FILED

April 23, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

JANET L. WOLF and )

GERALD S. BOWKER, )

individually and as representatives )

of all similarly situated individuals, )

)

Plaintiffs/Appellants, )

)

)

VS. )

)

) Davidson Circuit

DON SUNDQUIST, in his official ) No. 94C-4094

capacity as Governor of the State of )

Tennessee; JOHN KNOX WALKUP, )

in his official capacity as Attorney ) Appeal No.

General of the State of Tennessee; ) 01A01-9505-CV-00209

VICTOR S. JOHNSON, III, in his )

official capacity as District Attorney )

General for the 20th Judicial District )

for the State of Tennessee, and )

DAN M. ALSOBROOKS, in his official )

capacity as District Attorney General )

for the 23rd Judicial District of the State )

of Tennessee, and as representatives )

of all District Attorneys General in the )

State of Tennessee, )

)

Defendants/Appellees. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE

For the Plaintiffs/Appellants: For the Defendants/Appellees:

Irwin Venick Jerry L. Smith

DOBBINS & VENICK Deputy Attorney General

Nashville, Tennessee Nashville, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
1Mr. Dugger was found guilty of first degree murder and received 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).

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O P I N I O N

This appeal involves the right of persons unalterably opposed to the death

penalty to serve as jurors in capital murder cases. Two persons who had been

excused for cause in separate capital cases filed suit in the Circuit Court for

Davidson County, seeking a declaration that excusing prospective jurors who, as

a matter of religious conscience, could not consider imposing the death penalty

violated the prospective jurors’ constitutional rights. The trial court dismissed the

complaint, and the jurors appealed. We have determined that the practice of

excluding jurors whose religious principles prevent them from considering the

death penalty regardless of the law and the evidence is not an unconstitutional

religious test, does not violate the jurors’ constitutionally protected freedom of

religion, and does not unconstitutionally discriminate against these jurors.

Accordingly, we affirm the judgment.

I.

Janet L. Wolf is an ordained Methodist minister who resides in Nashville.

She was summoned for jury duty in 1990 and was among the panel of prospective

jurors in the first degree murder trial of William C. Dugger for the 1989 murder

of Robin Boswell in Percy Warner Park.1

 During the voir dire, the assistant

district attorneys general questioned the prospective jurors about their ability to

consider imposing the death penalty because the State had announced its intention

to seek the death penalty against Mr. Dugger. In response to these questions, Ms.

Wolf stated that she was philosophically, morally, and religiously opposed to the

death penalty and that she could not set aside her personal opposition to the death

penalty, even if the law required her to, because she believed that “it’s always

wrong.” The trial court granted the State’s challenge for cause because “her views

would prevent or substantially impair the performance of her duties as a juror in

accordance with the jury instructions and oath.” 
2Messrs. Hall and Quintero were found guilty of first degree murder. They received the

death penalty for the murder of Ms. Vester and a life sentence for the murder of Mr. Vester.

State v. Hall, App. No. 01C01-9311-CC-00409, 1997 WL 92080, at *1 (Tenn. Crim. App. Mar.

5, 1997).

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Gerald S. Bowker resides in New Johnsonville and is a member of the

Southern Baptist Church. In October 1991, he was summoned for jury duty by the

Circuit Court for Humphreys County and was one of the prospective jurors in the

trial of William EugeneHall and Derrick Desmond Quintero, two escaped inmates

charged with the first degree murder of Buford and Myrtle Vester.2 The trial court

and the lawyers questioned Mr. Bowker and the other jurors about their attitudes

concerning the death penalty because the State was seeking the death penalty in

the case. During voir dire, Mr. Bowker stated that he was a Christian and that he

had been brought up to believe that the death penalty was wrong. He also stated

that he could not set aside his personal opinions about the death penalty and that

he could never impose the death penalty regardless of the law or the evidence.

Based on these responses, the trial court excused Mr. Bowker from the jury. Mr.

Bowker was one of sixteen jurors who were excused because their religious

beliefs played a role in their refusal to consider imposing the death penalty. State

v. Hall, supra note 2, 1997 WL 92080, at *18 n.7. 

 In December 1994, Ms. Wolf and Mr. Bowker filed a class action suit in

the Circuit Court for Davidson County seeking declaratory relief that excluding

persons from serving on juries in capital cases because of their religious

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 enjoin using challenges for cause

to exclude prospective jurors in capital cases whose religious beliefs prevent them

from considering the death penalty. In support of their request for injunctive

relief, Ms. Wolf and Mr. Bowker presented affidavits from Protestant, Roman

Catholic, and Jewish leaders stating that personal opposition to the death penalty

was a valid exercise of religious conscience. Several of these affiants also

expressed their belief that excluding persons who oppose the death penalty on

religious grounds from juries in capital cases penalized them for expressing their

individual consciences. The trial court denied the application for declaratory and

injunctive relief because the Tennessee Supreme Court had already determined in
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State v. Jones, 789 S.W.2d 545, 547 (Tenn. 1990) and State v. Bobo, 727 S.W.2d

945, 949 (Tenn. 1987) that excluding jurors who opposed the death penalty on

religious grounds did not violate Tenn. Const. art. I, § 6. 

II. 

The right to trial by jury secured by our state and federal constitutions

necessarily contemplates that the jury will be unbiased and impartial. Thiel v.

Southern Pacific Co., 328 U.S. 217, 220, 66 S. Ct. 984, 985 (1946); Ricketts v.

Carter, 918 S.W.2d 419, 421 (Tenn. 1996); Durham v. State, 182 Tenn. 577, 584,

188 S.W.2d 555, 558 (1945). In its constitutional sense, impartiality envisions not

only freedom from jury bias against the defendant but also freedom from jury bias

in the defendant’s favor. Swain v. Alabama, 380 U.S. 202, 219-20, 85 S. Ct. 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 267, 272 (Tenn. 1980), rev’d on other grounds,

State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992); Toombs v. State, 197 Tenn.

229, 231-32, 270 S.W.2d 649, 650 (1954). 

An impartial jury consists of jurors who will find the facts and

conscientiously apply the law. Buchanan v. Kentucky, 483 U.S. 402, 417, 107 S.

Ct. 2906, 2914 (1987); Wainwright v. Witt, 469 U.S. 412, 423, 105 S. Ct. 844,

851-52 (1985). To be considered impartial, a juror must be free of personal bias

and must be indifferent and disinterested between the parties. Eason v. State, 65

Tenn. 466, 469 (1873). Unbiased jurors do not give free rein to their own biases

or prejudices, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 153, 114 S. Ct. 1419,

1434 (1994) (Kennedy, J., concurring), and are able to follow the trial court’s

instructions. Lockett v. Ohio, 438 U.S. 586, 596-97, 98 S. Ct. 2954, 2960 (1978).

The courts are not strangers to issues involving the exclusion of prospective

jurors whose opposition to the death penalty affects their ability to follow the law

and the instructions 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 section of the community. It is now settled that a criminal

defendant’s constitutional rights are not violated by excusing prospective jurors
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for cause when their personal beliefs concerning the death penalty would prevent

or substantially impair their performance as a juror in accordance with their

instructions and their oath. Wainwright v. Witt, 469 U.S. at 424, 105 S. Ct. at 852;

Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526 (1980); State v.

Hutchison, 898 S.W.2d 161, 167 (Tenn. 1994); State v. Alley, 776 S.W.2d 506,

518 (Tenn. 1989).

This appeal implicates different constitutional rights. Instead of focusing

on a criminal defendant’s rights, it focuses on the constitutional rights of persons

whose religious beliefs prevent or substantially impair their ability to consider

imposing the death penalty. This right is of constitutional significance because

providing all citizens with an opportunity to participate in the fair administration

of justice is fundamental to our democratic system. J.E.B. v. Alabama ex rel. T.B.,

511 U.S. at 146, 114 S. Ct. at 1430; Powers v. Ohio, 499 U.S. 400, 407, 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 construe our constitution as a whole and must harmonize and give

effect to each of its provisions, 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 not permit the language of one provision

to render another provision ineffective. Vollmer v. City of Memphis, 792 S.W.2d

446, 448 (Tenn. 1990). Accordingly, the contours of a prospective juror’s right

to serve on a jury should be consistent with those of a criminal defendant’s right

to a jury trial. These rights, after all, share a common purpose - to assure that

juries are fairly chosen and impartial.

III.
-6-

Ms. Wolf and Mr. Bowker first assert that excluding them from jury service

in capital cases because of their religiously motivated opposition to the death

penalty violates Tenn. Const. art. I, § 3. They insist that the trial judges interfered

with their right of conscience by excluding them from serving on the juries

empaneled to try Mr. Dugger and Messrs. Hall and Quintero. We respectfully

disagree. Excluding them from service on these juries did not unconstitutionally

infringe on their constitutionally protected freedom of conscience.

Both Tenn. Const. art. I, § 3 and the First Amendment to the United States

Constitution protect individual religious freedom. They guarantee to all the right

“to entertain such notions respecting his [or her] relations to his [or her] Maker

and the duties they impose as may be approved by his [or her] judgment and

conscience.” 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 religious beliefs are constitutionally protected, they are not

superior to all other fundamental principles that bind society together. Wisconsin

v. Yoder, 406 U.S. 205, 215-16, 92 S. Ct. 1526, 1533 (1972); Reynolds v. United

States, 98 U.S. 145, 166-67 (1879). 

While Tenn. Const. art. I, § 3 is similar to the First Amendment, Carden v.

Bland, 199 Tenn. 665, 672, 288 S.W.2d 718, 721 (1956), it contains substantially

stronger protections of religious freedom. State ex rel. Swann v. Pack, 527

S.W.2d 99, 107 (Tenn. 1975). Notwithstanding the breadth of this provision, the

Tennessee Supreme Court, like the United States Supreme Court, has recognized

that “[t]he law of intellectual and spiritual life is not the higher law, but must yield

to the law of the land.” Landrith v. Hudgins, 121 Tenn. 556, 658, 120 S.W. 783,

809 (1908) (quoting In re Schnorr’s Appeal, 67 Pa. 138, 146-47 (1870)).

The struggle for religious liberty through the centuries has been an effort

to accommodate the demands of the State to the conscience of the individual.

Girouard v. United States, 328 U.S. 61, 68, 66 S. Ct. 826, 829 (1946). Both

Tenn. Const. art. I, § 3 and the First Amendment embody our founding fathers’

efforts to balance individual religious freedom, the rights of others, and all

citizens’ shared societal responsibilities. The courts maintain this equilibrium by
3Ms. Wolf and Mr. Bowker also rely on Tenn. Const. art. I, § 4 which prohibits using

political or religious tests for “any office or public trust under this State.” We do not find this

section to be applicable because Tenn. Const. art. I, § 6 governs the qualifications of jurors. 

-7-

recognizing that religious freedom embodies two complementary concepts - the

freedom to believe and the freedom to act. The freedom to believe is absolute;

while the freedom to act is subject to reasonable control for the protection 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.2d 708, 711 (1948); Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d

383, 389-90 (Tenn. Ct. App. 1983). 

Being excluded from service on a jury in a capital case does not infringe

upon a person’s religiously motivated opposition to the death penalty. These

persons remain free to follow and to assert their beliefs. While excluding these

persons from juries in capital cases affects their ability to translate their religious

beliefs into action, Tenn. Const. art. I, § 3 does not prevent the State from

controlling religiously motivated actions for the good of society. In light of the

affirmative constitutional mandate to provide impartial juries in criminal 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 instructions. Thus, excluding prospective jurors who oppose the death

penalty on religious grounds is not contrary to Tenn. Const. art. I, § 3.

IV.

Ms. Wolf and Mr. Bowker also assert that questioning them concerning

their religious beliefs with regard to the death penalty amounted to a religious test

prohibited by Tenn. Const. art. I, § 6.3 We disagree. All parties, including the

State, are entitled to question prospective jurors to satisfy themselves that they

will be impartial and unbiased. Ms. Wolf and Mr. Bowker were not excluded

because of their religious beliefs but because they stated, in effect, that they could

not be impartial and unbiased. 
4Ariz. Const. art. 2, § 12; Cal. Const. art. I, § 4; Md. Const. Declaration of Rights art. 36;

Mo. Const. art. I, § 5; N.M. Const. art. VII, § 3; N.C. Const. art. I, § 26; N.D. Const. art. I, § 3;

Or. Const. art. I, § 6; Tenn. Const. art. I, § 6; Utah Const. art. I, § 4; Wash. Const. art. I, § 11;

W. Va. Const. art. 3, § 11; Wyo. Const. art. 1, § 18.

-8-

Many of the early colonists came toAmerica to escape religious persecution

and discrimination. They understood “the extreme dangers as well as difficulties

of connecting the civil power with religious opinions.” 1 Joseph Story,

Commentaries on the Constitution of the United States 459 (Boston, Little, Brown

& Co. 1891) (“1 Story”). Two of the common manifestations of the entanglement

of church and state were state-established churches and the use of religious tests

to exclude religious minorities from public and political life.

Ironically, the same persons who had fled from religious persecution in

England and Europe soon began engaging in the same conduct in the colonies.

State-sponsored religion was commonplace by the time of the Revolutionary War,

Martin v. Beer Bd. for Dickson, 908 S.W.2d 941, 948 n.9 (Tenn. Ct. App. 1995),

and many colonies were using religious tests to impose burdens and disabilities

of various kinds upon other religions depending largely upon what group

happened to be politically strong enough to legislate in favor of their own beliefs.

Torcaso v. Watkins, 367 U.S. 488, 489-91, 81 S. Ct. 1680, 1680-82 (1961); 2

James Kent, Commentaries on American Law *35-37; 2 Joseph Story,

Commentaries on the Constitution of the United States 615-16 (Boston, Little,

Brown & Co. 1891) (“2 Story”). The colonists responded to these new threats to

individual religious liberty by including strong safeguards in their early state

constitutions and bills of rights. Thirteen state constitutions currently contain

proscriptions against the use of religious tests to qualify for jury service.4

Religious tests probe religious beliefs. Torcaso v. Watkins, 367 U.S. at 494,

81 S. Ct. 1683; Paty v. McDaniel, 547 S.W.2d 897, 907 (Tenn. 1977), rev’d on

other grounds, 435 U.S. 618, 98 S. Ct. 1322 (1978). Their purpose was to define

qualifications to hold public office or to participate in other important civic

activities such as testifying as a witness or serving as a juror. These tests took

many forms, including statutes restricting the right to hold public office to persons
5

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.

8Constitution or Form of Government § 3, Proposed Constitution of State of Frankland,

1 Am. Hist. Mag. 48, 55 (1896). In the process of invalidating the Franchise Laws as an

unconstitutional political test for jury service, the Tennessee Supreme Court noted that “[i]f a

Legislature may restrict the qualification to a political test, it may to a religious one, and declare

that none save members of a particular denomination shall be competent.” Gibbs v. State, 50

Tenn. (3 Heisk.) 72, 77 (1871).

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who had received Holy Communion during the preceding year,5

 statutes requiring

public officials to take the Oath of Supremacy or to disavow the Doctrine of

Transubstantiation,6

 constitutional provisions requiring holders of public office

to declare their belief in the existence of God,7

 or constitutional disqualifications

for public office of persons who broke the Sabbath or who have disavowed the

tenets of a specific religious denomination.8 

Notwithstanding the constitutional prohibitions againstusing political tests,

the courts have repeatedly approved excluding from jury service persons whose

religious beliefs affect their ability to be impartial. In an early decision upholding

the exclusion of a Quaker from a capital case jury, Justice Story stated:

To insist on a juror’s sitting in a cause when he

acknowledges himself to be under influences, no matter

whether they arise from interest, from prejudices, or

from religious opinions, which will prevent him from

giving a true verdict according to law and evidence,

would be to subvert the objects of a trial by jury, and to

bring into disgrace and contempt, the proceedings 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 consistently reached the same result, State v. Smith, 893 S.W.2d

908, 915-16 (Tenn. 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 state courts. State v. Willoughby, 892 P.2d 1319, 1335 (Ariz.

1995); Smith v. Smith, 46 P.2d 232, 233 (Cal. Dist. Ct. App. 1935); State v.

Sandles, 740 S.W.2d 169, 178 (Mo. 1987); State v. Leuch, 88 P.2d 440, 442

(Wash. 1939). 
-10-

Tenn. Const. art. I, § 6 does not provide that potential jurors will be

qualified to sit on a jury despite religious beliefs that prevent them from being

impartial in a particular case. Accordingly, the Tennessee Supreme Court has

concluded that examining a juror to ascertain possible religiously motivated bias

is not an impermissible religious test under Tenn. Const. art. I, § 6. State v. Jones,

789 S.W.2d at 547; State v. Bobo, 727 S.W.2d at 949. More properly, Tenn.

Const. art. I, § 6 is intended to prevent the State from excluding otherwise

qualified persons from service on a jury solely because of their religious beliefs

or lack of religious beliefs. 

Both Ms. Wolf and Mr. Bowker stated that their religious beliefs would not

permit them to find the facts and to apply the law in a capital case. Thus, the trial

courts excluded them, not because of their religious beliefs but because their

religious beliefs prevented or substantially impaired their ability, as jurors, to

abide by their oaths and to follow the law and the trial court’s instructions.

Probing these jurors’ religious beliefs to test their ability to be impartial did not

violate Tenn. Const. art. I, § 6. 

V.

As a final matter, Ms. Wolf and Mr. Bowker assert that the trial courts

violated Tenn. Const. art. I, § 8 and Tenn. Const. art. XI, § 8 by excluding them

from the jury based on their religiously motivated opposition to the death penalty.

We do not agree that the trial courts unconstitutionally discriminated against Ms.

Wolf and Mr. Bowker solely because of their religious beliefs. The manner in

which the trial courts granted the challenges for cause furthered the State’s

obligation to provide the parties with an impartial, unbiased jury.

Active discrimination during the selection process invites cynicism about

the jury’s impartiality. Powers v. Ohio, 499 U.S. at 412, 111 S. Ct. at 1371.

Accordingly, individual jurors have a right to be subjected to nondiscriminatory

jury selection procedures. Georgia v. McCollum, 505 U.S. 42, 48-50, 112 S. Ct.

2348, 2353-54 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 618,

111 S. Ct. 2077, 2081 (1991); Woodson v. Porter Brown Limestone Co., 916
-11-

S.W.2d at 903. All persons chosen for jury service have the right not to be

excluded because of presumed disqualifications based on discriminatory or

stereotypical presumptions unrelated to their ability to serve as impartial jurors.

J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 143-44, 114 S. Ct. at 1428.

 The United States Supreme Court has held that persons whose religious

beliefs prevent them from considering the death penalty are not a distinctive group

for the purpose of determining whether a jury was chosen from a representative

cross section of the community. Buchanan v. 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 reached a similar result, State v.

Harbison, 704 S.W.2d 314, 318 (Tenn. 1986), as have other state courts. Ex Parte

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 831, 839 (Ga. 1986); Stanford v.

Commonwealth, 734 S.W.2d 781, 785 (Ky. 1987); State v. Young, 853 P.2d 327,

343 (Utah 1993); State v. Hughes, 721 P.2d 902, 906-07 (Wash. 1986).

The public has a right to expect that juries in capital cases will not contain

jurors who are unable or unwilling to follow the law. Buchanan v. Kentucky, 483

U.S. at 416, 107 S. Ct. at 2914. Rather than excluding persons for reasons

unrelated to their ability to serve as jurors, a trial court is following its

constitutional obligation to provide all parties with a fair and impartial jury when

it excludes jurors who state that their religious beliefs will prevent or substantially

impair their ability to apply the law to the facts of a particular case. Accordingly,

the trial courts that excluded Ms. Wolf and Mr. Bowker from the capital case

juries did not unconstitutionally discriminate against them because of their

religious beliefs. 

VI.

In summary, we find that the practice of excluding from capital case juries

persons whose religious beliefs prevent or substantially impair their ability to be

impartial does not violate the jurors freedom of conscience under Tenn. Const. art.

I, § 3. We also find that questioning a prospective juror to determine whether
their religious beliefs will prevent them from being impartial is not a religious test

prohibited by Tenn. Const. art. I, § 6. Finally, we find that excluding prospective

jurors who oppose the death penalty on religious grounds from capital case juries

does not violate the prospective juror’s equal protection rights under Tenn. Const.

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

We affirm the judgment and remand the case to the trial court for whatever

other proceedings may be required. We also tax the costs of this appeal to Janet

L. Wolf and Gerald S. Bowker and their surety for which execution, if necessary,

may issue. 

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

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

________________________________

SAMUEL L. LEWIS, JUDGE