# FILED

Ap ril 23, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

JANET L. WO LF and ) GERALD S. BOWKER, ) individually and as representatives ) of all simi larly situa

ted individua

ls, ) ) Plaintiff s/Appella nts, )

) ) VS. ) ) ) Davidson C ircuit DON SUNDQ

UIST, in his official ) No. 94C- 4094 capacity as Gover nor of the S tate of ) Tennessee; JOHN KNO X WALKUP, ) in his official capacity as Attorney ) Appeal N o. General of the State of Tennessee; ) 01A01-9505- CV-00209 VICTO R S. JO HNSON , III, in his ) official capacity as District Attorney ) General for the 20th Judicial District ) for the S tate of T ennessee, and ) DAN M. ALS OBROOKS, in his official ) capacity as Distr ict Attor ney Gene ral ) for the 23r

d Judicial D istrict of

the State ) of Tenne ssee, an d as repre sentatives ) of all District Attorneys General in the ) State of Tennessee, ) ) Defenda nts/Appell ees. ) APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE

For the Plaint iffs/App ellants : For the Defendants /Ap pellees : Irwin Venick Jerry L . Smith DOBBINS & VE

NICK Deputy Attorney General Nashville, Tennessee Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Mr. Dugger was found guilty of first degree murder and rece

ived a life sentence. State v. Dugger, App. No. 01C01-9102-CR-00034, 1991 WL 165822, at *1 (Tenn. Crim. App. Aug. 30, 1991), perm. app. denied (Tenn. Feb. 3, 1992).

-2- 

## O P I N I O N

This appeal inv olves the r ight of per sons unalterably opposed to the death penalty to serve as jurors in capital murd er cases. Two persons who had been excused for c ause in separate capital c ases file d suit in the C ircuit Cou rt for Davidson County, seeking a declarat ion that exc using prospective jurors who, as
amatter of

religiou s co nscience, could not con sider impos ing the dea th penalty violated the prospective jurors’ constitutional rights. T he trial c ourt dismiss ed the comp laint, and the jur

ors appea led. We have dete

rmined tha

t the prac tice of exclud ing jur ors whose religious pr inciples pr

event them

from cons idering the deathpenalty re gardless of the la w and the evidence is not an unconstitutional religious test, does not viola te the jurors’ consti tutionally pr otected f reedom of religion, and does not unconstitutionally discri minate against the se jurors. Accordi ngly, we

affirm the judgmen

t.

I.

JanetL. Wolf is an ordained Methodist minister who resides in Nashville. She was summoned for jury duty in 1990 an d was amo ng the panel of prospecti ve jurors in the first degree murder trial of William C. Dugger f or the1989 murder of Robin Bosw ell in Per

cy Warne r Park. 1 During the voir dire, the ass istant districtattorneys general q uestioned th e prospect

ive jurors about their

ability to considerimposing the

deathpenalty because the State had announced its intentio n to seek the death p enalty aga

inst Mr. Dug ger. In

response t

o these ques tions, Ms. Wolf stated that she was philosophically, morally, and religiously opposed to the deathpenalty an d that she c ould not set a side her pe rsonal oppos ition to the deat h pena lt y, even if the

law req uired her to, beca use she bel ieved that

“it’s alw ays wrong.” The trial court

granted th e State’ s challenge for cause because “he r views would prevent or substantially impair the performance of her duties as ajuror in accordance with the jury instructions and oath.”2 Messrs. Halland Quintero were found guilty of first degree murde r. They received the death penalty for the mur der of Ms. Vester and a life sentence for the murder of Mr. Vester. State v. Hall, App. No. 0 1C01-9311 -CC-00409 , 1997 WL 9 2080, at * 1 (Tenn. Crim. App. Mar. 5, 1997). -3- Gerald S. Bowker

resides in

New John sonville and

is a membe

r of the Southern Baptist Ch

urch. In October

1991, he w as summone d for jury d uty by the Circuit Court for Humphrey s County and w as one of th e prospecti ve jurors i n the trial of Willia

m Euge ne H all and Derrick Desmond Quintero, two escaped inmates charged with the

first degree murder of Buford and Myrtle Vester. 2 The trial court andthe lawyers questioned Mr. Bowker and the other jurors about their attitudes concernin g the death

penalty be cause the

State w as seeking the death p enalty in the case. D uring voir dire, Mr. Bowker stated that he was a Chr istian and that he had been brough

t up to belie ve thatthe death penalty was wrong. He also stated thathe could not set aside his personal opinions about

the death penaltyand that he could never

impose th e death pen alty regardless of the law or the evidence. Based on theseresponses, the trial court excused Mr. Bowker from the jury. Mr. Bowker wa s one of sixteen

jurors wh o were excused bec ause their religious beliefs played a r

ole in their r

efusal toconsider imposin g the death penalty. State v. Hall , supra note 2, 199 7 WL 92080, at *18 n.7.

In December 1994, M s. Wolf a nd Mr. Bo wker fi led a cla ss action su it in the Circuit Courtfor Dav idson Countyseeking dec laratory relief t hat excludi ng persons from ser

ving on jurie s in capita l cases be cause of t

heir rel igious opposition to the death penalty violated Tenn. Const. art. I, §§ 3, 4, 6, and 8 and Tenn. Const. art. XI, § 8. They also sought to enjo in using chal lenges for cause to exclude prospective jurors in capital cases whose re ligious belie fs preventthem from consideri ng t he death pena lty. In support of the ir reques t for injunc tive relief, Ms. W olf and Mr. Bowker presented affidavits from Protestant, Roman Catholic, and Jewis h leaders stating that perso nal oppositio n to the death p enalty
was a v alid exercise

of religi ous conscie nce. Se veral of these aff iants also expressed their beli ef that e xcluding per sons who oppo se t he death penalty on religious grounds fr

omjuries in capital cases penalized them for expressingtheir individual consciences. The trial court denied the application for declaratory and injunctive

relief because the TennesseeSupreme Court hadalready determine d in-4-

State v. Jones

, 789 S.W. 2d 545, 547 ( Tenn. 199 0) and State v. B obo, 727 S.W. 2d 945, 949 (Tenn . 1987) tha t excluding j urors who opposed the death pena

lty on religiou s ground s did not violate Ten n. Const. art . I, § 6.

II.

The right to tr

ial by jury s ecured by our sta t e and fede

ral consti tutions
necessar ily contempla

tes that the

jury will be un biased an d impartia l. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S. Ct . 9 84, 985 (194 6); Ricketts v. Carter, 918 S.W.2d 419, 421 (Tenn. 1996); Durham v. State, 182 Tenn. 577, 584, 188 S.W.2 d 555, 558 ( 1945). In its const itutional sense, impa

rtiality envisions not only freedom

from jury bias again stthe defendant but also freedom from jury bias in the defendant ’s favor. Swain v. Alabama, 380 U.S. 202, 219-20 , 85 S. C t. 824, 835 (1965); Hayes v. Missouri, 120 U.S. 68, 70-71, 7 S. Ct. 350, 351 (1887); Houston v. State, 593 S.W.2d 26 7, 272 (Tenn . 1980), rev’d on ot her ground

s , State v. Brown , 836 S.W .2d 530, 54 3 (Tenn. 1992); Toombs v. State, 197 Tenn. 229, 231 -32, 270 S.W.2 d 649, 650 (1954).

A n imparti al jury con sists of jur ors who w ill find the

facts an d conscienti ously apply the law. Buchananv. Kentucky, 483 U.S. 402, 417, 107 S. Ct. 2906, 2914 (1987); Wainwright v. Witt , 469 U.S. 412, 423, 1 05 S. Ct. 844, 851-52 (1985). To be considered impartial, a juror must be free of personal bias andmust be indi fferent

and disinterested between the parties

. Eason v. State, 65 Tenn. 466, 469 (18 73). Unb iased juro rs do not give fr ee rein to their own biases
or prejudice s, J.E. B. v. Alabama e x rel. T.B., 511 U.S. 127, 153, 1 14 S. Ct. 1419, 1434 (1994) (Kennedy, J., concurring), and are able to follow the tri a l court’s instruction s. Lockett v . Ohio, 438 U.S. 586, 596-97 , 98 S. C t. 2954, 29 60 (1978).

The courts are not strangers to issues involving the exclus ion of prospe ctive jurors whose oppos ition to the death pena lty affe cts their ability to follow the law andthe instr

uctions of the trial court. Up to this point, the litigation focused exclusively on the defendant’s constitutional right to be tried by an impartial jury selected from a cross se ction of the

community. It is now settled that a criminal defendant ’s constitutional righ ts are not violated by excusing prospective jurors-5-

for cause wh en their pe

rsonal bel iefs conc erning the death pena lty would pr

event
or substantially impair their perf ormance a s a juror i n accorda nce with t

heir instruction s and their o ath. Wainwright v. Witt , 469 U.S. at 424, 105 S. Ct. at 852; Adams v. Tex

as, 44 8 U.S. 38 , 45, 100 S . Ct. 252 1, 2526 (198 0); State v. Hutchison, 898 S.W. 2d 161, 167 ( Tenn. 199 4); State v. Alley, 776 S.W. 2d 506, 518 (Tenn. 1989).
This appeal implicate s different constit utional rights. Instead of focusin g
on a crimina

l defenda nt’s rights , it focuses on the const itutional r ights of per sons who se religi ous beliefs prevent or substantially impair their ability to consider imposing the death p enalty. T his right is o f constitut

ional signif

icance be cause providing all citiz ens with a n opportunity to participate in the fair adm inistratio n of justice is fundame ntal to ou r democrati c system. J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 146, 114 S. Ct. at 14 30; Powers v . Ohio , 499 U. S. 400, 4 07, 111 S. Ct. 1364, 1368-69 (1991 ); Lockhart v. McCree, 476 U.S. 162, 175, 106 S. Ct. 1758, 1765-66 (1986); Woodson v. Porter Brown Limestone Co ., 916 S.W. 2d 896, 903 (Tenn. 1996 ).

We must constr

ue our const

itution as a

whole and

must harmonize and gi ve effect to each of its p rovisio ns, Patterson v. Washington County, 136 Tenn. 60, 66, 188 S.W. 613, 614 (1916); State ex rel. Witcher v. Bilbrey, 878 S.W. 2d 567, 575 (Tenn. Ct. App. 1994), and we should n ot permit t

h e language of

one provisio n to render anot her provi sion ine ffective. Vollmer v. City of M emphis, 792 S.W. 2d 446, 448 (Tenn . 1990). Accordi ngly, the contours of a prospecti ve juror’ s right to serve on

a jury shoul d be consistent with thos e of a cr iminal def

endant’s r ight to a jury tri al. The se rights, after a ll, share a common p urpose - to assure that juries ar e fairly chosen and i mpartial

.

III.-6- Ms. Wolf and Mr. Bowker first assert that excluding them from jury service in capital c ases beca

use of their religiou sly motivate d opposition to the deat h penalty violates T enn. Const

. art. I, § 3. They insist that the trial judges interfered withtheir right of conscience by ex cluding them from serving on the juries empaneled to try Mr. Dug ger and Me ssrs. Ha ll and Quintero. We respec tfully disagree. Excludingthem from service on these jur ies did not unc onstitutiona lly infringe on their constitutionally protected freedom of conscience.

Both Tenn. C onst. art . I, § 3 and the Fir stAmendment to the United States Constitution

protect in dividual re ligious freedom. They guarantee to a ll the right “to ente rtain such notions respecting his [or her] relations to his [or her] M ake r andthe duties t

hey impose a s may be approved b y his [or her] judgment an d conscien ce.” Davis v. Beason, 133 U.S. 333, 342, 10 S. Ct. 299, 300 (1890), rev’d

on other grounds , Romer v . Evans , ___ U. S. ___, _ __, 116 S. Ct. 1620, 1628 (1996). While re ligious beli e fs are c onstitutiona lly protec ted, they

are not superior to all other fund amental pri nciples t hat bind society t ogether. Wisconsin

v. Yoder, 406 U.S. 205, 215-16, 92 S . Ct. 1526, 1533 ( 1972); Reynolds v. United States, 98 U.S. 145, 16 6-67 (187 9).

WhileTenn. Const . art. I, § 3 is simila r to the Firs t Amendment , Carden v. Bland , 199 Tenn. 665, 672, 2 88 S.W. 2d 718, 721 (19 56), it c ontains substantial ly strongerprotectio ns of relig ious freed om. State e x rel. Swa nn v. Pack, 527 S.W.2 d 99, 107 (T enn. 1975) . Notw ithstanding t he breadt h of this prov ision, the Tennessee Supreme Court, like the United States Supreme Court, has recognized that“[t]he law of intellectual and spiritual life is not th e higher la w, but must yie ld to the law of the land.” Landrith v. Hudgins, 121 Tenn. 556, 658, 120 S.W. 783, 809 (1908) ( quoting In re Schnor r’s Appea l, 67 Pa. 138, 146-47 (1870)).

The struggle f

or religio us liberty t

hr ough the centuries has been an effort to accommod ate the demands of the State to t

he conscience of th e individ ual. Girouard v. Unit ed States, 328 U.S. 61, 68, 66 S. Ct. 826, 829 (19 46). Both Tenn. Const. ar

t. I, § 3 and the Fir st Amendm ent embody o u r f

ounding fath ers’ eff orts to balance

individual r

eligious fr

eedom, t he rights of

others, a

nd all citizens’ shared societal responsibil ities. T he courts m aintain thi s equilibrium by3 Ms. Wolf and Mr. Bowker also rely on Tenn. Const. art. I, § 4 which pr ohib its using political or religi ous tests f

or “any o ffice o

r public tr ust under this State.” We do not f

ind this section to be applicable because Tenn. Const. art. I, § 6 gover ns the qualifications of jurors. -7- recognizi ng that rel igious fre edom embodies two compl ementar y concepts - the freedom to believe

and the fr

eedom to a

ct. The freedom to beli eve is absolute; whilethe free dom to act i s subje ct to rea sonable control for t he protec tion of others. Cantwell v . Connecticut, 310 U.S. 296, 303-04, 60 S. Ct. 900, 903 (1940); State ex rel. Swann v. Pack, 527 S.W. 2d at 111; Harden v. State, 188 Tenn. 17, 25, 216 S.W.2 d 708, 711 (1948); Goodwin v. Metropolit an Bd. of H

ealth, 656 S.W. 2d 383, 389 -90 (Tenn. Ct. Ap p. 1983).
Being ex cluded from ser vice on a ju

ry in a ca pital case does not inf

ringe upon a person’ s religious l y motivated opposition to t

he death penalty. T

hese persons remain free to follow and to asser t their be liefs. W

hile exclu ding these persons from juries in capital cases af fects their ability to translate their re ligious beliefs into action, Tenn. C onst. art . I, § 3 d oes not pre vent the State from controllingreligiously motivated actions for the goo d of societ y. In light

of the affirma tive constitutional mandate t o provid e imparti al juries in crimina l cases, the State has an important interest in obtaining juries that do not contain members who, because of their religious beliefs, are unable to follow the law or the trial court’s instructio ns. Thus , excluding pr ospective j urors who oppose the de ath penalty on r

eligious gro unds is not contrary to T enn. Const . art. I, § 3.

IV.

Ms. Wolf and Mr. Bowk er also a ssert that

questioning t

hem con cer ning their religious b eliefs w ith regar d to the dea

th penalty a

mounted to a religiou s test prohibited by Tenn. Con st. art. I, § 6. 3 We disagr ee. Al l parties, including the State, are enti tled to ques tion prospec tive juror s to satisf y themselves that they will be impart

ial and unbia se d. Ms. W olf and Mr. Bowker were not excluded because of their r eligious bel iefs but be causethey state d, in eff ect, that they c ould not be imp artial and unbiased

.4 Ariz. Const. art . 2, § 12; Ca l. Const. art. I, § 4; Md. Const. Declaration of Rights art. 36; Mo. Const. art . I, § 5; N. M. Const. a rt. VII, § 3; N.C. Con st. art. I, § 26; N.D. Const. art. I, § 3; Or. Const. art. I, § 6; Tenn. Const. art. I, § 6; Uta h Const. ar

t. I, § 4; W ash. Const . art. I, § 11; W. Va. Const. art. 3, § 11; Wyo. Const. art. 1, § 18. -8- Many of the early colonists came to America to escape r eligious per secution anddiscrimin ation. They unde rstood “the

extreme dangers a s wellas difficulties of connect ing the civi l power w ith religio us opinions.” 1 Joseph Story, Commentaries on the Constitution of the United States 459 (Bost on, Little, Bro wn & Co. 1891) (“1 S tory”). Two of t he common m anifesta

tions of the entang lement of church an d statewere st ate-esta blished chur

ches and the

use of religi ous tests to exclude religious minorities from public and political life.

Ironical ly, the same p ersons who had fled fro m religiou s persecution in England and Europ e soon began

engaging in the same conduct in th e colonies. State-sponsored religion w as commonp lace by the time of th e Revolutionary War, Martin v. Bee r Bd. for Dicks on, 908 S.W. 2d 941, 948 n.9 (Tenn. Ct. App. 1995), andmany coloni es were

using relig ious tests toimpose burdens an d disabilities of various kind s upon other r eligions de

p ending larg ely upon wha t group happened to be politic ally strongenough to leg islate in f avor of their o wn belief

s. Torcaso v. Watkins, 367 U.S. 488, 4 89-91, 81 S. Ct. 1680, 16 80-82 (1961) ; 2 James Kent, Comment

aries on Am erican Law *35-3 7; 2 Joseph Stor y, Commentaries on the Consti tution of the United States 615-16 (Boston, Little, Brown & Co. 1891) (“2 Stor y”). T he colonists responded t

o thesenew thre ats to individual religious liberty by including strong safeguar ds in the ir early state constitution s and bills of rights . Th irteen state cons titutions cur rently contain proscriptions against the use of religious tests to qualify for jury service. 4
Religious tests pro be religio us beliefs

. Torcaso v. Watkins, 367 U.S. at 494, 81 S. Ct. 1683; Paty v. McDanie l, 547 S.W. 2d 8 97, 907 (Te nn. 1977 ), rev’d on other grounds, 435 U.S. 618, 98 S. Ct. 1322 (1978). Their pu rpose wa s to define qualifica tions to hold publicof

f ice or to pa

rticipate in other im

portant ci vic activities such as testifying as a witness or s erving as a j uror. T hese tests took many forms, including sta tutes rest ricting the right

to hold publicoffice t

o persons5 2 Story, at 617-18.

6 Torcaso v . Watkins

, 367 U.S. at 409, 81 S. Ct. at 1681; 2 Story, at 617.

7 Torcaso v. Watkins, 367 U.S. at 489, 81 S. Ct. at 1680.

8 Constitution or Form of

Governm ent § 3, Proposed Constitution of State of Frankland, 1 Am. Hist. Mag. 48, 55 (1896). In the process of inval idating the Franchise Laws as an unconstitutional political

te st for jury service, the Tennessee Supreme Court noted that “[i]f a Legislature may restrict

the quali fication

to a politic al test, it

may to a religious one, and declare that none save members of a particular denomina tion shall be competent.” Gibbs v. State, 50 Tenn. (3 Heisk.) 72, 77 (1871). -9- who had received Holy Communion during the preceding year, 5 statutes requiring public officia

ls to take t

he Oath of

Suprema cy or to disa

vo w the Doctr

ine of Transubstantiation, 6 constitutional provisions requiri ng h olders of public office to declare their belief in the existence of God, 7 or constitutional disqua lificati ons for public office of persons who broke the Sabbath or who havedisavowed the tenets of a

specificreligious denominatio n. 8

Notwiths tanding the constit utional prohibitio ns against using political tests , the courts have repe atedly appr oved exclud

ing from jury service persons w hose religious beliefs a

ffect th eir abili ty to be impart ial. In a n early de cision upholdi ng the exclusi on of a Qua

ker from a capita l case jur y, Justice Story stat

ed: To insist on a ju

ror’s sit ting in a ca

use when he acknowledges himself tobe under influences, no matter whether they a ris e from int

erest, from pre

judices, or from religious o pinions, w hich w ill preven t him from giving a true verdict according to law and evidence, would be to subver

t the objec ts of

atrial by ju

ry, and to bring into disgra ce a nd contempt , the proc eedings of courts of justice. United States v. Cornell, 25 Cas. 650, 655-56 (C.C.D. R.I . 1820) (No. 14,868). Our courts have cons istently reached the same result , State v. S mith, 893 S.W. 2d 908, 915-16 (T enn. 1994) ; Green v. State, 147 Tenn. 299, 310-12 , 247 S.W . 84, 87-88 (1922) ; Ray v. State, 108 Tenn. 282, 289-90, 67 S.W. 553, 555 (1902), as have the other s tate court s. State v. Willoughby, 892 P.2 d 1319, 1335 (Ariz. 1995); Smith v. Smith, 4 6 P.2d 232, 233 (Cal. Dist. C t. App. 1935); State v. Sandles, 740 S.W. 2d 169, 178 ( Mo. 1987); S tate v. L euch, 88 P.2d 440, 442 (Wash. 1939 ).-10- Tenn. Const. ar

t. I, § 6does not prov ide that pot enti a l jurors w ill be qualified to si t on a ju ry despite religious b eliefs tha

t prevent t

hem from being impartial in a particular case. Accordingly, the Tennessee Supreme Court has concluded thatexamining a juror to ascertain possible religiously motivated bias is not an impermiss ible relig ious tes t under Tenn . Const. art. I, § 6

. State v. J ones, 789 S.W.2 d at 547; State v. Bobo, 727 S.W. 2d at 949. M ore proper ly, Tenn

. Const. art. I, § 6 is in

tended to pr

event the S tate fro m excludingotherwis e qualified persons fr

om servic e on a jury sole ly because of their religious beliefs or lack of rel igious b eliefs.

Both Ms. Wolf and Mr. Bowker s tated that their re ligious belie fs would not permit them to fi nd the fac ts and to apply the law in a capital case. Thus, the trial courts excluded t

hem, not be cause of

their r eligious bel iefs but be cause the ir religious beliefs pr

event ed or

substantial ly impaire d their abi lity, as j urors, to abide by their oa

ths and to fo llow the la w and t he trial court’s in structions. Probing these jurors’ reli gious belief s to test their ability to be impar tial did not violate Ten n. Const. art . I, § 6.

V.

As a final matter, Ms. Wolf and Mr. Bowker asser t that the t

rial cour ts violated Tenn. Const. art. I, § 8 and Tenn . Const. art. XI, § 8 by excluding them from the jury based

on their r eligiously motivated opp osition to the death p enalty. We do not

agree tha t the tria l courts unconstituti onally discr iminated a

gainst Ms. Wolf and Mr. Bowker solely because of thei r religiou s beliefs. The mann er in which th e tr ial courts granted the challenges for cause furthered the State’s obligation toprovide the

parties w ith an impa

rtial, u nbiased jur

y.

Active di scrimina

tion during th e selection

process invites cynicism about the jury’s imp artialit

y. Powers v . Ohio, 499 U.S. at 412, 111 S. Ct. at 1371. Accordi ngly, individual jurors hav e a right t o be subject

ed to nondiscriminatory jury selection

procedur es. Georgia v. McCo llum, 505 U.S. 42, 48-50, 112 S. Ct. 2348, 2353-54 (1992 ); Edmonson v . Leesv ille ConcreteCo. , 500 U.S. 614, 618, 111 S. Ct. 2077, 2081 ( 1991); Woodson v. Port er Brown Limes tone Co., 916-11-

S.W.2 d at 903. Al l persons c hosen for j ury servic e have the right not to b e excluded because of presumed disqualifications based on discr iminato ry or stereotypical presumptions unrelated to their ability to serve as impartia l jurors. J.E.B. v. Alabama ex rel . T.B., 511 U.S. at 143-44, 114 S. Ct. at 1428.

The Uni ted State s Supreme Court has held that pe

rsons whose

religious beliefs prevent th em from c onsidering t he death pena

lty are not a distincti ve group for the purpose

of deter mining whether a jur

y was chos en from a

representative
cross section o f the commun ity. Buchananv. Kentucky, 483 U.S. 402, 415, 107 S. Ct. 2906, 2913 (1987); Lockhart v. McCree, 476 U.S. at 175-76, 106 S. Ct. at 1765-66. The Tennessee Supreme Court has re ached a similar res ult, State v. Harbison, 704 S.W.2d 314, 318 (Tenn. 1986), as have othe r state cou rts. Ex Part e Ford, 515 So. 2d 48, 52-53 (Ala. 1987); People v . Howard, 824 P.2d 1315, 1327 (Cal. 1992); Pope v. State , 345 S.E .2d 8 31, 839 (Ga. 19 86); Stanford v. Commonw ealth, 734 S.W. 2d 781, 785 ( Ky. 1987) ; State v. Y oung, 853 P.2d 327 , 343 (Utah 1993); State v. H ughes, 721 P.2d 902, 906-07 (Wash. 1986).

The public has a

right to expect tha

t juries in capital c ases will

not contain jurors who are unab le or unwil ling to fo llow the law. Buchanan v. Kentucky, 483 U.S. at 416, 107 S. Ct. at 29 14. Rathe r than exc luding perso ns for re asons
unr elated t o their abi lity to serv e as juror s, a tria l court is f

ollowing it s constitutional obligation toprovideall parties with a fair and impartial jury when itexcludes j urors who state that their re ligious belie fs will pr event or su

bstantiall y impair their ability to apply the law to the fac ts of a par ticular c ase. A ccordingly , the trial courts that excluded Ms. Wolf and Mr . Bowker fr om the cap ital case juries did not unco n stitutionally discrimi nate agai nst them be cause of t heir religiou s beliefs.

VI.

In summary, we find

that the practice of excluding from capital case juries persons whose religious beliefs prevent or substant

ially impa

ir their a bility to be impartial does not violate the jurors freedom of conscienc e under T enn. Const . art. I, § 3. We a

lso f ind that qu estioning a prospective juror to determine whethertheir

religious beliefs w ill prevent th em from b eing impar tial is not a

religious t

est prohibited by Tenn. Const. ar t. I, § 6. Finally, we find t hat excludi ng prospecti ve jurors who oppose the death penalty on religious grounds from capital case juries does not violate

the prospe ctive juror’s equal protectio n rights under

Tenn. Const. art. I, § 8 and Tenn. Const. art. XI, § 8.

We affirm

the judgmen

t and rema

nd the case

to the trial court for whatever otherproceedi ngs may be required. We also tax the costs of this appeal to Janet L. Wolf and Gerald S. Bowker a nd their sur

ety for which exec ution, if n ecessar y, may issue

.

_________________ ______ _____ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

_______________ HENRY F. TODD, P.J., M.S.

_________________

_______________ SAMUEL L. LEWIS, JUDGE