Navy-Marine Corps Court of Criminal Appeals

United States v. Mencias, 83 M.J. ___ (N-M. Ct. Crim. App. 2023)

The military judge erred by "den[ying] Appellant’s Batson challenge where the Government used its peremptory challenge on the only self-identified homosexual member."

​While the Supreme Court has never directly addressed sexual orientation within the context of peremptory challenges, it has held sexual orientation and gender are treated the same for purposes of employment discrimination.
. . .
The race-based protections of Batson are applicable to courts-martial. Likewise is the Supreme Court’s extension of Batson to gender. This is true regardless of the accused’s race or gender. But, based on fundamental differences in the selection of jurors in civilian trials and members of courts-martial, our superior court has both lowered the bar for the defense to make a Batson challenge and raised the bar for the Government to overcome one.

Appellant's issue (1) [that]the convening authority’s selection of members who volunteered for such service prejudiced the Appellant’s right to a fair and impartial jury[.] became moot. Check out United States v. Dowty, 60 M.J. 161 (C.A.A.F. 2004), a case on volunteers.