at it and that one can tell what a puzzle is a picture of from 90 pieces out of 100. She also agreed that a description of a woman in a white flowing gown and a man with a smile on his face was a description of a wedding and not a funeral. When the prosecutor asked how the state proves its case, she answered in documentation from another professional. She confirmed she understood that the burden of proof was with the state. She agreed that based on new information from one witness, she might disbelieve the testimony of a previous witness. She also agreed that it is natural to begin deciding whether someone is believable while that person is testifying. When defense counsel asked whether first impressions are correct, she responded, Sometimes, sometimes not.
The fact that this case involved guns did not cause any issues for her. No one in her house owned or possessed a handgun, nor had she ever shot a handgun. None of her family or close friends had ever been a victim of handgun violence. When asked if she could envision a situation where a person may legally and lawfully shoot someone who is unarmed, she answered yes.
During jury selection, the state used a peremptory challenge to strike the prospective juror. The following then transpired:
[DEFENSE COUNSEL]: Can we get a race neutral reason?
[THE STATE]: Shes a Jehovah Witness. Ive never had one say, and I highlighted it, theyve always said they cant sit in judgment. She never brought it up.
[DEFENSE COUNSEL]: She did.
[THE STATE]: No, but she put at the bottom that shes a Jehovah Witness, that gives me pause.
[DEFENSE COUNSEL FOR CO-DEFENDANT]: Thats a religious based strike.
[THE STATE]: You can say that but thats-for 20 years, [defense counsel for co-defendant] knows, any one of them thats been practicing theyve always said that. Now maybe shes less-
[DEFENSE COUNSEL FOR CO-DEFENDANT]: She reads Jehovah stuff, she doesnt say shes a practicing Jehovah Witness.
THE COURT: Lets bring in [the prospective juror].
[Prospective juror], if you wouldnt mind having a seat in the front row, we have a question I want to ask you. You indicated in your questionnaire that youre a Witness, Jehovah Witness.
[PROSPECTIVE JUROR]: Yes.
THE COURT: How would that affect your ability to be fair in this case? Weve had them before. Do you have any religious beliefs that would prevent you from being fair and impartial in this case?
[PROSPECTIVE JUROR]: If the evidence thats provided to me is clear cut and concise I would be able to. If my ruling wouldnt-
THE COURT: In light of my questions, [prosecutor]?
[THE STATE]: So theres no prohibition, and honestly I dont know enough about religion, and I dont mean that disrespectfully, but I want to make sure that you as an individual, whatever your beliefs are, theres nothing preventing you from sitting in judgment of a case, because thats really what youre doing, youre judging whether weve proven our case or not. You can do that?
[PROSPECTIVE JUROR]: I can, and before I believe it was Judge Levenson who said that we would not be making the sentencing.
THE COURT: How do you feel about that?
[PROSPECTIVE JUROR]: Im okay with that.
THE COURT: Okay.
[THE STATE]: The fact that you said that, if you were involved-Im taking it to mean, and maybe Im wrong, if youre involved in sentencing then you are saying you wouldnt be sitting?
[PROSPECTIVE JUROR]: Then I would say no.
[THE STATE]: You realize your decision here if, in fact, youre to vote-
[DEFENSE COUNSEL FOR CO-DEFENDANT]: I object to any further questions with this juror.
THE COURT: Overruled.
[THE STATE]: If, in fact, you know, you vote that its proven, you have nothing to do with sentencing but the Judge would based on your decision saying its proven.
[PROSPECTIVE JUROR]: If the State gives me all the evidence that I can see where you can show me that these individuals did this act, then I-can make a decision on that and based on the decision that you provide me.
[THE STATE]: Well, we dont provide you with a decision.
[PROSPECTIVE JUROR]: Well, the evidence that Im given.
[THE STATE]: Yes, maam. You said all the evidence. You can do that beyond a reasonable doubt?
[PROSPECTIVE JUROR]: Yes.
[THE STATE]: The reason. Im asking, I want to make sure-whatever the Judge says the law is-
[PROSPECTIVE JUROR]: Right.
[THE STATE]: Okay.
THE COURT: Any questions from the Defense?
[DEFENSE COUNSEL FOR CO-DEFENDANT]: None.
THE COURT: Thank you, maam. Record reflect that the jurors [sic] have left the courtroom and the door is closed. What say you, [prosecutor]?
[THE STATE]: My reason is unchanged, I dont believe I can meet her burden. I can meet my burden beyond a reasonable doubt but I cannot meet her burden and thats a concern to me and it has nothing to do with religion or anything else.
THE COURT: Let me hear from the Defense.
[DEFENSE COUNSEL]: We object to her being challenged for cause, then hes going to have to come up with a race neutral reason.
[THE STATE]: This is a peremptory.
THE COURT: Over the Defense objection I find that the record sufficiently supports a race neutral reason because of the concern about her responses to the questions. So over your objection itll be granted.
[DEFENSE COUNSEL]: You need to, I think the law requires you to put on the record what the race and reason is.
THE COURT: Well, he-
[THE STATE]: I believe I did that.
THE COURT: Tell me.
[DEFENSE COUNSEL FOR CO-DEFENDANT]: If the Court is making the ruling-so the Court has already made the statement, you find a race neutral reason. Were asking the Court to follow the law and to tell us what that race neutral reason is thats already affected your decision, thats all.
THE COURT: Okay, thats fair enough. Listen, shes a Jehovah Witness , I think there was some discussion about her and the issue of the sentencing part of it, she did waiver [sic] along the way there.
Look, if it were me making a decision, me perceiving it differently, but out of deference to the person who is the moving party, as long as theres some reason, or suggestion based on her responses and overall nature of her-and plus I think alternatively, additionally I want to point out I know its a blind record but theres a number of other African Americans on the jury, I think that based on the totality of the circumstances I think it rises to the legal of a non based reason. I understand your point though, it is well taken. Do you want to respond?
[DEFENSE COUNSEL FOR CO-DEFENDANT]: Yes, we move to strike the panel.
THE COURT: Based on?
[DEFENSE COUNSEL FOR CO-DEFENDANT]: Based on the Court depriving us of a juror that we think should be seated.
[DEFENSE COUNSEL FOR CO-DEFENDANT]: We all join in, of course.
THE COURT: Yes, itll be a joint motion. I think we talked about that before, [defense counsel for co-defendant].
[DEFENSE COUNSEL FOR CO-DEFENDANT]: I wanted to clarify it one last time.
[DEFENSE COUNSEL]: Especially because we think this is going to be a key appellant [sic] issue, so I want to make sure were all in.
THE COURT: Everybodys in, all right. ...
THE COURT: Do you understand who the panel is? Go over the panel one more time, Im going to highlight it now. ... Noted for the record that there was an objection to [the prospective juror], [the prospective juror] was objected to thats why youre not tendering the panel.
(emphasis added).
After voir dire but before the jury was sworn, appellant filed a written motion for mistrial and to select a new jury. At a hearing on the motion, the following transpired:
THE COURT: I do want to say that it was late in the day and you had asked me or arguably confronted me with making a record as to why I was doing what I was doing, and it was late in the day for everybody, so Im not casting aspersions. The case that you cited, [defense counsel], the Davis case, out of the Supreme Court of Minnesota, really says it well in terms of [the prosecutors] basis. It says here, In my experience, that faith is very integral to their daily life in many ways that many Christians are not, that was reinforced by at least three times a week he goes to church, blah, blah, blah, talking about Jehovah witnesses. Jehovah Witnesses are peculiar, and many of them in my experience have said they cannot judge, that God judges, and based on that I find that to be a genuine non-race-based reason. In fact, in that, in that case, in the Davis case, the defense actually conceded that. Well get to your next issue, but Im just making a record as to that. So, the fact that she says, the juror says, that shes a Jehovah Witness, notwithstanding the fact that she says she can still be fair and impartial, he says, You know what, I dont feel comfortable with the fact that she has that religion.
Its sort of analogous if we had an African-American FBI agent who was on the panel and said, I can be fair and impartial, I can assess police officers just as well as anyone else, but you strike him anyway. So, I think theyre pretty analogous.
A Jehovah Witness, that as a religion, it would almost be malpractice for a prosecutor to let someone on the jury like that.
[THE STATE]: ... [T]he only thing that I would add is the timeliness, a contemporaneous objection. As you have framed it and [defense counsel] framed it correctly, his challenge was a race neutral reason.
My reasoning had nothing to do with race, Jehovahs Witnesses can be White, they can be Black, they can be Asian, Hispanic, whatever the ethnicity is, and thats the finding the Court made. This motion is untimely. I know hes trying to make his record contemporaneous to it, the separate objection, not the race-based reason, but a religious-based, he states it well in the motion, it speaks for itself, the basis for that. So, thats the only thing I would add, that its untimely.
THE COURT: .... The other thing I want to point out to you, not to get technical here, [defense counsel], but you did file a motion for mistrial, the jurys [sic] havent been sworn.
[THE STATE]: Right.
THE COURT: So, it really should be a motion to strike the jurors. I think the argument is an interesting argument. I think you concede, the excellent professional lawyer that you are, that this is a first impression type issue.
[DEFENSE COUNSEL]: Right.
THE COURT: You want to extend Batson, which the Supreme Court has not done.
[DEFENSE COUNSEL]: Absolutely.
THE COURT: Im going to exercise my discretion and deny that request. However, all of your objections are duly noted and preserved at this time.
(emphasis added).
Preservation of an objection to the use of a peremptory strike requires more than one objection: an objection to initiate a Melbourne inquiry and another objection before the jury is sworn in. Denis v. State , 137 So.3d 583, 585 (Fla. 4th DCA 2014). Additionally, if the proponent of the peremptory strike proffers a facially race-neutral reason for the strike during step 2 of the Melbourne procedure, the party objecting to the strike must preserve the issue by putting the court on notice that he or she contests the factual assertions on which the strike is based. Id.
In this case, the issue is preserved because defense counsel objected to the peremptory strike by asking for a race-neutral reason. See Foster v. State , 767 So.2d 525, 528 (Fla. 4th DCA 2000). Additionally, the trial court noted the defense did not tender the jury because of the objection to the strike of the prospective juror. Because the states proffered reason of religion was not a facially race-neutral reason sufficient to rebut the prima facie case of racial bias, appellant did not need to do anything more to preserve the issue. See id. ; State v. Davis , 504 N.W.2d 767, 772 (Minn. 1993) (stating that striking a black juror because he was a Jehovahs Witness would not rebut the prima facie case of racial bias).
Regardless, even though it was not required, the defense did put the court on notice that it was objecting to the legitimacy of the reason given by the state for the strike. Specifically, in response to the states proffered reason that the prospective juror was a Jehovahs Witness, counsel for one of the co-defendants stated, Thats a religious based strike. The fact that this objection was made by counsel for a co-defendant rather than appellants defense counsel is of no importance. The purpose of the rule requiring a timely contemporaneous objection is to place the trial judge on notice that error may have been committed, and provide him an opportunity to correct it at an early stage of the proceedings. Harrell v. State , 894 So.2d 935, 940 (Fla. 2005). The objection by the co-defendants counsel achieved the objective of this rule. The court clearly understood the alleged error and brought the prospective juror in for further questioning.
Additionally, after the state announced that its proffered reason remained unchanged upon questioning the juror regarding her religion, appellants counsel objected that the state failed to provide a race-neutral reason, again putting the court on notice that religion was not a legitimate reason. After the trial court allowed the strike, counsel for a co-defendant moved to strike the panel based on the courts exclusion of the prospective juror. All of the defense attorneys joined the motion, including appellants counsel, who stated, Especially because we think this is going to be a key appellant [sic] issue, so I want to make sure were all in. The trial court confirmed, Everybodys in, all right.
Further, after voir dire and before the jury was sworn, appellant filed a written motion, yet again objecting to the striking of the juror based on her religion and requesting a new jury. The trial court denied the request but noted that all of your objections are duly noted and preserved at this time.
From this record, there can be no doubt the trial court was on notice and fully understood that appellant, as well as his codefendants, objected to the strike, the reason given by the state for the strike, and the trial courts acceptance of that reason as genuine. Therefore, this issue is preserved.
I. Improper Race-Based Strike
As the United States Supreme Court has stated, [r]acial discrimination in selection of jurors harms not only the accused but also unconstitutionally discriminate[s] against the excluded juror. Batson v. Kentucky , 476 U.S. 79, 87, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Id.
In Florida, the Neil - Slappy line of cases sets out a procedure to determine if a preemptory challenge is racially-motivated. Step 2 of this analysis requires the proponent of the strike to articulate a clear and reasonably specific racially neutral explanation of legitimate reasons for the [strike]. Melbourne , 679 So.2d at 763 (citation omitted) (alteration in original). In Step 3, the trial court determines the genuineness of the strike. Id. at 764.
In this case, the state did not provide a legitimate race-neutral reason as required under Melbourne . During voir dire, the potential juror stated that she would follow the law and gave no indication that she would allow her status as a Jehovahs Witness to affect her decision-making at all. In moving to strike her, the state merely relied on the jurors membership in a religion without any testimony that it would actually affect her service as a juror, speculating that any practicing Jehovahs Witness would refuse to sit in judgment of others. In fact, the state moved to strike the juror before even questioning her about her religion and without determining whether she shared any alleged group bias that would potentially prevent her from being an unbiased juror.
We often look to whether the juror was questioned, in detail or at all, to determine the genuineness of a claimed race-neutral strike. In the absence of questioning regarding the jurors adherence to any claimed group bias, then the genuineness of the strike can be called into doubt. Landis v. State , 143 So.3d 974, 979 (Fla. 4th DCA 2014).
In Landis , the state, when asked for a race-neutral reason for a peremptory strike, proffered that the juror worked in the restaurant industry where drugs run rampant. However, the state had not questioned the juror regarding his occupation or what effect it might have on his ability to serve as a juror. Given this record, the trial courts determination of the genuineness of the strike lacked sufficient grounds and was clearly erroneous. Id. at 980.
In attempting to distinguish Landis , the concurrence misapprehends the purpose for which Landis is cited. Landis is cited for the proposition that the failure to question a juror about the proffered reason for the strike casts doubt on the genuineness of the strike. That is not to stay that religion can never be a race-neutral reason for a strike. Rather, because the state never even inquired about the jurors religion in this case, it obviously was not a concern to the state and not a genuine basis for the strike.
This point is further illustrated by Frazier v. State , 899 So.2d 1169 (Fla. 4th DCA 2005). In that case, the state struck a black juror because she was an immigrant from Jamaica, a country known for drug trafficking. However, the prosecutor made no attempts to question [the juror] about her familiarity and experiences, if any, with drug trafficking in Jamaica. Rather, the prosecutors challenge rested on stereotypical assumptions about Jamaicans. Id. at 1175. In finding the state did not provide a race/ethnic-neutral reason for the strike, this court stated that [a] policy of striking all jurors who originate from a country inhabited by a distinct racial or ethnic group, without regard to the particular circumstances of the trial or the individual responses of the jurors, is inherently discriminatory. Id.
Here, the states race-neutral explanation based on the prosecutors 20 years of experience is no different than the discriminatory stereotyping that we disallowed in Frazier . See also Cobb v. State , 825 So.2d 1080, 1084 (Fla. 4th DCA 2002) (Florida courts have often invalidated a peremptory challenge as a pretext where the excused juror was not questioned and shown to share the alleged group bias.); Haile v. State , 672 So.2d 555, 556 (Fla. 2d DCA 1996) (holding trial court erred in accepting states strike of African American juror because she read Bible without conducting further inquiry; this court cannot conclude, without evidence related to the facts of the case, that the reading of the Bible, a practice embraced by a significant percentage of the American public, would render that portion of the population inherently partial.).
The case of Davis is also instructive. 504 N.W.2d 767. In that case, the Minnesota Supreme Court chose not to extend the Batson bar on race discrimination to peremptory strikes on the basis of religion. Yet even the Davis court noted:
If the prosecutor had said no more than she was striking the black juror because he was a Jehovahs Witness, we think this would not have rebutted the prima facie case of racial bias, anymore than if the prosecutor had said she was striking because the black juror was a Lutheran, a Baptist, or a Muslim.
Id. at 772. In the present case, as in Davis , the state relied on the fact that the juror was a Jehovahs Witness, and this also would not rebut[ ] the prima facie case of racial bias alleged. See id.
Here, the juror was not questioned about her religious views until after the state made its preemptory strike, thus calling its genuineness into question. Moreover, even after questioning the prospective juror about her religion, there was a complete lack of evidence that her religion would influence her decision-making as a juror. In fact, the juror unequivocally stated she would follow the evidentiary standard beyond a reasonable doubt and none of her responses during voir dire gave any reason to doubt this statement.
Further, after the trial court determined that being a Jehovahs Witness was a race-neutral reason to strike the juror from the panel and that she wavered on sentencing, the court opined that a Jehovah Witness, that as a religion, it would almost be malpractice for a prosecutor to let someone on the jury like that. These statements support the argument that it was not the jurors answers, but rather her mere religious affiliation, that caused her to be struck from the panel.
The dissents reliance on certain statements by the prospective juror does not rebut the conclusion that the strike was based on an impermissible reason. Although the prospective juror stated that the evidence should be clear cut and concise, this laymans statement was made after the initial questioning and after the states exercise of the peremptory strike, so it obviously could not have been the basis of the states strike. Additionally, after making this statement, and in response to the states questioning, the juror confirmed that she would apply the reasonable doubt standard. Thus, even if the statement had been made before the strike, the jurors subsequent acknowledgement of the proper standard should have removed any concern about her ability to follow the law.
The dissent also relies on the jurors statement that she had been the victim of a burglary and that her brother was in jail, but that neither of these circumstances would affect her ability to be fair and impartial in this case. The dissent is correct that a jurors claim of impartiality is not always dispositive. However, neither the state nor the trial court relied on the jurors status as a burglary victim or her brothers imprisonment as justification for the peremptory strike. Even the dissent concedes that these grounds were not expressed by the trial court. Therefore, the dissents reliance on Cunningham v. State , 838 So.2d 627, 630 (Fla. 5th DCA 2003), and Peters v. State , 874 So.2d 677, 679 (Fla. 4th DCA 2004), is misplaced.
The dissent further relies on the trial courts statement that the juror wavered with respect to sentencing. However, the state did not advance this reason as a basis for its peremptory strike. See Floyd v. State , 569 So.2d 1225, 1229 (Fla. 1990) (It is the states obligation to advance a facially race-neutral reason that is supported in the record.). Moreover, the record does not support a finding that the prospective juror wavered. See id. In response to the courts questioning, the juror stated that the jury would not be making the sentencing and that she was okay with that. The state itself advised the juror that [i]f, in fact, you know, you vote that its proven, you have nothing to do with sentencing but the Judge would based [sic] on your decision saying its proven. Further, jurors are instructed not to consider sentencing during the penalty phase of trial, and it is presumed that jurors will, in good faith, follow the law as it is explained to them. Hurst v. State , 202 So.3d 40, 63 (Fla. 2016).
Although the trial court noted that theres a number of other African Americans on the jury, [t]he relevant issue in this inquiry is whether any juror has been excused because of his or her race, independent of any other juror. State v. Johans , 613 So.2d 1319, 1321 (Fla. 1993) (citing State v. Slappy , 522 So.2d 18, 21 (Fla. 1988) ). A race-neutral justification for a peremptory challenge cannot be inferred merely from circumstances such as the composition of the venire or the jurors ultimately seated. Id. [T]he striking of a single black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when there are valid reasons for the striking of some black jurors. Slappy , 522 So.2d at 21 (citation omitted).
II. Improper Religion-Based Strike
Even if the states strike were genuinely based on the jurors religion, members of a religion that is a cognizable class are also protected under the United States and Florida Constitutions from being systematically struck from juries solely based on their faith. Appellant has a right to a fair and impartial jury panel where the state does not exclude members of a religion in the absence of competent substantial evidence that the potential juror cannot be fair and impartial due to her views related to her membership in that religion.
In Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the Equal Protection Clause prohibits race-based peremptory challenges. Over the years, courts have expanded Batson to other peremptory challenges based on the Equal Protection Clause. The United States Supreme Court extended the equal protection analysis to gender in J.E.B. v. Alabama ex rel. T.B. , 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).
Similarly, the Florida Supreme Court previously found that Hispanics were a cognizable class of people, requiring an ethnic-neutral reason before excusing a juror. State v. Alen , 616 So.2d 452, 454 (Fla. 1993). That court applied a two-part test to determine if a group constitutes a cognizable class: whether the groups population is large enough to be recognized as an identifiable group and whether that group has internal group cohesiveness. Id.
The Third District, following the same line of cases, held that a preemptory challenge of a Jewish venireperson based solely upon her religion was unconstitutional. Joseph v. State , 636 So.2d 777 (Fla. 3d DCA 1994). The court found that members of the Jewish religion were a cognizable class under the standard articulated in Alen . The Joseph court determined that members of the Jewish faith met the two-prong test and concluded that striking members of the Jewish faith violated Article 1, Section 16 of the Florida Constitution, which guarantees the defendant an impartial jury. Id. at 781.
In the present case, as in Joseph , members of the Jehovahs Witnesses would also appear to meet the two-prong test as a recognizable group with internal group cohesiveness. See also State v. Gilmore , 103 N.J. 508, 511 A.2d 1150, 1159 n.3 (1986) ([A]t minimum, cognizable groups include those defined on the basis of religious principles, race, color, ancestry, national origin, and sex (all of which are suspect or semi-suspect classifications triggering strict or intermediate scrutiny under federal equal protection analysis[.) ]) (citing Cleburne v. Cleburne Living Center , 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ).
This court has also found that striking a potential juror due to his or her religious faith is unconstitutional. In Olibrices v. State , 929 So.2d 1176, 1180 (Fla. 4th DCA 2006), our court found that the potential jurors membership within the objectively discernible group of Pakistani Muslims was the basis of the exercise of a peremptory challenge. We concluded that whether the juror was challenged because he is of Pakistani origin or because his religious belief is Muslim, it would be a Neil Slappy violation to exercise a peremptory challenge of him on either account. Id. Similarly, in the present case, the potential juror is a member of an objectively discernible group, that being the Jehovahs Witnesses.
Rodriguez v. State , 826 So.2d 494 (Fla. 4th DCA 2002), and Happ v. State , 596 So.2d 991 (Fla. 1992), which are cited by the dissent, are distinguishable. The peremptory strike in Rodriguez was based on the prospective jurors occupation and not based on membership in a particular religious group. 826 So.2d at 495. Happ is also distinguishable because in that case, unlike in the instant case, the defendant did not contest the reasons given by the state for the strike. 596 So.2d at 996.
The dissent also relies on the trial courts superior vantage point as justification for affirmance. Although it is generally true that we should rely on the superior vantage point of the trial court, that axiom does not hold true where the trial court has ratified the states erroneous and unconstitutional strike of a prospective juror based on religious membership alone. See Frazier , 899 So.2d at 1175 (When stereotypical presumptions are based on a jurors nationality or ancestral home and proffered as a reason for a peremptory strike, discrimination in jury selection has occurred as a matter of law.); Foster v. State , 929 So.2d 524, 537 (Fla. 2006) (stating that deference to a trial courts superior vantage point applies only if its decision is supported by competent substantial evidence).
Other jurisdictions have also declared invalid strikes based on religious affiliation. For instance, in State v. Hodge , 248 Conn. 207, 726 A.2d 531, 550 (1999), the Connecticut Supreme Court held that a peremptory challenge based on a venirepersons religious affiliation is unconstitutional. The court explained that [a]lthough ones religious beliefs may render a prospective juror unsuitable for service in a particular case, ones religious affiliation , like ones race or gender, bears no relation to that persons ability to serve as a juror. Id. at 553.
Although those who argue against extending Batson often cite to Davis , as noted above, the Minnesota Supreme Court actually recognized that striking a juror based solely on his affiliation with the Jehovahs Witnesses would not rebut the prima facie case of racial bias. See Davis , 504 N.W.2d at 772. This is the exact situation presented in the instant case.
Interestingly, although the United States Supreme Court denied the petition for review by certiorari in Davis , Justice Thomas, joined by Justice Scalia, dissented from the denial of certiorari.
Davis v. Minnesota , 511 U.S. 1115, 114 S.Ct. 2120, 128 L.Ed.2d 679 (1994). Justice Thomas, citing to J.E.B. , disputed the Minnesota Supreme Courts conclusion that Batsons equal protection analysis applies solely to racially based peremptory strikes. Id. at 2121. Responding to the majoritys denial of the writ for certiorari, the dissent stated:
Indeed, given the Courts rationale in J.E.B. , no principled reason immediately appears for declining to apply Batson to any strike based on a classification that is accorded heightened scrutiny under the Equal Protection Clause. ... J.E.B. would seem to have extended Batsons equal protection analysis to all strikes based on the latter category of classifications-a category which presumably would include classifications based on religion.
Id.
Justice Thomas correctly suggested that the rationale of Batson and J.E.B. should be extended. Based on Alen , Joseph , and this courts decision in Olibrices , the trial court clearly erred in allowing the prospective juror to be struck from service based on her membership in a religious group.
Thus, the states strike was either pretextual and entirely based on race, or the states strike was not pretextual and entirely based on religion despite the lack of competent substantial evidence that the prospective jurors religion would influence her decision-making as a juror. Either way, it violates the United States and Florida Constitutions.
III. Strike Violates Religious Test
Finally, striking a potential juror from jury service based solely on membership in a religion, no matter what the juror says during voir dire, is an impermissible religious test in violation of the United States and Florida Constitutions. Where the state decides to strike the juror due to her faith, even before discussing whether her faith would improperly influence her decision, it becomes the states de facto position that a member of that religion can never satisfy the states concerns and effectively can never serve on a jury. Likewise, the trial courts statement-that allowing a Jehovahs Witness on a jury would be malpractice-effectively prohibits members of that religious group from being able to serve as a juror.
Article VI, Clause 3 of the United States Constitution states that no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. The United States Supreme Court stated that [w]e repeat and again reaffirm that neither a state nor the Federal Government can constitutionally force a person to profess a belief or disbelief in any religion. Torcaso v. Watkins , 367 U.S. 488, 495, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) (citation omitted). To strike a juror for professing a belief in a religion amounts effectively to a religious test. See also Fla. Const. art. I, § 2 (Basic rights.-... No person shall be deprived of any right because of race, religion, national origin, or physical disability.); Fla. Const. art I, § 3Religious freedom.-... There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof.).
The United States Supreme Court has recognized that jury duty is a public trust:
[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 courts jurisdiction.... [T]he jury system performs the critical governmental functions of guarding the rights of litigants and ensuring the continued acceptance of the laws by all of the people.
Edmonson v. Leesville Concrete Co., Inc. , 500 U.S. 614, 624, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). (citation, quotation mark, and alterations omitted). Every person, regardless of his or her religion, should be eligible to serve in this public trust.
Another state that has adopted the rule prohibiting peremptory strikes based on religious affiliation has also found this type of strike violates the religious test doctrine:
Furthermore, to allow the State to use peremptory strikes based on religious affiliation would condition the right to free exercise of religion upon a relinquishment of the right to jury service. See McDaniel v. Paty , 435 U.S. 618, 626-29, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978) (invalidating a law that disqualified members of the clergy from holding certain public offices, because it imposed special disabilities on the basis of religious status); Powers v. Ohio , 499 U.S. 400, 406-07, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (recognizing the right to serve on a jury as an important democratic right). As the Court stated in Georgia v. McCollum , 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), [i]n 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 skin, the accident of birth, or the choice of religion . Quoting Ristaino v. Ross , 424 U.S. 589, 596 n.8, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976) (emphasis added).
State v. Purcell , 199 Ariz. 319, 18 P.3d 113, 121-22 (Ariz. Ct. App. 2001).
The framework of our constitutional freedom is based in large part on the protection of the free exercise of religion. Religious liberty can be safeguarded only when every individual can participate in our civil society regardless of his or her religion. Serving as a juror is one of the highest forms of participation.
Our founders understood that religious tests were inimical to the rights of the individual within a free society:
More sparingly should this praise be allowed to a government, where a mans religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy. Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and unalienable right. To guard a mans house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a mans conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.
James Madison, Property , National Gazette, March 27, 1792, available at https://founders.archives.gov/documents/Madison/01-14-02-0238.
In sum, the strike was pretextual and based on race. Even if the strike was not a pretext, then it was based on religion, which is also impermissible. Finally, the strike imposed an unconstitutional religious test.
For all of these reasons articulated above, we reverse and remand for a new trial.
Reversed and remanded .
Gerber, C.J., concurs in part and dissents in part with opinion.
May, J., dissents with opinion.
The dissent quotes from Justice OConnors concurring opinion in J.E.B. , wherein she expressed concern about [l]imiting the accuseds use of the peremptory challenge. Id. at 150, 114 S.Ct. 1419. However, the instant case involves a peremptory challenge by the state. J.E.B. stands for protecting the right of the defendant to use a peremptory challenge to safeguard the right to a fair trial, not for the state to exclude a discernable class of people.