The fundamental legal question whether Batson prohibits peremptory strikes based on sexual orientation is decided in SmithKline Beecham Corp. v. Abbott Laboratories, 740 F. 3d 471 (9th Cir. 2014). In Batson, the Supreme Court held that the privilege of peremptory strikes in selecting a jury is subject to the guarantees of the Equal Protection Clause. Batson v. Kentucky 476 U.S. at 89, 106 S.Ct. 1712. Batson [ ] considered peremptory strikes based on race. Eight years later, the Court extended Batson to peremptory strikes made on the basis of gender. (citations omitted).
Heightened scrutiny applies to classifications based on sexual orientation. [E]qual protection prohibits peremptory strikes based on sexual orientation. SmithKline Beecham Corp. v. Abbott Laboratories, 740 F. 3d 471 (9th Cir. 2014).
To establish a prima facie case under Batson, [the moving party] must produce evidence that 1) the prospective juror is a member of a cognizable group; 2) counsel used a peremptory strike against the individual; and 3) "the totality of the circumstances raises an inference that the strike was motivated" by the characteristic in question. Collins, 551 F.3d at 919. "[A] defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). The burden on the challenging party at the prima facie stage is "not an onerous one." Boyd v. Newland, 467 F.3d 1139, 1151 (9th Cir.2004). It is a burden of production, not a burden of persuasion. Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir.2010). SmithKline Beecham Corp. v. Abbott Laboratories, ibid.
Batson must also protect potential jurors, litigants, and the community from the serious dignitary harm of strikes based on sexual orientation because, as in the case of gender, to allow such strikes risks perpetuating the very stereotypes that the law forbids. [ ] The history of exclusion of gays and lesbians from democratic institutions and the pervasiveness of stereotypes about the group leads us to conclude that Batson applies to peremptory strikes based on sexual orientation. SmithKline Beecham Corp. v. Abbott Laboratories, ibid.
THIS CASEBOOK contains a selection of 30 U. S. Court of Appeals decisions that analyze issues surrounding Batson challenges. The selection of decisions spans from January 2011 to the date of publication.