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“So Help Me God”: Eleventh Circuit to Review Juror Prayer Case En Banc

October 20, 2020

By Lea Patterson, Counsel

In his 64-page dissent from the panel opinion in United States v. Brown, Judge William Pryor wrote:

Do each of you solemnly swear that you will well and truly try the case now before this court and render a true verdict, according to the law, evidence, and instructions of this court, so help you God?

Every juror who was empaneled in Corrine Brown’s criminal trial swore this oath. One of them was dismissed because he apparently meant it.

Brown upheld the dismissal of a deliberating juror because he prayed for and believed he received the Holy Spirit’s guidance in considering the evidence.

On September 24, 2020, the Eleventh Circuit Court of Appeals agreed to rehear the case en banc.

The case raises significant religious liberty questions. Removing a deliberating juror requires finding, beyond a reasonable doubt, that there is no substantial possibility the juror is basing his or her decision on the sufficiency of the evidence (see United States v. Abbell). This “tough legal standard” is necessary to avoid the risk of dismissing a juror merely for dissenting (see United States v. Augustin). The district court found beyond a reasonable doubt that the Brown juror’s religious belief in the guidance of the Holy Spirit was inherently incompatible with jury service.

Judge Pryor’s dissent explains at length why this finding evinces “a failure to reflect on the nature of prayer,” because, “[f]or religious believers, prayer and reliance on God can be inseparable from their everyday way of thinking, speaking, and deciding.” Indeed, it is well established that jurors may pray in the course of their duties. “But every prayer implies a hope that the prayer be answered.” By upholding the decision to remove the Brown juror, the panel opinion stood for the remarkable proposition that jurors may pray for God’s guidance only if they believe they pray in vain.

This decision could effectively disqualify millions of otherwise eligible people from jury service because of their religious beliefs. As a result, the case raises the unsettled question of whether Batson v. Kentucky should extend to prohibit religiously discriminatory peremptory challenges. State courts disagree on this question, and federal courts are in tension but currently avoid a direct split. Brown involves a much higher standard of proof than peremptory challenges, so deciding that the belief that God’s guidance is categorically disqualifying during deliberation will carry over into jury selection as well. This may bind the Eleventh Circuit to create a circuit split when the Batson question directly presents itself in the future.

As Judge Pryor explained, “Our nation’s religious diversity carries the risk of misunderstanding between people of different worldviews and from different walks of life.” How the Eleventh Circuit en banc approaches Brown on rehearing may determine whether the misunderstanding of which Pryor speaks will open the door to the exclusion of many religious believers from this fundamental civic institution.

Note: This article was first published on The Federalist Society and is re-published here with permission. The article presents the main points of an op-ed published in The Federalist Society. This work was authored co-authored by Lea Patterson. The full article can be found on the The Federalist Society website, here.

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