On January 21, 2014, in SmithKline Beecham Corp. v. Abbott Laboratories (No. 11-17357, (9th Cir. Jan. 21, 2014)), the US Court of Appeals for the Ninth Circuit held that a party's peremptory strike against a potential juror based on the juror's sexual orientation was impermissible under Batson v. Kentucky (476 U.S. 79 (1986)). The court held that the US Supreme Court's recent decision in United States v. Windsor indicated that classifications based on sexual orientation would be subject to heightened scrutiny (133 S.Ct. 2675 (2013)). Using this analysis, the Ninth Circuit found that the juror was therefore improperly excluded and remanded the case for a new trial.

The underlying claim in this action involved a licensing agreement between the two parties, plaintiff SmithKline Beecham (d/b/a Galaxo Smith Kline (GSK)) and defendant Abbott Laboratories, and the pricing of HIV medication. During jury selection, Abbott used its first peremptory strike to eliminate the only juror who self-identified as gay. GSK challenged the strike under Batson, arguing that the strike was impermissibly made on the basis of sexual orientation. The district court judge allowed the defendant's strike. The matter then proceeded to a jury trial, which resulted in a mixed verdict. Both parties appealed. GSK contended the peremptory strike made by Abbott was impermissible and warranted a new trial.

The Ninth Circuit held that the exclusion of a juror based on his sexual orientation violated Batson and remanded for a new trial. The appellate court held that Windsor implicitly required the application of heightened scrutiny to equal protection claims involving sexual orientation, and that Batson prohibits peremptory strikes based on sexual orientation.

Practitioners in the Ninth Circuit should be aware that:

Practitioners in other circuits should recognize the effect that Windsor may have on equal protection claims based on sexual orientation.