It's looking more and more likely that the Ninth Circuit will extend Batson v. Kentucky, preventing parties from striking potential jurors on the basis of their sexual orientation.
Back in late July, we covered the pending case of Smithkline Beecham Corporation v. Abbott Laboratories, a pharmaceutical dispute over HIV drugs. During voir dire, one of the prospective jurors, a male, repeatedly used a masculine pronoun to refer to his significant other. He was later removed using a peremptory challenge, with Abbot Laboratories providing no reason for the removal, and denying that it had anything to do with his sexual orientation.
At the time, the numerous unresolved issues in the case, from the applicable standard of scrutiny for homosexuals, to the applicability of Batson, made prediction difficult. After oral arguments, and after the court ordered supplemental briefing on the effect of United States v. Windsor on the issues, it now looks like the Ninth Circuit may be leaning towards a broader Batson rule.
During oral arguments, Daniel Levin, for Abbott Laboratories, argued that Windsor hadn't set a new standard, and had simply found that the Section 3 of the Defense of Marriage Act was discriminatory and altogether irrational. Under the present Ninth Circuit standard, the rational basis test controls, and there is no heightened scrutiny. (Recall that High Tech Gays, which set the standard, relied on the Supreme Court's since-overruled Bowers v. Hardwick.)
According to the San Francisco Chronicle, the three-judge panel wasn't buying it:
The Supreme Court "must have been applying some form of heightened scrutiny" to the federal law, said Judge Mary Schroeder.
She said the court majority had not used a deferential standard, but instead examined the stated intent of congressional supporters and the law's impact on same-sex couples and their children. The same close scrutiny, Schroeder suggested, would apply to the arbitrary removal of a gay juror.
The full oral arguments are available on the Ninth Circuit's website.
If the Ninth Circuit interprets Windsor to require a heightened standard of protection for homosexuals, it could mean more than Batson protections against discriminatory voir dire. It could prove persuasive in all other areas where heightened protection pops up, such as discriminatory laws or employment practices.
- Ninth Circuit hears arguments in gay juror case (Equality on Trial)
- Smithkline Beecham Corporation v. Abbott Laboratories (Ninth Circuit - Briefs and Orders)
- Perry and Windsor: Threads of Standing, Constitutional Quandaries (FindLaw's U.S. Supreme Court Blog)