dissenting.
I respectfully dissent because the inescapable conclusion from Edmonson v. Leesville Concrete Co., 59 USLW 4574, decided June 3, 1991, is that no one, not even a criminal defendant, may exercise peremptory strikes so as to exclude jurors in a racially discriminatory manner. Edmonson makes it abundantly clear that the exercise of peremptory strikes by any party in any case, pursuant to a state or federal statute, in a state or federal courtroom, is “state” action. And, under Edmonson, when that action excludes a juror on the basis of race it may be challenged by the court, by the opposing party, or even by the juror and remedied.
Edmonson, however, is but the latest pronouncement of the fed*474eral courts leading to this result. Surely this result was forecast by Batson v. Kentucky,1 itself. While the Batson majority sidestepped the issue: “We express no views on whether the Constitution imposes any limit on the exercise of peremptory challenges by defense counself,]” id., 106 SC at 1719, n. 12, the dissenting opinion of Chief Justice Burger reasoned:
[T]he clear and inescapable import of this novel holding will inevitably be to limit the use of this valuable tool to both prosecutors and defense attorneys alike. Once the Court has held that prosecutors are limited in their use of peremptory challenges, could we rationally hold that defendants are not?
(Emphasis in original.) 106 SC at 1738 (Burger, C. J., dissenting). Moreover, as the Fifth Circuit Court of Appeals confirmed in United States v. Leslie, 783 F2d 541, 565 (5th Cir. 1986):
[E]very jurisdiction which has spoken to the matter, and prohibited prosecution case-specific peremptory challenges on the basis of cognizable group affiliation, has held that the defense must likewise be so prohibited.2
The rule of Batson has proceeded from enforcing the equal protection rights of black defendants to those of white defendants and to those of jurors whose rights may be enforced by the state as well as the defendant. It has expanded from criminal cases to civil cases and from race to gender. One may legitimately question whether peremptory challenges will survive the enveloping application of the rule. Consider the observation of Judge Charles E. Moylan, Jr., writing for the Court of Special Appeals of Maryland in Chew v. State, 527 A2d 332 (Md. App. 1987):
To hold that, in the jury selection process, the equal protection clause is available only to black defendants deprived of black jurors is philosophically indefensible. Once the protection is moved beyond that narrow base, however, there is no logically defensible way to contain it. Between the absolute abolition of the peremptory challenge, on the one hand, and *475the absolute refusal to look behind the unfettered use of the peremptory challenge, on the other hand, there may be no tenable middle ground.
Id. at 350.
The majority acknowledges the inevitable but prefers to await further instructions from Washington. In the meantime it reveres the defendants’ entitlement to racially-motivated peremptory strikes as though it were of constitutional significance. But peremptory strikes, unlike the prohibition against racial discrimination, enjoy no constitutional foundation. Fundamental to Edmonson is the notion that racially-motivated strikes are just another form of racial discrimination which deserve no protection in the administration of justice in our courts. If this is true, it defies all logic to say that such strikes are prohibited only when exercised by the state.3 I would reverse the denial of the state’s motion.
476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).
Cognizable group affiliation may not be limited to those of the same race. In United States v. De Gross, 913 F2d 1417 (9th Cir. 1990), the 9th Circuit Court of Appeals prohibited the defendant’s peremptory strikes which were based on gender, holding (a) peremptory challenges based on gender violate the jurors’ equal protection rights and those rights may be asserted by the government and (b) a criminal defendant’s peremptory challenge is state action.
This is the position of Justice Scalia’s dissent as to the impact of the Edmonson majority opinion which he believes is more harmful than helpful to the minority defendant.
In criminal cases, Batson v. Kentucky, [cit.] already prevents the prosecution from using race-based strikes. The effect of today’s decision (which logically must apply to criminal prosecutions) will be to prevent the defendant from doing so — so that the minority defendant can no longer seek to prevent an all-white jury, or to seat as many jurors of his own race as possible. To be sure, it is ordinarily more difficult to prove race-based strikes of white jurors, but defense counsel can generally be relied upon to do what we say the Constitution requires. So in criminal cases, today’s decision represents a net loss to the minority litigant. (Emphasis in original.)
Edmonson, supra at p. 4582 (Justice Scalia, dissenting).