Overtly religious people may not serve as jurors, according to a recent New Jersey state appeals court ruling.

Because the decision was not unanimous, 2-1, chances are likely that the case will be heard by the state Supreme Court, the Philadelphia Enquirer reported. The decision has also raised some civil liberties concerns.

“The court’s majority determined that Lloyd Fuller was not deprived of a fair trial when the prosecutor used two of his challenges to exclude potential jurors on the grounds that religious people would be too sympathetic to the defense,” read the Enquirer.

Fuller was convicted of using a water gun in a failed armed robbery of an Essex County Chinese restaurant, according to Associated Press. Sentenced to 10 years in prison, Fuller appealed, claiming that the removal of two religious jurors violated his 14th Amendment right to equal protection.

Two of the three judges on the appellate panel disagreed, “finding that individuals perceived as devout do not comprise a specific group,” AP reported. They said the controlling case in New Jersey only forbids a prosecutor to excuse jurors “who are members of a cognizable group on the basis of their presumed group bias.”

The jurors in question were a white man who said he was a missionary and a black man wearing a long black garment and a skull cap, according to AP. Neither potential juror was asked about his religious beliefs, but the prosecution remarked that the black man was “obviously a Muslim.”

The dissenting opinion from Appellate Judge Jose L. Fuentes stated that the jury challenges not only violated Fuller’s right to equal protection but the potential juror’s First Amendment right to free exercise of religion.

“If the discriminatory practice involved here is validated by judicial countenance, courtrooms would become places where the fundamental freedoms guaranteed by the First Amendment could cease to exist and crucifixes, yarmulkes and other forms of religious expression and symbols of affiliation would be transformed into per se indicias [intrinsic marks] of juror disqualification,” Fuentes wrote in his opinion.

John W. Whitehead, president of the Rutherford Institute, a nonprofit group in Charlottesville, Va., that provides legal services in civil liberties cases, called the ruling discriminatory.

“Clearly, you have a class of people that’s being discriminated against,” Whitehead told AP. “It seems to say that religious people would not be able to serve on juries unless they hide their views.”

The U.S. Supreme Court has ruled that a prospective juror cannot be excluded because of gender, writing in its decision that “potential jurors as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.”

Jodi Mathews is BCE’s communications director.

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