Amicus Curiae Brief — J. E. B. v. Alabama ex rel. T. B. (No. 92-1239)

OCTOBER TERM, 1993

J. E. B., PETITIONER DEKE GF it OG ia

V.

T. B.

ON WRIT CF CERTIORARI TO THE

COURT OF CIVIL APPEALS OF ALABAMA

BRIEF FOR THE UNITED STATES |

AS AMICUS CURIAE SUPPORTING PETITIONER

Drew S. Days, III

Solicitor General

JOHN C, KEENEY

Acting Assistant Attorney General ;

JAMES P. TURNER

Acting Assistant Attorney General :

WILLIAM C. BRYSON

Deputy Solicitor General

MICHAEL R. DREEBEN

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the Constitution prohibits the exercise of

a peremptory challenge on the basis of a juror’s

gender.

(1)

TABLE OF CONTENTS

Interest of the United States ..............0000.... -

ne IIIS -cccsuussenesuenounenesuneccesoseces

Argument:

Gender-based peremptory challenges violate the

meee eeneewem Conese ..............................................

A. Gender discrimination in jury selection impli-

cates heightened equal protection concerns _

B. The rationale of Batson v. Kentucky is appli-

cable to gender discrimination...

C. The extension of Batson to gender will not fres-

trate the utility of the peremptory challenge .

Nee cnencnasecensccccenms

TABLE OF AUTHORITIES

Cases:

Allen Vv. Hardy, 478 U.S. 255 (1986)

Bailey Vv. State, 219 S.W.2d 424 (Ark. 1949).

Ballard v. United States, 329 U.S. 187 (1946). ;

Batson V. Kentucky, 476 U.S. 79 (1986)

Bradwell vy. Illinois, 83 U.S. (16 Wall.) 130

LE .

Caban v. Mohammed, 441 U.S. 380 (1979)...

Carter \ Jury Comm’n, 396 U.S. 320 (1970)...

Clark Vv. Jeter, 486 U.S. 456 (1988)

Cleburne Vv. Cleburne Living Center, Inc., 473 U.S.

a eessuenenes

Commonwealth v. Hutchinson, 481 N.E.2d 188

ER oe

Craig V. Boren, 429 U.S. 190 (1976) . aD

Daniels Vv. State, 581 So. 2d 536 (Ala. Crim. App.

1990), writ denied, 581 So. 2d 541 (Ala.), cert.

denied, 112 S. Ct. 315 (1991) ............00

Davis Vv. Passman, 442 U.S. 228 (1979) ............ heii

(III)

Page

11

15

7, 23

passim

IV

Cases—Continued : Page

Di Donato v. Santini, 283 Cal. Rptr. 751 (Ct. App.

1991), review denied (Cal. Oct. 2, 1991) 17

Duren V. Missouri, 439 U.S. 357 (1979) ........... 6-7, 8

Dysart Vv. State, 581 So. 2d 54! + A‘a. Crim. App.),

writ denied, 581 So. 2d 545 (Ala. 1991) ............ 2

Edmonson V. Leesville Concrete Co., 111 S. Ct.

Td eee 12, 13, 23

Fay Vv. New York, 332 U.S. 261 (1947) —........... 7

Fisher v. State, 587 So. 2d 1027 (Ala. Crim. App.),

writ denied, 587 So. 2d 1039 (Ala. 1991), cert.

denied, 112 S. Ct. 1486 (1992) . ae S

Frazier v. United States, 335 U.S. 497 (1948) ve 23

Frontiero V. Richardson, 411 U.S. 677 (1973)... 9

Georgia V. McCollum, 112 8. Ct. 2348 (1992). . 12, 138,

17, 23

Goodell, In re, 39 Wis. 232 (1875) ......... Bae : 15

Hernandez v. New York, 111 S. Ct. 1859 (1991) . 21, 26

Holland Vv. Illinois, 493 U.S. 474 (1990) 16-17, 21

Hoyt v. Florida, 368 U.S. 57 (1961) —.......... ~

McCray Vv. New York, 461 U.S. 961 (1983) 19

Mississippi University for Women Vv. Hogan, 458

RENE ee nee 10

Murphy V. State, 596 So. 2d 42 (Ala. Crim. App.

1991), writ denied, 596 So. 2d 45 (Ala.), cert.

So | S & F Fes 2

Orr Vv. Orr, 440 U.S. 268 (1979) .. fined 10

Payne V. Tennessee, 111 S. Ct. 2597 ( 1991) eisaiisuaee : x

People v. Irizarry, 560 N.Y.S.2d 279 (App. Div.

TIED -cssccsssciusiicesstenenncsieementiadnadinensniusdiekaasiiidiabasidieaaiecciatislatmsts 17

People v. Mitchell, 593 N.E.2d 882 (Til. App.

1992), aff’d in part and vacated in part, No.

DG GS yy 17

Personnel Administrator Vv. Feeney, 442 U.S. 256

TEED <cersseesncemesteiesitiansisiiiainiaasisiitiiaiimaainantialiiepenaietinaabdantamis 13

Planned Parenthood of Southeastern Penn. V.

Casey, 112 S. Ct. 2791 (1992) .............................. 10

Powers V. Ohio, 111 S. Ct. 1364 (1991)... 11, 12, 13, 15,

, 16, 22, 26

Reed v. Reed, 404 U.S. 71 (1971) ......................... al 9

Stanton v. Stanton, 421 U.S. 7 (1975) —........ mee: 9

Cases—Continued : Page

State v. Adams, 533 So. 2d 1060 (La. Ct. App.

1988), cert. denied, 540 So. 2d 338 (La. 1989)... 14,17

State Vv. Burch, 830 P.2d 357 (Wash. Ct. App.

RRR IRS EE A ea oe A 13, 17

State v. Clay, 779 S.W.2d 673 (Mo. Ct. App.

1989) . ss ae 17

State Vv. Culve er, 444 N.W2d 662 (Neb. 1989) 17

State Vv. Gonzales, 808 P.2d 40 (N.M. App.), cort.

denied, 806 P.2d 65 (N.M. 1991) . = 17

State Vv. Hall, 187 So. 2d 861 (Miss.), appeal dis-

missed, 385 U.S. 98 (1966) . apdaas 15

State Vv. Levinson, 795 P.2d 845 (Haw. 1990) ee ae 17

State Vv. Oliviera, 534 A.2d 867 (R.I. 1987) .. 17-18

Stilson V. United States, 250 U.S. 583 (1919) 23

Stravder V. West Virginia, 100 U.S. 303 (1880) _. 7

Swain V. Alabama, 380 U.S. 202 (1965) 11, 13, 19, 20, 21

Taylor V. Louisiana, 419 U.S. 522 (1975) 8, 6, 8, 23

Tyler V. State, 623 A.2d 648 (Md. 1993) 17

United States Vv. Broussard, 987 F.2d 215 (5th

Cir. 1993) . ste oa 8} fF

United States v. De Gress, 960 F.2d 1433 (9th Cir.

ee eerste 6, 17, 23, 25

United States Vv. Hamilton, 850 F.2d 1038 (4th

Cir. 1988), cert. dismissed, 489 U.S. 1094

(1989), and cert. denied, 493 U.S. 1069 (1990). 17, 23

United States v. Hoelscher, 914 F.2d 1527 (8th

Cir. 1990), cert. denied, 498 U.S. 1090 (1991). 14

United States v. Nichols, 937 F.2d 1257 (7th Cir.

1991), cert. denied, 112 S. Ct. 989 (1992) ..._. 17

United States v. Wilson, 867 F.2d 486 (8th Cir.),

cert. denied, 493 U.S. 827 (1989)... 14

Constitution :

U.S. Const. :

Amend. V (Equal Protection Clause) 3, 9, 10, 25

eee

SITE cecctiisenicamtaeihaeiasiainenetdionminieantegncience, ae

VI

Miscellaneous:

Albert S. Alschuler, The Supreme Court and the

Jury: Voir Dire, Peremptory Challenges, and

the Review of Jury Verdicts, 56 U. Chi. L. Rev.

5 Es See a AEE

3 William Blackstone, Commentaries Torta RR IRS

1 Francis X. Busch, Law and Tactics in Jury

EG A ee ES

Valerie P. Hans & Neil Vidmar, Judging the Jury

STITT oc eteceeacebanassileria beetle taa hata

Dave Harbeck, Comment, Eliminating Unconstitu-

tional Juries, 77 Minn. L. Rev. 689 (1993).

Robert L. Harris, Jr., Note, Redefining the Harm

of Peremptory Challenges, 32 William & Mary

SS FREER een IED

Reid Hastie, Steven D. Penrod & Nancy Penning-

ton, Inside the Jury (1983) —......000000

Frederick T. Kelsey, Note, Gender Based Peremp-

tory Challenges and the New York State Con-

stitution, 8 Touro L. Rev. 91 (1991) _. . ae

John S. Lapham, Note, Gender-Based Peremptory

Challenges, 43 J. Urb. & Contemp. L. 465

ia aa a

Note, Beyond Batson: Eliminating Gender-Based

Peremptory Challenges, 105 Harv. L. Rev. 1920

ETS ES as ree toe an ENR ere ne IR

Steven M. Puiszis, Edmonson v. Leesville Concrete

Co.: Will the Peremptory Challenge Survive

Its Battle with the Equal Protection Clause ?, 25

J. Marshall L. Rev. 37 (1991) ............ eae,

Shirley S. Sagawa, Batson v. Kentucky: Will It

Keep Women on the Jury?, 3 Berkeley Women’s

L.J. 14 (1988) .

Grace Taylor, Note, Jury Servic ice » for Women, 12

8 RRR Re Sa

Page

21

18, 25

18

22

18

18

18, 25

18

18

Iu the Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1239

J. E. B., PETITIONER

v.

T. B.

ON WRIT OF CERTIORARI TO THE

COURT OF CIVIL APPEALS OF ALABAMA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether the Con-

stitution bars the exercise of a peremptory challenge

on the basis of a juror’s gender. The Court’s resolu-

tion of that issue will govern jury selection in future

federal prosecutions. The government therefore has

a significant interest in this case.

STATEMENT

On behalf of T. B., the mother of a minor child, the

State of Alabama filed a complaint for paternity and

child support against petitioner in the District Court

of Jackson County, Alabama. Pet. App. A22-A23.

Paternity actions in Alabama are tried before a jury.

(1)

2

In preparation for jury selection, the district judge

assembled a panel of 36 potential jurors. /d. at Ad.

Twelve of those jurors were male; 24 were female.

Id. at Al5. After the court excused three jurors for

cause, a panel of 33 jurors remained, of whom 10

were male. The State used nine of its 10 peremptory

strikes to remove male jurors; petitioner used one

of his 11 strikes to remove a male juror. /d. at Al5-

Al6. As a result, all of the selected jurors were

female. Jd. at Al6.

Before the jury was empaneled, petitioner objected

to the State’s peremptory challenges on the ground

that they were exercised against male jurors on the

basis of gender. Petitioner argued that gender-based

peremptory challenges are invalid under Batson v.

Kentucky, 476 U.S. 79 (1986). Pet. App. A2-A3.

The court rejected that claim and empaneled an all-

female jury. Jd. at A3-A5. The jury found petitioner

to be the father, and the court entered an order

directing him to pay child support. /d. at A24. On

post-trial motion, the court reaffirmed its ruling that

Batson does not extend to gender-based peremptory

challenges. Jd. at A16.

The Alabama Court of Civil Appeals affirmed.

Pet. App. A22-A30. Relying on Alabama precedent,’

the court held that Batson does not extend to gender-

1See Murphy v. State, 596 So. 2d 42 (Ala. Crim. App.

1991), writ denied, 596 So. 2d 45 (Ala.), cert. denied, 113

S. Ct. 86 (1992) ; Fisher v. State, 587 So. 2d 1027 (Ala. Crim.

App.), writ denied, 587 So. 2d 1039 (Ala. 1991), cert. denied,

112 S. Ct. 1486 (1992) ; Daniels v. State, 581 So. 2d 536 (Ala.

Crim. App. 1990), writ denied, 581 So. 2d 541 (Ala.), cert.

denied, 112 S. Ct. 315 (1991); Dysart v. State, 581 So. 2d

541 (Ala. Crim. App.), writ denied, 581 So. 2d 545 (Ala.

1991).

3

based peremptory challenges. Jd. at A24-A25. The

Alabama Supreme Court denied certiorari. /d. at

A33.

SUMMARY OF ARGUMENT

In Batson v. Kentucky, 476 U.S. 79 (1986), the

Court held that it violates the Equal Protection Clause

for a prosecutor to exercise a peremptory challenge

on the basis of a juror’s race. The same equal pro-

tection principles compel the conclusion that gender-

based peremptory challenges are unconstitutional.

A. As a matter of common law and legislative

policy, women were barred from state and federal

jury service throughout the 19th century, and for

longer in many States. For most of this nation’s his-

tory, the legislative policies that prevented or dis-

couraged the participation of women on juries were

deemed compatible with the Constitution. In Taylor

v. Louisiana, 419 U.S. 522 (1975), however, this

Court ruled that differential exemption policies that

result in the exclusion of women from jury service

violate the Sixth Amendment.

Taylor is consistent with the modern constitutional

tenet that gender-based classifications warrant height-

ened scrutiny under the Equal Protection Clause.

That doctrine reflects the fact that outmoded assump-

tions about the proper roles of men and women have

no relevance to their actual abilities and qualifica-

tions. Accordingly, when government draws distinc-

tions based on gender, it must justify them with

something more than archaic stereotypes.

B. The rule announced in Batson governed race-

based peremptory challenges, but it rested on equal

protection principles that are equally applicable to

challenges based on gender. Batson was designed not

4

only to protect the rights of criminal defendants, but

also to protect jurors against invidious discrimination

and the community as a whole from biased jury selec-

tion procedures that cast doubt on the fairness of

the judicial system.

Gender discrimination in the exercise of peremp-

tory challenges harms the excluded juror by denying

him or her the opportunity for jury service for a

reason that is unacceptable as a basis for govern-

ment action. A statute barring women as jurors in

a particular kind of case based on the notion that

women characteristically think, feel, and act differ-

ently from men would plainly be unconstitutional.

Under Batson and its progeny, a party’s use of per-

emptory challenges to strike jurors on that basis is

constitutionally invalid for the same reasons.

In addition, gender discrimination in peremptory

challenges harms the community at large. If gender

may be used as a proxy for beliefs and attitudes in

the courtroom, the judicial system will be seen as

giving credence to stereotypical views about the pro-

pensities of men and women. Moreover, gender dis-

crimination impairs public confidence in the fairness

of the judicial system. If litigants can seek, and in

some cases attain, single-sex juries in the hopes of

skewing the outcome of cases implicating gender is-

sues, the judicial system is harmed by the appearance

of bias.

C. The extension of Batson to gender will not elim-

inate the benefit attributed to the peremptory chal-

lenge: the enhanced appearance to the parties that

the jury is composed of persons who are fair.

First, because gender does not reliably predict a

juror’s vote, barring gender-based challenges does

5

not deprive litigants of a valuable means of elim-

inating subtly biased jurors. A litigant may believe

that male or female jurors will be biased in a particu-

lar case and would feel more comfortable with a jury

that excludes them, but such personal prejudices can-

not override equal protection requirements.

Second, the extension of Batson to gender does not

suggest that all group-based peremptory challenges

are unconstitutional. Gender distinctions are sub-

ject to heightened equal protection scrutiny; most

groups, affiliations, and classes that might form the

basis of a peremptory challenge, however, are not

accorded heightened review. As to those groups, ra-

tional basis review applies, and the legitimate govern-

ment interest, served by the peremptory challenge,

of assuring the parties that the jury is impartial

suffices to overcome the juror’s equal prctection

interests.

Finally, the procedures that 1 .son applied to race-

based challenges are also suitable for gender-based

challenges. Many courts have already banned gender-

based peremptories from jury selection. Experience

in those jurisdictions does not suggest that a rule

prohibiting eender-based strikes is unworkable.

6

ARGUMENT

GENDER-BASED PEREMPTORY CHALLENGES VIO-

LATE THE EQUAL PROTECTION CLAUSE

Peremptory challenges based on a juror’s gender

raise equal protection concerns similar to those

raised by peremptory challenges based on a juror’s

race. Like race-based challenges, gender-based chal-

lenges cannot be justified as a legitimate means for

obtaining a jury that is perceived to be impartial.

In light of the principles of Batson v. Kentucky, 476

U.S. 79 (1986), the rights of individual jurors, and

the need for the judicial system to maintain nondis-

criminatory standards in jury selection, the Court

should hold that gender-based peremptory challenges

are unconstitutional.

A. Gender Discrimination In Jury Selection Implicates

Heightened Equal Protection Concerns

1. For many years, gender discrimination was de

jure in this nation’s jury system. Under English

common law, “women were excluded from juries

based on the doctrine of propter defectum sexus, lit-

erally, the ‘defect of sex.’”” United States v. De Gross,

960 F.2d 1433, 1438 (9th Cir. 1992) (en banc), quot-

ing 3 William Blackstone, Commentaries *362. In

this country, until the end of the 19th century,

women were universally disqualified from jury serv-

ice by state law. Taylor v. Louisiana, 419 U.S. 522,

533 n.13 (1975); Grace Taylor, Note, Jury Service

for Women, 12 U. Fla. L. Rev. 224 (1959). In some

States, the prohibition continued well into this cen-

tury. See Carter v. Jury Comm’n, 396 U.S. 320, 323

n.2 (1970) (until 1966, only men were eligible for

jury service in Alabama); Duren v. Missouri, 439

7

U.S. 357, 359 n.4 (1979). So well entrenched was

the exclusion of women from juries at the time of

Strauder vy. West Virginia, 100 U.S. 303 (1880),

that this Court, while finding that the exclusion of

black men from juries violated the Fourteenth

Amendment, expressed no doubt that a State “may

confine the selection [of jurors] to males.” /d. at

310; see also Fay v. New York, 332 U.S. 261, 289-

290 (1947).

By the mid-20th century, the Court recognized that

the exclusion of women from juries raised issues of

fairness. In Ballard v. United States, 329 U.S. 187

(1946), the Court relied on its supervisory powers

over the federal courts in holding that women could

not be excluded from the venire in federal trials.

The Court explained, id. at 193-194:

It is said, however, that an all male panel

drawn from the various groups within a com-

munity will be as truly representative as if

women were included. The thought is that the

factors which tend to influence the action of

women are the same as those which influence the

action of men—personality, background, eco-

nomic status—and not sex. Yet it is not enough

to say that women when sitting as jurors neither

act nor tend to act as a class. Men likewise do

not act as a class. But, if the shoe were on the

other foot, who would claim that a jury was

“The first state to permit women jurors was Washington,

and it did not do so until 1911. In 1942 only 28 states per-

mitted women to serve on juries and they were still disquali-

fied in the other 20. Moreover, in 15 of the 28 states which

permitted women to serve, they might claim exemption be-

cause of their sex.” Fay v. New York, 332 U.S. 261, 289

(1947).

8

truly representative of the community if all men

were intentionally and systematically excluded

from the panel? The truth is that the two sexes

are not fungible; a community made up exclu-

sively of one is different from a community com-

posed of both; the subtle interplay of influence

one on the other is among the imponderables. To

insulate the courtroom from either may not in a

given case make an iota of difference. Yet a

flavor, a distinct quality is lost if either sex is

excluded.

Despite the views stated in Ballard, the Court in

Hoyt v. Florida, 368 U.S. 57 (1961), upheld a Flor-

ida law that permitted women to be included on jury

lists only if they volunteered for jury service, while

requiring men to apply for an exemption. The Court

held that the differential exemption policies based on

sex were reasonable in light of the role of women

“as the center of home and family life.” /d. at 62.

Fourteen years later, the Court repudiated the rea-

soning cf Hoyt. In Taylor v. Louisiana, supra, the

Court struck down a state statute nearly identical

to that in Hoyt under the fair-cross-section require-

ment of the Sixth Amendment. The Court determined

that restricting jury service to women who had

volunteered could not be supported by the view that

women have a distinctive role in maintaining “fam-

ily life.” 419 U.S. at 534 & n.13.° See also Duren

v. Missouri, supra (invalidating, under the Sixth

8 Although Taylor distinguished Hoyt by noting that it had

“not involve[d] a defendant’s Sixth Amendment right to a

jury drawn from a fair cross section of the community,” 419

U.S. at 534, the Court has since recognized that Taylor “in

effect” overruled Hoyt. Payne v. Tennessee, 111 S. Ct. 2597,

2610 n.1 (1991).

9

Amendment, the State’s grant of an automatic ex-

emption from jury service to any woman requesting

it).

2. In requiring the inclusion of women in the

venire, Taylor relied on Sixth Amendment principles,

but the opinion’s approach accords with the view that

gender-based classifications are subject to heightened

equal protection scrutiny. In Reed v. Reed, 404 U.S.

71 (1971), the Court broke new ground under the

Equal Protection Clause by invalidating a statutory

preference for male over female estate administra-

tors. In the years following Reed, the Court made

clear that traditional views about the place of women

in society do not provide a permissible basis for gov-

ernment action on the basis of gender. The Court

struck down a statute establishing a presumption

that women are dependent on their spouses, Frontiero

v. Richardson, 411 U.S. 677 (1973); a statute pro-

viding that women reach majority at an earlier age

than men, Stanton v. Stanton, 421 U.S. 7 (1975);

and a law requiring men to be 21, but women only

18, to purchase 3.2% beer, Craig v. Boren, 429 U.S.

190 (1976).

In each case, the Court rejected governmental pol-

icies resting on “archaic and overbroad” generaliza-

tions about gender, or on “outdated misconceptions

concerning the role of females in the home rather

than in the marketplace and world of ideas.” Craig,

429 U.S. at 198. See also Cleburne v. Cleburne Liv-

ing Center, Inc., 473 U.S. 482, 441 (1985) (differ-

ential treatment of the sexes “very likely reflect[s]

outmoded notions of the relative capabilities of men

and women’); Caban v. Mohammed, 441 U.S. 380,

398 (1979) (Stewart, J., dissenting) (gender classi-

10

fications “may reflect or operate to perpetuate myth-

ical or stereotyped assumptions about the proper roles

and the relative capabilities of men and women that

are unrelated to any inherent differences between the

sexes”). As this Court stated in Planned Parenthood

of Southeastern Penn. v. Casey, 112 S. Ct. 2791, 2831

(1992):

Only one generation has passed since this Court

observed that “woman is still regarded as the

center of home and family life,” with attendant

“special responsibilities” that precluded full and

independent legal status under the Constitution.

Hoyt v. Florida, * * *. These views, of course,

are no longer consistent with our understanding

of the family, the individual, or the Constitution.

Because of the possibility that stereotypical as-

sumptions are at work, the Court requires a showing

under equal protection principles that a gender-based

law “serves important governmental objectives and

that the discriminatory means employed are substan-

tially related to the achievement of those objectives.”

Mississippi University for Women vy. Hogan, 458

U.S. 718, 724 (1982) (Fourteenth Amendment) ;

Davis vy. Passman, 442 U.S. 228, 234-235 (1979)

(Fifth Amendment). Gender-based stereotypes that

assume that one gender suffers from “an inherent

handicap” or is “innately inferior” are an illegiti-

mate basis for government action. Hogan, 458 U.S.

at 725. That a state practice “discriminates against

males rather than against females does not exempt

it from scrutiny or reduce the standard of review.”

Hogan, 458 U.S. at 723; Orr v. Orr, 440 U.S. 268,

279 (1979) ; Craig v. Boren, supra.

11

B. The Rationale Of Batson vy. Kentucky Is Applicable To

Gender Discrimination

1. The Court’s decision in Batson v. Kentucky,

476 U.S. 79 (1986), established the unconstitutional-

ity of a prosecutor’s use of peremptory challenges to

exclude jurors on the basis of race. Batson overruled

Swain v. Alabama, 380 U.S. 202 (1965), to the ex-

tent that Swain had barred a defendant from raising

an equal protection challenge to the racially discrim-

inatory use of peremptory challenges in a particular

case. 476 U.S. at 100 n.25; Powers v. Ohio, 111 S. Ct.

1364, 1368 (1991). Batson’s holding “‘was designed

to serve multiple ends,” Allen v. Hardy, 478 U.S.

255, 259 (1986) (per curiam) (internal quotation

marks omitted), only one of which was the protection

of the constitutional rights of criminal defendants.

Batson, 476 U.S. at 86-88.

First, Batson found that the exclusion of a juror

on racial grounds violates the juror’s constitutional

rights. “[B]y denying a person participation in jury

service on account of his race, the State unconstitu-

tionally discriminate[s] against the excluded juror.”

476 U.S. at 87. Second, the Court concluded that the

community itself is harmed by racial discrimination

in jury selection. “Selection procedures that purpose-

fully exclude black persons from juries undermine

public confidence in the fairness of our system of

justice,” ibid., and reinforce prejudices grounded in

race, id. at 88.

Since Batson, the Court has made clear that in all

contexts, the Constitution prohibits peremptory chal-

lenges used to eliminate jurors on the basis of race.

In Powers vy. Ohio, supra, the Court held that the

defendant need not be of the same race as the ex-

12

cluded juror in order to raise a Batson objection.

Powers rejected a requirement of racial correlation

between the defendant and the excluded juror, be-

cause such a “limitation on a defendant’s right to

object conforms neither with our accepted rules of

standing to raise a constitutional claim nor with the

substantive guarantees of the Equal Protection

Clause and the policies underlying federal statutory

law.” 111 S. Ct. at 1368. The Court noted that

“Tajn individual juror does not have a right to sit

on any particular petit jury, but he or she does pos-

sess the right not to be excluded from one on account

of race.” Id. at 1370.

In Edmonson v. Leesville Concrete Co., 111 S. Ct.

2077 (1991), the Court extended Batson to civil

cases, holding that civil litigants are state actors

when exercising peremptory challenges and are

therefore prohibited from excluding jurors on

grounds of race. And in Georgia v. McCollum, 112

S. Ct. 2348 (1992), the Court ruled that Batson

applies to peremptory challenges exercised by crim-

inal defendants. The Court explained that “the ex-

tension of Batson in this context is designed to

remedy the harm done to the ‘dignity of persons’ and

to the ‘integrity of the courts.’” Jd. at 2353, quoting

Powers, 111 8S. Ct. at 1366.

Powers, Edmonson, and McCollum establish that,

under Batson, the use of a peremptory challenge to

exclude a juror “on account of race violates a prospec-

tive juror’s equal protection rights.” ELdmonson, 111

S. Ct. at 2087; Powers, 111 S. Ct. at 1370; McCollum,

112 S. Ct. at 2353-2357. By subjecting the peremp-

tory challenge to conventional equal protection re-

quirements—a position that the Court had previously

13

rejected in Swain v. Alabama, 380 U.S. at 221-222

—Batson and its progeny invoke constitutional prin-

ciples that apply equally to gender-based challenges.

2. Gender-based peremptory challenges, like race-

based challenges, are incompatible with equal protec-

tion principles. “Classifications based upon gender,

not unlike those based upon race, have traditionally

been the touchstone for pervasive and often subtle

discrimination.” Personnel Administrator v. Feeney,

422 U.S. 256, 273 (1979). In exercising peremptory

challenges parties draw on authority delegated by the

government to select the jury. McCollum, 112 S. Ct.

at 2354-2356; Edmonson, 111 S. Ct. at 2082-2087.

Just as race-based peremptory challenges often rely

on stereotypical assumptions that are unacceptable in

a court of law, gender-based peremptory challenges

often rely on stereotypical views about the attitudes

and capabilities of men and women. Those views

are illegitimate grounds for government action.

The use of gender-based peremptories inflicts the

same harms that the Court identified in Batson.

First, striking a juror solely on grounds of sex

“harms the excluded juror.” Powers, 111 S. Ct. at

1368; Batson, 476 U.S. at 87. As this Court -has

noted, “competence to serve as a juror ultimately

depends on an assessment of individual qualifications

and ability impartially to consider evidence presented

at a trial.” Batson, 476 U.S. at 87. Strikes based on

sex, however, often reflect “gender stereotypes,” such

as the view that women are “generally governed by

emotion, instinct, and feeling rather than reason,

judgment, or common sense.” State v. Burch, 830

P.2d 357, 366 (Wash. Ct. App. 1992) (rejecting

prosecutor’s explanation that a “full-time mother”

14

would be unduly sympathetic). The indulgence of

such views may lead to a preference for men in some

cases, see United States v. Wilson, 867 F.2d 486, 488

(8th Cir.) (prosecutor wanted male jurors for case

involving street crime, because “fear factor * * *

might prevent [a] female juror from voting for a

verdict of guilty”), cert. denied, 493 U.S. 827

(1989); United States v. Hoelscher, 914 F.2d 1527,

1540 (8th Cir. 1990) (prosecutor wanted male jurors

for narcotics case), cert. denied, 498 U.S. 1090

(1991); Fisher vy. State, 587 So. 2d 1027 (Ala. Crim.

App.) (prosecutor wanted male jurors for capital

ease), writ denied, 587 So. 2d 1039 (Ala. 1991),

cert. denied, 112 S. Ct. 1486 (1992), while suggest-

ing a preference for women in others, see State vy.

Adams, 533 So. 2d 1060, 1063 (La. Ct. App. 1988)

(Plotkin, J., dissenting) (“The State admits that it

excluded all men from the petit jury because they

would tend to ‘trivialize’ the female defendant’s sex

crime * * *.”), cert. denied, 540 So. 2d 338 (La.

1989) .*

The rationales often expressed for gender-based

strikes call to mind the view expressed in some cases

from the prior century that “[t]he natural and proper

timidity and delicacy which belongs to the female

4A manual formerly used to instruct Dallas, Texas, prose-

cutors provided the following advice: “I don’t like women

jurors because I can’t trust them. They do, however, make

the best jurors in cases involving crimes against children.

It is possible that their ‘women’s intuition’ can help you if

you can’t win your case with the facts.” Albert W. Alschuler,

The Supreme Court and the Jury: Voir Dire, Peremptory

Challenges, and the Review of Jury Verdicts, 56 U. Chi. L.

Rev. 153, 210 (1989); see also id. at 182 & n.112 (collecting

excerpts from jury-selection practice manuals revealing their

authors’ “unabashed misogyny”).

15

sex evidently unfits it for many of the occupations

of civil life,”” which are reserved for men because of

“that decision and firmness which are presumed to

predominate in the sterner sex.” Bradwell y. [Ili-

nois, 83 U.S. (16 Wall.) 130, 141-142 (1873) (con-

curring opinion. See also Jn re Goodell, 39 Wis. 232,

245 (1875) (endorsing statutory ineligibility of

women for membership in the bar, because “[t]he

peculiar qualities of womanhood, its gentle graces,

its quick sensibility, its tender susceptibility, its

purity, its delicacy, its emotional impulses, its sub-

ordination of hard reason to sympathetic feeling, are

surely not qualifications for forensic strife’”’).° Under

modern equal protection jurisprudence, when legisla~

tures treat men and women differently based on such

archaic notions, it violates the Constitution. The

* Similar views were advanced in support of the statutory

disqualification of women from jury service. See Bailey v.

State, 219 S.W.2d 424, 428 (Ark. 1949) (“Criminal court

trials often involve testimony of the foulest kind, and they

sometimes require consideration of indecent conduct, the use

of filthy and loathsome words, references to intimate sex re-

lationships, and other elements that would prove humiliating,

embarrassing and degrading to a lady.”) ; State v. Hall, 187

So. 2d 861, 863 (Miss.) (“The legislature has the right to

exclude women so they may continue their service as mothers,

wives, and homemakers, and also to protect them * * * from

the filth, obscenity, and noxious atmosphere that so often

pervades a courtroom during a jury trial.”’), appeal dismissed,

385 U.S. 98 (1966). Those justifications are plainly invalid

to support statutory restrictions on the opportunity of women

for jury service, and they are equally invalid to support

gender-based peremptory challenges in individual cases. “A

State may not draw up its jury lists pursuant to neutral

procedures, but then resort to discrimination at ‘other stages

in the selection process.’” Powers, 111 8. Ct. at 1369, quoting

Batson, 476 U.S. at 88.

16

same is true when litigants wield government power

through the peremptory challenge in the service of

anachronistic images of men and women. A State

could not lawfully disqualify women from certain

kinds of cases or men from others based on assump-

tions about their respective propensities; under Bat-

son and its progeny, the State cannot permit the

parties in a lawsuit to strike jurors based on the

same assumptions.

Second, not only the excluded juror, but the “com-

munity at large” suffers harm from the use of gender-

based challenges. Powers, 111 S. Ct. at 1368; Batson,

476 U.S. at 87. The use of peremptory challenges to

restrict or eliminate one gender’s participation in

jury service threatens to undermine public confidence

in the judicial system. Particularly when gender-

related issues are prominent in a particular case, ihe

discriminatory use of peremptory challenges may

create an impression that the judicial system has

acquiesced in suppressing full participation by one

eender. [f gender-based peremptories could be freely

employed, a prosecutor could overtly attempt to elim-

inate all male jurors in a rape case. A corporate

defendant could seek to eliminate all female jurors

in a sexual harassment case. Or the State could

eliminate all male jurors in a paternity case. To

permit challenges to be used in that fashion appears

to condone the use of gender-based stereotypes within

a government institution.

Moreover, the skewing of jury panels through

gender-based challenges subverts the public’s per-

ception that courts and juries are fair. Regardless

of whether a panel’s impartiality is actually dimin-

ished by gender-based challenges, ef. Holland y. IIli-

17

nois, 493 U.S. 474 (1990), the empaneling of single-

sex juries through the discriminatory use of peremp-

tory challenges can create the appearance of bias.

Citizens are likely to lack confidence in a verdict

rendered by a jury chosen by discriminatory stand-

ards that would be unlawful in any other govern-

mental institution. If a court allows jurors to be

excluded on grounds reflecting racial or sexual bias,

“it is a willing participant in a scheme that could

only undermine the very foundation of our system

of justice—our citizens’ confidence in it.” Georgia v.

McCollum, 112 S. Ct. at 1254.*

* Several federal and state courts have barred gender-based

peremptory challenges. See United States v. De Gross, 960

F.2d 1433, 1437-1439 (9th Cir. 1992) (en banc); State v.

Burch, 830 P.2d 357 (Wash. Ct. App. 1992) (relying on state

and federal constitutions); Di Donato v. Santini, 283 Cal.

Rptr. 751 (Ct. App. 1991) (same), review denied (Cal. Oct. 2,

1991); Tyler v. State, 623 A.2d 648 (Md. 1993) (relying on

state constitution) ; People v. Mitchell, 593 N.E.2d 882, 888-

889 (Ill. App. 1992) (same), aff’d in part and vacated in rele-

vant part, No. 73812 (Ill. May 20, 1993); State v. Gonzales,

808 P.2d 40, 42 (N.M. App.), cert. denied, 806 P.2d 65 (N.M.

1991) (same); State v. Levinson, 795 P.2d 845, 849 (Haw.

1990) (same); People Vv. Jrizarry, 560 N.Y.S.2d 279 (App.

Div. 1990) (same); Commonwealth v. Hutchinson, 481

N.E.2d 188, 190 (Mass. 1985) (same). But see United States

Vv. Broussard, 987 F.2d 215, 218-220 (5th Cir. 1993) ; United

States Vv. Nichols, 937 F.2d 1257, 1263 (7th Cir. 1991), cert.

denied, 112 S. Ct. 989 (1992); United States v. Hamilton,

850 F.2d 1038, 1041-1042 (4th Cir. 1988), cert. dismissed,

489 U.S. 1094 (1989), and cert. denied, 493 U.S. 1069 (1990) ;

State v. Culver, 444 N.W.2d 662 (Neb. 1989); State v. Clay,

779 S.W.2d 673, 676 (Mo. Ct. App. 1989); State v. Adams,

533 So. 2d 1060, 1063 (La. Ct. App. 1988), cert. denied, 540

So. 2d 338 (La. 1989); State v. Oliviera, 534 A.2d 867, 870

18

3. Theorizing that gender-based strikes are less

common than the widespread use of strikes against

blacks that prompted this Court’s decision in Batson,

476 U.S. at 99; id. at 101 (White, J., concurring),

one court of appeals has suggested that the Swain

evidentiary formulation should continue to govern

gender-based challenges. See United States v. Brous-

sard, 987 F.2d 215, 218-220 (5th Cir. 1993). That

position is unsound.

First, the Swain approach is no more feasible as a

method for proving gender discrimination in the use

of peremptory challenges than it is for proving race

discrimination. As the Court observed in Batson,

there are insuperable “practical difficulties” to track-

ing peremptory challenges across many cases, par-

ticularly when many jurisdictions do not record or

preserve the names of jurors and the process of voir

(R.I. 1987) ; Alabama cases cited at note 1, supra (all refus-

ing to apply Batson to gender).

Many commentators have also argued in favor of extending

Batson to gender. See Dave Harbeck, Comment, Eliminating

Unconstitutional Juries, 77 Minn. L. Rev. 689 (1993); John

S. Lapham, Note, Gender-Based Peremptory Challenges, 43

J. Urb. & Contemp. L. 465 (1993); Note, Beyond Batson:

Eliminating Gender-Based Peremptory Challenges, 105 Harv.

L. Rev. 1920 (1992); Robert L. Harris, Jr., Note, Redefining

the Harm of Peremptory Challenges, 32 William & Mary L.

Rev. 1027, 1052-1055 (1991); Steven M. Puiszis, Edmonson

v. Leesville Concrete Co.: Will the Peremptory Challenge

Survive Its Battle with the Equal Protection Clause?, 25 J.

Marshall L. Rev. 37, 52 (1991); Frederick T. Kelsey, Note,

Gender Based Peremptory Challenges and the New York

State Constitution, 8 Touro L. Rev. 91, 117 (1991); Albert

W. Alschuler, supra, 56 U. Chi. L. Rev. at 180-182; Shirley S.

Sagawa, Batson v. Kentucky: Will It Keep Women on the

Jury?, 3 Berkeley Women’s L.J. 14 (1988).

19

dire. 476 U.S. at 92 n.17. Moreover, if discrimina-

tory strikes of defendants and civil litigants, as well

as prosecutors, are to be taken into account, the

process would be infinitely more complicated. To

remit parties to Swain is to condemn any claim of

discrimination to failure.

Second, Batson declares that “fa] single invid-

iously discriminatory governmental act is not im-

munized by the absence of such discrimination in the

making of other comparable decisions.” 476 U.S. at

95; see also Davis v. Passman, 442 U.S. at 235 &

n.10 (federal right “to be free from gender discrim-

ination” “is personal; it is [the individual], after all,

who must suffer the effects of such discrimination”).

If it is impermissible for parties to use gender as a

basis for exercising peremptory challenges, there is

no justification for requiring “several [to] suffer dis-

crimination” before anyone can establish a claim.

Batson, 476 U.S. at 96, quoting McCray v. New York,

461 U.S. 961, 965 (1983) (Marshall, J., dissenting

from the denial of certiorari).

In this respect, Batson disavowed the central

premise of Swain. Under Swain, a prosecutor could

legitimately strike an individual juror on the basis of

race, or on an assumption of partiality based on race,

in order to further the aim of “using the State’s chal-

lenges to obtain a fair and impartial jury to try the

case before the court.” ’ 380 U.S. at 222. A constitu-

7 Swain accepted that the challenge is frequently exercised

“on grounds normally thought irrelevant to legal proceedings

or official action, namely, the race, religion, nationality, occu-

pation or affiliations of people summoned for jury duty. For

the question a prosecutor or defense counsel must decide is not

whether a juror of a particular race or nationality is in fact

partial, but whether one from a cifferent group is less likely

to be.” 380 U.S. at 220-221.

20

tional problem might develop, Swain suggested, only

if the prosecutor systematically struck blacks “for

reasons wholly unrelated to the outcome of the partic-

ular ease on trial,” for that would support the infer-

ence that “the peremptory system is being used to

deny the Negro the same right and opportunity to

participate in the administration of justice enjoyed

by the white population.” Jd. at 224.

Batson, however, rejected the view that race is a

legitimate basis for a strike in any case. Under

Batson, a prosecutor may not justify a challenge “by

stating merely that he challenged jurors of the de-

fendant’s race on the assumption—or his intuitive

judgment—that they would be partial to the defend-

ant because of their shared race.” * 476 U.S. at 97.

To resurrect Swain for gender-based challenges would

therefore imply that it is permissible to remove jurors

on the basis of gender, as long as there are “trial-

related” reasons for doing so in a particular case.

Equal protection principles forbid such invidious ac-

tion on the basis of gender—particularly in cases

that may pose the greatest temptation to succumb to

gender stereotypes.

8 The dissenters in Batson clearly identified the departure

from Swain. See 476 U.S. at 134, 135 (Rehnquist, J., joined

by Burger, C.J., dissenting) (“[T]he Court also overrules

one of the fundamental substantive holdings of Swain, namely,

that the State may use its peremptory challenges to remove

from the jury, on a case-specific basis, prospective jurors of

the same race as the defendant. * * * [In Swain,] the Court

held that the State’s use of peremptory challenges to exclude

blacks from a particular jury based on the assumption or

belief that they would be more likely to favor a black defend-

ant does not violate equal protection.”’).

21

C. The Extension Of Batson To Gender Will Not Frus-

trate The Utility Of The Peremptory Challenge

1. A ruling that litigants may not strike potential

jurors solely because of gender does not conflict with

a State’s “legitimate interest” in allowing peremp-

tory challenges: “the assurance of impartiality that

the system of peremptory challenges has traditionally

provided.” Holland vy. Illinois, 493 U.S. at 483; Swain

v. Alabama, 380 U.S. at 219 (purpose of the peremp-

tory challenge is to further “the rule that to perform —

its high function in the best way justice must satisfy

the appearance of justice”). A requirement of gender

neutrality in the exercise of peremptory challenges

does not prevent parties from removing jurors who

they reasonably believe to be truly biased, but who

were not excused for cause; it simply eliminates gen-

der as a proxy for presuming bias.°

Depriving a party of the right to strike jurors

based on gender in no way impairs the party’s ability

to obtain an impartial jury. Most studies have found

that gender is not a good predictor of a juror’s vote.”

® What a ban on gender-based strikes prohibits is basing

the strike on gender alone. It is quite different, however, for

a party to exercise a peremptory challenge based on a char-

acteristic of a person that may be disproportionately asso-

ciated with one gender, but that the party believes has a

bearing on juror performance. For example, challenging all

persons who have had military service would disproportion-

ately affect men, while challenging all persons employed as

school teachers would disproportionately affect women. Ab-

sent a showing of pretext, however, those bases for challenges

are not constitutionally suspect, since they are not gender-

based. See Hernandez v. New York, 111 S. Ct. 1859 (1991).

1° See Valerie P. Hans & Neil Vidmar, Judging the Jury 76

(1986) (“[I]n the majority of studies there are not signifi-

cant differences in the way men and women perceive and

22

But even if gender were a good predictor of juror

performance in some cases, the characteristics or

backgrounds that are thought to make women “good”

jurors for one side or “bad” jurors for another are

factors that are likely to be shared by many, but not

all, women, and some, but not all, men. If conducted

properly, voir dire examination of the prospective

jurors should provide the parties with the means to

identify the underlying characteristics or background

factors that are thought to make particular jurors

favorable or unfavorable, without requiring the par-

ties to rely on the proxy of gender.

Quite apart from what is learned through voir dire,

a litigant may surmise that jurors of one gender

would likely harbor unspoken biases and may feel

more comfortable with a panel that excludes them.

The desire to strike based on such subjective feelings,

however, is insufficient, unless courts are to accept as

a defense to gender discrimination “the very stereo-

type the law condemns,” Powers, 111 S. Ct. at 1370.

The peremptory challenge is not of constitutional di-

react to trials; yet a few studies find women more defense-

oriented, while still others show women more favorable to

the prosecutor.”) ; Reid Hastie, Steven D. Penrod & Nancy

Pennington, Inside the Jury 140 (1983) (“The individual

difference that has received the most attention by empirical

researchers is juror gender. * * * Neither student nor citizen

judgments for typical criminal case materials have revealed

differences between male and female verdict preferences.

* * * The picture differs for rape cases, where female jurors

appear to be somewhat more conviction-prone than male

jurors.”); 1 Francis X. Busch, Law and Tactics in Jury

Trials § 149, at 831-832 (1959) (“In this age of general and

specialized education, availed of generally by both men and

women, it would appear unsound to base a peremptory chal-

lenge in any case upon the sole ground of sex.’’).

23

mension. Frazier vy. United States, 335 U.S. 497, 505

n.11 (1948); Stilson vy. United States, 250 U.S. 583,

986 (1919). In Georgia v. McCollum, 112 S. Ct. at

2357-2358, this Court acknowledged the value of the

peremptory challenge, yet held that its benefits do not

outweigh the constitutional right of jurors to be free

from racial discrimination. While expressing doubt

that the extension of Batson to criminal defendants

would “undermine the contribution of the peremptory

challenge to the administration of justice,” id. at

2358, the Court declared that, even if it did, the price

of tolerating race-based strikes is “too high to meet

the standard of the Constitution.” Jbid., quoting

Edmonson, 111 S. Ct. at 2088. The constitutional cost

. —— gender-based exclusions is similarly too

igh.

2. The extension of Batson to gender does not

suggest that all group-based challenges are incom-

patible with equal protection principles. It is true

that litigants frequently rely on group characteristics

1 In some cases, prosecutors have struck jurors of one

gender in order to achieve a more balanced panel or to assure

that members of both sexes serve on the jury. See United

States v. De Gross, 960 F.2d at 1443 & n.14; United States

V. Hamilton, 850 F.2d at 1041. In theory, that purpose is

consistent with the underlying reason for ensuring that both

men and women are included in jury venires—to obtain the

“subtle interplay of influence one on the other.” Taylor Vv.

Louisiana, 419 U.S. at 532, quoting Ballard v. United States

329 U.S. at 193. It would be quite difficult, however, to ad-

minister a rule that treated some reasons for gender-based

strikes differently from others. Moreover, because a defend-

ant’s challenges are also governed by the requirements of

equal protection, Georgia v. McCollum, supra, a prosecutor

should not have to engage in gender-based strikes in order to

counterbalance defense efforts to skew the jury.

24

such as a juror’s age, affiliations, marital status, oc-

cupation, or place of residence in exercising peremp-

tory challenges. This Court, however, has never held

the vast majority of group classifications that liti-

gants may employ in exercising peremptories to be

“suspect” in equal protection terms.

While classifications based on race or national

origin are generally subject to strict equal protection

scrutiny, and classifications based on gender and il-

legitimacy are judged according to an intermediate

yet heightened level of review, social or economic

classifications are constitutionally valid if they sur-

vive the highly deferential rational basis test. See

Cleburne v. Cleburne Living Center, Inc., 473 U.S.

432, 439-441 (1985); Clark v. Jeter, 486 U.S. 456,

461 (1988). The Court has declined to apply height-

ened scrutiny, for example, to groups defined by

age, physical disability, or mental retardation,

Cleburne, 473 U.S. at 440-441, 442-447, and has

voiced its “reluctan[ce] to set out on [a] course” that

would multiply the number of suspect classes. Id.

at 446.

Thus, with respect to groups that are not treated

as suspect or quasi-suspect classes for equal protec-

tion purposes, the Constitution requires only that the

government act rationally to further a legitimate

state interest in allowing the strike. Cleburne, 473

U.S. at 440-441. The peremptory challenge system

satisfies that test. The government’s interest in hav-

ing the parties perceive that they are receiving a fair

trial by impartial jurors is a legitimate one, and the

allowance of peremptory challenges is a rational way

to further that purpose. Accordingly, the peremptory

challenge system is valid as applied to categories of

25

persons normally subject to rational basis equal pro-

tection review.” '

3. Finally, allowing gender-based Batson claims

will not hamstring the exercise of all challenges or

unduly bog down the process of jury selection. Ex-

perience in the many jurisdictions that have barred

gender-based challenges (see note 6, supra) does not

support the view that litigants and trial courts are

incapable of complying with a rule barring strikes

based on gender.

As with race-based Batson claims, a party alleging

a gender-based claim must make a prima facie show-

ing of discrimination before the party exercising the

challenge is required to explain the basis for the

strike. Such a showing is not automatic. Where the

case does not implicate gender-related issues or in-

volve a grossly disproportionate number of strikes di-

rected at one gender, courts may appropriately hesi-

tate to draw an inference of discrimination simply

from the fact that several jurors of one gender have

" See United States v. De Gross, 960 F.2d at 1438 n&

(equal protection implications of race and gender distinguish

those reasons for strikes “from other factors that are not

improper bases for exclusion from juries, for example, one’s

occupation”) ; Note, supra, 105 Harv. L. Rev. at 1928, 1935

(relying on different levels of scrutiny under the Equal Pro-

tection Clause in concluding that peremptories based on age

or occupation are permissible); Dave Harbeck, Comment,

supra, 77 Minn. L. Rev. at 714-715 & n.178 (stereotypes are

permissible bases for strikes against persons who are not

members of classes entitled to heightened scrutiny; for ex-

ample, a prosecutor may exclude a professor on the belief

that “ali professors are willing to give criminals a second

chance”).

26

been struck. Cf. Powers v. Ohio, 111 S. Ct. at 1373-

1374 (noting that factors bearing on whether there

is a prima facie case may vary according to whether

there is reason in a particular case to be concerned

about the possible discriminatory use of strikes). And

when an explanation is required, it does not have to

rise to the level of a “for cause” challenge; it simply

must be based on a juror characteristic other than

gender (or other protected characteristic). See Her-

nandez v. New York, 111 S. Ct. 1859, 1866-1868

(1991) (plurality opinion) (discussing requirements

for race neutrality under Batson).

Although some have speculated that an extension

of Batson to gender would work a “practical frustra-

tion” of the challenge by imposing an onerous re-

quirement of explanation for every strike, see United

States v. Broussard, 987 F.2d at 219, that concern is

overstated. The same fears were raised by the State

in Batson itself. The Court, however, determined that

its holding “enforces the mandate of equal protection

and furthers the ends of justice” in eliminating race-

based strikes, and that trial courts are competent to

implement the Batson procedures. 476 U.S. at 99.

There is no reason to draw a different conclusion

with respect to gender.

27

CONCLUSION

The judgment of the Court of Civil Appeals of

Alabama should be reversed.

Respectfully submitted.

Drew S. Days, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

JAMES P. TURNER

Acting Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

MICHAEL R. DREEBEN

Assistant to the Solicitor General

JULY 1993

Dv. &. GOVERNMENT PRINTING OFrice, 1993 342479 60320