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November 07, 2013 Articles

Excluding Gay Jurors after Windsor

By Shmuel Bushwick

In July, the ABA Journal reported on SmithKlein Beecham Corp. v. Abbott Laboratories (GSK v. Abbott), which, in part, debates whether the equal protection jurisprudence arising out of Batson v. Kentucky, 476 U.S. 79 (1986), applies to sexual orientation. Originally briefed prior to the Supreme Court's decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the case received additional briefing in light of the Court's decision and will potentially be telling as to the impact of Windsor in the Ninth Circuit as well as outside the marriage context. The Ninth Circuit heard oral argument in late September and has not yet issued its decision. An audio recording of oral arguments can be found here.  

This article attempts to briefly provide a factual and legal background to the case as well as an overview of several of the arguments raised.

GSK v. Abbott
The underlying case arose out of a licensing contract between GSK and Abbott regarding the licensing of an HIV/AIDS-related drug. In short, Abbott licensed a drug to GSK that GSK planned to market as a booster to one of its own drugs. But then Abbott allegedly increased the price of it within weeks of the release of GSK's drug, which GSK alleged was an attempt to reduce competition. GSK claimed this injured its sales and that the price increase violated the parties' agreement.

At the outset of trial, Abbott exercised a peremptory challenge against juror B. GSK objected to the challenge as discriminatory and a violation of Batson because juror B's answers during voir dire identified him as gay. According to GSK, Abbott struck the sole gay juror because of the relationship between the lesbian, gay, bisexual, and transgender (LGBT) community and HIV/AIDS. The district court judge overruled the objection on three grounds: First, Batson does not apply in civil cases. Second, a single discriminatory strike did not trigger Batson protections. And, third, Batson does not extend to sexual orientation. After receiving the opportunity to stand on these grounds or add his own rationale, the attorney for Abbott relied on the court's reasoning and added that he did not know whether juror B was gay. At trial, the jury found for Abbott on GSK's antitrust claims and for GSK on its claims arising out of a breach of the implied covenant of good faith and fair dealing.

Discriminatory Peremptory Challenges
The prohibition on discriminatory peremptory challenges stems from Batson v. Kentucky, in which the Supreme Court held that the government violated the Equal Protection Clause of the Fourteenth Amendment by intentionally excluding jurors based on their race. This ruling was subsequently extended to civil proceedings in Edmonson v. Leesvillle Concrete Co., 500 U.S. 614 (1991). And in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), the Court again expanded these protections and condemned peremptory challenges based on gender as similarly barred by the Equal Protection Clause. In recognizing for the first time that Batson encompasses more than race, the Court cautioned that similar protections would only be availed to classes receiving a heightened form of scrutiny. The Supreme Court's expansion of groups protected by Batson protections stops with J.E.B., though subsequent case law makes it clear that even a single discriminatory strike violates the principles this case sets forth.

In addressing Batson challenges, trial courts apply a three-part test in which the challenging party

must [first] make a prima facie showing that a peremptory challenge has been exercised on [an unconstitutional] basis[; s]econd, if that showing has been made,[opposing counsel] must offer a []neutral basis for striking the juror in question[; and t]hird, in light of the parties' submissions, the trial court must determine whether the [party making the Batson challenge] has shown purposeful discrimination.

The Application of Batson to the LGBT Community
GSK v. Abbott is not the first attempt in either the federal or state courts to extend Batson to the LGBT community. Three prior cases reached the federal circuit courts, including two cases in the Ninth Circuit. Johnson v. Campbell, 92 F.3d 951, 951 (9th Cir. 1996), arose out of a civil-rights action brought pursuant to 42 U.S.C. § 1983. The Johnson plaintiff attempted to question the defendant's peremptory challenge to a juror who served on a jury in a similar case and had not identified as gay during any point of voir dire. Nonetheless contending that the challenge arose out of homophobic prejudice based on the defense counsel's stereotyping, the plaintiff sought permission to establish that the juror was indeed gay. The district court denied this request.

Though the Ninth Circuit assumed that Batson prohibited discrimination on the basis of sexual orientation, the court did not rule on this issue. Instead, the circuit found that the record could not support the necessary prima facie case of purposeful discrimination.

Similarly, in United States v. Osazuwa, 446 F. App'x 919 (9th Cir. 2011),the Ninth Circuit again assumed that Batson precludes challenges rooted in homophobia but found that the prosecution's proffered reasons during the applied Batson analysis plausibly protected the challenge from further appellate review.

Finally, the Eighth Circuit's decision in United States v. Blaylock, 421 F.3d 758, 769 (8th Cir. 2008),stands in sharp contrast with the Ninth Circuit's decisions. Blaylock presented the Eighth Circuit with the arguments of a criminal defendant accused of drug-related offenses who appealed his conviction based partially on the assertion that the prosecution exercised a challenge because of the jurors' sexual orientation. Confronted with the Ninth Circuit's prior assumption that Batson applied in similar situations, the Eighth Circuit expressed "doubt [that] Batson and its progeny extend constitutional protection to the sexual orientations of venire persons" and refused to recognize any merit in the argument. Ultimately, however, the Eighth Circuit reasoned that the defendant failed to make a prima facie case of discrimination.

A50-state survey reveals that, unlike the federal courts, at least five states protect jurors from discrimination based on their sexual orientation, though the contours of these protections are not always clear.

California was the first to condemn this behavior and remains the most straightforward in its prohibition. In People v. Garcia, 77 Cal. App. 4th 1269, 92 Cal. Rptr. 2d 339 (Cal. Ct. App. 4th Dist. 2000), a California appellate court directly confronted the issue of sexual orientation and a discriminatory peremptory challenge after the prosecutor in that case excused two lesbians from a venire panel. Delving into whether lesbians and gay men constitute a class for the purposes of Batson and People v. Wheeler, 583 P.2d 748 (Cal. 1978)the California state equivalent of Batson decided prior to the Supreme Court's Batson decision—the California court expressed absolute certainty that this is a protected class. The court based its decision on the "Sixth Amendment's guarantee of a jury venire representative of the community" and not on equal protection.

The court engaged in an analysis that focused on the shared history of persecution and the resulting common perspective available to lesbians and gay men and proceeded to recognize that it is unlikely that another group could adequately represent "the perspective of the [gay] community." Though the California attorney general contended that sexual orientation, unlike ethnicity and race, is "not necessarily patent," the court was not troubled by the argument. Instead, the court noted that the diverse and intermingled nature of the national community blurs the lines between races and this is part of the flaw inherent in presumptive stereotyping. California later codified these protections in section 231.5 of its Code of Civil Procedure.

Four other states maintain similar prohibitions on discrimination against jurors on the basis of sexual orientation. These states are Colorado, Colo. Rev. Stat. § 13-71-104(3)(a); Minnesota, Minn. Stat. § 593.32; Oregon, Or. Rev. Stat. § 10.030; and Rhode Island, R.I. Sup. Ct. Art. V, R. 8.4.  The case law interpreting the intersection of these protections and Batson challenges remains limited.

GSK v. Abbott—The Ninth Circuit
Faced with this background, and specifically the J.E.B. limitation that Batson only apply to groups receiving a heightened form of scrutiny, the GSK v. Abbott arguments initially focused heavily on whether Lawrence v. Texas, 539 U.S. 558 (2003)—the seminal case in which the Supreme Court interpreted the Substantive Due Process of the Fourteenth Amendment to outlaw the criminalization of same-sex sexual intercourse—provides sufficient basis for recognizing sexual orientation as a suspect classification.

GSK supported its argument by citing Hatheway v. Secretary of Army, 641 F.2d 1376 (9th Cir. 1981), in which the Ninth Circuit found that sexual orientation should receive intermediate scrutiny. Noting that Bowers v. Hardwick, 478 U.S. 186 (1986), technically overruled this classification, GSK argued that, because the Supreme Court's decision in Lawrence overruled Bowers, the Ninth Circuit would be free to reinstate the holding in Hatheway. GSK looked to Attorney General Holder's statement supporting a heightened form of scrutiny and cases aligned with Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010), aff'd sub nom. Perry v. Brown, 671 F.3d 1052  (9th Cir. 2012), to further bolster its argument that application of the traditional four-part analysis typically used to extend heightened scrutiny in equal protection cases proves an elevated form of scrutiny should apply here. Thirteen legal services organizations coauthored an amicus brief supporting GSK's arguments and advocating for recognition of sexual orientation as a suspect classification and, therefore, application of Batson.

In countering GSK's reasoning, Abbott first argued that the court's recent decision in Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008)—in which the Ninth Circuit applied rational-basis review to an equal protection challenge to the now-repealed "Don't Ask, Don't Tell Policy"—foreclosed GSK's argument that anything greater than rational review should apply to sexual-orientation cases brought on equal protection grounds.

Next, Abbott distinguished between the substantive due process protections of conduct and opined that allowing the Supreme Court's decision in Lawrence to reach Batson and equal protection would be tantamount to affording everyone with a substantive due process right Batson protections—something the case law would not support. Abbott also contended that extending Batson to sexual orientation would present the courts with unwieldy problems of implementation because, short of basing a decision on stereotyping or submitting the juror to invasive questions, a court could not ascertain a juror's sexual orientation. This arguments draws on an interpretation of Batson that would limit its application to self-evident groupings, like race and gender. In testament to the circuit's decisions in Johnson and Osazuwa, discussed supra, Abbott maintained that, even if the court assumed Batson extended to sexual orientation, GSK failed to establish a prima facie case of discrimination because, while not mentioned by Abbott's counsel during the empaneling of the jury, the record provides additional reasons for dismissing juror B.

Responding to these assertions, GSK argued that there can be no distinction drawn between the conduct and status of sexual orientation because "the definition of a homosexual is one who forms intimate personal relationships with members of the same sex" and that, in this situation, the rights available under substantive due process and equal protection are inextricably intertwined. In addition to reiterating several earlier arguments, GSK addressed concerns regarding implementation by emphasizing that this appeal deals solely with the fact pattern in which a venire person specifically identifies as gay, alleviating any need for a court to speculate or apply the kind of stereotypes Batson condemns. GSK next drew attention to the low standard required for making a prima facie Batson case and attempted to portray the post hoc reasons submitted by Abbott as pretextual, inconsequential, or otherwise insufficient.

Following the Supreme Court's decision in Windsor, the Ninth Circuit requested additional briefing as to what, if any, impact this decision had on the Batson argument. GSK seized this opportunity to argue that Windsor undoubtedly establishes that something other than rational- basis review applies. Abbott, on the other hand, interprets Windsor as continuing to apply rational-basis review and thus, in accordance with J.E.B., is supportive of the contention that Batson does not extend to sexual orientation.

Though this synopsis relays only some of the arguments before the Ninth Circuit, GSK v. Abbott undoubtedly provides the circuit with the opportunity to tackle the contentious issue of sexual- orientation discrimination. The mode of analysis chosen may cast light on judicial perceptions of the gay community and what additional constitutional protections the community merits.   

Keywords: litigation, LGBT, jury selection, gay jurors, sexual-orientation discrimination, constitutional protections, Batson, Equal Protection Clause, Fourteenth Amendment, rational basis review, due process, peremptory challenges

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