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Death penalty, Capital punishment, Religion-based peremptory challenges, Establishment clause, Free exercise clause, Religion in capital cases, First Amendment, Religion clauses, Batson v. Kentucky, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, Lockett v. Ohio


Criminal Law | Criminal Procedure


Religion has played a prominent role at various points of capital trials. In jury selection, peremptory challenges have been exercised against prospective jurors on the basis of their religion. At the sentencing phase, defendants have offered as mitigating evidence proof of their religiosity, and the prosecution has introduced evidence of the victim's religiosity. In closing argument, quotations from the Bible and other appeals to religion have long been common. During deliberations, jurors have engaged in group prayer and tried to sway one another with quotes from scripture.

Such practices have not gone unquestioned. Rather remarkably, however, the questions have almost always been framed and answered with little or no attention to the two clauses of the federal Constitution that speak directly and broadly to issues of religion: the Establishment and Free Exercise Clauses of the First Amendment.

This article seeks to give those clauses their due. The article is divided into four parts, each addressing the role that religion has played at a certain stage of the proceedings. In each part, we begin with a brief description of the way in which courts generally have analyzed the validity of particular uses of religion, and we then turn to the validity of those uses from the perspective of the Religion Clauses.

At times, careful consideration of the Religion Clauses only confirms the correctness of conclusions that the courts have reached by other routes. In various instances, however, it calls for important changes in the way in which capital trials are run.

Publication Citation

Published in: Cornell Law Review, vol. 86, no. 5 (July 2001).