As a member of the Supreme Court bar, I know that the Court accepts only a fraction of all cases appealed to it. I also have seen the courts super accommodative of religion lately.

So even while it was no surprise that the Court declined on Monday to hear Lucero v. Texas (No. 07-1492)  — the bid of a death-row inmate to set aside a jury’s death sentence — the circumstances of the jury’s deliberation churn my stomach.

Jimmie Urbano Lurcero was convicted by a jury, who heard the jury foreman read a Bible passage aloud to the entire jury, before the panel returned the death sentence. What was the passage?

Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. … For he is God’s servant to do the good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God’s servant, an agent of wrath to bring punishment on the wrongdoer.

According to a Christian Science Monitor story, a straw poll taken before the Bible reading was 10 to 2 in favor of conviction. And at the conclusion of deliberations, the jury vote 12 to 0 in favor of death. (A unanimous verdict is necessary to impose a death sentence.)

Were the two jurors who changed their votes persuaded by the biblical passage? I don’t pretend to have a crystal ball to say absolutely that the Bible reading did Lurcero in. But as a civil liberties attorney, the decisions by the Texas trial court, Texas Court of Criminal Appeals and now the U.S. Supreme Court seem so out of touch with constitutional due process requirements — that is, the defendant’s right to a fair trial. (It also seems to me that there is an Establishment Clause problem of government endorsement of religion, but I am not aware that this issue was raised on appeal.)

In my view, and that of the 1st (Boston), 5th (New Orleans) and 11th (Atlanta) Circuits, the introduction of a Bible into jury deliberations violates the right to an impartial jury. However, the 4th (Richmond) and 9th (San Francisco) Circuits have ruled the presentation of specific Bible versus during jury deliberation does not violate the Sixth Amendment because the Bible’s teachings are a matter of common knowledge in American culture. (That’s BS.)

Why didn’t at least four Supreme Court justices vote in favor of taking this opportunity to resolve a split among the federal circuits?

My crystal ball is still cloudy (that is, I don’t know), but let me take a wild guess. Two cases involving religion in the same term is too much to handle. The Court is scheduled to hear oral arguments in Pleasant Grove City v. Summum on November 12th. (NOTE: Yours truly submitted a friend of court brief in Summum on behalf of the AHA.)