Decades ago, a peremptory challenge was indeed peremptory. But in 1986, in Batson v. Kentucky, the Supreme Court held that peremptorily excusing a potential juror because of race violated constitutional safeguards. In 1994, in J.E.B. v. Alabama, challenges motivated by gender were ruled out. Both rulings were based on a heightened-scrutiny analysis.

Now, the U.S. Court of Appeals for the Ninth Circuit is poised to decide whether prospective jurors may be peremptorily challenged because of their sexual orientation. In SmithKline Beecham Corporation v. Abbott Laboratories, a complicated antitrust case between pharmaceutical giants, SmithKline appealed a jury verdict on a number of grounds, including that Abbott had peremptorily challenged a potential juror because he was gay. Although California state courts had held peremptory challenges on the basis of sexual orientation unconstitutional, previous Ninth Circuit decisions appeared to uphold them.

But in light of the U.S. Supreme Court decision in U.S. v. Windsor, which invalidated a section of the Defense of Marriage Act on due process and equal protection grounds, such a distinction may no longer be viable. If reports of oral argument are correct, the Ninth Circuit will agree, although it could duck the issue on jurisdictional, procedural grounds or accept Abbott’s argument that it did not reject the juror because he was gay but because of his previous employment, knowledge of the drug in issue and the loss of a friend to AIDS.

Even under a rational basis examination, in this day there is no reason to distinguish between constitutionally banned gender and race peremptory challenges and those based on sexual orientation. Justice Anthony Kennedy in Windsor did not indicate which standard the court was applying, but he eloquently identified the legal and social aspects of marriage as critical in modern-day society. Excluding homosexuals from the obligations and benefits of marriage served no legitimate governmental purpose. Indeed, it deprived them of their constitutional due process and equal protection guarantees. The “principal effect of this exclusion is to identify a subset of state sanctioned marriages and make them unequal…; it contrives to deprive some couples married under the laws of their state, but not other couples, of both rights and responsibilities.”

Whichever way this case turns out will not be the end of the problem. For one thing, unlike race and sex, sexual orientation is not apparent and obviously voir dire questions to that effect would be improper. Clever trial lawyers can mask their bias by advancing a permissible basis for peremptorily excusing a juror, for example the latter’s body language, dress or job. As Justice Thurgood Marshall observed in J.E.B., “The decision today will not end the racial discrimination that peremptories inject into the jury selection process…that goal can be accomplished only by eliminating peremptory challenges entirely.” Years later, in 2006, Justices Stephen Breyer and David Souter agreed in Rice v. Martell: “Peremptory challenges seem increasingly anomalous in our judicial system…they have been eliminated in England which continues to administer fair trials based largely on random jury selection.”

Perhaps it is time to rethink the long-standing history of peremptory challenges in this country.