The New Batson Challenge: Extending the Protections of Batson v. Kentucky to Gays and Lesbians

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[1] and will soon decide whether to expand the protections of the Supreme Court decision in Batson v. Kentucky[2] 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,[3] 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.[4] 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.[5] 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.[6]

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