Can LGBT citizens be excluded from juries?

Amid all the focus on LGBT marriages in the United States, last week came a blast from what seems like the dark ages of American civil rights movements. It was a reminder that even when grand strides seem to have been made to secure LGBT equal protection, there are literally hundreds of legal discriminations still needing to be very specifically overturned by positive laws or positive judicial rulings.

Jurors: Which can be excluded on the basis of race, age, gender? From the Yale Collection of American Literature
Jurors: Which can be excluded on the basis of race, age, gender? From the Yale Collection of American Literature

Did you think that long ago LGBT citizens in the U.S. had secured the right to serve on juries?  Guess again. We MIGHT have gotten that right just about 10 days ago … but only in the Western states.

The U.S. Ninth Circuit Court of Appeals in San Francisco, with jurisdiction over most of the Western states, has just ruled that sexual orientation is NOT a basis for peremptory exclusions from a jury.

What, you say? Was someone really excluding LGBT folks from juries JUST because they were LGBT? It appears so. The test case involved

an antitrust fight between two large drug companies, Glaxo Smith Kline and Abbott Laboratories, over the pricing of rival HIV drugs Norvir, Kaletra and Lexiva.   A lawyer for Abbott used what in the United States is called a “peremptory strike” to remove a man who appeared to reveal he is gay and had friends who had died of AIDS from the jury. “Peremptory strikes” allow attorneys to exclude someone without any explanation.

Judge Stephen Reinhardt, writing for a unanimous three-judge panel, wrote: “Gays and lesbians have been systematically excluded from the most important institutions of self-governance. Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.”

Yes, you would have thought that was obvious.

But now the case may head to the U.S. Supreme Court because another appeals court, the 8th Circuit with jurisdiction over parts of the Midwestern U.S., has ruled just the opposite.

At issue is how to interpret a 1986 U.S. Supreme Court precedent, Bateson v. Kentucky, in which the Court ruled that lawyers needed to provide a non-discriminatory explanation if they seem to exclude someone on the basis of race.  The Supreme Court later extended that to include gender, primarily meaning discrimination against women. The question is what level of scrutiny a court should give to actions that seem to unduly affect particular minorities. Read an explanation of scrutiny levels that a court can use.

The 9th Circuit panel believes that “heightened scrutiny” needs to be given to cases that seem to involve such discrimination against LGBT citizens, particularly given the wording in the recent U.S. Supreme Court decision striking down the federal Defense of Marriage Act, USA v. Windsor.  The Eighth Circuit refused to extend “heightened scrutiny” to juror selection when exclusion because of sexual orientation seems to be involved. But that was in a case decided in 2005, well before the Windsor decision.

Will the Supreme Court agree and put to rest a question whose answer should have been obvious decades ago?

Read a New York Times story about the Ninth Circuit decision

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