Will Baston Challenges Be Extended to Sexual Orientation?

During jury selection, litigants have two types of jury strikes: for cause and without cause. A potential juror can be struck from the jury panel for cause if he is proven to have a bias for or against a party. In addition, litigants may strike a number of potential jurors for no reason at all. Strikes for no reason are called peremptory strikes.

In 1986, the U.S. Supreme Court held that litigants can not exercise peremptory strikes if the sole reason for the exercise of the strike is based on race. In such cases, litigants must express a race neutral reason for the exercise of the strike. The process is called a Batson challenge after the name of the case, Batson v. Kentucky.

The reasoning of the Batson case has been extended to gender as well as race.

Currently, a California federal appeals court is considering extending the Batson holding to sexual orientation. The issue arose in a pharmecutical case involving AIDS medications. a lawyer for a large drug company sought to use a peremptory challenge to exclude a potential juror from the panel that appeared to be homosexual.

California state courts have extended Batson to sexual orientation for over a decade, but the same has not been extended in federal courts.