Does Batson v. Kentucky prohibit discrimination against homosexuals?
Although the California Supreme Court has held sexual orientation should be a protected class for jury selection purposes, see People v. Garcia, 92 Cal. Rptr. 2d 339, 347-48 (2000), and the Ninth Circuit has assumed, without deciding, sexual orientation qualifies as a Batson classification, Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996), neither the United States Supreme Court nor this circuit has so held.
While we seriously doubt Batson and its progeny extend federal constitutional protection to a venire panel member’s sexual orientation, our review of the trial record persuades us that even if Ehrmann made a prima facie case of purposeful discrimination, his Batson objection fails because the government offered legitimate, nondiscriminatory reasons for striking the panel member. The prosecutor told the district court he questioned the suitability of this panel member even before learning of the panel member’s sexual orientation. The prosecutor was concerned about the panel member’s liberal education and background, his livelihood as a musician, and his being a potential loner. Ehrmann offered no evidence to show the government’s proffered reasons were pretextual. Accordingly, we find no clear error in the district court’s denial of Ehrmann’s Batson challenge.
U.S. v. Ehrmann (CA8 8.32.05)