Striking Batson Gold at the End of the Rainbow?: Revisiting Batson v. Kentucky and Its Progeny in Light of Romer v. Evans and Lawrence v. Texas

Author:John J. Neal
Position:J.D. Candidate, The University of Iowa College of Law

Two recent Supreme Court cases concerning gay rights as evaluated under the Fourteenth Amendment call into question whether the Court should extend protection from the discriminatory use of peremptory challenges to sexual orientation, even if sexual orientation is currently evaluated under a rational-basis standard. To date, the Court has only held unconstitutional the discriminatory use of... (see full summary)


John J. Neal: J.D. Candidate, The University of Iowa College of Law, 2006; B.S., B.A., Iowa State University, 2002. I wish to thank my family for all their support: my brother James for all his insight during my legal studies and for always being there for me; my mother for encouraging me to never give up in the face of financial adversity and for teaching me to be open; and my fiancÈe Michelle for her patience, understanding, and ability to listen and provide guidance during the trying times that law school provides. Many thanks to the current and former writers and editors of the Iowa Law Review for all their hard work and suggestions. Page 1093

I Introduction

"Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process."1

Andy, an ambitious partner in a large law firm, is suspected of having AIDS after a colleague discovers lesions on Andy's body.2 After an investigation into Andy's background, the firm discovers Andy is gay. In an effort to protect the firm's reputation amongst its high-paying corporate clients, the firm undertakes a fraudulent campaign to remove Andy. Upon the firm's execution of that plan, Andy brings a wrongful termination claim. At the commencement of the jury trial, Andy and his attorney want to probe the jury panel to find possible jurors who are either sympathetic to or prejudiced against the gay community, as the case will inevitably involve sensitive issues concerning Andy's sexual orientation. Likewise, the firm and its attorneys want to eliminate any jurors who are sympathetic to Andy's position and possibly want to retain any jurors who hold an animus toward the gay community.

On the other side of the country, Dan White, a former member of the San Francisco Board of Supervisors, is charged with double murder.3Because Mr. White opposed gay-rights initiatives while serving in his capacity as a supervisor,4 the defense wants to eliminate any juror who is sympathetic to the gay and lesbian community. After securing a jury composed of no gays or lesbians, Mr. White is convicted of two counts of voluntary manslaughter, which is greatly reduced from the two counts of first-degree murder for which he was charged.5

The judicial system affords Andy, the firm, and Mr. White the right, during voir dire proceedings, to eliminate, without cause, a certain number of jurors that each party feels will hinder his or her case. Such elimination comes in the form of a peremptory challenge.

Voir dire simply "refers to the jury-selection phase of a trial."6 A peremptory challenge is the process by which a party may remove a potential jury member from the case without giving reason, as long as that party does not remove the potential jury member because of his or her race, gender, or Page 1094 ethnicity.7 To date, either party to litigation may remove, without cause, a potential jury member because of his or her sexual orientation.

One may wonder how often the issue of sexual orientation really comes into play during voir dire. With the proliferation of hate-crime statutes8 and litigation concerning gay and lesbian rights, the issue becomes of great importance. In fact, it is often stated that a trial is won or lost during voir dire.9

This Note discusses recent Supreme Court cases,10 although not decided in the realm of peremptory challenges, which concern issues important to gay and lesbian rights. It then discusses the application of those cases to Batson v. Kentucky11 and the use of peremptory challenges. Part II of this Note discusses the history of peremptory challenges under common law and their adoption by the United States.12 Further, Part II of this Note reviews the history leading up to the landmark case of Batson v. Kentucky13and the cases that follow it.

In Part III, this Note discusses the Supreme Court's interpretation of sexual orientation as analyzed under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.14 Part IV of this Note examines sexual orientation in the jury process and whether gay and lesbian jury Page 1095 members have a protected privacy interest during voir dire.15 This Note concludes that because of the Court's decisions in Romer v. Evans16 and Lawrence v. Texas,17 sexual orientation should be protected from the discriminatory use of peremptory challenges, and courts should afford gays and lesbians a privacy interest during voir dire questioning.18

II The History Of Peremptory Challenges

Peremptory challenges have a long history tracing back to England. However, the legal system in America has deviated from the original English law concerning peremptory challenges.

A Common Law Peremptory Challenges And America's Adoption Of Peremptory Challenges

The peremptory challenge dates back at least to the time of King Edward.19 During this time, the Crown allotted thirty-five peremptory challenges to any defendant charged with a felony.20 The King established that the Crown or prosecutor, not the defendant, had to show cause when removing a potential jury member from the case.21 But English common law indicated otherwise. In essence, the Crown's challenges were unlimited, and only upon the failure to impanel a full jury was the Crown required to establish cause.22 This practice by the Crown became known as "to stand aside."23 Page 1096

It was established that the King could challenge any juror, and that challenged juror would "stand aside" to wait until every other juror had been either established as a jury member or peremptorily struck.24 Only if there was a deficiency in the number of jurors would the King be required to show cause for those jurors struck or "standing by."25 Further, if the court failed to impanel a full jury, then the prosecution would be required to establish cause for the jurors properly standing by "in the order they stood on the panel."26

1. Statutes Pertaining to Peremptory Challenges

The Sixth Amendment to the United States Constitution guarantees a trial by an impartial jury.27 Interestingly, however, the Constitution does not guarantee the use of peremptory challenges or that Congress enact them in order to facilitate the system of impaneling an impartial jury.28

But, in 1790, the first Congress declared that in proceedings concerning treason, a court had to give each defendant thirty-five peremptory challenges.29 In other felony proceedings punishable by death, the defendant had to be allowed twenty peremptory challenges.30 Page 1097

Later, Congress gave the states the power to adopt rules necessary for the "designation and empanelling of juries" in any proceeding involving criminal or civil actions.31 Thus, if a given state allowed the government to stand aside, the federal courts would adhere to the state's law.32 There is some indication that, in 1790, Congress never intended to adopt the old English common law system in its entirety, especially in regard to the Crown's (government's) use of peremptory challenges.33

2. Early American Case Law Pertaining to Peremptory Challenges

Although in 1790 Congress prescribed by statute the number of peremptory challenges afforded the defendant,34 at least one state followed the law as laid down during the time of King Edward. This state allotted defendants thirty-five peremptory challenges, even if the crime charged was not treason.35 The reason was that peremptory challenges were "a privilege highly esteemed, and anxiously guarded, at the common law."36 Even further, some states, after Congress gave the government a qualified right to Page 1098 peremptory challenges,37 still adhered to the "stand aside" system under common law.38

B Peremptory Challenges And Jury Composition Prior To Batson v. Kentucky

The impetus for restricting modern-day peremptory challenges stems from the 1879 case Strauder v. West Virginia.39 Strauder stands for the proposition that a state denies equal protection to a black defendant when the defendant is tried before a jury in which members of the defendant's race have been purposefully excluded from participating.40 At issue in Strauder was a West Virginia statute, which made only white males eligible for jury duty.41 The decision in Strauder did not conclude that members of the same race as the defendant would be better able to judge the defendant, but only that it was a denial of equal protection to give a defendant a jury in which members of the defendant's race were not allowed to participate.42Although Strauder never raised the issue of peremptory...

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