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Federal Court Says Juror Exclusion Based on Sexual Orientation is Unconstitutional

January 24, 2014

By Arielle P. Schwartz, Holley Law Fellow, National Gay and Lesbian Task Force

A Federal Court decided this week that sexual orientation cannot be a basis for discrimination during jury selection, a process known as voir dire. During voir dire, attorneys are permitted to make peremptory challenges—the right to exclude a juror without a reason for the exclusion—as long as the attorney presents a neutral explanation for challenging the juror. If the attorney cannot offer a neutral explanation, the court will not excuse the juror. Before this week’s ruling, attorney’s could exclude jurors and use sexual orientation as the “neutral explanation” for excluding the juror.  A federal appeals court this week ruled that practice is unconstitutional.

The debate surrounding juror exclusion during voir dire is not a new one for marginalized communities. Traveling back to 1879, the Supreme Court of the United States struck down the West Virginia statute denying the right of people of color to participate in jury duty, stating that the exclusion of individuals from juries solely because of their race is a violation of the fourteenth amendments equal protection clause. (See Strauder v. State of West Virginia which was reaffirmed by Batson v. Kentucky in 1986). In Taylor v. Louisiana, a 1974 Supreme Court held that a criminal defendant’s sixth and fourteenth amendment rights are violated by the systematic exclusion of women from jury service.

This week, in Smithkline Beecham Corporation v. Abbott Laboratories, the United States Court of Appeals for the Ninth Circuit answered the question as to whether equal protection prohibits discrimination based on sexual orientation in jury selection. As a result of Windsor, the Court held that heightened scrutiny applies to classifications based on sexual orientation and that juror protections from discrimination based on race and gender apply in the same way to striking jurors based on sexual orientation.

Importantly, this case applies a more rigorous standard to sexual orientation-based classifications than to other types of classifications – in other words, sexual orientation is treated with similar levels of protection as gender-based classifications. These are the impacts of the landmark Windsor case we saw last summer.

In the instant case of Smithkline, the litigation involves AIDS medication. The attorney for Smithkline stated, “The incidents of AIDS in the homosexual community is well-known, particularly [with] gay men. So with that challenge, Abbott wants to exclude…from the pool anybody who is gay.”

What does this decision mean for the LGBT community? Potential jurors cannot be excluded based on their sexual orientation and if they are, the Court has a higher standard of review, making it easier to challenge discrimination. The Court presented the use of heightened scrutiny so clearly that when (and if) other circuit courts have split decisions on what standard of review to utilize when presented with discrimination cases based on sexual orientation, the Supreme Court of the United States will (likely) set a standard.

Judge Reinhardt said it best in the opinion:

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. They tell the individual who has been struck, the litigants, other members of the venire, and the public that our judicial system treats gays and lesbians differently. They deprive 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.

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