     IN THE COURT OF APPEALS OF TENNESSEE
          MIDDLE SECTION AT NASHVILLE

JANET L. WOLF and                           )
GERALD S. BOWKER,
individually and as representatives
                                            )
                                            )
                                                       FILED
of all similarly situated individuals,      )             April 23, 1997
                                            )
       Plaintiffs/Appellants,               )          Cecil W. Crowson
                                            )         Appellate Court Clerk
                                            )
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
                                   OPINION

       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.”



       1
        Mr. 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).

                                             -2-
       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 Eugene Hall 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



       2
         Messrs. 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).

                                             -3-
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

                                        -4-
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.




                                          -5-
      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

                                          -6-
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.




       3
         Ms. 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-
        Many of the early colonists came to America 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




        4
       Ariz. 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-
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 against using 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).




        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.
        8
        Constitution 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).

                                                 -9-
      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

                                        -10-
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

                                         -11-
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
