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.

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