Recently, in Morgan v. State, the Nevada Supreme Court addressed whether sexual orientation should be recognized pursuant to the United States Supreme Court's precedent of Batson v. Kentucky. In Batson, the U.S. Supreme Court held that striking prospective jurors based on race was a violation of the Equal Protection Clause of the Constitution. The reasoning of Batson has since been expanded to include striking jurors based on gender. The the U.S. Supreme Court has yet to address whether Batson extends to sexual orientation, but the Ninth Circuit has held that it does.

In Morgan, a criminal defendant made a Batson challenge against the State’s striking of a gay juror. The defendant asserted the State improperly used a peremptory challenge to remove a gay juror simply because the juror was gay. The district court denied the challenge and the defendant appealed. On appeal, the Nevada Supreme Court adopted the Ninth Circuit’s reasoning that sexual orientation was subject to heightened scrutiny and “equal protection prohibited striking a juror” on the basis of sexual orientation.

Specifically, the Court believed that striking an individual based upon sexual orientation “deprive[s] the individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.” Further, the Court stated that gay and lesbian individuals have long been excluded based on pervasive stereotypes.

Thus, the Nevada Supreme Court has made it impermissible to strike a prospective juror based upon sexual orientation.