Simply put, the fourth factor noted by Dolan merely requires an examination of state law to discover if there is a 'long history and tradition of strict legislative protection' of religious liberties in Washington. In the case of Washington, it has been held that the State has had a strong tradition of granting broad statutory protections in matters of religion. As an example, Dolan notes that there is an existing Washington statute which makes it a crime to maliciously harass another for religious reasons.
It has been opined that in the state of Washington, many provisions of the state's statutes protect religious beliefs in the field of education. Hence, these extensive statutory protections of religious belief establish distinctive state rights in matters of religion and support finding religion-based peremptory challenges impermissible on independent state constitutional grounds. E. Structural Differences According to Dolan, an analysis of the fifth Gunwall factor demands examination of the structural differences between the state constitution and its federal counterpart.
If one looks at the two provisions closely, Dolan believes that one will most likely arrive at the conclusion that the structure of the Washington State Constitution differs greatly from that of its federal counterpart, and this difference can sometimes justify independent interpretation of a legal issue on state constitutional grounds. Moreover, in addition to the differences in the text of the two provisions, the Washington State Constitution is a safeguard for individuals against the state, whose power is limited only by the restrictions imposed by federal law and the state constitution.
On the other hand, the Federal Constitution 'is a grant of limited power authorizing the federal government to exercise only those constitutionally enumerated powers expressly delegated to it by the states. ’ Dolan further explains that since the state constitution is often a source of guaranteed protection to individuals from government intrusion, Article I, § 11 may be viewed as providing explicit and expansive protection not provided by the Federal Constitution. This enables Washington courts to forbid religion-based peremptory challenges, though they are currently permissible under the Federal Constitution.
The sixth and final factor in the Gunwall case requires an inquiry into whether religion-based peremptory challenges are of sufficient local interest to justify finding them impermissible under the state constitution. As noted by Dolan, the enumeration of Washington's statutes forbidding intrusion into religious beliefs in a multitude of contexts illustrates that the protection of religious beliefs is a local priority. In fine, Dolan explains that an application of the six nonexclusive Gunwall factors establishes that there are compelling reasons for banning religion-based peremptory strikes under the Washington State Constitution.
However, the Gunwall analysis does not formulate a new standard for evaluating religion-based peremptory strikes and does not indicate whether embarking on such a path will nullify the benefits of peremptory challenges to the point that their continued existence will become endangered. By establishing a standard similar to that used in evaluating race- and gender-based peremptory challenges, Washington courts can eradicate religion-based discrimination in the jury selection process as dictated by Article I, § 11 while, at the same time, ensuring that the peremptory challenge remains a useful instrument in molding the jury.
Linda White Atkins, in the Washington Law Review, writes that the court in State vs. Gunwall recognized that state constitutional doctrine cannot be applied to new cases and new issues unless it is understandable and logically reasoned. However, the analytical method adopted by the court achieves this result in a way that limits the ability of Washington judges to develop strong independent state constitutional doctrine. She explains that the Gunwall method sacrifices legitimate interests of constitutional federalism to the goal of minimizing departure from federal precedent.
Although preserving national uniformity is a possible relevant interest, it is inadequate by itself to create a firm base for state constitutional analysis. Focus on uniformity inhibits the development of a comprehensive body of state constitutional doctrine that could serve to enhance respect for state law and the state's sovereignty. Further, it undermines the role of state, as opposed to national, law as a means of responding readily to social change. The model used in the State vs.
Gunwall case is said to have been the most appropriate means of answering the question of when to apply the state constitution, but the criteria developed by the Gunwall court retain value as interpretive principles. Considerations of textual language and state constitutional and common law history are fundamental to developing state doctrine independently rather than in reaction to federal law. Washington had a well developed body of law under some provisions of its state constitution well before the incorporation of the Bill of Rights into the fourteenth amendment.
This history is highly relevant to developing an independent foundation for state doctrine. The structure of the state constitution as a historically separate check on state power provides the logic for developing state guarantees as a dual level of protection for state citizens. Finally, reflection of local policy concerns forms an important rationale for independent state constitutional rules. The analytical principle of Coe and the analytical principle of Gunwall can, in combination, work to create a vital state constitution.
All that remains is to apply these principles together to develop Washington constitutional doctrine fully and consistently. Another comment on the effects of the Gunwall doctrine comes from Laura Silva of the Albany Law School. In her paper published on the Albany law Review, Silva says that in light of the Washington Supreme Court's continued use of the Gunwall criteria, and because the political composition of the court has not much changed in over a decade, there appears little chance for further development in state constitutional issues in criminal cases.
She goes on to observe that although the court has met the "articulable, reasonable and reasoned" standard in search and seizure cases, by following this methodology for other constitutional criminal issues, the Washington Supreme Court has apparently locked itself into the minimum level of protections afforded by the federal Supreme Court's interpretations of analogous provisions of the United States Constitution.