dissenting.
At the risk of being accused of attempting to retard “efforts to progress as a multicultural society,” I dissent. The majority opinion represents yet another step backwards in the important business of insuring fair trials in criminal cases for what is perceived to be the “greater good” of making sure people do not exercise peremptory challenges based on improper thoughts.
So we do not completely lose our focus here, I briefly set out the facts of the case. The evidence shows the twenty-one-year-old appellant and his friend sexually assaulted a fourteen-year-old girl, who testified she never had had sexual intercourse prior to this incident. During the assault, appellant threatened the victim more than once, he punched her in the nose and appellant’s friend cut off her shirt with a knife. Appellant and his friend did unspeakably horrible things to the child-victim.
Contrary to the majority’s assertion, the voir dire record in this case actually reflects the prosecutor struck one of the venire-members because she had “a brother currently in the Texas penitentiary, she was a postal clerk and she expressed discomfort with the law as it regards sexual assault of a child.” Casarez v. State, 857 S.W.2d 779, 782 (Tex.App.—Fort Worth 1993). The prosecutor struck the other veniremember because his “brother had been arrested, he incorrectly completed his juror questionnaire, and the questioning during voir dire left the prosecutor with the impression that he was somewhat slow.” Id. The prosecutor struck both veniremembers also because they were Pentecostals. Id. The prosecutor explained that based on his experience, Pentecostals often had difficulty assessing punishment. Id. On this record, the peremptory challenges were proper, and this Court does not need to decide whether Batson should be extended to “religious-based” peremptory challenges.1 Cf. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Hill v. State, 827 S.W.2d 860, 866-68 (Tex.Cr.App.) (plurality op.), cert. denied, 506 U.S. 905, 113 S.Ct. 297-98, 121 L.Ed.2d 221 (1992) (race properly may be a factor coexisting with a nonracial reason for a peremptory *482strike); Casarez, 857 S.W.2d at 788-89 (Hopkins, J., concurring).
I also dissent to the majority’s apparent holding that religious-based peremptory challenges are subject to strict scrutiny review under the Equal Protection Clause of the Fourteenth Amendment. The applicable rule is that “unless a classification warrants some form of heightened review because it jeopardizes [the] exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.” Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2332-33, 120 L.Ed.2d 1 (1992).2
The majority seems to find that religious-based peremptory challenges violate the First Amendment triggering a strict scrutiny review. The majority mostly relies on United States Supreme Court First Amendment cases dealing with statutes that burdened a group’s free exercise of its religion. However, in this case, the majority does not, and cannot, explain how religious-based peremptory challenges, directly or incidentally, burden the free exercise of religion. See Johnson v. Robison, 415 U.S. 361, 375, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389 (1974). At most, appellant can show only that some members of some religious groups may be excluded from sitting on juries in some, but not all, cases. And, the stricken veniremembers in this case offered no evidence the exercise of their religion was in any way affected by the strikes.3
The majority also cites Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). Larson held a Minnesota statute that granted a denominational preference implicated the Establishment Clause of the First Amendment because the statute preferred “one religion over another.” Larson, 456 U.S. at 245-56, 102 S.Ct. at 1684-89. Religious-based peremptory challenges do not constitute governmental action preferring one religion over another; therefore, Larson offers no support for the majority’s holding. But see J.E.B. v. Alabama, — U.S. -, -, 114 S.Ct. 1419, 1438, 128 L.Ed.2d 89 (1994) (Scalia, J., dissenting).
The majority also relies on Juarez v. State, 277 S.W. 1091 (1925). Juarez stands only for the proposition that a state may not systemically exclude all members of religious groups from ever serving as grand jurors. Juarez, 277 S.W. at 1094. Juarez is factually distinguishable from this case. In addition, Juarez contains no standard for reviewing religious classifications, and the purposes for the religious classifications in Juarez would not withstand even a “rational relationship” standard of review. See Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 82-84, 108 S.Ct. 1645, 1653, 100 L.Ed.2d 62 (1988) (singling out a cognizable group in an arbitrary and irrational fashion violates the Equal Protection Clause even under the most deferential standard of review).
Religious-based peremptory challenges do not violate the Establishment or the Free Exercise Clauses of the First Amendment, and it has never been held that any religious group is a “suspect class deserving special judicial protection” for Fourteenth Amendment purposes. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520 (1976) (a “suspect class” is one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process”); Johnson, 415 U.S. 361, 375, 94 S.Ct. 1160, 1169. Therefore, I would hold religious-based per*483emptory challenges are not subject to strict scrutiny review.4
Also, because the history of religious discrimination in this Country does not occupy the same plane as the history of race and sex discrimination, I would hold that religious-based peremptory challenges should be reviewed under a less exacting standard than either strict or intermediate scrutiny, and that a party’s valuable right in obtaining a fail- and impartial jury, and a jury the party believes is fair and impartial, justifies the use of peremptory challenges based on religious stereotypes.5 See State v. Davis, 504 N.W.2d 767 (Minn.1993), cert. denied, — U.S. -, 114 S.Ct. 2120, 128 L.Ed.2d 679 (May 23, 1994) (Batson not extended to religious-based peremptory challenges); cf. J.E.B., — U.S. at -, 114 S.Ct. at 1429; but see J.E.B., — U.S. at -, 114 S.Ct. at 1439 (Scalia, J., dissenting) (Batson applies to any peremptory challenge based on a classification that is accorded “heightened scrutiny” under the Equal Protection Clause “which presumably would include religious belief’). Therefore, religious-based peremptory challenges should be exempted from the “special rule of relevance” of Batson and the subsequent cases it spawned extending this rule to other situations. See Davis, 504 N.W.2d at 771.6
*484I also urge that the social experiment started in Batson be aborted, and that both parties in a criminal case be allowed the traditional free use of their peremptory challenges. See J.E.B., — U.S. at -, 114 S.Ct. at 1431-33 (O’Connor, J., concurring), and at 1437 (Scalia, J., dissenting); see generally Weatherspoon, 514 N.W.2d at 270-301. This is necessary to help insure fair and impartial juries for both sides in criminal cases, which is still supposed to be one of the paramount goals of a criminal trial.7 See J.E.B., — U.S. at -, 114 S.Ct. at 1431-33 (O’Connor, J., concurring); Weatherspoon, 514 N.W.2d at 270-301. Fair criminal trials are too important to the administration of justice in this State for the kind of nonsense Batson and its progeny promote. See Weatherspoon, 514 N.W.2d at 270-301, 274.
Batson and its progeny should be read in light of this Country’s history of racial discrimination, and the precedents upon which Batson relies. In the light of this history and these precedents, Batson and its progeny are fundamentally flawed because they ignore the real purpose of the Equal Protection Clause, and the valid purposes for which peremptory challenges presently are exercised. Batson and its progeny pervert this Country’s quest for racial equality and an end to legal segregation in the really important affairs of public life into a misguided and counter-productive exercise of which private thoughts the Constitution will tolerate, and which private thoughts it will not tolerate. See J.E.B., — U.S. at -, 114 S.Ct. at 1438 (Scalia, J., dissenting).
The central purpose of the Fourteenth Amendment’s Equal Protection Clause “is the prevention of official conduct discriminating on the basis of race.” Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976).8 The Equal Protection Clause is intended to prevent disparate treatment by all the resources of a state of cognizable racial groups which is “motivated by racial considerations” or a “purpose or intent to segregate.”9 Davis, 426 U.S. at 240, 96 S.Ct. at 2048. An “invidious” racially discriminatory purpose or an intent to segregate must exist to implicate the Equal Pro*485tection Clause.10 See Davis, 426 U.S. at 238-44, 96 S.Ct. at 2047-49. “Discriminatory purpose” implies “more than intent as volition or intent as awareness of consequences;” it implies that the sovereign “selected or reaffirmed a particular course of action in part because of, not merely in spite of, its adverse effects upon an identifiable group.”11 Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 278-80, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979) (internal quotation marks omitted).
Batson seemed to reaffirm this understanding of the Equal Protection Clause because Batson only attempted to lessen a defendant’s burden of proof in establishing a prima facie case of invidious racial discrimination in the prosecution’s use of its peremptory challenges than what existed under pri- or law. See Batson, 476 U.S. at 83-101, 106 S.Ct. at 1716-25. In Batson, the defendant was black, the prosecution peremptorily struck every black veniremember, and a “jury composed only of white persons was selected.”12 Batson, 476 U.S. at 83, 106 S.Ct. at 1715. Now, under Batson, at least as this Court has interpreted it, a defendant can make a prima facie case of invidious racial discrimination in the prosecution’s use of its peremptory challenges even where members of the defendant’s race actually serve on the jury. See, e.g., Keeton v. State, 749 S.W.2d 861, 862-63 (Tex.Cr.App.1988); but cf. Akins v. Texas, 325 U.S. 398, 405, 65 S.Ct. 1276, 1280, 89 L.Ed. 1692 (1945).
Batson and its progeny, in effect, now say it violates Equal Protection for a party to exercise peremptory challenges based solely on racial and sexual stereotypes, which abandons the traditional Equal Protection inquiry into whether peremptory challenges are motivated by invidious discriminatory purposes. See J.E.B., — U.S. at -, 114 S.Ct. at 1426-30. But, Batson was an extension of Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), which invalidated a West Virginia statute that excluded all black people from the initial impanelment of the venire pool. See also Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). And, Swain, which Batson later overruled, addressed a practice where prosecutors peremptorily struck every black person in every case so that no black person ever sat on a petit jury.13 See Swain, 380 U.S. at 222-29, 85 S.Ct. at 837-40; see also Weatherspoon, 514 N.W.2d at 273, 284. Even J.E.B. relies *486on eases where women were totally excluded from the initial impanelment of the jury veni-re, voting and other forms of “civic life.” J.E.B., — U.S. at -, 114 S.Ct. at 1422-26. These precedents dealt with state action motivated by invidious discriminatory purposes that generally affected “cognizable groups.”14
These jury selection practices do not occur now. States do not systemically exclude blacks and women from ever sitting on juries, and parties do not exercise peremptory challenges for invidious discriminatory purposes; they exercise them to win their case. See, e.g., J.E.B., - U.S. at -, 114 S.Ct. at 1437 (Scalia, J., dissenting) (the pattern of peremptory challenges displayed not a systemic sex-based animus but each side’s desire to get a jury favorably disposed to its case); Swain, 380 U.S. at 222-23, 85 S.Ct. at 837 (acceptable considerations in exercising peremptory challenges are those related to the particular case, the particular defendant involved, and the particular crime charged); Weatherspoon, 514 N.W.2d at 286-301. When a party exercises a peremptory on a veniremember based on a group stereotype, he does so usually because he feels the veniremember will be biased in favor of the other side, a valid purpose, and not because it is his “purpose or intent to segregate” or to keep all members of that veniremember’s racial or sexual group from ever sitting on a jury, an invidious discriminatory purpose.15 See, e.g., Swain, 380 U.S. at 218-22, 85 S.Ct. at 835-36 (one purpose of the peremptory challenge is to eliminate extremes of impartiality on both sides).16 Peremptory challenges so motivated surely do “not violate the sovereign’s duty to govern impartially.” See F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 323, 113 S.Ct. 2096, 2106, 124 L.Ed.2d 211 (1993) (Stevens, J., concurring).
Even the stereotypes upon which peremptory strikes are based are different from the “officially disapproved” stereotypes set out in many of the cases upon which Batson and J.E.B. rely. The primary evil identified in these cases was classifications, which were usually statutory, that served “to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women” and whites and blacks. See J.E.B., — U.S. at -, 114 S.Ct. at 1422. But now, peremptory challenges based on race and sex-based stereotypes usually have something to do with the particular case which causes the lawyer to believe the veniremember will not be a fair and impartial juror. These challenges are not based on any stereotypes about the relative abilities of men and women and blacks and whites, and this practice does not “reinforce the same stereotypes about [blacks’ and womens’] com*487petence or predispositions that have been used to prevent them from voting, participating on juries, pursuing their chosen professions, or otherwise contributing to civic life.” See J.E.B., — U.S. at - fn. 14, 114 S.Ct. at 1428 fn. 14; Batson, 476 U.S. at 85-86, 106 S.Ct. at 1717 (it violates Equal Protection to exclude members from the jury venire on account of race based on the false assumption that members of that race as a group are not qualified to serve as jurors); Weatherspoon, 514 N.W.2d at 270-801.
Peremptory challenges, as they are used now, should not be held to be based on constitutionally impermissible purposes or constitutionally impermissible thoughts.17 Cases like Batson and J.E.B. ill-advisedly apply precedents involving the systemic exclusion of blacks and women from ever sitting on juries to situations where these practices do not occur. Compare Batson, 476 U.S. at 86-88, 106 S.Ct. at 1718, with, Batson, 476 U.S. at 120-24, 106 S.Ct. at 1736-37 (Burger, C.J., dissenting). Most Equal Protection precedents deal with statutory classifications that generally affected all members of an identifiable group. No one would argue it violates Equal Protection for a statute to treat members of all groups more or less the same, although not with exact mathematical precision. This is how peremptory challenges operate since members of all groups in all cases are subject to a peremptory challenge based on a stereotype about that group. See J.E.B., — U.S. at -, 114 S.Ct. at 1437 (since all groups are subject to the peremptory challenge, it is hard to see how any group is denied equal protection). And, although members of a particular group may not serve on a jury in a particular case, they do serve on juries in other cases. This is all the Constitution should require.18
The use of peremptory challenges are not motivated by race or sex discrimination as such, and they cannot “ultimately be traced to a racially discriminatory purpose” of the type the Equal Protection Clause was really meant to prohibit. See Batson, 476 U.S. at 92-94, 106 S.Ct. at 1721 (the ‘invidious quality1 of governmental action claimed to be racially discriminatory ‘must ultimately be traced to a racially discriminatory purpose’). Batson and its progeny cross the line from preventing the systemic exclusion of “cognizable groups” from ever sitting on a petit jury to making sure people “think right.” See Weatherspoon, 514 N.W.2d at 276, 278.
Also, it cannot be overemphasized that the time-tested, traditional free use of the peremptory challenge is a valuable right to both sides in a criminal trial:
“The principal value of the peremptory is that it helps produce fair and impartial juries. (Citations Omitted) Peremptory challenges, by enabling each side to exclude those jurors it believes will be most *488partial toward the other side, are a means of eliminat[ing] extremes of partiality on both sides, thereby assuring the selection of a qualified and unbiased jury. (Citation Omitted) The peremptory’s importance is confirmed by its persistence: it was well established at the time of Blackstone and continues to endure in all the States.” J.E.B., — U.S. at -, 114 S.Ct. at 1431 (O’Connor, J., concurring).
The peremptory by its nature is “an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose (citations omitted).” J.E.B., — U.S. at -, 114 S.Ct. at 1438 (Scalia, J., dissenting) (emphasis supplied); see also J.E.B., — U.S. at -, 114 S.Ct. at 1431 (O’Connor, J., concurring) (essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control); Batson, 476 U.S. at 122-24, 106 S.Ct. at 1737 (Burger, C.J., dissenting).
With an understanding of the value of the peremptory challenge and the valid purposes for which it is used, the free use of peremptory challenges should withstand even strict scrutiny equal protection analysis. See Weatherspoon, 514 N.W.2d at 281 (free use of peremptory challenges should take precedence over social experiments in jury selection). But, it does not, and we must ask for what important reason, besides making sure peremptory challenges are not based on improper thoughts, the Supreme Court continues to limit the traditional free use of peremptory challenges. Does the free use of peremptory challenges deprive a defendant of a fair trial? Does the practice of totally excluding blacks and women or other “cognizable groups” from the initial impanelment of the venire continue? Are parties using their peremptories to strike blacks and women or other members of “cognizable groups” in every case so that they will never sit on a petit jury?
The answer to all of these questions, of course, is, “no.” See, e.g., Holland v. Illinois, 493 U.S. 474, 480-488, 110 S.Ct. 803, 807-11, 107 L.Ed.2d 905 (1990) (peremptory challenges based on racial stereotypes do not produce an unfair jury, and in some circumstances it may increase fairness); see also Powers, 499 U.S. at 425-27, 429-31, 111 S.Ct. at 1379, 1381 (Scalia, J., dissenting) (Batson error entitles the guilty to relief even though the error has not harmed them); Batiste v. State, 888 S.W.2d 9 (Tex.Cr.App.1994) (Mot. for reh’g filed October 31,1994). And, many blacks and women in this Country serve on juries, vote and otherwise participate in civic life; they did so when Batson was decided, and they will continue to do so with or without Batson.
The expressed justifications advanced for continuing to limit a party’s valuable right to freely use his peremptory challenges are that a veniremember who is peremptorily struck based on a group stereotype might get his feelings hurt and the community as a whole might lose its respect for the criminal justice system; these are the reasons the important business of a criminal trial has become a sideshow to “mini-Batson” hearings. See J.E.B., — U.S. at -, 114 S.Ct. at 1439; Weatherspoon, 514 N.W.2d at 289. However, “hurt feelings” should not outweigh a party’s important right to freely exercise his peremptory challenges. And, it borders on the absurd to extend precedents dealing with invidious, systemic discrimination against blacks and women in the important affairs of public life to protect people from “hurt feelings.”
Batson and its progeny also will produce juries that the parties do not believe are truly impartial which can only diminish confidence in the criminal justice system. See Weatherspoon, 514 N.W.2d at 286. The real justification for Batson and its progeny is that peremptory challenges, including those not exercised for invidious discriminatory purposes, should not be based on “improper” thoughts even if this time-tested practice helps produce fair trials, and even if there is some measure of truth to these “improper” thoughts.19 See J.E.B., — U.S. at - f.n. 11, 114 S.Ct. at 1427 f.n. 11.
Finally, as a practical matter, Batson and its progeny should be discarded because the truth of human experience makes it impossi*489ble to follow them. See Weatherspoon, 514 N.W.2d at 297 (Batson hurts a defendant, humiliates the two attorneys by making them play “let’s pretend,” and frustrates the trial court by making it judge the pretend and not the truth). Lawyers use laundry lists of “whatever-neutral” explanations to plug into the second-step of the Batson “three-step danse macabre,” and these laundry lists are even taught at CLE seminars. See Weatherspoon, 514 N.W.2d at 287, 297. When the judicial resources in resolving Batson claims at the trial and appellate levels are considered, the dubious benefits we reap under Batson and its progeny are just “not worth the candle.”
Batson and its progeny should be discarded. Meanwhile, litigators who don’t think right had better watch out because the thought police might come for you and your clients next, and law-abiding citizens should understand their safety may be at risk for the folly of Batson. See Powers, 499 U.S. at 429-31, 111 S.Ct. at 1381-82 (Scalia, J., dissenting). With respect to the facts of this case, the victim may relive her experience on retrial secure in the knowledge that some “greater good” is being accomplished.
CAMPBELL, J., joins paragraph 3 of this dissent.. But, we expend more than 50 pages discussing whether these facts violate the Equal Protection Clause of the Fourteenth Amendment, and, more specifically, whether the peremptory challenges were based on a constitutionally improper stereotype about the veniremembers' Pentecostal faith!
. Most U.S. Supreme Court Equal Protection cases discussed in the various opinions here dealt with statutory classifications that generally affected cognizable groups. It is difficult to apply these cases to peremptory challenges exercised in a single trial. See, e.g., Batson, 476 U.S. at 122-24, 106 S.Ct. at 1737 (Burger, C.J., dissenting) (traditional equal protection analysis is simply inapplicable to peremptory challenges exercised in any particular case).
. Appellant assumed the burden to prove the peremptory challenges burdened the exercise of the veniremembers’ religion, and he has not met this burden.
. The majority also errs to apply a more exacting standard of review to religious-based peremptory challenges (strict scrutiny) than the standard applied to sex-based peremptory challenges (intermediate scrutiny) in J.E.B. v. Alabama, - U.S. -, -, 114 S.Ct. 1419, 1425, 128 L.Ed.2d 89 (1994). According to J.E.B., the history of discrimination in this Country against women is a close second to the history of discrimination against black people justifying the heightened scrutiny standard of review to sex-based peremptory challenges. See id. With respect to jury selection practices, the Supreme Court has not yet decided which group is number three in this hierarchy of racial and sexual preferences. See State v. Weatherspoon, 514 N.W.2d 266, 281 (Minn.App.1994) (Randall, J., specially concurring).
. However, under Crenshaw and Juarez, it is difficult to conceptualize how peremptory challenges based on any group stereotype would not violate Equal Protection even under a rational basis standard of review since members of that group are being singled out "in an arbitrary and irrational fashion.” See Batson, 476 U.S. at 122-24, 106 S.Ct. at 1737 (Burger, C.J., dissenting) (traditional equal protection analysis has no application to the peremptory challenge because it is an arbitrary and capricious right); but see J.E.B., - U.S. at -, 114 S.Ct. at 1429 (peremptory challenges based on sexual stereotypes fail heightened scrutiny equal protection analysis because they do not substantially further an important government interest, but parties may still exercise peremptory challenges based on stereotypes about members of groups subject to a "rational basis” review). It appears, at least with respect to jury selection practices, that some groups are more equal than other groups. See id.
. In Footnote ten, the plurality asserts this dissenting opinion cannot contend that religious classifications are not subject to heightened scrutiny. THIS OPINION, HOWEVER, CONCLUDES RELIGIOUS-BASED PEREMPTORY CHALLENGES SHOULD BE REVIEWED UNDER A LESS EXACTING STANDARD THAN HEIGHTENED SCRUTINY. This standard apparently is the line drawn in the sand for making lawyers explain the reasons for their peremptory strikes; therefore, it is unnecessary to decide exactly which standard of scrutiny applies to religious-based peremptory challenges. This opinion also concludes this Court need not address the issue the plurality opinion addresses because it is unnecessary to the disposition of this case; this Court should dismiss the petition for discretionary review as improvidently granted. Cf. Briggs v. State, 740 S.W.2d 803, 806-807 (Tex.Cr.App.1987) (constitutionality of a statute should not be determined unless such a determination is absolutely necessary to decide the case in which the issue is raised).
The plurality opinion also asserts this opinion concedes its application of J.E.B.’s "analytical framework” is "correct.” This opinion makes no such concession because, like Judge Meyers, I am not sure I really understand J.E.B.'s "analytical framework.” What I do know about J.E.B. is that it addressed a practice where a party used all its peremptory strikes on men, and the Supreme Court relied on the history of discrimination in this country against women to condemn that practice and to announce sex-based peremptory challenges violate the Fourteenth Amendment. Were I to apply J.E.B.'s "analytical framework,” I would conclude the Constitution should reflect my own personal views. More importantly, J.E.B., under the guise of Equal Protection, supports the dubious proposition that parties may not use their peremptory challenges to single out in an arbitrary and irrational fashion members of some groups, but parties may do so with respect to members of groups subject to a "rational basis" review. J.E.B., - U.S. at -, 114 S.Ct. at 1429. I must ask whether this also means the Fourteenth Amendment no longer prohibits states from passing laws that single out members of these latter groups in an arbitrary and irrational fashion? See, e.g., Plessy v. Ferguson; Strauder v. West Virginia, infra.
Also, the plurality erroneously asserts this dissenting opinion ignores binding precedent. It *484does not because there is no binding precedent, and the plurality has not cited any. The plurality still has not demonstrated how religious-based peremptory challenges violate the First Amendment, and the cases cited in Footnote fourteen of the plurality opinion in support of its "fusion analysis” do not support its holding because even though the Supreme Court "has occasionally fused the First Amendment into the Equal Protection Clause"; it has done so because “the First Amendment underlies its analysis." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 385, 112 S.Ct. 2538, 2544, 120 L.Ed.2d 305 (1992) (the only reason the government’s interest is not a legitimate one is that it violates the First Amendment) (Emphasis Supplied). Central to the plurality's analysis is that religious-based peremptory challenges implicate the First Amendment, but the plurality still has not explained how.
Finally, this dissenting opinion suggests, respectfully and in the interest of promoting this State's legitimate interests in providing fair and impartial juries to both sides in criminal cases and protecting its citizens from the obviously guilty, that Batson should be reexamined. That is why this opinion sets out the facts of the case. The law, and to a certain extent the powers granted to governments under the Constitution, are intended to protect citizens from the obviously guilty, like this appellant. Batson, however, entitles obviously guilty and fairly tried defendants to relief even though they have not been harmed. We have traveled from the honorable purpose of preventing the systemic exclusion from juries of members of various groups for invidious discriminatory purposes to the dishonorable purpose of allowing an obviously guilty and fairly tried defendant to assert the rights of members of various groups who were not peremptorily stricken for invidious discriminatory purposes. Extending Batson to other situations is beginning to impose a burden on this state’s judicial resources, especially when one understands that Batson generally has nothing to do with whether a defendant has received a fair trial. This dissenting opinion suggests the Constitution should not be used to promote a social agenda that really has nothing to do with the Constitution. To do so trivializes this Country's histoiy of the struggle to end invidious racial discrimination.
. The majority also recognizes the free use of peremptory challenges "facilitate the impaneling of an impartial and unbiased jury.” However, this does not qualify as a compelling governmental interest!
. Cf. Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex.Cr.App.1993) (primary goal in the interpretation of a constitutional provision is to ascertain and give effect to the apparent intent of the voters who adopted it).
. Historically, this meant state-sponsored, systemic discrimination against black people. See Juarez, 277 S.W. at 1094.
. See also City of Mobile, Alabama, v. Bolden, 446 U.S. 55, 62, 100 S.Ct. 1490, 1497, 64 L.Ed.2d 47 (1980); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-67, 97 S.Ct. 555, 564-65, 50 L.Ed.2d 450 (1977).
. These considerations generally apply to individuals as well as cognizable groups "though group disabilities are sometimes the mechanism by which the State violates the individual right in question.” J.E.B., - U.S. at -, 114 S.Ct. at 1434 (Kennedy, J., concurring).
. See also Powers v. Ohio, 499 U.S. 400, 429-31, 111 S.Ct. 1364, 1381, 113 L.Ed.2d 411 (1991) (Scalia, J., dissenting) (it is intolerably offensive to imprison a person on the basis of a conviction rendered by a jury from which members of the defendant’s race were carefully excluded).
. The Swain court addressed the problem as follows:
"We have decided that it is permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance. (Citation Omitted) In these circumstances, giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purpose of the peremptory challenge are being perverted. If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify.” Swain, 380 U.S. at 223-24, 85 S.Ct. at 837-38. (Emphasis Supplied).
.The lone dissenting opinion in the historically relevant Plessy v. Ferguson case illustrates the conditions which the Equal Protection Clause was intended to remedy. Plessy v. Ferguson, 163 U.S. 537, 554-57, 16 S.Ct. 1138, 1145, 41 L.Ed. 256 (1896) (Harlan, J., dissenting):
“It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.” (Emphasis Supplied).
. See Weatherspoon, 514 N.W.2d at 296:
"I suggest strongly that neither prosecutor nor defense attorney are interested in discrimination or bias against any person, for its own sake. As stated throughout this opinion, questions of race, color, creed, religion, [sex], ethnic origin, occupational status, age, economic status, other life experiences, are factors that filter through a competent trial attorney’s mind as they attempt to judge who would be a better juror for their client. That is the only way peremptory strikes are used, and the only way they will be used in the future, regardless of [Batson and its progeny’s] rhetoric.” (Emphasis in Original)
. See also Feeney, 442 U.S. at 278-80, 99 S.Ct. at 2296 (discriminatory purpose implies more than intent as volition or intent as awareness of consequences; it implies that the sovereign selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group) (internal quotation marks omitted).
. And, Batson and its progeny do to a degree attempt to regulate the most private thoughts of trial lawyers, even if there is some truth to these thoughts. See J.E.B., - U.S. at - fn. 11, 114 S.Ct at 1427 fn. 11 (a peremptory challenge based even on a "true ” gender-based stereolype violates Equal Protection), and at -, 114 S.Ct. at 1436 (Scalia, J., dissenting) (even if sex was a good predictor in certain cases, the Court would find its use in peremptories unconstitutional); Weatherspoon, 514 N.W.2d at 276, 278 (Batson and its progeny require trial courts to be "thought police” and gives them the power to punish those who "don’t think right” by, for example, placing on a jury a juror upon whom the defendant has exercised a peremptory challenge).
. The Fourteenth Amendment is intended to protect all the civil rights pertaining to freedom and citizenship. Plessy, 163 U.S. at 554-57, 16 S.Ct. at 1145 (Harlan, J., dissenting). Personal freedom "consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” Id., 163 U.S. at 557-59, 16 S.Ct. at 1146. It is difficult to understand how the use of peremptory challenges violate any citizen’s "personal freedom” as we have historically come to understand what the term means. And, it is especially hard to understand how peremptory challenges can withstand scrutiny based on stereotypes about some groups and not withstand scrutiny when based on stereotypes about other groups. See Footnote 5, supra; J.E.B., — U.S. at -, 114 S.Ct. at 1429. If these peremptory challenges violate the personal freedom of the members of the latter groups, then they also violate the personal freedom of the members of the less favored groups. See Footnote 5, supra; Crenshaw, 486 U.S. at 82-84, 108 S.Ct. at 1653 (singling out members of a cognizable group in an arbitrary and capricious manner violates the Equal Protection Clause even under the most deferential standard of review).
. Therefore, the Constitution requires litigators to deny the "truth” in some circumstances!
. With all due respect to Justice Hopkins, the opinion written by Judge Maloney in Hill v. State was a plurality opinion. Hill v. State, 827 S.W.2d, at 860.