This United States Court of Appeals for the Ninth Circuit decision concerns whether equal protection prohibits discrimination based on sexual orientation in jury selection. The case arose out of a claim brought by GlaxoSmithKline (GSK) against Abbott Laboratories (Abbott) relating to a licensing agreement and the pricing of HIV medications. During jury selection, Abbott used a peremptory strike against the only self-identified gay juror. The Court of Appeals held that under United States v. Windsor, 133 S. Ct. 2675 (2013), classifications based on sexual orientation are subject to heightened scrutiny. It further held that equal protection prohibits peremptory strikes based on sexual orientation. Finding that the peremptory strike at issue was based on sexual orientation, and that the exclusion of the juror was not a harmless error since a jury is necessary to resolve the case, the Court of Appeals remanded the case for a new trial.
At trial, GSK raised a Batson challenge, through which a party may contest opposing counsel’s peremptory strike for being impermissibly discriminatory against certain classes of people. Based on a review of “[t]he history of exclusion of gays and lesbians from democratic institutions and the pervasiveness of stereotypes about the group,” the Court of Appeals found that Batson also applies to peremptory strikes based on sexual orientation. For a Batson challenge to succeed: 1) the challenging party must establish a prima facie case of intentional discrimination, 2) the striking party must give a nondiscriminatory reason for the strike, and 3) the court must determine, on the basis of the record, whether the challenging party has shown purposeful discrimination. The Court of Appeals determined that GSK established a prima facie case of intentional discrimination because, among other reasons, the stricken juror was “the only juror to have identified himself as gay on the record, and the subject matter of the litigation presented an issue of consequence to the gay community.” It further found that the striking counsel failed to give a nondiscriminatory reason for the strike, and that its denial that it knew the juror was gay was demonstrably untrue from the record. Finally, on the basis of the record, the Court of Appeals determined that the district judge should have concluded that the strike was impermissible on the basis of the juror’s sexual orientation. As stated above, because a jury was necessary to resolve the case, the exclusion of the juror in violation of Batson warranted a new trial.