According to Dolan, under the Gunwall factor, there is strong textual support in Article I, § 11 of the Washington State Constitution for protecting individuals from religion-based peremptory challenges. The relevant language of Article I, § 11 provides that no person 'shall . . . be incompetent as a witness or juror, in consequence of his opinion on matters of religion . . . . '
Dolan points out that the language makes a clear suggestion that no person shall be excluded from the jury for religious reasons, though one might contend that Article I, § 11 applies only to the selection of the venire and leaves religion-based peremptory challenges unaffected. Hence, Article I, § 11 is subject to two interpretations (1) it forbids removing a potential juror under all circumstances involving matters of religion, or (2) it forbids religion-based discrimination in compiling the venire, while allowing such discrimination in the form of a peremptory challenge in selecting the jury.
What is also interesting and important to focus on is the fact that the plain language of Article I, § 11 and its logic favor the former interpretation. Dolan explains that the plain language of the text appears to preclude any method of removing a juror 'in consequence of his opinion on matters of religion,' while there is no language suggesting that a citizen may not be excluded from the venire because of religious belief, yet he or she may be excluded from the jury for the same reason.
He goes on further to maintain that interpreting the language in this manner is tantamount to saying that an attempt to exclude a religious group is impermissible in selecting the venire, yet acceptable during voir dire if the discrimination occurs in the form of a peremptory challenge. A. Textual Differences Between Article I, § 11 and the Free Exercise Clause of the First Amendment Clause
According to Dolan, when one closely examines the second factor of the Gunwell factor, one may arrive at the conclusion that Article I, § 11 of the Washington State Constitution has no exact federal counterpart. In fact, no provision in the Federal Constitution provides that religious matters may not serve as a justification for a juror's incompetence. He further explains that a comparison of First Amendment and Article I, § 11 also bolsters the argument that, in this instance, the Washington State Constitution should be interpreted more broadly.
In the issue of jurors, Article I, § 11 protects individuals from being considered 'incompetent' as jurors for religious reasons, while the First Amendment only protects an individual's right to free exercise of religion from governmental infringement. Dolan also notes that the text of Article I, § 11 provides, '[a]bsolute freedom of conscience in all matters of religious sentiment, belief, and worship, shall be guaranteed to every individual. It goes on saying that 'no one shall be molested or disturbed in person or property on account of religion. '
Hence, the use of a peremptory challenge to remove a prospective juror violates the guarantee of 'freedom of conscience in all matters of religious sentiment. ' Similarly, excluding one from the jury on the basis of religion molests or disturbs that individual 'on account of religion. ' Because the text of the Washington document is specifically phrased to extend broader protection in religious matters than its federal counterpart, finding religion-based peremptory challenges unconstitutional harmonizes with the independent and broader protection granted under Article I, § 11.
Constitutional and Common Law History The third factor—inquiry into state common law– reveals that there is a dearth of state common law interpreting Article I, § 11 in the context of jury trials. Dolan cites the case of State vs. Leuch whereby the Washington State Supreme Court found that conscientious objection to the death penalty was severable from one's religious beliefs and could, therefore, serve as a reasonable and legally cognizable basis for dismissing a juror for cause.
The court noted that no violation of the aforementioned law took place because the challenge for cause removed a juror with a bias that was completely distinguishable from the religious basis for the belief. Accordingly, the court held that the individual's social belief in abolishing the death penalty, not the religious belief from which it sprung, impeded his ability to remain impartial and rendered him incompetent as a juror.
In this particular case, the challenge for cause would have been unconstitutional under Article I, § 11 had it been based on the individual's religious belief and not on a severable social belief. Specifically, by addressing the issue of Article I, § 11 in the context of a challenge for cause, the court suggested that the provision's ban on religion-based discrimination in jury service applies beyond compilation of the venire to selection of the jury.