The New Batson Challenge, Part II: Clarifying Windsor’s Standard of Review

­ [1] Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

In Batson v. Kentucky,[2] the Supreme Court held that peremptory challenges of members of a jury pool are subject to the guarantees of the Equal Protection Clause. Last year, in United States v. Windsor,[3] the Court struck down the federal Defense of Marriage Act (DOMA) as violative of the Fifth Amendment’s Equal Protection and Due Process Clauses. In January 2014, the Ninth Circuit applied these decisions in SmithKline Beecham v. Abbott Laboratories[4] to extend the protections of Batson to peremptory challenges of gay and lesbian jurors. In so doing, the court relied heavily on Windsor, essentially appropriating the Supreme Court’s reasoning in Windsor to declare that laws that classify persons based on sexual orientation are reviewed under a heightened scrutiny standard. This case is notable, first, because it represents a further extension of Batson’s growing protections, but more importantly, because it demonstrates how the Supreme Court’s decision in Windsor invited lower federal courts to declare a standard of review for laws that classify persons based on sexual orientation and initiated a legal battle to distill the “spirit of Windsor” into a manageable judicial standard.

The Batson Challenge and the Challenge of Batson

The Supreme Court announced the current method for judicial review of peremptory strikes in criminal trials in Batson, holding them subject to the constitutional principles of Equal Protection. A “Batson challenge” involves a three-step inquiry. First, the party issuing the Batson challenge must demonstrate a prima facie case of intentional discrimination. Second, the striking party is allowed to offer a nondiscriminatory reason for the strike. Finally, using the record and in light of the striking party’s proffered reasons, the court determines whether the challenging party has shown purposeful – and hence illegal – discrimination. If the challenging party has demonstrated illicit discriminatory motives in the peremptory strike, the court will overrule the strike and seat the juror.[5] The Court extended this protection to civil trials in Edmonson v. Leesville Concrete Co.[6] The Court then extended Batson to gender-based peremptory challenges in J.E.B. v. Alabama,[7] but noted that “[p]arties may . . . exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review.”[8]

Judge Reinhardt, writing for the Ninth Circuit panel in the current case, immediately took Abbott Laboratories to task for its trial counsel’s discriminatory strike of a gay juror during voir dire and for post-hoc rationalizations for the strike on appeal. The court noted that Abbott declined to provide any justification for its strike when offered the opportunity to do so by the district court,[9] an issue on which the court had pressed Abbott’s appellate counsel at oral argument.[10] The court’s opinion also emphasized that Abbott’s trial counsel asked Juror B (the stricken gay juror at issue) only five cursory questions, and failed to inquire meaningfully about his impartiality or potential biases.[11] Finally, the court chastised Abbott for its “highly respected and able counsel[’s]” offer of further pretextual reasons for the strike on appeal.[12] Since it concluded that the district judge had applied the wrong legal standard to the Batson challenge and did not appropriately scrutinize Abbott’s strike of Juror B, the Ninth Circuit reviewed the challenge de novo, then defined the correct standard for the Batson challenge and applied heightened scrutiny to the peremptory strike.[13]

Defining the Import of Windsor

SmithKline argued on 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 Equal Protection jurisprudence.[14] Therefore, 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.[15] Abbott, on the other hand, argued that because the Supreme Court in Windsor did not explicitly announce a standard of 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 allow the strike under the reasoning in J.E.B.[16]

The Ninth Circuit’s decision to extend Batson protection to gays and lesbians was premised on the idea that strikes based on sexual orientation were subject to a higher level of scrutiny, and so fell outside J.E.B.’s reasoning rational basis review. Although it acknowledged that a party can issue peremptory challenges against any group normally subject to rational basis review, the court held that gays and lesbians are not such a group. The court used Windsor to subject any classification based on sexual orientation to heightened scrutiny, thus placing sexual orientation on equal constitutional footing with gender as a suspect classification. The court readily recognized that Windsor “did not expressly announce the level of scrutiny it applied to the equal protection claim at issue in that case.”[17]  Nonetheless, the panel maintained that, “[w]hen the Supreme Court has refrained from identifying its method of analysis, we [the Ninth Circuit] have analyzed the Supreme Court precedent by considering what the Court actually did, rather than by dissecting isolated pieces of text.”[18] This rule of interpretation allowed the court to distill a standard of heightened scrutiny for classifications based on sexual orientation from the Windsor decision.

Several aspects of the Court’s reasoning in Windsor were important for the Ninth Circuit’s holding in the present case. First, was the Court’s examination of the “essence” of DOMA and the lack of “hypothetical justifications” for the law, since under rational basis review, any reasonable state of facts may support a challenged law, whether or not they actually motivated the legislature.[19] Second, the Ninth Circuit emphasized the Windsor Court’s demand for a purpose to “justify [the] disparate treatment” or second-class status of gays and lesbians resulting from DOMA, a demand the Court would not have made under rational basis review.[20] Finally, the Ninth Circuit highlighted the absence of the “strong presumption” in favor of DOMA or the “‘extremely deferential’ posture toward government action” in that case, both of which would have been present if the Court had used rational basis review to invalidate DOMA. In turn, the Ninth Circuit held that “[i]n its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review,” and so extended Batson’sheightened scrutiny review to peremptory challenges based on sexual orientation.[21]

The Tangled Future of Windsor and Batson

Moving forward in the Ninth Circuit, it will be difficult if not impossible to remove gays and lesbians from federal juries based on their sexual orientation and without just cause. Pending a conceivable en banc appeal, SmithKline has potential to influence other federal circuits in expanding the safeguards of Batson. Although the Ninth Circuit found Windsor irreconcilable with its earlier decisions applying rational basis to classifications based on sexual orientation,[22] the Eighth Circuit has expressed serious doubt that Batson can be used to prohibit peremptory strikes based on sexual orientation.[23] Of course, the Eighth Circuit’s decision was published almost a decade before Windsor, but followed closely on the heels of Lawrence. Similarly, in denying a claim of improper jury selection, the Eleventh Circuit has also noted that the Supreme Court has never extended Batson to sexual orientation.[24] That ruling came down just a year before Windsor, but before Windsor created binding precedent on the Eleventh Circuit. So if a case similar to SmithKline were to arise in the Eighth or Eleventh Circuits, either appellate court could quite possibly take the opposite view of the Ninth and decline to extend Batson’s protections to peremptory challenges based on sexual orientation. This would create a circuit split over the scope of Batson and necessitate a resolution from the Supreme Court.

Even without the potential circuit split, the panel’s decision in the current case invites review by the Supreme Court. At a minimum, SmithKline represents one court’s exploitation of Windsor and consequential imposition of additional protections for gays and lesbians within the federal court system. As the Ninth Circuit wrote, “gays and lesbians have been systematically excluded from the most important institutions of self-governance” and “strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.”[25] This decision is an important step forward in the developing jurisprudence on constitutional protections for gays and lesbians.

Also, the case epitomizes the battle to delineate the spirit and ultimate meaning of Windsor, as well as the challenge to define the Supreme Court’s reasoning in one of the most notable cases of the decade. Without the Court’s announcement of an explicit standard of review for classifications based on sexual orientation, gays and lesbians (and lower federal courts) are stuck in a litigation limbo. Indeed, the Ninth Circuit’s ruling in this case – and any federal cases with outcomes similar to SmithKline – would be subject to the pronouncement of the nation’s nine guardians of the Equal Protection Clause. Despite the Ninth Circuit’s creative use of Windsor, the court’s ruling in this case could be completely vitiated by a Supreme Court holding that classifications based on sexual orientation will be reviewed only under a rational basis standard. In light of this possibility, for now, litigants can only hope that the exploitation of strategic lawsuits like SmithKline will eventually result in an explicit announcement of heightened scrutiny (not rational basis) review for classifications based on sexual orientation.

For now, however, gays and lesbians can use the Ninth Circuit’s persuasive precedent in an attempt to solidify the holding of Windsor as extending heightened constitutional protections to gays and lesbians. Of course, the “Hollywood Circuit” has a reputation for exceedingly progressive decisions, and some pundits will likely discount its holding in this case as typical of the Ninth “Circus.” But hopefully other federal appellate courts, and maybe even state courts, will adopt the Ninth Circuit’s influential reasoning on Windsor in the near-constant stream of same-sex marriage and sexual orientation discrimination cases rising through the judicial system. Finally, the import of SmithKline is difficult to overstate: a pharmaceutical contract dispute has resulted in the innovative expansion of forty-year-old Supreme Court precedent, but in line with the development of Batson’s progeny over the past several decades. While distilling the reasoning of Windsor – one of the most progressive but nebulous cases in recent Supreme Court history – the Ninth Circuit has also indirectly called on the Court to clarify both Batson and the standard of review for classifications based on sexual orientation.

[1] For an earlier analysis of and predictions about the Ninth Circuit’s ruling in this case, see the author’s previous article on this topic: The New Batson Challenge: Extending the Protections of Batson v. Kentucky to Gays and Lesbians

[2] Batson v. Kentucky, 106 S.Ct. 1712 (1986).

[3] United States v. Windsor, 133 S.Ct. 2675 (2013).

[4]SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014). For a full discussion of the case’s procedural history, see “The New Batson Challenge,” supra note 1.

[5] SmithKline, 740 F.3d at 476.

[6] 111 S. Ct. 2077 (1991).

[7] 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).

[8] J.E.B., 114 S.Ct. at 1429. Currently, only strikes based on race and gender receive a tougher evaluation under strict/heightened scrutiny.

[9] SmithKline, 740 F.3d at 477.

[10] Recording of the oral arguments in this case can be found on the Ninth Circuit’s website, available at

[11] SmithKline, 740 F.3d at 475.

[12] Id. at 478.

[13] Id. at 476.

[14] 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).

[15] Id. at 25-26.

[16] Abbott Laboratories Supplemental Brief Regarding United States v. Windsor at 1-2, SmithKline Beecham Corp. v. Abbott Laboratories, Nos. 2011-17357, 2011-17373 (9th Cir. 2013).

[17] SmithKline, 740 F.3d at 480.

[18] Id. (Citing Witt v. Dept. of the Air Force, 527 F.3d 806, 816 (9th Cir. 2008)).

[19] SmithKline, 740 F.3d at 481.

[20] Id. at 482 (emphasis in original).

[21] Id. at 481.

[22] Id. at 483.

[23] United States v. Blaylock, 421 F.3d 758, 769 (2005) (declaring in dicta, “we doubt Batson and its progeny extend constitutional protection to the sexual orientations of venire persons”).

[24] Sneed v. Fla. Dep’t of Corr., 496 Fed. Appx. 20, 27 (11th Cir. 2012) (holding that since all of defendant’s jury selection claims regarding homosexuals were without merit, trial counsel was not ineffective for failing to raise them).

[25] SmithKline, 740 F.3d at 485.


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