Can you strike a prospective juror simply because he is gay? A small number of states, including California, prohibit peremptory challenges based on sexual orientation, but the issue is unsettled in most jurisdictions, including in the federal courts. A case now pending in the Ninth Circuit, Smithkline Beecham Corporation v. Abbott Laboratories, 11-17357, 11-17373, presents this question of first impression regarding the exercise of peremptory challenges. Such challenges to prospective jurors are generally completely discretionary, but in Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that peremptories may not be based on race. The Court extended Batson to forbid the exercise of sex-based challenges in J.E.B. v. Alabama, 511 U.S. 127 (1994).
Under Batson, once the opponent of a peremptory challenge makes a prima facie case of discrimination—which requires demonstrating (1) membership in a cognizable group, (2) use of a peremptory, and (3) an inference, based on the totality of the circumstances, that the strike was motivated by group membership—the burden shifts to the proponent of the strike to come forward with a non-discriminatory explanation. The explanation need not be “persuasive, or even plausible;” unless a discriminatory intent is “inherent” in the explanation, the explanation will suffice. Once any non-discriminatory explanation is offered, the trial court decides whether the opponent of the strike has proved purposeful, forbidden discrimination.
The question whether Batson forbids peremptory strikes based on sexual orientation now before the Ninth Circuit arose out of a case concerning the alleged attempted monopolization of the market for a certain type of HIV/AIDS therapy, which went to trial in 2011 in the Northern District of California. During jury selection, a male juror revealed that he was gay by openly discussing the employment history of his male partner. A lawyer for the defense used a peremptory strike to remove him from the jury pool. Plaintiff’s counsel objected, saying the juror “is or appears to be, could be, homosexual,” and that the defense had used its challenge to exclude him because the litigation involved a controversial price increase for AIDS medications, which are of special significance to the gay community. Following the Batson objection, (now Chief) Judge Claudia Wilken provided the defense lawyer the opportunity to offer a neutral rationale for his strike, but the lawyer stated only he had “no idea whether [the juror] is gay or not,” and opted to stand on several (incorrect) legal justifications Judge Wilken gave—such as Batson’s inapplicability to civil cases—for rejecting the Batson challenge. The jury returned a mixed verdict and the parties cross-appealed; the Batson issue features prominently in the briefing on appeal.
On September 18, 2013, a panel of the Ninth Circuit composed of Judges Schroeder, Reinhardt, Berzon, heard argument and appeared receptive to several of the plaintiff’s arguments that Batson applies to sexual orientation. The panel expressed skepticism that ordinary rational basis review should apply in an equal protection challenge to discrimination against gays and lesbians in light of the recent Supreme Court gay marriage case, United States v. Windsor. The panel also appeared unsure it would be proper to consider the “neutral” justifications for the strike proffered by defense counsel on appeal, given that none were stated at trial and they could have been carefully manufactured in the interim. A ruling is expected in the next few weeks or months.