Extending the Batson Challenge to Classifications Based on Sexual Orientation


By Haley Wester Schmidt, 3L – Sandra Day O’Connor College of Law



Traditionally in the process of jury selection a so-called “Batson challenge” is an objection to a peremptory strike made by opposing counsel based on a potential jurors race, gender, or ethnicity. In January the 9th Circuit Court of Appeals extended this protection to potential jurors based on sexual orientation as well.

SmithKline Beecham brought suit against Abbott Laboratories (Abbott) regarding a licensing agreement and the pricing of certain HIV medications. During jury selection a member of the venire made reference to his partner as a “he”. Both the potential juror and the presiding judge used the pronoun “he” several times. Counsel for Abbott questioned the juror about the prescription drugs at issue. Abbott’s counsel later exercised one of its strikes against this juror. SmithKline’s counsel raised a Batson challenge alleging the juror had been struck because he “appears to be […] homosexual.”[i] SmithKline’s counsel expressed concern that because the case involves AIDS medication, “the incidents [sic] of AIDS in the homosexual community is well-known, particularly gay men.”[ii] The judge is unsure if Batson applies to civil matters and if it does will it apply to sexual orientation. Furthermore, Batson is concerned with an entire group being excluded not a single member and there is no way to know who in the venire is or is not homosexual. Finally, the judge urges Abbott’s counsel to state a reason for the strike aside from the one alleged by SmithKline. Abbott’s counsel declines to comment on reasons for the strike except to deny knowing whether or not the juror is gay.

The trial concluded with a mixed verdict. Both Abbott and SmithKline appealed. SmithKline contends that a new trial should be granted, in part, because of Abbott’s alleged unconstitutional strike to exclude a juror because of his sexual orientation.

The 9th Circuit explains that the Batson analysis is three-part: 1) the challenger must establish a prima facie case of intentional discrimination; 2) the striking counsel states a nondiscriminatory reason for the strike; and 3) the court determines if purposeful discrimination was present.[iii] The district court judge did not apply the appropriate legal standard, therefore the 9th Circuit steps through the Batson analysis.

The 9th Circuit draws the conclusion that SmithKline proved their prima facie case because the struck juror was the only one who identified himself as gay and the drug in question has been widely discussed in the gay community, a point raised by SmithKline’s counsel. Furthermore, Abbott’s counsel failed to provide a nondiscriminatory justification for the strike during the voir dire process. The Court determined that Abbott still did not offer “any colorable neutral explanation for the strike[.]”[iv] Finally, the Court turns its attention to whether Batson prohibits strikes based on sexual orientation.

The privilege of peremptory strikes is subject to the guarantees of the Equal Protection Clause.[v] The Supreme Court reasoned in Batson that strikes based on race undermine confidence in the fairness of the judicial system. In J.E.B. v. Alabama, the Supreme Court allowed peremptory strikes to any individuals or groups subject to rational basis review.[vi] The 9th Circuit has historically applied rational basis review to sexual orientation classifications, but after re-evaluating the holdings in Witt v. Department of the Air Force[vii] and the Supreme Court holding in Lawrence v. Texas[viii]and States v. Windsor[ix]the 9th Circuit determined that “heightened scrutiny be applied to equal protection claims involving sexual orientation.”[x]

Finally, regarding the applicability of Batson the 9th Circuit says:

As illustrated by this case, permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation. Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.6 The Constitution cannot countenance “state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.” J.E.B., 511 U.S. at 128, 114 S.Ct. 1419.

The history of exclusion of gays and lesbians from democratic institutions and the pervasiveness of stereotypes about the group leads us to conclude that Batson applies to peremptory strikes based on sexual orientation.”[xi]


Because a Batson violation was found to have occurred the case was remanded for a new trial.

[i] SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d at 475 (9th Cir. 2014)

[ii] Id.at 475

[iii] Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.2006)

[iv] SmithKline, 740 F.3d  at 479

[v] Batson v. Kentucky, 476 U.S. at 89, 106 S.Ct. 1712 (1986)

[vi] J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994)

[vii] Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir.2008).

[viii] Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

[ix] States v. Windsor, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013).

[x] SmithKline, 740 F.3d  at 481

[xi] SmithKline, 740 F.3d  at 486

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