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Federal appeals court takes up case on anti-LGBT discrimination in jury selection

LGBT Legal Cases

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals

Following last week’s news that a Senate committee has advanced a bill to ban the practice of discrimination against jurors based on sexual orientation and gender identity, Adam Liptak has a story in the New York Times about a federal legal challenge to a decision by a lawyer to peremptorily strike a juror on the basis of his sexual orientation. Federal District Court Judge Claudia Wilken, who last year issued a decision striking down Section 3 of the federal Defense of Marriage Act, heard the challenge, which was brought in the midst of an antitrust case. Now, the Ninth Circuit Court of Appeals will take up the appeal.

At the trial, the lawyer attempted to strike the juror after he implied that he’s gay, and an objection was raised:

[The issue] arose at the 2011 trial of an antitrust fight between two giant drug companies. After a potential juror appeared to reveal that he was gay, a lawyer for Abbott Laboratories used a peremptory strike — one that does not require a reason — to eliminate him from the jury pool.

An opposing lawyer objected, saying the juror “is or appears to be, could be, homosexual.”

That mattered, the lawyer said, because “the litigation involves AIDS medications” and “the incidence of AIDS in the homosexual community is well known, particularly gay men.”

Lawyers are not allowed to strike jurors based on race or gender alone, without any other grounds. The Supreme Court held in a case called Batson v. Kentucky that racial discrimination in jury selection is unconstitutional, and this case raises a “Batson challenge” – that is, lawyers are asking the judge to consider whether the rule applies to sexual orientation. The lawyer told Judge Wilken that he doesn’t know if the man is gay.

The Supreme Court’s past opinions on the issue suggest that exclusion from juries on the basis of race or gender can violate equal protection principles. Under our system, there is a right to an impartial jury, and traditionally juries reflect a cross-section of society. If an accused person is black and all black potential jurors are disallowed on the basis of their race alone, it creates a fundamental unfairness in our legal system. That extends to gender, and will likely include sexual orientation and gender identity in the future, whether through court decisions or through new statutes banning discrimination.

Liptak notes that California’s state laws ban lawyers from challenging potential jurors on the basis of sexual orientation, and he opines that the system works there. The case has been argued at the Ninth Circuit and is awaiting a decision.


  • 1. Equality On Trial »&hellip  |  August 13, 2013 at 6:07 am

    […] weeks ago, Adam Liptak had a story in the New York Times discussing a new appeal in the federal Ninth Circuit Court of Appeals that involves the issue of discrimination against […]

  • 2. Ninth Circuit Articulates&hellip  |  January 25, 2014 at 5:06 pm

    […] LGBT legal circles have been buzzing for months about a case before the 9th U.S. Circuit Court of Appeals which they have been calling the “gay Batson” case. Batson v. Kentucky was the case where the Supreme Court ruled that race could not be used as the reason to exclude a juror from being stricken from a jury by a so-called peremptory challenge. […]

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