Federal Appeals Court Rules on Gay Jurors

Prospective jurors cannot be excluded on the basis of sexual orientation

For most of us, equal protection under the law may seem like basic instinct. We are who we are. We should be able to live just like everyone else and contribute to society. Even serve on jury duty, if that’s what we’re called to do.

Late last month, a federal appeals court in San Francisco unanimously agreed. A three-judge panel in the 9th U.S. Circuit Court of Appeals decided that trial lawyers may not reject potential jurors merely because they’re gay­—a practice called a strike. Protections were already in place for race and gender discrimination. But now, for the first time, those protections have been extended to sexual orientation.

The Los Angeles Times reported that Judge Stephen Reinhardt wrote: “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.”
The court’s 39-page opinion came as the result of a 2007 contract and antitrust dispute between two competing pharmaceutical companies, GlaxoSmithKline and Abbott Laboratories, over the price of an HIV drug. The court ordered a new trial for GSK because Abbott had excluded a potential gay juror. According to the Chicago Tribune, attorneys for Abbott noticed that the man mentioned his partner, using the pronoun “he,” several times during the jury selection process.

Few of us are naïve enough to believe that jury selection is not inherently biased. But there’s being discriminating—and then there’s discrimination. In this landmark ruling, the court made a clear distinction between the two.

“To allow peremptory strikes because of assumptions based on sexual orientation is to revoke this civil responsibility, demeaning the dignity of the individual and threatening the impartiality of the judicial system,” Reinhardt continued.

“We’re very pleased with the opinion, and happy with the direction the 9th Circuit took its ruling,” said Brian Hennigan, a Los Angeles attorney serving as counsel for GSK.

So are we, Mr. Hennigan. So are we.

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