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9th Extends Batson to Gay Jurors Using Windsor's Vague Reasoning

By William Peacock, Esq. | Last updated on

A lawyer uses a peremptory challenge on a juror who repeatedly uses a male pronoun to reference his partner. The issue in the case? HIV drugs and price gouging. GlaxoSmithKline, the plaintiff, objected to the challenge but was overruled. Though GSK won, the verdict was miniscule compared to the amount sought.

The question is, of course, whether striking a juror on the basis of sexual orientation is permissible.

Batson protected African-American jurors. J.E.B. extended that protection to gender-based peremptory strikes. And other lower courts have extended Batson even further -- to all classifications subject to heightened scrutiny (per Romer, that's race, national origin, sex, religion, illegitimacy, and alienage).

But, does sexual orientation belong amongst the other protected groups?

High Tech Gays

Controlling precedent in the Ninth Circuit answers that question in the negative. In High Tech Gays v. Defense Industrial Sec. Clearance Office, the court explicitly stated that rational basis was the appropriate standard for sexual orientation. As we noted in our previous coverage of the case, High Tech Gays' holding was based on the oft-criticized Supreme Court decision in Bowers v. Hardwick.

During oral argument, the panel seemed disinclined to stick with the rational basis standard, and indeed, High Tech Gays is no longer good law.

Windsor: Vague, But Good Enough

In order to overrule a prior panel's holding, there must be a greater authority, such as an en banc opinion or a U.S. Supreme Court holding, that negates the authority.

The court here found its authority in Windsor, last term's Supreme Court decision that gutted part of the federal Defense of Marriage Act due to its unequal treatment of gays and lesbians on the basis of sexual orientation.

Notably, in Windsor, the Supreme Court declined to set an applicable standard of review, though the court's means employed gave the Ninth Circuit reason to conclude that some form of heightened scrutiny was applied. For example, instead of looking for any hypothetical justification for DOMA, the Court looked to Congress's actual purpose. The Court also relied on past heightened scrutiny cases in its opinion.

The question, all throughout briefing and oral arguments, was what standard to apply. "Because we are bound by controlling, higher authority, we now hold that Windsor's heightened scrutiny applies to classifications based on sexual orientation," Judge Stephen Reinhardt wrote for a unanimous three-judge panel.

Batson Extended

By extension, with heightened scrutiny, and a history of discrimination, comes Batson protection.

"Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation's most cherished rites and rituals," Judge Reinhardt wrote. "They deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve."

Effect on Future Cases?

"Heightened" is good enough for now, but what about cases that need a more specific level of analysis, such as strict or intermediate scrutiny? That's the next big question. We'll see if the challenge to Nevada's anti-gay marriage law brings an answer.

Ninth Joins California on Batson

In the meantime, for practitioners in California, barring en banc or Supreme Court review, it's now the rule that Batson extends to sexual orientation in both federal and state courts.

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