Fourteenth Amendment - Equal Protection: The Supreme Court's Prohibition of Gender-Based Peremptory Challenges

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In J.E.B. v. Alabama,(1) the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the exercise of peremptory challenges based solely on the gender of a potential juror. The Court applied a heightened scrutiny test, the traditional equal protection analysis prescribed for gender-based classifications, and concluded that "gender, like race, is an unconstitutional proxy for juror competence and impartiality."(2) Determining that peremptory challenges exercised on the basis of gender stereotypes do not substantially further the state's objective of securing a fair and impartial jury, the Court established a procedure for addressing allegations of gender discrimination in jury selection.

This Note concludes that the Court correctly ruled that the concept of equal protection of the laws is inconsistent with state-sponsored discrimination in the exercise of peremptory challenges. This Note first argues that the decision is a logical and predictable extension of prior case law. Next, it determines that men and women are not fungible in the jury room, contrary to what the Court suggested, but rather each contributes a unique perspective. This uniqueness, however, does not translate into bias, and therefore, differences between the sexes cannot justify intentional exclusion of one gender or the other from the jury panel. Finally, this Note analyzes the impact of J.E.B. v. Alabama upon future jury selection procedures and its implications for criminal defendants being tried under the new peremptory challenge rule.


The Equal Protection Clause of the Fourteenth Amendment provides that "no State shall ... deny to any person within its jurisdiction the equal protection of the laws."(3) The development of equal protection jurisprudence within the context of jury selection procedures has spanned more than a century, yet its borders remain undefined and subject to expansion.


The Equal Protection Clause guarantees that the government will treat similar individuals similarly.(4) Although the government may classify people on the basis of group characteristics, the Equal Protection Clause mandates that these classifications relate in varying degrees to legitimate governmental purposes.(5) To determine whether a state law is discriminatory either on its face or in its application, the Supreme Court developed a system of evaluating equal protection claims according to one of three levels of scrutiny. The level of scrutiny triggered depends upon the characteristics of the group receiving disparate treatment: rational basis review(6) applies to issues involving economic measures and classifications based on wealth and age;(7) strict scrutiny(8) applies to distinctions based on membership in a suspect class such as race, national origin, or alienage;(9) and an intermediate level of scrutiny applies to differentiation grounded in gender or illegitimacy.(10)

The Court first recognized that gender classifications are subject to scrutiny under the Equal Protection Clause in Reed v. Reed.(11) Refining the scope of the Reed decision in subsequent cases, the Court clearly articulated that men, as well as women, constitute a cognizable group entitled to equal protection of the laws.(12) The Court established the intermediate scrutiny test, currently used to evaluate gender-based classifications, in Craig v. Boren.(13) In Mississippi University for Women v. Hogan,(14) the Court clarified this two-part test for determining whether a classification based on gender can withstand equal protection analysis: first, the classification drawn must serve important governmental objectives, and second, the discriminatory means must directly and substantially relate to the accomplishment of a legitimate end.(15)


The process of voir dire in a jury trial represents an attempt by attorneys and the court to determine the suitability of prospective jurors to serve on the jury during a particular litigation. …