Most of the time we speak on the First Amendment as it relates to Freedom of Speech,
Freedom of Expression, or delve into the political world. We talk about upcoming elections
or the results of the last one, and news about what could have been, what should have been,
or the horrors of what is. Very rarely do we speak on the First Amendment in relation to
Of course there is a First Amendment that protects religious freedoms, but there is also
the Religious Freedom Restoration Act (RFRA), which also guarantees a person’s right to
act in accord with their religious conscious. Some of you may recall that this Act, or State
Acts patterned after it, are responsible for the Hobby Lobby case, in which Hobby Lobby was
free to avoid providing birth control types of insurance coverage under Obamacare, as it went
against their religious beliefs. (Some may have a little different take on the essence of Hobby
Lobby, but this brief analysis will suffice for the purpose of this discussion).
This law, along with arguing that the First Amendment Freedom of Religion, also has
been used for cake bakers in Indiana to claim that they have a right to discriminate against
gay marriages and therefore, not provide services at weddings. Taken to the extreme, a gay
couple could travel through some southern state and run out of gas, as no filling station
would be willing to provide them with gas on their honeymoon, because it went against their
religion. As we said, these are arguments under RFRA and the First Amendment that
certainly have not been universally accepted.
However, this brings up an interesting question under Florida law, and most probably
at least another third to half of the other states in the country. In those states that still have
the death penalty, and certainly in Florida and probably most states, one can be excluded
from the jury because they are unable to impose the death penalty upon a finding of guilt.
The essence is that the death penalty in those states is lawful and therefore, if a juror cannot
follow the law under any circumstance, then they must be excluded. Yet, how does that not
violate RFRA and the First Amendment Freedom of Religion? These people have as much
right as anybody to sit on a jury, even a capital case with the death penalty. But because of
their religious conviction, that their religion would not allow them to impose the death
penalty, they become excluded from the jury. By their devotion to their religion they are
being denied the most fundamental of rights, that being the ability to serve on a jury equal
to all other citizens.
In most cases, that juror is more than happy to be excluded from the jury. The
pressure of a capital trial might be overwhelming. The time away from a job or other
commitments could be overwhelming. Most people would rather do anything other than
being on jury duty. So, there are very few complaints by the prospective juror and by and
large they do not even know that this is the reason for their exclusion.
On the other hand, a defendant in any trial has the right to be judged by a jury of their
peers. Part of the peers is a cross section of the community and those who have religious
convictions that tell them that they cannot impose death upon another human being, are part
of that community. Aren’t they entitled to have an entire cross section of the community
serve on their jury, as opposed to one that is devoid of a certain segment of the population,
simply based upon their religious views?
We do not expect that this article will start any type of movement. Rather, the purpose
of this article is simply to show how different aspects of the law effect other aspects of the
law. How Freedom of Religion and RFRA have not yet affected those who sit on a jury, but
maybe they should. That strengthening laws for religious freedom might actually affect, at
some time in the future, the composition of a simple jury trial. How a well-meaning law to
protect people’s religious liberty might end with a stalled car in Alabama. How a law to
protect an individual’s long-held religious feelings might impinge on others freedom of
movement or making them feel that they have less rights than others.
The real question becomes, when do religious freedoms conflict with other peoples
rights to the extent that the religious freedoms must take a back seat? Or, conversely, do they
ever? When does somebody’s right to the pursuit of happiness take a backseat to somebody’s
pursuit, making them unhappy in the name of religion?
We do not have the answers to any of the questions, or at least a great majority of
them asked herein. Our country is getting more and more polarized. There are more people
then ever following religious doctrine and there are more people then ever disavowing the
same. The law will go through a tug of war to balance these interests. There is a good
reason why your parents always tell you, at holidays with large groups of people, never to
discuss politics and religion, and that is because these two subjects are incredibly sensitive
and it is hard not to offend someone in the discussion. The same is true with laws that affect
religion or are based upon religion. They are bound to offend someone. No matter what we
do, that will be the end result.