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. 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. I write to explain my understanding of why our precedents lead to that conclusion. 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. In 1947, women still had not been granted the right to serve on juries in 16 States. The extension of Batson to sex, and almost certainly beyond, Burger, C. They had to pick a jury of twelve from thirty-six people in the venire.
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. 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. 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. Even in 1956, before women had a constitutional right to serve on juries, some commentators warned against using gender as a proxy for bias. In Edmonson, supra, we made the mistake of concluding that private civil litigants were state actors when they exercised peremptory challenges; in Georgia v. That explains why peremptory challenges coexisted with the Equal Protection Clause for 120 years.
Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination. The extension of Batson to sex, and almost certainly beyond, cf. A woman is inclined to forgive sin in the opposite sex; but definitely not her own. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction, 39th Congress, 1865-1867, pp. Clearly, criminal defendants are not state actors.
That explains why peremptory challenges coexisted with the Equal Protection Clause for 120 years. This analysis, entirely eliminating the only allowable argument, implies that sex-based strikes do not even rationally further a legitimate government interest, let alone pass heightened scrutiny. 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? As a plurality of this Court observed in Frontiero v. Thus, the Constitution guarantees a right only to an impartial jury, not to a jury composed of members of a particular race or gender. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. 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.
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. Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently. 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 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. The litigants are harmed by the risk that the prejudice that motivated the discriminatory selection of the jury will infect the entire proceedings.
Respondent's gender-based peremptory challenges cannot survive the heightened equal protection scrutiny that this Court affords distinctions based on gender. The two sexes differ, both biologically and, to a diminishing extent, in experience. Philips, and Marcia Greenberger filed a brief for the National Women's Law Center et al. See ante, at 139, n. 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- gants to act on sometimes accurate gender-based assumptions about juror attitudes. To be sure, 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.
See 1973 ; Stanton v. 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. But it does not matter. 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. William Prendergast and Lois Brasfield, Asst. A plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors. Clearly, criminal defendants are not state actors.
Illinois, internal quotation marks and citations omitted. Once seated, a juror should not give free rein to some racial or gender bias of his or her own. Justice Scalia also filed a dissenting opinion, which was joined by Chief Justice Rehnquist and Justice Thomas. Knappman, and Lisa Paddock, eds. Today we reaffirm what, by now, should be axiomatic: intentional discrimination on the basis of gender by state actors violates 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. The only question is whether the Clause also prohibits peremptory challenges based on sex. 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.