Update: It appears that AbbVie (the pharmaceutical spin-off of Abbott Laboratories) will not appeal the 9th Circuit's decision to the Supreme Court. Thus, at least in the jurisdiction of the 9th Circuit, attorneys are now prohibited from using peremptory challenges to strike jurors.
Today in Smithkline Beecham Corporation v. Abbott Laboratories a three judge panel in the 9th Circuit made it clear that lawyers in their jurisdiction may no longer strike jurors because of their sexual orientation. Up to this point, the Supreme Court has prohibited attorneys from exercising peremptory challenges to remove jurors because of their race (Batson v. Kentucky) and gender (J.E.B. v. Alabama). Now for the first time, a federal appellate court has extended this prohibition to cover sexual orientation. Some states such as California have already passed legislation extending Batson to sexual orientation, but this is the first federal court to do so.
According to Judge Stephen Reinhardt who wrote the unanimous opinion for the three judge panel:
Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.
This dispute between Smithkline Beecham Corporation and Abbott Laboratories stems from a licensing disagreement and the pricing of HIV medications. Smithkline was suing Abbott Laboratories for allegedly overpricing its HIV drugs. During voir dire, attorneys for Abbott Laboratories struck a gay man because of his sexual orientation. The parties were aware of the juror's sexual orientation because the juror self-identified.
It remains to be seen if this decision will be upheld. The losing party may ask for an en banc hearing and or appeal the case to the Supreme Court. Some would argue that extending Batson to cover sexual orientation will create more problems than it would solve. First, how will this decision be implemented? Unlike race or gender which most jurors identify on the juror form, how will attorneys know someone's sexual orientation unless they directly ask that person? Second, is sexual orientation similar to race and gender? While there is an argument to be made with respect to marriage equality, the same cannot be said for jury service. There is no history of discrimination with respect to gays and lesbians serving as jurors, which raises the final point. If anything, this decision is more of a symbolic victory as the question of whether jurors are struck because of their orientation rarely comes up in the day to day practice of selecting a jury.