On Tuesday, the Ninth Circuit Court of Appeals took the unprecedented step of holding that potential jurors could not be excluded on the basis of sexual orientation. More specifically, if at trial one party makes a prima facie claim that its adversary has used peremptory challenges–which do not require the attorney to articulate cause for removal–to discriminate against gay or lesbian jurors, the striking party must set forth a nondiscriminatory justification for the removal. The Supreme Court has already held that the Fourteenth Amendment prohibits the use of peremptory challenges to strike jurors based on race (Batson v. Kentucky (1986)) or sex (J.E.B. v. Alabama (1994)), but it has not yet ruled on exclusions based on sexual orientation. That opportunity might be seized soon, thanks to a contrary ruling from the Eighth Circuit. But for the Court to follow the Ninth Circuit’s lead, a course it typically avoids at any opportunity, it will have to take two dramatic leaps.
The first leap would involve ruling that classifications based on sexual orientation should be reviewed under one of the more stringent levels of review assigned to race- and sex-based classifications, as opposed to the more deferential level (“rational basis”) used for classifications based on age, disability, and economic class. The Ninth Circuit ruling claimed that the Supreme Court had effectively taken this step last year when it struck down part of the Defense of Marriage Act in U.S. v. Windsor. There’s ample justification for believing that the Court, in Windsor and Lawrence v. Texas (2003), had displayed less deference to legislative judgments than is typical of rational basis review when it considered challenges to the Defense of Marriage Act and a state anti-sodomy law, respectively. Convincing Justice Kennedy that he was doing something other than what he was claiming to do when he wrote the majority opinions in Windsor and Lawrence, however, presents a sizable challenge, given the wide-ranging implications of subjecting sexual orientation-based classifications to heightened scrutiny. And as Judge Stephen Reinhardt wrote in Tuesday’s opinion, reliance on rational basis review would mean that the exclusion would withstand an equal protection challenge.
The second leap would involve opening the door to a broader challenge to the constitutionality of peremptory challenges. While the Court has imposed limitations on the use of peremptory challenges, it has expressly declined to entertain the notion that they are unconstitutional per se. (Thurgood Marshall argued in his Batson concurrence that peremptory challenges should be held unconstitutional because there is no way to ensure that their use will not rely upon impermissible stereotyping, but Marshall stood alone in holding this view.) Extending Batson and J.E.B. to include sexual orientation must rest on the notion that it, like race and sex, offers potential for reliance on stereotyping that harms potential jurors of the excluded class, litigants, and confidence in the legal system itself. The Ninth Circuit explains at length, and in what strikes me as convincing fashion, how gay men and lesbians had historically been excluded from American political life on the basis of invidious stereotyping. Yet one could develop a similar argument about excluding disabled individuals, or Muslims. Once enough characteristics have been deemed worthy of Batson-style exceptions, one might reasonably ask whether there exists any basis for allowing peremptory challenges at all. Whatever the merits of a system allowing only challenges for articulable cause, it is hard to envision the current Court moving toward its adoption. Then again, it’s possible that the Court could do as it did in Lawrence and Windsor: fuzz over the standard of review, carve out a narrow extension of Batson, and otherwise leave peremptory challenges as they are. Stay tuned….