dissenting.

The Court steadfastly maintained in Taylor v. Louisiana, 419 U. S. 522 (1975), when it “distinguished” Hoyt v. Florida, 368 U. S. 57 (1961), that its'holding rested on the jury trial requirement of the Sixth and Fourteenth Amendments and not on the Equal Protection Clause of the Fourteenth Amendment. Today’s decision makes a halfhearted effort to con[*371]tinue that fiction in footnotes 1 and 26, declaring that cases based on the Equal Protection Clause, such as Alexander v. Louisiana, 405 U. S. 625 (1972), are not “entirely analogous” to the case at hand. The difference apparently lies in the fact, among others, that under equal protection analysis prima facie challenges are rebuttable by proof of absence of intent to discriminate, while under Sixth Amendment analysis intent is irrelevant, but the State may show “adequate justification” for the disproportionate representation of the classes being compared. We are reminded, however, that disproportion-ality may not be justified “on merely rational grounds” and that justification requires that “a significant state interest be manifestly and primarily advanced” by the exemption criteria resulting in the disproportionate representation. Ante, at 367 (emphasis supplied). That this language has strong overtones of equal protection is demonstrated in this Court’s most recent application of the Equal Protection Clause to distinctions between men and women: “ ‘[Classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.’ ” Califano v. Goldfarb, 430 U. S. 199, 210-211 (1977) (plurality opinion), quoting Craig v. Boren, 429 U. S. 190, 197 (1976) (emphasis supplied). The Constitution does not require, and our jurisprudence is ill served, by a hybrid doctrine such as that developed in Taylor, and in this ease.*

[*372] Even if I were able to reconcile the Court’s agile amalgamation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment in deciding this case[*373] and Taylor, I have no little concern about where the road upon which the Court has embarked will ultimately lead. In Taylor, the Court relied upon cases dealing with outright exclusion of racial groups, Smith v. Texas, 311 U. S. 128 (1940), and of women, Ballard v. United States, 329 U. S. 187 (1946), from jury service. Although in Smith, the exclusion had been covert, in Ballard the exclusion had been overt. The Court in Taylor concluded, I assume on the basis of these cases, that “women cannot be systematically excluded from jury panels from which petit juries are drawn.” 419 U. S., at 533.

In Taylor, as in Hoyt v. Florida, 368 U. S. 57 (1961),[*374] women had not been actually prohibited or excluded from serving on juries. But requirements, inapplicable to men, that they affirmatively make known to the jury commissioner their desire to serve had for all practical purposes had that effect. Indeed, in Taylor not one woman appeared on a venire of 175 persons drawn for jury service in the parish in question. 419 U. S., at 524. Taylor, by its language and on its facts, was an “exclusion” case.

Here, on the other hand, the Court in one sentence both asserts that it can, and admits that it cannot, treat the system used in Jackson County, Mo., as one which “excludes” women, saying: “Today we hold that such systematic exclusion of women that results in jury venires averaging less than 15% female violates the Constitution’s fair-cross-section requirement.” Ante, at 360. If there are indeed 15% women on the jury panels in Jackson County, the Court uses the word “exclusion” contrary to any use of the word with which I am familiar. Women are undoubtedly underrepresented as compared to men on Jackson County juries, but therein lies the difference between this case and Taylor.

Eventually the Court either will insist that women be treated identically to men for purposes of jury selection (which is intimated in dicta, ante, at 365-366, 370), or in some later sequel to this line of cases will discover some peculiar magic in the number 15 that will enable it to distinguish between such a percentage and higher percentages less than 50. But whichever of these routes the Court chooses to travel when the question is actually presented, its decision today puts state legislators and local jury commissioners at a serious disadvantage wholly unwarranted by the constitutional provisions upon which it relies. If the Court ultimately concludes that men and women must be treated exactly alike for purposes of jury service, it will have imposed substantial burdens upon many women, particularly in less populated areas, without necessarily producing any corresponding increase in the repre[*375]sentative character of jury panels. If it ultimately concludes that a percentage of women on jury panels greater than 15 but substantially less than 50 is permissible even though the State’s jury selection system permits women but not men to “opt out” of jury service, it is simply playing a constitutional numbers game.

The attorneys general and prosecuting attorneys in the various States, sensibly concluding that a 15% representation of women on jury venires cannot in any rational legal system be materially different from a 20% representation, will press legislators and jury commissioners to abolish all distinctions between men and women for purposes of jury service. Understandably unhappy with the prospect of having still more convictions for armed robbery or murder set aside at the behest of male defendants claiming that women were insufficiently represented on their jury panel, these state attorneys will make their informed but inevitably parochial views known in the halls of their respective legislatures. These views will presumably be in harmony with those of the organized women’s groups that have appeared as amici curiae 'in similar cases, asserting that the Constitution prohibits women from being given a choice as to whether they will serve on juries when men are required to serve.

Nor are distinctions between men and women in jury selections likely to be the only casualties to result from today’s opinion. Apparently realizing the desirability of some predictability if otherwise fairly tried defendants are to be freed on the basis of such a constitutional numbers game, the Court ventures the view that an “exemption appropriately tailored” to the State’s interest in ensuring that those members of the family responsible for the care of children are available to perform such care would “survive a fair-cross-section challenge.” Ante, at 370. It also repeats the “observation” made in Taylor that it is “unlikely that reasonable exemptions, such as those based on special hardship, inca[*376]pacity, or community needs, 'would pose substantial threats that the remaining pool of jurors would not be representative of the community.’ ” Ibid. But the States are warned that the Constitution requires them to “exercise proper caution in exempting broad categories of persons from jury service,” even though “mos^ occupational and other reasonable exemptions may inevitably involve some degree of overinclusiveness or underinclusiveness . . . Ibid.

The lot of a legislator or judge attempting to conform a State’s jury selection process to the dictates of today’s opinion, and yet recognize what may be very valid state interests in excusing some individuals or classes of individuals from jury service, is surely not a happy one. Will the Court’s above-quoted dicta soon meet the same fate that the decision in Hoyt v. Florida, supra, met in Taylor, or will they survive longer?

There is more than adequate documentation for the proposition that jury service is not a pleasant experience in many jurisdictions and that it tends to be time consuming and often seemingly useless from the point of view of the prospective juror. To the extent that States may engage in the process of jury selection by broad classifications, and by a system of exemptions which require a minimum of administrative effort, the frustrations of jury service will be at least in part alleviated, and perhaps the Court’s stated goal of a “fair cross section” actually advanced. On the other hand, to the extent that such forms of selection are deemed constitutionally impermissible, and case-by-case “opting out” required with respect to each prospective juror, the ordeal of the prospective juror becomes more burdensome, and the State’s administrative task more time consuming. Since most States will undoubtedly wish to immunize otherwise valid criminal convictions against reversal on the basis of the Court’s most recent exegesis of the Fourteenth Amendment’s requirements on the jury selection process, their natural tendency will be[*377] to impose these burdens on citizen jurors and judicial administrators in order to avoid any possibility of a successful constitutional attack on the composition of the jury.

The probability, then, is that today’s decision will cause States to abandon not only gender-based but also occupation-based classifications for purposes of jury service. Doctors and nurses, though virtually irreplaceable in smaller communities, may ultimately be held by the Court to bring their own “flavor” or “indefinable something” to a jury venire. See supra, at 372 n. If so, they could then be exempted from jury service only on a case-by-case basis, and would join others with skills much less in demand whiling away their time in jury rooms of countless courthouses.

No one but a lawyer could think that this was a managerially sound solution to an important problem of judicial administration, and no one but a lawyer thoroughly steeped in the teachings of cases such as Taylor, Goldfarb, and Craig could think that such a solution was mandated by the United States Constitution. No large group of people can be conscripted to serve on juries nationwide, any more than in armies, without the use of broad general classifications which may not fit in every case the purpose for which the classification was designed. The alternative is case-by-case treatment which entails administrative burdens out of all proportion to the end sought to be achieved.

The short of it is that the only winners in today’s decision are those in the category of petitioner, now freed of his conviction of first-degree murder. They are freed not because of any demonstrable unfairness at any stage of their trials, but because of the Court’s obsession that criminal venires represent a “fair cross section” of the community, whatever that may be. The losers are the remaining members of that community — men and women seeking to do their duty as jurors and yet minimize the inconvenience that such service entails, judicial administrators striving to make[*378] the criminal justice system function, and the citizenry in general seeking the incarceration of those convicted of serious crimes after a fair trial. I do not believe that the Fourteenth Amendment was intended or should be interpreted to produce such a quixotic result.

That the majority is in truth concerned with the equal protection rights of women to participate in the judicial process rather than with the Sixth Amendment right of a criminal defendant to be tried by an “impartial jury” is vividly demonstrated by the Court’s erablike movement from the equal protection analysis of its early jury composition cases to the internally inconsistent “fair-cross-section” rationale of today’s due process decision. As early as 1880, this Court recognized that blacks as a class are no less qualified to sit on juries than whites and that a State cannot, consistent with the Equal Protection Clause, compel a criminal defendant “to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone,[*372] however well qualified in other respects . . . Strauder v. West Virginia, 100 U. S. 303, 309 (emphasis added). Likewise, as the majority recognizes, ante, at 369-370, women as a class are every bit as qualified as men to serve as jurors. If, then, men and women are essentially fungible for purposes of jury duty, the question arises how underrepresentation of either sex on the jury or the venire infringes on a defendant’s right to have his fate decided by an impartial tribunal. Counsel for petitioner, when asked at oral argument to explain the difference, from the defendant’s point of view, between men and women jurors, offered: “It is that indefinable something— ... I think that we perhaps all understand it when we see it and when we feel it, but it is not that easy to describe; yes, there is a difference.” Tr. of Oral Arg. 16.

This Court resorted to similar mystical incantations in Peters v. Kiff, 407 U. S. 493 (1972). Because the white defendant lacked standing to raise an equal protection challenge to the systematic exclusion of blacks from jury duty, the Court was forced to turn to the Due Process Clause of the Fourteenth Amendment. Noting that the effect of excluding any large and identifiable segment of the community from jury service “is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable,” the Court held that a criminal defendant, whatever his race, has standing to raise a due process challenge to the systematic exclusion of any race from jury service. Id., at 503. Similarly, in Taylor v. Louisiana, 419 U. S. 522, 532 (1975), the Court based its reversal of a male defendant’s conviction largely on the transcendental notion that “a flavor, a distinct quality” was absent from his jury panel due to the underrepresentation of women.

Lacking the Court’s omniscience, I would be willing to accept its assurances as to the existence of “unknowable” qualities of human nature, “flavor[s],” and “indefinable something[s].” But close analysis of the fair-cross-section doctrine demonstrates that the Court itself does not really believe in such mysticism. For if “that indefinable something” were truly an essential element of the due process right to trial by an impartial jury, a defendant would be entitled to a jury composed of men and women in perfect proportion to their numbers in the community. Yet in Taylor, sufra, at 538, the majority stressed: “Defendants are not entitled to a jury of any particular composition, . . . but the jury wheels, pools of[*373] names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Thus, a defendant’s constitutional right to an impartial jury is protected so long as “that indefinable something” supposedly crucial to impartiality is adequately represented on the jury venire; that the petit jury ultimately struck is composed of one sex is irrelevant. Indeed, under the majority’s fair-cross-section analysis, the underrepresentation of women on jury venires in Jackson County, Mo., would entitle petitioner Duren to reversal of his conviction even if the jury chosen in his case had been composed of all women.

The Sixth and Fourteenth Amendments guarantee a criminal defendant the right to be tried by an impartial jury. If impartiality is not lost because a particular class or group represented in the community is unrepresented, on the petit jury, it is certainly not lost because the class or group is underrepresented on the jury venire. It is therefore clear that-the majority’s fair-cross-section rationale is not concerned with the defendant’s due process right to an impartial jury at all. Instead, the requirement that distinct segments of the community be represented on jury venires is concerned with the equal protection right of the excluded class to participate in the judicial process through jury service. The reversal of concededly fair convictions returned by concededly impartial juries is, to say the least, an irrational means of vindicating the equal protection rights of those unconstitutionally excluded from jury service. Nor is it a necessary means to achieve that end, for in Carter v. Jury Comm’n, 396 U. S. 320 (1970), this Court recognized that injunctive relief is available to members of a class unconstitutionally excluded from jury service.