OCTOBER TERM, 1993
Syllabus
J. E. B. v. ALABAMA EX REL. T. B.
CERTIORARI TO THE COURT OF CIVIL APPEALS OF ALABAMA No. 92-1239.
Argued November 2, 1993-Decided April 19, 1994
At petitioner's paternity and child support trial, respondent
State used 9 of its 10 peremptory challenges to remove male jurors.
The court empaneled an all-female jury after rejecting petitioner's
claim that the logic and reasoning of Batson v. Kentucky,
476 U. S. 79-in which this
Court held that the Equal Protection Clause of the Fourteenth
Amendment prohibits peremptory strikes based solely on race-extend
to forbid gender-based peremptory challenges. The jury found
petitioner to be the father of the child in question and the trial
court ordered him to pay child support. The Alabama Court of Civil
Appeals affirmed.
Held: The Equal Protection Clause prohibits discrimination in
jury selection on the basis of gender, or on the assumption that an
individual will be biased in a particular case solely because that
person happens to be a woman or a man. Respondent's gender-based
peremptory challenges cannot survive the heightened equal
protection scrutiny that this Court affords distinctions based on
gender. Respondent's rationale-that its decision to strike
virtually all males in this case may reasonably have been based on
the perception, supported by history, that men otherwise totally
qualified to serve as jurors might be more sympathetic and
receptive to the arguments of a man charged in a paternity action,
while women equally qualified might be more sympathetic and
receptive to the arguments of the child's mother-is virtually
unsupported and is based on the very stereotypes the law condemns.
The conclusion that litigants may not strike potential jurors
solely on the basis of gender does not imply the elimination of all
peremptory challenges. So long as gender does not serve as a proxy
for bias, unacceptable jurors may still be removed, including those
who are members of a group or class that is normally subject to
"rational basis" review and those who exhibit characteristics that
are disproportionately associated with one gender. Pp. 131-146.
606 So. 2d 156, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. O'CONNOR, J.,
filed a concurring opinion, post, p. 146. KENNEDY, J., filed an
opinion concurring in the judgment, post, p. 151. REHNQUIST, C. J.,
filed a dissenting opinion, post, p. 154. SCALIA, J., filed a
dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J.,
joined, post, p. 156.
128
John F. Porter III argued the cause and filed briefs for
petitioner.
Michael R. Dreeben argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Days, Acting Assistant Attorneys General Keeney and Turner,
and Deputy Solicitor General Bryson.
Lois N. Brasfield, Assistant Attorney General of Alabama, argued
the cause for respondent. With her on the briefs was William F.
Prendergast, Assistant Attorney General.*
JUSTICE BLACKMUN delivered the opinion of the Court. In Batson
v. Kentucky,
476 U. S.
79 (1986), this Court held that the Equal Protection Clause of
the Fourteenth Amend-
ment governs the exercise of peremptory challenges by a
prosecutor in a criminal trial. The Court explained that although a
defendant has "no right to a 'petit jury composed in whole or in
part of persons of his own race,'"
id., at 85, quoting
Strauder v. West Virginia,
100 U. S. 303, 305
(1880), the "defendant does have the right to be tried by a jury
whose members are selected pursuant to nondiscriminatory criteria,"
476 U. S., at 85-86. Since Batson, we have reaffirmed repeatedly
our commitment to jury selection procedures that are fair and
nondiscriminatory. We have recognized that whether the trial is
criminal or civil, potential jurors, as well as litigants, have an
equal protection right to jury selection procedures that are free
from state-sponsored group stereotypes rooted in, and reflective
of, historical prejudice. See Powers v. Ohio,
499 U. S. 400 (1991);
Edmonson v. Leesville Concrete Co.,
500 U. S. 614 (1991);
Georgia v. McCollum,
505 U. S. 42 (1992).
Although premised on equal protection principles that apply
equally to gender discrimination, all our recent cases
*David H. Coburn, Stephanie A. Philips, and Marcia Greenberger
filed a brief for the National Women's Law Center et al. as amici
curiae urging reversal.
129
defining the scope of Batson involved alleged racial
discrimination in the exercise of peremptory challenges. Today we
are faced with the question whether the Equal Protection Clause
forbids intentional discrimination on the basis of gender, just as
it prohibits discrimination on the basis of race. We hold that
gender, like race, is an unconstitutional proxy for juror
competence and impartiality.
I
On behalf of relator T. B., the mother of a minor child,
respondent State of Alabama filed a complaint for paternity and
child support against petitioner J. E. B. in the District Court of
Jackson County, Alabama. On October 21, 1991, the matter was called
for trial and jury selection began. The trial court assembled a
panel of 36 potential jurors, 12 males and 24 females. After the
court excused three jurors for cause, only 10 of the remaining 33
jurors were male. The State then used 9 of its 10 peremptory
strikes to remove male jurors; petitioner used all but one of his
strikes to remove female jurors. As a result, all the selected
jurors were female.
Before the jury was empaneled, petitioner objected to the
State's peremptory challenges on the ground that they were
exercised against male jurors solely on the basis of gender, in
violation of the Equal Protection Clause of the Fourteenth
Amendment. App. 22. Petitioner argued that the logic and reasoning
of Batson v. Kentucky, which prohibits peremptory strikes solely on
the basis of race, similarly forbids intentional discrimination on
the basis of gender. The court rejected petitioner's claim and
empaneled the all-female jury. App. 23. The jury found petitioner
to be the father of the child, and the court entered an order
directing him to pay child support. On post judgment motion, the
court reaffirmed its ruling that Batson does not extend to
genderbased peremptory challenges. App. 33. The Alabama Court of
Civil Appeals affirmed, 606 So. 2d 156 (1992), rely-
130
ing on Alabama precedent, see, e. g., Murphy v. State, 596 So.
2d 42 (Ala. Crim. App. 1991), cert. denied, 506 U. S. 827 (1992),
and Ex parte Murphy, 596 So. 2d 45 (Ala. 1992). The Supreme Court
of Alabama denied certiorari, No. 1911717 (Oct. 23, 1992).
We granted certiorari, 508 U. S. 905 (1993), to resolve a
question that has created a conflict of authority-whether the Equal
Protection Clause forbids peremptory challenges on the basis of
gender as well as on the basis of race.1 Today we reaffirm what, by
now, should be axiomatic: Intentional discrimination on the basis
of gender by state actors violates
1 The Federal Courts of Appeals have divided on the issue. See
United States v. De Gross,
913 F.2d
1417 (CA9 1990), and
960 F.2d
1433, 14371443 (1992) (en banc) (extending Batson v. Kentucky,
476 U. S. 79
(1986), to prohibit gender-based peremptory challenges in both
criminal and civil trials); cf. United States v. Nichols,
937 F.2d
1257, 1262-1264 (CA7 1991) (declining to extend Batson to
gender), cert. denied, 502 U. S. 1080 (1992); United States v.
Hamilton,
850 F.2d
1038, 1042-1043 (CA4 1988) (same), cert. dism'd, 489 U. S. 1094
(1989), and cert. denied, 493 U. S. 1069 (1990); United States v.
Broussard,
987 F.2d
215, 218-220 (CA5 1993) (same).
State courts also have considered the constitutionality of
gender-based peremptory challenges. See Laidler v. State, 627 So.
2d 1263 (Fla. App. 1993) (extending Batson to gender); State v.
Burch, 65 Wash. App. 828, 830 P. 2d 357 (1992) (same, relying on
State and Federal Constitutions); Di Donato v. Santini, 232 Cal.
App. 3d 721, 283 Cal. Rptr. 751 (1991), review denied (Cal., Oct.
2, 1991); Tyler v. State, 330 Md. 261, 623 A. 2d 648 (1993)
(relying on State Constitution); People v. Mitchell, 228 Ill. App.
3d 917, 593 N. E. 2d 882 (1992) (same), aff'd in part and vacated
in relevant part, 155 Ill. 2d 643, 602 N. E. 2d 467 (1993); State
v. Gonzales, 111 N. M. 590, 808 P. 2d 40 (App.) (same), cert.
denied, 111 N. M. 590, 806 P. 2d 65 (1991); State v. Levinson, 71
Haw. 492, 498-499, 795 P. 2d 845, 849 (1990) (same); People v.
Irizarry, 165 App. Div. 2d 715, 560 N. Y. S. 2d 279 (1990) (same);
Commonwealth v. Hutchinson, 395 Mass. 568, 570, 481 N. E. 2d 188,
190 (1985) (same); cf. State v. Culver, 293 Neb. 228, 444 N. W. 2d
662 (1989) (refusing to extend Batson to gender); State v. Clay,
779 S. W. 2d 673, 676 (Mo. App. 1989) (same); State v. Adams, 533
So. 2d 1060, 1063 (La. App. 1988) (same), cert. denied, 540 So. 2d
338 (La. 1989); State v. Oliviera, 534 A. 2d 867, 870 (R. I. 1987)
(same); Murphy v. State, 596 So. 2d 42 (Ala. Crim. App. 1991)
(same), cert. denied, 596 So. 2d 45 (Ala.), cert. denied, 506 U. S.
827 (1992).
131
the Equal Protection Clause, particularly where, as here, the
discrimination serves to ratify and perpetuate invidious, archaic,
and overbroad stereotypes about the relative abilities of men and
women.
II
Discrimination on the basis of gender in the exercise of
peremptory challenges is a relatively recent phenomenon.
Gender-based peremptory strikes were hardly practicable during most
of our country's existence, since, until the 20th century, women
were completely excluded from jury service.2 So well entrenched was
this exclusion of women that in 1880 this Court, while finding that
the exclusion of African-American men from juries violated the
Fourteenth Amendment, expressed no doubt that a State "may confine
the selection [of jurors] to males." Strauder v. West Virginia, 100
U. S., at 310; see also Fay v. New York,
332 U. S. 261, 289-290
(1947).
Many States continued to exclude women from jury service well
into the present century, despite the fact that women attained
suffrage upon ratification of the Nineteenth Amendment in 1920.3
States that did permit women to serve on juries often erected other
barriers, such as registration requirements and automatic
exemptions, designed to deter women from exercising their right to
jury service. See, e.
g.,
2 There was one brief exception. Between 1870 and 1871, women
were permitted to serve on juries in Wyoming Territory. They were
no longer allowed on juries after a new chief justice who
disfavored the practice was appointed in 1871. See Abrahamson,
Justice and Juror, 20 Ga. L. Rev. 257, 263-264 (1986).
3 In 1947, women still had not been granted the right to serve
on juries in 16 States. See Rudolph, Women on Juries-Voluntary or
Compulsory?, 44 J. Am. Jud. Soc. 206 (1961). As late as 1961, three
States, Alabama, Mississippi, and South Carolina, continued to
exclude women from jury service. See Hoyt v. Florida,
368 U. S. 57, 62 (1961).
Indeed, Alabama did not recognize women as a "cognizable group" for
jury-service purposes until after the 1966 decision in White v.
Crook, 251 F. Supp. 401 (MD Ala.) (three-judge court).
132
Fay v. New York, 332 U. S., at 289 ("[I]n 15 of the 28 states
which permitted women to serve [on juries in 1942], they might
claim exemption because of their sex"); Hoyt v. Florida,
368 U. S. 57 (1961)
(upholding affirmative registration statute that exempted women
from mandatory jury service).
The prohibition of women on juries was derived from the English
common law which, according to Blackstone, rightfully excluded
women from juries under "the doctrine of propter defectum sexus,
literally, the 'defect of sex.''' United States v. De Gross,
960 F.2d
1433, 1438 (CA9 1992) (en bane), quoting 2 W. Blackstone,
Commentaries *362.4 In this country, supporters of the exclusion of
women from juries tended to couch their objections in terms of the
ostensible need to protect women from the ugliness and depravity of
trials. Women were thought to be too fragile and virginal to
withstand the polluted courtroom atmosphere. See Bailey v. State,
215 Ark. 53, 61, 219 S. W. 2d 424, 428 (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
relationships, and other elements that would prove humiliating,
embarrassing and degrading to a lady"); In re Goodell, 39 Wis. 232,
245-246 (1875) (endorsing statutory ineligibility of women for
admission to the bar because "[r]everence for all womanhood would
suffer in the public
4 In England there was at least one deviation from the general
rule that only males could serve as jurors. If a woman was subject
to capital punishment, or if a widow sought postponement of the
disposition of her husband's estate until birth of a child, a writ
de ventre inspiciendo permitted the use of a jury of matrons to
examine the woman to determine whether she was pregnant. But even
when a jury of matrons was used, the examination took place in the
presence of 12 men, who also composed part of the jury in such
cases. The jury of matrons was used in the United States during the
Colonial period, but apparently fell into disuse when the medical
profession began to perform that function. See Note, Jury Service
for Women, 12 U. Fla. L. Rev. 224, 224-225 (1959).
133
spectacle of women ... so engaged"); Bradwell v. State, 16 Wall.
130, 141 (1873) (concurring opinion) ("[T]he civil law, as well as
nature herself, has always recognized a wide difference in the
respective spheres and destinies of man and woman. Man is, or
should be, woman's protector and defender. The natural and proper
timidity and delicacy which belongs to the female sex evidently
unfits it for many of the occupations of civil life .... The
paramount destiny and mission of woman are to fulfil the noble and
benign offices of wife and mother. This is the law of the
Creator"). Cf. Frontiero v. Richardson,
411 U. S. 677, 684 (1973)
(plurality opinion) (This "attitude of 'romantic paternalism' ...
put women, not on a pedestal, but in a cage").
This Court in Ballard v. United States,
329 U. S. 187 (1946),
first questioned the fundamental fairness of denying women the
right to serve on juries. Relying on its supervisory powers over
the federal courts, it held that women may not be excluded from the
venire in federal trials in States where women were eligible for
jury service under local law. In response to the argument that
women have no superior or unique perspective, such that defendants
are denied a fair trial by virtue of their exclusion from jury
panels, the Court explained:
"It is said ... that an all male panel drawn from the various
groups within a community 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, economic 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
like a class .... The truth is that the two sexes are not fungible;
a community made up exclusively of one is different from a
community composed of both; the subtle interplay of influence one
on
134
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."
Id., at 193-194 (footnotes omitted).
Fifteen years later, however, the Court still was unwilling to
translate its appreciation for the value of women's contribution to
civic life into an enforceable right to equal treatment under state
laws governing jury service. In Hoyt v. Florida, 368 U. S., at 61,
the Court found it reasonable, "[d]espite the enlightened
emancipation of women," to exempt women from mandatory jury service
by statute, allowing women to serve on juries only if they
volunteered to serve. The Court justified the differential
exemption policy on the ground that women, unlike men, occupied a
unique position "as the center of home and family life." Id., at
62.
In 1975, the Court finally repudiated the reasoning of Hoyt and
struck down, under the Sixth Amendment, an affirmative registration
statute nearly identical to the one at issue in Hoyt. See Taylor v.
Louisiana,
419 U. S.
522 (1975).5 We explained: "Restricting jury service to only
special groups or excluding identifiable segments playing major
roles in the community cannot be squared with the constitutional
concept of jury trial." Id., at 530. The diverse and representative
character of the jury must be maintained "'partly as assurance of a
diffused impartiality and partly because sharing in the
administration of justice is a phase of civic responsibility.'"
Id., at 530-531, quoting Thiel v. Southern Pacific Co.,
328 U. S. 217, 227 (1946)
(Frankfurter,
5 Taylor distinguished Hoyt by explaining that that case
"did not involve 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 now, however, has stated that Taylor "in effect"
overruled Hoyt. See Payne v. Tennessee,
501 U. S. 808, 828, n. 1
(1991).
135
J., dissenting). See also Duren v. Missouri,
439 U. S. 357 (1979).
III
Taylor relied on Sixth Amendment principles, but the opinion's
approach is consistent with the heightened equal protection
scrutiny afforded gender-based classifications. Since Reed v. Reed,
404 U. S. 71
(1971), this Court consistently has subjected gender-based
classifications to heightened scrutiny in recognition of the real
danger that government policies that professedly are based on
reasonable considerations in fact may be reflective of "archaic and
overbroad" generalizations about gender, see Schlesinger v.
Ballard,
419 U. S.
498, 506-507 (1975), or based on "outdated misconceptions
concerning the role of females in the home rather than in the
'marketplace and world of ideas.'" Craig v. Boren,
429 U. S. 190, 198-199
(1976). See also Cleburne v. Cleburne Living Center, Inc.,
473 U. S. 432, 441 (1985)
(differential treatment of the sexes "very likely reflect[s]
outmoded notions of the relative capabilities of men and
women").
Despite the heightened scrutiny afforded distinctions based on
gender, respondent argues that gender discrimination in the
selection of the petit jury should be permitted, though
discrimination on the basis of race is not. Respondent suggests
that "gender discrimination in this country ... has never reached
the level of discrimination" against African-Americans, and
therefore gender discrimination, unlike racial discrimination, is
tolerable in the courtroom. Brief for Respondent 9.
While the prejudicial attitudes toward women in this country
have not been identical to those held toward racial minorities, the
similarities between the experiences of racial minorities and
women, in some contexts, "overpower those differences." Note,
Beyond Batson: Eliminating GenderBased Peremptory Challenges, 105
Harv. L. Rev. 1920, 1921
136
(1992). As a plurality of this Court observed in Frontiero v.
Richardson, 411 U. S., at 685:
"[T]hroughout much of the 19th century the position of women in
our society was, in many respects, comparable to that of blacks
under the pre-Civil War slave codes. Neither slaves nor women could
hold office, serve on juries, or bring suit in their own names, and
married women traditionally were denied the legal capacity to hold
or convey property or to serve as legal guardians of their own
children .... And although blacks were guaranteed the right to vote
in 1870, women were denied even that right-which is itself
'preservative of other basic civil and political rights'-until
adoption of the Nineteenth Amendment half a century later."
(Footnote omitted.)
Certainly, with respect to jury service, African-Americans and
women share a history of total exclusion, a history which came to
an end for women many years after the embarrassing chapter in our
history came to an end for African-Americans.
We need not determine, however, whether women or racial
minorities have suffered more at the hands of discriminatory state
actors during the decades of our Nation's history. It is necessary
only to acknowledge that "our Nation has had a long and unfortunate
history of sex discrimination,"
id., at 684, a history which
warrants the heightened scrutiny we afford all gender-based
classifications today. Under our equal protection jurisprudence,
gender-based classifications require "an exceedingly persuasive
justification" in order to survive constitutional scrutiny. See
Personnel Administrator of Mass. v. Feeney,
442 U. S. 256, 273
(1979). See also Mississippi Univ. for Women v. Hogan,
458 U. S. 718, 724
(1982); Kirchberg v. Feenstra,
450 U. S. 455, 461
(1981). Thus, the only question is whether discrimination on the
basis of gender in jury selection substantially furthers the
State's legitimate interest in achieving a fair and impartial
137
tria1.6 In making this assessment, we do not weigh the value of
peremptory challenges as an institution against our asserted
commitment to eradicate invidious discrimination from the
courtroom.7 Instead, we consider whether peremptory challenges
based on gender stereotypes provide substantial aid to a litigant's
effort to secure a fair and impartial jury.8
Far from proffering an exceptionally persuasive justification
for its gender-based peremptory challenges, respondent maintains
that its decision to strike virtually all the males from the jury
in this case "may reasonably have been based upon the perception,
supported by history, that men otherwise totally qualified to serve
upon a jury in any case might
6 Because we conclude that gender-based peremptory challenges
are not substantially related to an important government objective,
we once again need not decide whether classifications based on
gender are inherently suspect. See Mississippi Univ. for Women, 458
U. S., at 724, n. 9; Stanton v. Stanton,
421 U. S. 7, 13 (1975);
Harris v. Forklift Systems, Inc.,
510 U. S. 17, 26, n.
(1993) (GINSBURG, J., concurring) ("[I]t remains an open question
whether 'classifications based on gender are inherently suspect' ")
(citations omitted).
7 Although peremptory challenges are valuable tools in jury
trials, they "are not constitutionally protected fundamental
rights; rather they are but one state-created means to the
constitutional end of an impartial jury and a fair trial." Georgia
v. McCollum,
505 U. S.
42, 57 (1992).
8 Respondent argues that we should recognize a special state
interest in this case: the State's interest in establishing the
paternity of a child born out of wedlock. Respondent contends that
this interest justifies the use of gender-based peremptory
challenges, since illegitimate children are themselves victims of
historical discrimination and entitled to heightened scrutiny under
the Equal Protection Clause.
What respondent fails to recognize is that the only legitimate
interest it could possibly have in the exercise of its peremptory
challenges is securing a fair and impartial jury. See Edmonson v.
Leesville Concrete Co.,
500 U. S. 614, 620 (1991)
("[The] sole purpose [of the peremptory challenge] is to permit
litigants to assist the government in the selection of an impartial
trier of fact"). This interest does not change with the parties or
the causes. The State's interest in every trial is to see that the
proceedings are carried out in a fair, impartial, and
nondiscriminatory manner.
138
be more sympathetic and receptive to the arguments of a man
alleged in a paternity action to be the father of an outof-wedlock
child, while women equally qualified to serve upon a jury might be
more sympathetic and receptive to the arguments of the complaining
witness who bore the child." Brief for Respondent 10.9
We shall not accept as a defense to gender-based peremptory
challenges "the very stereotype the law condemns." Powers v. Ohio,
499 U. S., at 410. Respondent's rationale, not unlike those
regularly expressed for gender-based strikes, is reminiscent of the
arguments advanced to justify the total exclusion of women from
juries.10 Respondent of-
9 Respondent cites one study in support of its quasi-empirical
claim that women and men may have different attitudes about certain
issues justifying the use of gender as a proxy for bias. See R.
Hastie, S. Penrod, & N. Pennington, Inside the Jury 140 (1983).
The authors conclude: "Neither student nor citizen judgments for
typical criminal case materials have revealed differences between
male and female verdict preferences .... The picture differs [only]
for rape cases, where female jurors appear to be somewhat more
conviction-prone than male jurors." The majority of studies suggest
that gender plays no identifiable role in jurors' attitudes. See,
e.
g., V. Hans & N. Vidmar, Judging the Jury 76 (1986)
("[I]n the majority of studies there are no significant differences
in the way men and women perceive and react to trials; yet a few
studies find women more defense-oriented, while still others show
women more favorable to the prosecutor"). Even in 1956, before
women had a constitutional right to serve on juries, some
commentators warned against using gender as a proxy for bias. See
F. Busch, Law and Tactics in Jury Trials § 143, p. 207 (1949) ("In
this age of general and specialized education, availed of generally
by both men and women, it would appear unsound to base a peremptory
challenge in any case upon the sole ground of sex ... ").
10 A manual formerly used to instruct prosecutors in Dallas,
Texas, 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.''' 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). Another widely circulated trial
manual speculated:
"If counsel is depending upon a clearly applicable rule of law
and if he wants to avoid a verdict of 'intuition' or 'sympathy,' if
his verdict in
139
fers virtually no support for the conclusion that gender alone
is an accurate predictor of juror's attitudes; yet it urges this
Court to condone the same stereotypes that justified the wholesale
exclusion of women from juries and the ballot box.ll Respondent
seems to assume that gross generalizations that would be deemed
impermissible if made on the
amount is to be proved by clearly demonstrated blackboard
figures for example, generally he would want a male juror.
"[But] women ... are desired jurors when plaintiff is a man. A
woman juror may see a man impeached from the beginning of the case
to the end, but there is at least the chance [with] the woman juror
(particularly if the man happens to be handsome or appealing)
[that] the plaintiff's derelictions in and out of court will be
overlooked. A woman is inclined to forgive sin in the opposite sex;
but definitely not her own." 3 M. Belli, Modern Trials §§ 51.67 and
51.68, pp. 446-447 (2d ed. 1982).
11 Even if a measure of truth can be found in some of the gender
stereotypes used to justify gender-based peremptory challenges,
that fact alone cannot support discrimination on the basis of
gender in jury selection. We have made abundantly clear in past
cases that gender classifications that rest on impermissible
stereotypes violate the Equal Protection Clause, even when some
statistical support can be conjured up for the generalization. See,
e. g., Weinberger v. Wiesenfeld,
420 U. S. 636, 645 (1975)
(holding unconstitutional a Social Security Act classification
authorizing benefits to widows but not to widowers despite the fact
that the justification for the differential treatment was "not
entirely without empirical support"); Craig v. Boren,
429 U. S. 190, 201 (1976)
(invalidating an Oklahoma law that established different drinking
ages for men and women, although the evidence supporting the age
differential was "not trivial in a statistical sense"). The
generalization advanced by Alabama in support of its asserted right
to discriminate on the basis of gender is, at the least, overbroad,
and serves only to perpetuate the same "outmoded notions of the
relative capabilities of men and women," Cleburne v. Cleburne
Living Center, Inc.,
473 U. S. 432, 441
(1985), that we have invalidated in other contexts. See Frontiero
v. Richardson,
411 U.
S. 677 (1973); Stanton v. Stanton, supra; Craig v. Boren,
supra; Mississippi Univ.for Women v. Hogan, supra. The Equal
Protection Clause, as interpreted by decisions of this Court,
acknowledges that a shred of truth may be contained in some
stereotypes, but requires that state actors look beyond the surface
before making judgments about people that are likely to stigmatize
as well as to perpetuate historical patterns of discrimination.
140
basis of race are somehow permissible when made on the basis of
gender.
Discrimination in jury selection, whether based on race or on
gender, causes harm to the litigants, the community, and the
individual jurors who are wrongfully excluded from participation in
the judicial process. The litigants are harmed by the risk that the
prejudice that motivated the discriminatory selection of the jury
will infect the entire proceedings. See Edmonson, 500 U. S., at 628
(discrimination in the courtroom "raises serious questions as to
the fairness of the proceedings conducted there"). The community is
harmed by the State's participation in the perpetuation of
invidious group stereotypes and the inevitable loss of confidence
in our judicial system that state-sanctioned discrimination in the
courtroom engenders.
When state actors exercise peremptory challenges in reliance on
gender stereotypes, they ratify and reinforce prejudicial views of
the relative abilities of men and women. Because these stereotypes
have wreaked injustice in so many other spheres of our country's
public life, active discrimination by litigants on the basis of
gender during jury selection "invites cynicism respecting the
jury's neutrality and its obligation to adhere to the law." Powers
v. Ohio, 499 U. S., at 412. The potential for cynicism is
particularly acute in cases where gender-related issues are
prominent, such as cases involving rape, sexual harassment, or
paternity. Discriminatory use of peremptory challenges may create
the impression that the judicial system has acquiesced in
suppressing full participation by one gender or that the "deck has
been stacked" in favor of one side. See
id., at 413 ("The
verdict will not be accepted or understood [as fair] if the jury is
chosen by unlawful means at the outset").
In recent cases we have emphasized that individual jurors
themselves have a right to nondiscriminatory jury selection
141
procedures.12 See Powers, supra, Edmonson, supra, and Georgia v.
McCollum,
505 U. S.
42 (1992). Contrary to respondent's suggestion, this right
extends to both men and women. See Mississippi Univ. for Women v.
Hogan, 458 U. S, at 723 (that a state practice "discriminates
against males rather than against females does not exempt it from
scrutiny or reduce the standard of review"); cf. Brief for
Respondent 9 (arguing that men deserve no protection from gender
discrimination in jury selection because they are not victims of
historical discrimination). All persons, when granted the
opportunity to serve on a jury, have the right not to be excluded
summarily because of discriminatory and stereotypical presumptions
that reflect and reinforce pat-
12 Given our recent precedent, the doctrinal basis for JUSTICE
SCALIA'S dissenting opinion is a mystery. JUSTICE SCALIA points out
that the discrimination at issue in this case was directed at men,
rather than women, but then acknowledges that the Equal Protection
Clause protects both men and women from intentional discrimination
on the basis of gender. See post, at 157, citing Mississippi Univ.
for Women v. Hogan, 458 U. S., at 723-724. He also appears
cognizant of the fact that classifications based on gender must be
more than merely rational, see post, at 160-161; they must be
supported by an "exceedingly persuasive justification," Hogan, 458
U. S., at 724. JUSTICE SCALIA further admits that the Equal
Protection Clause, as interpreted by decisions of this Court,
governs the exercise of peremptory challenges in every trial, and
that potential jurors, as well as litigants, have an equal
protection right to nondiscriminatory jury selection procedures.
See post, at 158-160, citing Batson, Powers, Edmonson, and
McCollum. JUSTICE SCALIA does not suggest that we overrule these
cases, nor does he attempt to distinguish them. He intimates that
discrimination on the basis of gender in jury selection may be
rational, see post, at 157, but offers no "exceedingly persuasive
justification" for it. Indeed, JUSTICE SCALIA fails to advance
any justification for his apparent belief that the Equal
Protection Clause, while prohibiting discrimination on the basis of
race in the exercise of peremptory challenges, allows
discrimination on the basis of gender. His dissenting opinion thus
serves as a tacit admission that, short of overruling a decade of
cases interpreting the Equal Protection Clause, the result we reach
today is doctrinally compelled.
142
terns of historical discrimination. 13 Striking individual
jurors on the assumption that they hold particular views simply
because of their gender is "practically a brand upon them, affixed
by the law, an assertion of their inferiority." Strauder v. West
Virginia, 100 U. S., at 308. It denigrates the dignity of the
excluded juror, and, for a woman, reinvokes a history of exclusion
from political participation.14 The message it sends to all those
in the courtroom, and all those who may later learn of the
discriminatory act, is that certain individuals, for no reason
other than gender, are presumed unqualified by state actors to
decide important questions upon which reasonable persons could
disagree.15
13 It is irrelevant that women, unlike Mrican-Americans, are not
a numerical minority and therefore are likely to remain on the jury
if each side uses its peremptory challenges in an equally
discriminatory fashion. Cf. United States v. Broussard, 987 F. 2d,
at 220 (declining to extend Batson to gender; noting that "[w]omen
are not a numerical minority," and therefore are likely to be
represented on juries despite the discriminatory use of peremptory
challenges). Because the right to nondiscriminatory jury selection
procedures belongs to the potential jurors, as well as to the
litigants, the possibility that members of both genders will get on
the jury despite the intentional discrimination is beside the
point. The exclusion of even one juror for impermissible reasons
harms that juror and undermines public confidence in the fairness
of the system.
14 The popular refrain is that
all peremptory challenges
are based on stereotypes of some kind, expressing various intuitive
and frequently erroneous biases. See post, at 161. But where
peremptory challenges are made on the basis of group
characteristics other than race or gender (like occupation, for
example), they do not reinforce the same stereotypes about the
group's competence or predispositions that have been used to
prevent them from voting, participating on juries, pursuing their
chosen professions, or otherwise contributing to civic life. See
Babcock, A Place in the Palladium, Women's Rights and Jury Service,
61 U. Cinn. L. Rev. 1139, 1173 (1993).
15JUSTICE SCALIA argues that there is no "discrimination and
dishonor" in being subject to a race- or gender-based peremptory
strike. Post, at 160. JUSTICE SCALIA'S argument has been rejected
many times, see, e.
g., Powers v. Ohio,
499 U. S. 400,410 (1991),
and we reject it once again. The only support JUSTICE SCALIA offers
for his conclusion is the fact that raceand gender-based peremptory
challenges have a long history in this coun-
143
IV
Our conclusion that litigants may not strike potential jurors
solely on the basis of gender does not imply the elimination of all
peremptory challenges. Neither does it conflict with a State's
legitimate interest in using such challenges in its effort to
secure a fair and impartial jury. Parties still may remove jurors
who they feel might be less acceptable than others on the panel;
gender simply may not serve as a proxy for bias. Parties may also
exercise their peremptory challenges to remove from the venire any
group or class of individuals normally subject to "rational basis"
review. See Cleburne v. Cleburne Living Center, Inc., 473 U. S., at
439442; Clark v. Jeter,
486 U. S. 456, 461
(1988). Even strikes based on characteristics that are
disproportionately associated with one gender could be appropriate,
absent a showing of pretext.16
If conducted properly, voir dire can inform litigants about
potential jurors, making reliance upon stereotypical and pejorative
notions about a particular gender or race both unnecessary and
unwise. Voir dire provides a means of discovering actual or implied
bias and a firmer basis upon which the
try. Post, at 159 (discriminatory peremptory challenges have
"coexisted with the Equal Protection Clause for 120 years"); post,
at 160 (there was a "106-year interlude between our holding that
exclusion from juries on the basis of race was unconstitutional,
[Strauder], and our holding that peremptory challenges on the basis
of race were unconstitutional,
[Batson]"). We do not dispute
that this Court long has tolerated the discriminatory use of
peremptory challenges, but this is not a reason to continue to do
so. Many of "our people's traditions," see post, at 163, such as de
jure segregation and the total exclusion of women from juries, are
now unconstitutional even though they once coexisted with the Equal
Protection Clause.
16 For example, challenging all persons who have had military
experience would disproportionately affect men at this time, while
challenging all persons employed as nurses would disproportionately
affect women. Without a showing of pretext, however, these
challenges may well not be unconstitutional, since they are not
gender or race based. See Hernandez v. New York,
500 U. S. 352 (1991).
144
parties may exercise their peremptory challenges intelligently.
See, e. g., Nebraska Press Assn. v. Stuart,
427 U. S. 539, 602 (1976)
(Brennan, J., concurring in judgment) (voir dire "facilitate[s]
intelligent exercise of peremptory challenges and [helps] uncover
factors that would dictate disqualification for cause"); United
States v. Witt,
718 F.2d
1494, 1497 (CAlO 1983) ("Without an adequate foundation [laid
by voir dire], counsel cannot exercise sensitive and intelligent
peremptory challenges").
The experience in the many jurisdictions that have barred
gender-based challenges belies the claim that litigants and trial
courts are incapable of complying with a rule barring strikes based
on gender. See n. 1, supra (citing state and federal jurisdictions
that have extended Batson to gender)P As with race-based Batson
claims, a party alleging gender discrimination must make a prima
facie showing of inten-
17 Respondent argues that Alabama's method of jury selection
would make the extension of Batson to gender particularly
burdensome. In Alabama, the "struck-jury" system is employed, a
system which requires litigants to strike alternately until 12
persons remain, who then constitute the jury. See Ala. Rule Civ.
Proc. 47 (1990). Respondent suggests that, in some cases at least,
it is necessary under this system to continue striking persons from
the venire after the litigants no longer have an articulable reason
for doing so. As a result, respondent contends, some litigants may
be unable to come up with gender-neutral explanations for their
strikes.
We find it worthy of note that Alabama has managed to maintain
its struck-jury system even after the ruling in Batson, despite the
fact that there are counties in Alabama that are predominately
Mrican-American. In those counties, it presumably would be as
difficult to come up with race-neutral explanations for peremptory
strikes as it would be to advance gender-neutral explanations. No
doubt the voir dire process aids litigants in their ability to
articulate race-neutral explanations for their peremptory
challenges. The same should be true for gender. Regardless, a
State's choice of jury-selection methods cannot insulate it from
the strictures of the Equal Protection Clause. Alabama is free to
adopt whatever jury-selection procedures it chooses so long as they
do not violate the Constitution.
145
tional discrimination before the party exercising the challenge
is required to explain the basis for the strike. Batson, 476 U. S.,
at 97. When an explanation is required, it need not rise to the
level of a "for cause" challenge; rather, it merely must be based
on a juror characteristic other than gender, and the proffered
explanation may not be pretextual. See Hernandez v. New York,
500 U. S. 352
(1991).
Failing to provide jurors the same protection against gender
discrimination as race discrimination could frustrate the purpose
of Batson itself. Because gender and race are overlapping
categories, gender can be used as a pretext for racial
discrimination. 18 Allowing parties to remove racial minorities
from the jury not because of their race, but because of their
gender, contravenes well-established equal protection principles
and could insulate effectively racial discrimination from judicial
scrutiny.
V
Equal opportunity to participate in the fair administration of
justice is fundamental to our democratic system.19 It not
18 The temptation to use gender as a pretext for racial
discrimination may explain why the majority of the lower court
decisions extending Batson to gender involve the use of peremptory
challenges to remove minority women. All four of the gender-based
peremptory cases to reach the Federal Courts of Appeals and cited
in n. 1,
supra, involved the striking of minority women.
19 This Court almost a half century ago stated:
"The American tradition of trial by jury, considered in
connection with either criminal or civil proceedings, necessarily
contemplates an impartial jury drawn from a cross-section of the
community .... This does not mean, of course, that every jury must
contain representatives of all the economic, social, religious,
racial, political and geographical groups of the community;
frequently such complete representation would be impossible. But it
does mean that prospective jurors shall be selected by court
officials without systematic and intentional exclusion of any of
these groups. Recognition must be given to the fact that those
eligible for jury service are to be found in every stratum of
society. Jury competence is an individual rather than a group or
class matter. That fact lies at the very heart of
146
only furthers the goals of the jury system. It reaffirms the
promise of equality under the law-that all citizens, regardless of
race, ethnicity, or gender, have the chance to take part directly
in our democracy. Powers v. Ohio, 499 U. S., at 407 ("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"). When persons are excluded from
participation in our democratic processes solely because of race or
gender, this promise of equality dims, and the integrity of our
judicial system is jeopardized.
In view of these concerns, the Equal Protection Clause prohibits
discrimination in jury selection on the basis of gender, or on the
assumption that an individual will be biased in a particular case
for no reason other than the fact that the person happens to be a
woman or happens to be a man. As with race, the "core guarantee of
equal protection, ensuring citizens that their State will not
discriminate ... , would be meaningless were we to approve the
exclusion of jurors on the basis of such assumptions, which arise
solely from the jurors' [gender]." Batson, 476 U. S., at 97-98.
The judgment of the Court of Civil Appeals of Alabama is
reversed, and the case is remanded to that court for further
proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring.
I agree with the Court that the Equal Protection Clause
prohibits the government from excluding a person from jury service
on account of that person's gender. Ante, at 135137. The State's
proffered justifications for its genderbased peremptory challenges
are far from the" 'exceedingly persuasive'" showing required to
sustain a gender-based
the jury system. To disregard it is to open the door to class
distinctions and discriminations which are abhorrent to the
democratic ideals of trial by jury." Thiel v. Southern Pacific Co.,
328 U. S. 217,
220 (1946).
147
classification. Mississippi Univ. for Women v. Hogan,
458 U. S. 718, 724
(1982); ante, at 137-140. I therefore join the Court's opinion in
this case. But today's important blow against gender discrimination
is not costless. I write separately to discuss some of these costs,
and to express my belief that today's holding should be limited to
the government's use of gender-based peremptory strikes.
Batson v. Kentucky,
476 U. S. 79 (1986),
itself was a significant intrusion into the jury selection process.
Batson minihearings are now routine in state and federal trial
courts, and Batson appeals have proliferated as well. Demographics
indicate that today's holding may have an even greater impact than
did Batson itself. In further constitutionalizing jury selection
procedures, the Court increases the number of cases in which jury
selection-once a sideshowwill become part of the main event.
For this same reason, today's decision further erodes the role
of the peremptory challenge. The peremptory challenge is "a
practice of ancient origin" and is "part of our common law
heritage." Edmonson v. Leesville Concrete Co.,
500 U. S. 614, 639 (1991)
(O'CONNOR, J., dissenting). The principal value of the peremptory
is that it helps produce fair and impartial juries. Swain v.
Alabama,
380 U. S.
202, 218-219 (1965); Babcock, Voir Dire: Preserving "Its
Wonderful Power," 27 Stan. L. Rev. 545, 549-558 (1975). "Peremptory
challenges, by enabling each side to exclude those jurors it
believes will be most partial toward the other side, are a means of
eliminat[ing] extremes of partiality on both sides, thereby
assuring the selection of a qualified and unbiased jury." Holland
v. Illinois,
493 U.
S. 474, 484 (1990) (emphasis deleted; internal quotation marks
and citations omitted). The peremptory's importance is confirmed by
its persistence:
It was well established at the time of Blackstone and continues
to endure in all the States. Id., at 481.
Moreover, "[t]he essential nature of the peremptory challenge is
that it is one exercised without a reason stated, with-
148
out inquiry and without being subject to the court's control."
Swain, 380 U. S., at 220. Indeed, often a reason for it cannot be
stated, for a trial lawyer's judgments about a juror's sympathies
are sometimes based on experienced hunches and educated guesses,
derived from a juror's responses at voir dire or a juror's" 'bare
looks and gestures.' " Ibid. That a trial lawyer's instinctive
assessment of a juror's predisposition cannot meet the high
standards of a challenge for cause does not mean that the lawyer's
instinct is erroneous. Cf. V. Starr & M. McCormick, Jury
Selection 522 (1993) (nonverbal cues can be better than verbal
responses at revealing a juror's disposition). Our belief that
experienced lawyers will often correctly intuit which jurors are
likely to be the least sympathetic, and our understanding that the
lawyer will often be unable to explain the intuition, are the very
reason we cherish the peremptory challenge. But, as we add, layer
by layer, additional constitutional restraints on the use of the
peremptory, we force lawyers to articulate what we know is often
inarticulable.
In so doing we make the peremptory challenge less discretionary
and more like a challenge for cause. We also increase the
possibility that biased jurors will be allowed onto the jury,
because sometimes a lawyer will be unable to provide an acceptable
gender-neutral explanation even though the lawyer is in fact
correct that the juror is unsympathetic. Similarly, in
jurisdictions where lawyers exercise their strikes in open court,
lawyers may be deterred from using their peremptories, out of the
fear that if they are unable to justify the strike the court will
seat a juror who knows that the striking party thought him unfit.
Because I believe the peremptory remains an important litigator's
tool and a fundamental part of the process of selecting impartial
juries, our increasing limitation of it gives me pause.
Nor is the value of the peremptory challenge to the litigant
diminished when the peremptory is exercised in a genderbased
manner. We know that like race, gender matters. A
149
plethora of studies make clear that in rape cases, for example,
female jurors are somewhat more likely to vote to convict than male
jurors. See R. Hastie, S. Penrod, & N. Pennington, Inside the
Jury 140-141 (1983) (collecting and summarizing empirical studies).
Moreover, though there have been no similarly definitive studies
regarding, for example, sexual harassment, child custody, or
spousal or child abuse, one need not be a sexist to share the
intuition that in certain cases a person's gender and resulting
life experience will be relevant to his or her view of the case. "
'Jurors are not expected to come into the jury box and leave behind
all that their human experience has taught them.'" Beck v. Alabama,
447 U. S. 625,
642 (1980). Individuals are not expected to ignore as jurors what
they know as menor women.
Today's decision severely limits a litigant's ability to act on
this intuition, for the import of our holding is that any
correlation between a juror's gender and attitudes is irrelevant as
a matter of constitutional law. But to say that gender makes no
difference as a matter of law is not to say that gender makes no
difference as a matter of fact. I previously have said with regard
to Batson: "That the Court will not tolerate prosecutors' racially
discriminatory use of the peremptory challenge, in effect, is a
special rule of relevance, a statement about what this Nation
stands for, rather than a statement of fact." Brown v. North
Carolina,
479 U. S.
940, 941-942 (1986) (opinion concurring in denial of
certiorari). Today's decision is a statement that, in an effort to
eliminate the potential discriminatory use of the peremptory, see
Batson, 476 U. S., at 102 (Marshall, J., concurring), gender is now
governed by the special rule of relevance formerly reserved for
race. Though we gain much from this statement, we cannot ignore
what we lose. In extending Batson to gender we have added an
additional burden to the state and federal trial process, taken a
step closer to eliminating the peremptory challenge, and diminished
the ability of liti-
150
gants to act on sometimes accurate gender-based assumptions
about juror attitudes.
These concerns reinforce my conviction that today's decision
should be limited to a prohibition on the government's use of
gender-based peremptory challenges. The Equal Protection Clause
prohibits only discrimination by state actors. In Edmonson, supra,
we made the mistake of concluding that private civil litigants were
state actors when they exercised peremptory challenges; in Georgia
v. McCollum,
505 U. S.
42, 50-55 (1992), we compounded the mistake by holding that
criminal defendants were also state actors. Our commitment to
eliminating discrimination from the legal process should not allow
us to forget that not all that occurs in the courtroom is state
action. Private civil litigants are just that-private litigants.
"The government erects the platform; it does not thereby become
responsible for all that occurs upon it." Edmonson, 500 U. S., at
632 (O'CONNOR, J., dissenting).
Clearly, criminal defendants are not state actors. "From arrest,
to trial, to possible sentencing and punishment, the antagonistic
relationship between government and the accused is clear for all to
see .... [T]he unique relationship between criminal defendants and
the State precludes attributing defendants' actions to the State
.... " McCollum, supra, at 67 (O'CONNOR, J., dissenting). The
peremptory challenge is " 'one of the most important of the rights
secured to the accused.'" Swain, 380 U. S., at 219 (emphasis
added); Goldwasser, Limiting a Criminal Defendant's Use of
Peremptory Challenges: On Symmetry and the Jury in a Criminal
Trial, 102 Harv. L. Rev. 808, 826-833 (1989). Limiting the
accused's use of the peremptory is "a serious misordering of our
priorities," for it means "we have exalted the right of citizens to
sit on juries over the rights of the criminal defendant, even
though it is the defendant, not the jurors, who faces imprisonment
or even death." McCollum, supra, at 61-62 (THOMAS, J., concurring
in judgment).
151
Accordingly, I adhere to my position that the Equal Protection
Clause does not limit the exercise of peremptory challenges by
private civil litigants and criminal defendants. This case itself
presents no state action dilemma, for here the State of Alabama
itself filed the paternity suit on behalf of petitioner. But what
of the next case? Will we, in the name of fighting gender
discrimination, hold that the battered wife-on trial for wounding
her abusive husband-is a state actor? Will we preclude her from
using her peremptory challenges to ensure that the jury of her
peers contains as many women members as possible? I assume we will,
but I hope we will not.
JUSTICE KENNEDY, concurring in the judgment.
I am in full agreement with the Court that the Equal Protection
Clause prohibits gender discrimination in the exercise of
peremptory challenges. I write to explain my understanding of why
our precedents lead to that conclusion.
Though in some initial drafts the Fourteenth Amendment was
written to prohibit discrimination against "persons because of
race, color or previous condition of servitude," the Amendment
submitted for consideration and later ratified contained more
comprehensive terms: "No State shall ... deny to any person within
its jurisdiction the equal protection of the laws." See Oregon v.
Mitchell,
400 U. S.
112, 172-173 (1970) (Harlan, J., concurring in part and
dissenting in part); B. Kendrick, Journal of the Joint Committee of
Fifteen on Reconstruction, 39th Congress, 1865-1867, pp. 90-91,
97-100 (1914). In recognition of the evident historical fact that
the Equal Protection Clause was adopted to prohibit government
discrimination on the basis of race, the Court most often
interpreted it in the decades that followed in accord with that
purpose. In Strauder v. West Virginia,
100 U. S. 303 (1880), for
example, the Court invalidated a West Virginia law prohibiting
blacks from serving on juries. In so doing, the decision said of
the Equal Protection Clause:
152
KENNEDY, J., concurring in judgment
"What is this but declaring that the law in the States shall be
the same for the black as for the white." Id., at 307. And while
the Court held that the State could not confine jury service to
whites, it further noted that the State could confine jury service
"to males, to freeholders, to citizens, to persons within certain
ages, or to persons having educational qualifications." Id., at
310. See also Yick Wo v. Hopkins,
118 U. S. 356, 373-374
(1886).
As illustrated by the necessity for the Nineteenth Amendment in
1920, much time passed before the Equal Protection Clause was
thought to reach beyond the purpose of prohibiting racial
discrimination and to apply as well to discrimination based on sex.
In over 20 cases beginning in 1971, however, we have subjected
government classifications based on sex to heightened scrutiny.
Neither the State nor any Member of the Court questions that
principle here. And though the intermediate scrutiny test we have
applied may not provide a very clear standard in all instances, see
Craig v. Boren,
429
U. S. 190, 221 (1976) (REHNQUIST, J., dissenting), our case law
does reveal a strong presumption that gender classifications are
invalid. See, e. g., Mississippi Univ. for Women v. Hogan,
458 U. S. 718 (1982).
There is no doubt under our precedents, therefore, that the
Equal Protection Clause prohibits sex discrimination in the
selection of jurors. Duren v. Missouri,
439 U. S. 357 (1979);
Taylor v. Louisiana,
419 U. S. 522 (1975). The
only question is whether the Clause also prohibits peremptory
challenges based on sex. The Court is correct to hold that it does.
The Equal Protection Clause and our constitutional tradition are
based on the theory that an individual possesses rights that are
protected against lawless action by the government. The neutral
phrasing of the Equal Protection Clause, extending its guarantee to
"any person," reveals its concern with rights of individuals, not
groups (though group disabilities are sometimes the mechanism by
which the State violates the individual right in question). "At the
heart of
153
the Constitution's guarantee of equal protection lies the simple
command that the Government must treat citizens as individuals, not
as simply components of a racial [or] sexual ... class." Metro
Broadcasting, Inc. v. FCC,
497 U. S. 547, 602 (1990)
(O'CONNOR, J., dissenting) (emphasis deleted; internal quotation
marks omitted). For purposes of the Equal Protection Clause, an
individual denied jury service because of a peremptory challenge
exercised against her on account of her sex is no less injured than
the individual denied jury service because of a law banning members
of her sex from serving as jurors. Cf., e. g., Powers v. Ohio,
499 U. S. 400,
409-410 (1991); Palmore v. Sidoti,
466 U. S. 429, 431-432
(1984); Ex parte Virginia,
100 U. S. 339, 346-347
(1880). The injury is to personal dignity and to the individual's
right to participate in the political process. Powers, supra, at
410. The neutrality of the Fourteenth Amendment's guarantee is
confirmed by the fact that the Court has no difficulty in finding a
constitutional wrong in this case, which involves males excluded
from jury service because of their gender.
The importance of individual rights to our analysis prompts a
further observation concerning what I conceive to be the intended
effect of today's decision. We do not prohibit racial and gender
bias in jury selection only to encourage it in jury deliberations.
Once seated, a juror should not give free rein to some racial or
gender bias of his or her own. The jury system is a kind of compact
by which power is transferred from the judge to jury, the jury in
turn deciding the case in accord with the instructions defining the
relevant issues for consideration. The wise limitation on the
authority of courts to inquire into the reasons underlying a jury's
verdict does not mean that a jury ought to disregard the court's
instructions. A juror who allows racial or gender bias to influence
assessment of the case breaches the compact and renounces his or
her oath.
In this regard, it is important to recognize that a juror sits
not as a representative of a racial or sexual group but as an
154
individual citizen. Nothing would be more pernicious to the jury
system than for society to presume that persons of different
backgrounds go to the jury room to voice prejudice. Cf. Metro
Broadcasting, supra, at 618 (O'CONNOR, J., dissenting). The jury
pool must be representative of the community, but that is a
structural mechanism for preventing bias, not enfranchising it.
See, e. g., Ballard v. United States,
329 U. S. 187, 193
(1946); Thiel v. Southern Pacific
Co., 328 U. S. 217 (1946).
"Jury competence is an individual rather than a group or class
matter. That fact lies at the very heart of the jury system." Id.,
at 220. Thus, the Constitution guarantees a right only to an
impartial jury, not to a jury composed of members of a particular
race or gender. See Holland v. Illinois,
493 U. S. 474 (1990);
Strauder, 100 U. S., at 305.
***
For these reasons, I concur in the judgment of the Court holding
that peremptory strikes based on gender violate the Equal
Protection Clause.
CHIEF JUSTICE REHNQUIST, dissenting.
I agree with the dissent of JUSTICE SCALIA, which I have joined.
I add these words in support of its conclusion. Accepting Batson v.
Kentucky,
476 U. S.
79 (1986), as correctly decided, there are sufficient
differences between race and gender discrimination such that the
principle of Batson should not be extended to peremptory challenges
to potential jurors based on sex.
That race and sex discrimination are different is acknowledged
by our equal protection jurisprudence, which accords different
levels of protection to the two groups. Classifications based on
race are inherently suspect, triggering "strict scrutiny," while
gender-based classifications are judged under a heightened, but
less searching, standard of review. Mississippi Univ. for Women v.
Hogan,
458 U. S.
718, 724 (1982). Racial groups comprise numerical minorities in
our
155
society, warranting in some situations a greater need for
protection, whereas the population is divided almost equally
between men and women. Furthermore, while substantial
discrimination against both groups still lingers in our society,
racial equality has proved a more challenging goal to achieve on
many fronts than gender equality. See, e.
g., D. Kirp, M.
Yudof, & M. Franks, Gender Justice 137 (1986).
Batson, which involved a black defendant challenging the removal
of black jurors, announced a sea change in the jury selection
process. In balancing the dictates of equal protection and the
historical practice of peremptory challenges, long recognized as
securing fairness in trials, the Court concluded that the command
of the Equal Protection Clause was superior. But the Court was
careful that its rule not "undermine the contribution the challenge
generally makes to the administration of justice." 476 U. S., at
98-99. Batson is best understood as a recognition that race lies at
the core of the commands of the Fourteenth Amendment. Not
surprisingly, all of our post-Batson cases have dealt with the use
of peremptory strikes to remove black or racially identified
venirepersons, and all have described Batson as fashioning a rule
aimed at preventing purposeful discrimination against a cognizable
racial group. * As JUSTICE O'CONNOR once recognized, Batson does
not apply "[o]utside the uniquely sensitive area of race." Brown v.
North Carolina,
479
U. S. 940, 942 (1986) (opinion concurring in denial of
certiorari).
Under the Equal Protection Clause, these differences mean that
the balance should tilt in favor of peremptory challenges when sex,
not race, is the issue. Unlike the
*See Georgia v. McCollum,
505 U. S. 42 (1992)
(blacks); Hernandez v.
New York,
500 U.
S. 352 (1991) (Latinos); Edmonson v. Leesville Concrete Co.,
500 U. S. 614
(1991) (blacks); Powers v. Ohio,
499 U. S. 400, 404-405
(1991) (blacks); Holland v. Illinois,
493 U. S. 474, 476-477
(1990) (blacks); Griffith v. Kentucky,
479 U. S. 314, 316 (1987)
(blacks); Allen v. Hardy,
478 U. S. 255, 259 (1986)
(blacks and Hispanics).
156
Court, I think the State has shown that jury strikes on the
basis of gender "substantially further" the State's legitimate
interest in achieving a fair and impartial trial through the
venerable practice of peremptory challenges. Swain v. Alabama,
380 U. S. 202,
212-220 (1965) (tracing the "very old credentials" of peremptory
challenges); Batson, supra, at 118-120 (Burger, C. J., dissenting);
post, at 161-162 (SCALIA, J., dissenting). The two sexes differ,
both biologically and, to a diminishing extent, in experience. I t
is not merely "stereotyping" to say that these differences may
produce a difference in outlook which is brought to the jury room.
Accordingly, use of peremptory challenges on the basis of sex is
generally not the sort of derogatory and invidious act which
peremptory challenges directed at black jurors may be.
JUSTICE O'CONNOR'S concurring opinion recognizes several of the
costs associated with extending Batson to genderbased peremptory
challenges-lengthier trials, an increase in the number and
complexity of appeals addressing jury selection, and a "diminished
... ability of litigants to act on sometimes accurate gender-based
assumptions about juror attitudes." Ante, at 149-150. These costs
are, in my view, needlessly imposed by the Court's opinion, because
the Constitution simply does not require the result that it
reaches.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS
join, dissenting.
Today's opinion is an inspiring demonstration of how thoroughly
up-to-date and right-thinking we Justices are in matters pertaining
to the sexes (or as the Court would have it, the genders), and how
sternly we disapprove the male chauvinist attitudes of our
predecessors. The price to be paid for this display-a modest price,
surely-is that most of the opinion is quite irrelevant to the case
at hand. The hasty reader will be surprised to learn, for example,
that this lawsuit involves a complaint about the use of peremptory
challenges to exclude men from a petit jury. To be sure,
157
petitioner, a man, used all but one of his peremptory strikes to
remove women from the jury (he used his last challenge to strike
the sole remaining male from the pool), but the validity of his
strikes is not before us. Nonetheless, the Court treats itself to
an extended discussion of the historic exclusion of women not only
from jury service, but also from service at the bar (which is
rather like jury service, in that it involves going to the
courthouse a lot). See ante, at 131136. All this, as I say, is
irrelevant, since the case involves state action that allegedly
discriminates against men. The parties do not contest that
discrimination on the basis of sex 1 is subject to what our cases
call "heightened scrutiny," and the citation of one of those cases
(preferably one involving men rather than women, see, e. g.,
Mississippi Univ. for Women v. Hogan,
458 U. S. 718, 723-724
(1982)) is all that was needed.
The Court also spends time establishing that the use of sex as a
proxy for particular views or sympathies is unwise and perhaps
irrational. The opinion stresses the lack of statistical evidence
to support the widely held belief that, at least in certain types
of cases, a juror's sex has some statistically significant
predictive value as to how the juror will behave. See ante, at
137-139, and n. 9. This assertion seems to place the Court in
opposition to its earlier Sixth Amendment "fair cross-section"
cases. See, e. g., Taylor v. Louisiana,
419 U. S. 522, 532, n. 12
(1975) ("Controlled studies ... have concluded that women bring to
juries their own perspectives and values that influence both jury
deliberation
1 Throughout this opinion, I shall refer to the issue as sex
discrimination rather than (as the Court does) gender
discrimination. The word "gender" has acquired the new and useful
connotation of cultural or attitudinal characteristics (as opposed
to physical characteristics) distinctive to the sexes. That is to
say, gender is to sex as feminine is to female and masculine to
male. The present case does not involve peremptory strikes
exercised on the basis of femininity or masculinity (as far as it
appears, effeminate men did not survive the prosecution's
peremptories). The case involves, therefore, sex discrimination
plain and simple.
158
and result"). But times and trends do change, and unisex is
unquestionably in fashion. Personally, I am less inclined to demand
statistics, and more inclined to credit the perceptions of
experienced litigators who have had money on the line. But it does
not matter. The Court's fervent defense of the proposition il n'y a
pas de difference entre les hommes et les femmes (it stereotypes
the opposite view as hateful "stereotyping") turns out to be, like
its recounting of the history of sex discrimination against women,
utterly irrelevant. Even if sex was a remarkably good predictor in
certain cases, the Court would find its use in peremptories
unconstitutional. See ante, at 139, n. 11; cf. ante, at 148-149
(O'CONNOR, J., concurring).
Of course the relationship of sex to partiality would have been
relevant if the Court had demanded in this case what it ordinarily
demands: that the complaining party have suffered some injury.
Leaving aside for the moment the reality that the defendant himself
had the opportunity to strike women from the jury, the defendant
would have some cause to complain about the prosecutor's striking
male jurors if male jurors tend to be more favorable toward
defendants in paternity suits. But if men and women jurors are (as
the Court thinks) fungible, then the only arguable injury from the
prosecutor's "impermissible" use of male sex as the basis for his
peremptories is injury to the stricken juror, not to the defendant.
Indeed, far from having suffered harm, petitioner, a state actor
under our precedents, see Georgia v. McCollum,
505 U. S. 42, 50-51
(1992); cf. Edmonson v. Leesville Concrete Co.,
500 U. S. 614, 626-627
(1991), has himself actually inflicted harm on female jurors.2 The
Court today
2 I continue to agree with JUSTICE O'CONNOR that
McCollum
and
Edmondson erred in making civil litigants and criminal
defendants state actors for purposes of the Equal Protection
Clause. I do not, however, share her belief that correcting that
error while continuing to consider the exercise of peremptories by
prosecutors a denial of equal protection will make things right.
If, in accordance with common perception but con-
159
presumably supplies petitioner with a cause of action by
applying the uniquely expansive third-party standing analysis of
Powers v. Ohio,
499
U. S. 400, 415 (1991), according petitioner a remedy because of
the wrong done to male jurors. This case illustrates why making
restitution to Paul when it is Peter who has been robbed is such a
bad idea. Not only has petitioner, by implication of the Court's
own reasoning, suffered no harm, but the scientific evidence
presented at trial established petitioner's paternity with 99.92%
accuracy. Insofar as petitioner is concerned, this is a case of
harmless error if there ever was one; a retrial will do nothing but
divert the State's judicial and prosecutorial resources, allowing
either petitioner or some other malefactor to go free.
The core of the Court's reasoning is that peremptory challenges
on the basis of any group characteristic subject to heightened
scrutiny are inconsistent with the guarantee of the Equal
Protection Clause. That conclusion can be reached only by focusing
unrealistically upon individual exercises of the peremptory
challenge, and ignoring the totality of the practice. Since all
groups are subject to the peremptory challenge (and will be made
the object of it, depending upon the nature of the particular case)
it is hard to see how any group is denied equal protection. See
id., at 423-424 (SCALIA, J., dissenting); Batson v.
Kentucky,
476 U. S.
79, 137-138 (1986) (REHNQUIST, J., dissenting). That explains
why peremptory challenges coexisted with the Equal Protection
Clause for 120 years. This case is a perfect example of how the
system as a whole is evenhanded. While the only claim before the
Court is petitioner's complaint that the prosecutor struck male
jurors, for every man
trary to the Court's unisex creed, women really will decide some
cases differently from men, allowing defendants alone to strike
jurors on the basis of sex will produce-and will be seen to
produce-juries intentionally weighted in the defendant's favor: no
women jurors, for example, in a rape prosecution. That is not a
desirable outcome.
160
struck by the government petitioner's own lawyer struck a woman.
To say that men were singled out for discriminatory treatment in
this process is preposterous. The situation would be different if
both sides systematically struck individuals of one group, so that
the strikes evinced groupbased animus and served as a proxy for
segregated venire lists. See Swain v. Alabama,
380 U. S. 202, 223-224
(1965). The pattern here, however, displays not a systemic
sex-based animus but each side's desire to get a jury favorably
disposed to its case. That is why the Court's characterization of
respondent's argument as "reminiscent of the arguments advanced to
justify the total exclusion of women from juries," ante, at 138, is
patently false. Women were categorically excluded from juries
because of doubt that they were competent; women are stricken from
juries by peremptory challenge because of doubt that they are well
disposed to the striking party's case. See Powers, supra, at 424
(SCALIA, J., dissenting). There is discrimination and dishonor in
the former, and not in the latter-which explains the 106-year
interlude between our holding that exclusion from juries on the
basis of race was unconstitutional, Strauder v. West Virginia,
100 U. S. 303
(1880), and our holding that peremptory challenges on the basis of
race were unconstitutional, Batson
Although the Court's legal reasoning in this case is largely
obscured by anti-male-chauvinist oratory, to the extent such
reasoning is discernible it invalidates much more than sexbased
strikes. After identifying unequal treatment (by separating
individual exercises of peremptory challenge from the process as a
whole), the Court applies the "heightened scrutiny" mode of equal
protection analysis used for sexbased discrimination, and concludes
that the strikes fail heightened scrutiny because they do not
substantially further an important government interest. The Court
says that the only important government interest that could be
served by peremptory strikes is "securing a fair and impar-
161
tial jury," ante, at 137, and n. 8.3 It refuses to accept
respondent's argument that these strikes further that interest by
eliminating a group (men) which may be partial to male defendants,
because it will not accept any argument based on "'the very
stereotype the law condemns.'" Ante, at 138 (quoting Powers, 499 U.
S., at 410). This analysis, entirely eliminating the only allowable
argument, implies that sexbased strikes do not even rationally
further a legitimate government interest, let alone pass heightened
scrutiny. That places all peremptory strikes based on any group
characteristic at risk, since they can all be denominated
"stereotypes." Perhaps, however (though I do not see why it should
be so), only the stereotyping of groups entitled to heightened or
strict scrutiny constitutes "the very stereotype the law
condemns"-so that other stereotyping
(e. g., wide-eyed
blondes and football players are dumb) remains OK. Or perhaps when
the Court refers to "impermissible stereotypes," ante, at 139, n.
11, it means the adjective to be limiting rather than
descriptive-so that we can expect to learn from the Court's
peremptory/stereotyping jurisprudence in the future which
stereotypes the Constitution frowns upon and which it does not.
Even if the line of our later cases guaranteed by today's
decision limits the theoretically boundless Batson principle to
race, sex, and perhaps other classifications subject to heightened
scrutiny (which presumably would include religious belief, see
Larson v. Valente,
456 U. S. 228, 244-246
(1982)), much damage has been done. It has been done, first and
foremost, to the peremptory challenge system, which
3 It does not seem to me that even this premise is correct. Wise
observers have long understood that the appearance of justice is as
important as its reality. If the system of peremptory strikes
affects the actual impartiality of the jury not a bit, but gives
litigants a greater belief in that impartiality, it serves a most
important function. See, e.
g., 4 W. Blackstone,
Commentaries *353. In point of fact, that may well be its greater
value.
162
loses its whole character when (in order to defend against
"impermissible stereotyping" claims) "reasons" for strikes must be
given. The right of peremptory challenge" 'is, as Blackstone says,
an arbitrary and capricious right; and it must be exercised with
full freedom, or it fails of its full purpose.'" Lewis v. United
States,
146 U. S.
370, 378 (1892), quoting Lamb v. State, 36 Wis. 424, 427
(1874). See also Lewis, supra, at 376; United States v. Marchant,
12 Wheat. 480, 482 (1827) (Story, J.); 4 W. Blackstone,
Commentaries *353. The loss of the real peremptory will be felt
most keenly by the criminal defendant, see Georgia v. McCollum,
505 U. S. 42
(1992), whom we have until recently thought "should not be held to
accept a juror, apparently indifferent, whom he distrusted for any
reason or for no reason." Lamb, supra, at 426. And make no mistake
about it: there really is no substitute for the peremptory. Voir
dire (though it can be expected to expand as a consequence of
today's decision) cannot fill the gap. The biases that go along
with group characteristics tend to be biases that the juror himself
does not perceive, so that it is no use asking about them. It is
fruitless to inquire of a male juror whether he harbors any
subliminal prejudice in favor of unwed fathers.
And damage has been done, secondarily, to the entire justice
system, which will bear the burden of the expanded quest for
"reasoned peremptories" that the Court demands. The extension of
Batson to sex, and almost certainly beyond, cf. Batson, 476 U. S.,
at 124 (Burger, C. J., dissenting), will provide the basis for
extensive collateral litigation, which especially the criminal
defendant (who litigates full time and cost free) can be expected
to pursue. While demographic reality places some limit on the
number of cases in which race-based challenges will be an issue,
every case contains a potential sex-based claim. Another
consequence, as I have mentioned, is a lengthening of the voir dire
process that already burdens trial courts.
163
The irrationality of today's strike-by-strike approach to equal
protection is evident from the consequences of extending it to its
logical conclusion. If a fair and impartial trial is a prosecutor's
only legitimate goal; if adversarial trial stratagems must be
tested against that goal in abstraction from their role within the
system as a whole; and if, so tested, sex-based stratagems do not
survive heightened scrutiny-then the prosecutor presumably violates
the Constitution when he selects a male or female police officer to
testify because he believes one or the other sex might be more
convincing in the context of the particular case, or because he
believes one or the other might be more appealing to a
predominantly male or female jury. A decision to stress one line of
argument or present certain witnesses before a mostly female
jury-for example, to stress that the defendant victimized
women-becomes, under the Court's reasoning, intentional
discrimination by a state actor on the basis of gender.
***
In order, it seems to me, not to eliminate any real denial of
equal protection, but simply to pay conspicuous obeisance to the
equality of the sexes, the Court imperils a practice that has been
considered an essential part of fair jury trial since the dawn of
the common law. The Constitution of the United States neither
requires nor permits this vandalizing of our people's
traditions.
For these reasons, I dissent.
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