178
Thomas, J., dissenting
consideration of religious activity as a mitigating factor, the endorsement necessarily disfavors abstention from religious activity, which the First Amendment also protects.
The Court nowhere explains why courts and juries may consider some First Amendment protected activities when assessing character, but they cannot consider others. Today's decision, moreover, does not define the boundaries of permissible inquiry into character. If the Court means that no First Amendment protected activity "ca[n] be viewed as relevant 'bad' character evidence in its own right," ante, at 168, then today's decision represents a dramatic shift in our sentencing jurisprudence.
B
Once the Court concludes that the gang membership evidence "has no relevance to the issues being decided in the [sentencing] proceeding," ante, at 160, I also have difficulty seeing what the First Amendment adds to the analysis. If the Court considers the evidence irrelevant, the problem is not that Delaware law bases the sentencing decision on impermissible issues, but rather that Dawson may not have received a fair trial on the permissible issues in the proceeding. The Due Process Clause, not the First Amendment, traditionally has regulated questions about the improper admission of evidence.
As we stated in Chambers v. Florida, 309 U. S. 227 (1940), the requirement of due process always has protected "the weak, or . . . helpless political, religious, or racial minorities and those who differed" by ensuring that "no man's life, liberty or property be forfeited as criminal punishment for violation of [the] law until there ha[s] been a charge fairly made
ligion. Religion may be a significant, decisive factor in enabling an individual to overcome his difficulties." Id., at 10. The report also suggests that courts consider the defendant's "fraternal and social organizations." Ibid. A more recent edition of this report retains comparable instructions. See Administrative Office of the United States Courts, The Presentence Investigation Report, Pub. No. 105 (1984).
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