Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review
A contract dispute between two manufacturers of an AIDS drug has presented the opportunity for federal courts to protect gays and lesbians from being struck from juries because of their sexual orientation. Last month a panel for the Ninth Circuit Court of Appeals heard oral arguments in a lawsuit by SmithKline Beecham Corporation against Abbott Laboratories and will soon decide whether to expand the protections of the Supreme Court decision in Batson v. Kentucky to include gay and lesbian venire persons. Extending Batson in this way would advance federal jurisprudence following the Supreme Court’s decision in United States v. Windsor, and also would presage another crucial Supreme Court battle over constitutional protections for gays and lesbians in the United States.
The present controversy began when SmithKline sued Abbott, alleging violations of the Sherman Antitrust Act, deceptive trade practices, and monopolization over Abbott’s manufacture of an important antiretroviral drug, Norvir. However, the most controversial issue in this case arose before the trial even began, when Abbott’s attorney used a peremptory challenge to strike a gay man from the jury pool after the man spoke about his partner. Following a brief trial, the jury rendered a verdict for SmithKline for nearly $3.5 million. Abbott appealed from the judgment. In response, SmithKline instituted a cross-appeal against Abbott, requesting a new trial because the district court judge allowed Abbott’s attorney to strike the gay juror over SmithKline’s challenge to the strike under Batson.
Batson: The Sticking Point
The Supreme Court announced the current method for judicial review of peremptory strikes in criminal trials in Batson. The Court held that if opposing counsel objects to a peremptory challenge for which the facts establish a prima facie case of discrimination, and if the striking party cannot explain the strike in racially neutral terms, then the trial court should sustain the objection and seat the juror. The Court extended this protection to civil trials in Edmonson v. Leesville Concrete Co. The Court has since extended Batson to gender-based peremptory challenges.
Although an important step in Equal Protection jurisprudence in 1986, Batson has been criticized as a largely toothless mechanism that is easily circumvented, and the Supreme Court itself has undercut it severely. However, some have pressed for Batson’s protections to be expanded and more rigorously enforced. For example, some states have attempted to codify the principles of Batson, and although the court is not applying California law in this case, California already has explicitly banned peremptory strikes based on sexual orientation. It is along this line of reasoning that SmithKline seeks to expand the protections of Batson and J.E.B. to sexual orientation.
Batson meets Windsor
SmithKline argued in its cross-appeal that although the Supreme Court in Windsor did not explicitly announce a level of scrutiny under the Equal Protection Clause by which to analyze laws that affect gays and lesbians, its reasoning in Windsor implicitly recognized homosexuals as a suspect or “quasi-suspect” class under Supreme Court jurisprudence. Therefore, as a suspect or “quasi-suspect” class under current Equal Protection theory, peremptory strikes based on sexual orientation should fall into the same challengeable class as strikes based on race or gender, and accordingly be analyzed under a higher level of scrutiny. Abbott, on the other hand, argued that because the Supreme Court in Windsor did not announce a standard of Equal Protection review for laws affecting gays and lesbians, the Ninth Circuit ought to continue to apply rational basis scrutiny to peremptory strikes of homosexuals from juries and therefore not extend Batson’s protections.
SmithKline as Windsor II?
At its root, this case presents an opportunity for the Ninth Circuit to expand the protective coverage of Batson to include gays and lesbians in the same vein as Windsor. Accordingly, oral arguments in the case focused on two major issues. The first issue was whether, and on what grounds, the Ninth Circuit could expand Batson to cover sexual orientation. The Court repeatedly pressed counsel for SmithKline on this issue, seemingly concerned with the potential of being reversed if a decision in SmithKline’s favor was not based on solid jurisprudence. However, the Ninth Circuit panel has an ever-developing line of Supreme Court cases, including Windsor, on which it could rely to expand Batson to sexual orientation. For several decades, the Supreme Court has slowly brought the law’s treatment of gays and lesbians out of the shadows and developed a line of reasoning that, while often murky, recognizes the inherent problems gays and lesbians face as a minority class before the law. As SmithKline’s counsel pointed out during oral arguments, sexual orientation is an immutable characteristic closer in kind to race or gender – classes traditionally protected under the Constitution – than to something like political affiliation. Essentially, the Supreme Court’s dicta in Windsor opened the door for the Ninth Circuit to expand Batson’s protections to sexual orientation.
The second major issue at oral argument was Abbot’s trial counsel’s refusal to articulate a reason for striking the gay juror from the venire. The panel was preoccupied with this issue because, after overruling SmithKline’s Batson challenge and resolving it in favor of Abbott, Abbott’s counsel largely refused the trial judge’s offer of an opportunity to explain his strike of the juror. Although appellate counsel for Abbott urged the panel to look at the totality of the circumstances, the judges were rightly concerned that any proffered reasons for the strike at this juncture are likely post-hoc rationalizations not truly supported by the record.
The arguments over both of these points illustrate the larger problems with the peremptory strike: Batson can only stretch so far without making every peremptory strike discriminatory. A trial court must examine counsel’s behavior to find a prima facie case of discrimination. An appellate panel can only accurately perceive a certain amount of discrimination from a cold trial record. And, in either case, it is far too easy for trial counsel to create post-hoc rationalizations for a discriminatory strike. It is for these reasons that even an extension of Batson to sexual orientation will not necessarily prevent gays and lesbians from being discriminatorily bumped from juries, and why many have urged the elimination of the peremptory strike altogether.
In this case, the three notably liberal judges on the appellate panel are likely to agree with SmithKline’s arguments and the spirit of Windsor, and so be willing to extend Batson to cover peremptory strikes of gays and lesbians. Although easily circumvented, this expanded Batson rule would provide, at least, minimal protections for gays and lesbians in the courtroom. Such a ruling also follows naturally on the Supreme Court’s “not-quite-rational-basis” standard for gays and lesbians articulated in Windsor. If the appellate panel expands Batson to sexual orientation, the case will almost certainly be appealed to the Ninth Circuit en banc, and potentially to the Supreme Court. Given the increasingly politicized nature of the Supreme Court and its closely split decisions, the ultimate disposition of the case is unclear, but the impending decision of the Ninth Circuit panel will have immediate ramifications for federal juries. The panel’s ruling, in turn, would set the stage for “Windsor II,” in which the Supreme Court could be forced to articulate a coherent standard of review under the Equal Protection Clause for the law’s treatment of gays and lesbians.
 SmithKline Beecham Corp. d/b/a GlaxoSmithKline v. Abbott Laboratories, Nos. 11-17357, 11-17373 (9th Cir. 2013).
 Batson v. Kentucky, 106 S.Ct. 1712 (1986).
 United States v. Windsor, 133 S.Ct. 2675, (2013) (holding DOMA unconstitutional as an improper restriction and disability on a specific class – gays and lesbians – whom New York had sought to protect by its marriage laws).
 SmithKline Beecham Corp. v. Abbott Labs. (N.D. Cal. July 8, 2011) 2011 U.S. Dist. LEXIS 73831 at 2, renewed motion for judgment as a matter of law denied, SmithKline Beecham Corp. v. Abbott Labs., 2011 U.S. Dist. LEXIS 99812.
 Maura Dolan, “Court to decide whether gays can be bumped from federal juries,” L.A. Times, http://www.latimes.com/local/lanow/la-me-ln-gays-federal-juries-20130918,0,6463986.story (Sept. 18, 2013).
 Brief of Plaintiff-Appellee and Cross-Appellant SmithKline Beecham Corporation d/b/a GlaxoSmithKline at 7 to 8, SmithKline Beecham Corp. v. Abbott Laboratories, Nos. 2011-17357, 2011-17373 (9th Cir. 2013). SmithKline moved to prevent Abbott’s strike of the potential juror under Batson, and the trial court summarily overruled it. The court then offered Abbott’s counsel an opportunity to explain his strike, to which he only responded that he did not know the juror was gay.
 Batson, supra note 2, at 1721.
 111 S. Ct. 2077 (1991).
 J.E.B. v. Alabama ex rel. T.B, 114 S.Ct. 1419 (1994) (applying the “exceedingly persuasive” standard to justifications for strikes based on a potential juror’s gender).
 See, Purkett v. Elem, 514 U.S. 765, 767 to 768 (1995) (reasoning, for example, that “[t]he second step of [the Batson] process does not demand an explanation that is persuasive, or even plausible.”)
 Cal. Code Civ. Pro. § 231.5. Although the Ninth Circuit sits in California, they are applying North Carolina law in this case, so California’s Code will not bind the court, but does demonstrate an answer to the challenges presented by Batson.
 Supplemental Brief of Plaintiff-Appellee and Cross-Appellant SmithKline Beecham Corporation d/b/a GlaxoSmithKline at 8 to 9, SmithKline Beecham Corp. v. Abbott Laboratories, Nos. 2011-17357, 2011-17373 (9th Cir. 2013).
 Brief of Plaintiff-Appellee and Cross-Appellant, supra note 6, at 25 to 26.
 Abbott Laboratories Supplemental Brief Regarding United States v. Windsor at 1 to 2, SmithKline Beecham Corp. v. Abbott Laboratories, Nos. 2011-17357, 2011-17373 (9th Cir. 2013).
 Much of the following analysis is drawn from a non-time-stamped recording of the oral arguments in this case, which can be found on the Ninth Circuit’s website: http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011317.
 See, e.g., Purkett, supra note 9.
 See, e.g., Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L. Rev. 809 (1997). In relation to the present case, see also, Editorial Board, L.A. Times, http://www.latimes.com/opinion/editorials/la-ed-peremptory-challenges-sexual-orientation-20130920,0,4629688.story (Sept. 20, 2013).