SmithKline Beecham Corp. v. Abbott Laboratories

“Equal protection prohibits peremptory strikes based on sexual orientation.”

SmithKline Beecham (“SmithKline”) sued Abbott Laboratories (“Abbott”) over a HIV drug licensing deal. During jury selection, a juror (“Juror B”) impliedly indicated that he was homosexual. Abbott used its first peremptory challenge to strike Juror B. SmithKline challenged the strike under Batson v. Kentucky and argued the strike was “impermissibly made on the basis of [Juror B’s] sexual orientation.” The Ninth Circuit found that the district court judge used the wrong legal standard to evaluate and deny the Batson challenge and reviewed the claimed error de novo. Noting the subject matter of the claims in this case, the panel found “[t]he potential for relying on impermissible stereotypes [in jury selection] was ‘particularly acute’ in this case.” The panel found that Abbott: (1) knew Juror B’s sexual orientation; (2) made false, non-responsive statements when questioned about the potentially discriminatory strike; (3) “failed to question [Juror B] meaningfully about his impartiality or potential biases;" and (4) the neutral reasons for the strike offered in its brief were untrue. The panel held that the “record persuasively demonstrate[ed] that Juror B was struck because of his sexual orientation.” The panel analyzed United States v. Windsor under the Witt v. Department of the Air Force analysis to consider what level of scrutiny the panel was required to apply. The panel found that Windsor required heightened scrutiny and determined that the historical “exclusion of gays and lesbians from democratic institutions and the pervasiveness of stereotypes about that group” required that Batson apply to peremptory strikes based on sexual orientation. Finally, the panel held that the effects of “excluding a juror in violation of Batson [were] so pervasive, it cannot be deemed harmless [error].” REVERSED and REMANDED.