A question simply phrased, yet without a simple answer.
Twice before, the Ninth Circuit has had the opportunity to decide this question. Twice they have assumed, without deciding, that Baston does prohibit the use of peremptory strikes to remove homosexual jurors for no reason other than their sexual preference. Now, in the unlikeliest of cases, an antitrust dispute between two massive pharmaceutical companies, they'll once again have their chance, reports The New York Times.
Every law student and lawyer is familiar with Batson. Peremptory challenges can't be used to strike someone during voir dire on the basis of the prospective juror's race. If the other party suspects that race is the reason, they scream "Batson!" and the other side fumbles out a race-neutral reason for the strike. Easy enough, right?
Later, in J.E.B. v. Alabama, the Supreme Court would extend Batson to the use of peremptory challenges to strike potential jurors on the basis of gender, as women, much like African-Americans, had suffered from a long history of discrimination. Lambda Legal's amicus brief points out that, after J.E.B., lower courts have read the court's opinion to extend Batson to all cases in which a juror is removed based on his membership in a classification subject to heightened scrutiny. (Per Romer, those classifications include race, national origin, sex, religion, illegitimacy, and alienage.)
Of course, sex is not sexual preference. The Supreme Court had the opportunity to decide what protections apply to homosexuals last month in Perry, but held that their hands were tied by issues of standing.
Lambda's amicus brief points out that the Ninth Circuit has made such a determination, applying the non-heightened rational basis standard in High Tech Gays v. Defense Ind. That decision, however, was based on controlling precedent from the since-reversed and oft-criticized Supreme Court decision in Bowers v. Hardwick.
Lambda argues that homosexuals, like women and African-Americans, deserve heightened protection due to a long history of discrimination.
Adam Liptalk, for the Times, reminds us of Justice Thurgood Marshall's concurrence in the original Batson, where he advised that the best remedy was the removal of peremptory challenges altogether. He also points out that England did exactly that, and still manages to administer fair trials via random jury selection.
Meanwhile, California, in state courts, has prohibited the use of peremptory challenges based on sexual preferences for more than a decade. Our court system has not yet collapsed (though the budget crisis isn't helping matters).
Predicting the Ninth Circuit's holding would be difficult, considering the number of undecided issues present. Does heightened scrutiny apply to sexual preference? Does Batson apply? Can the court weasel out of making a determination? As always, we'll report back when we know more.