The 9th Circuit Court of Appeals has ruled that gays cannot be excluded from juries. Judge Reinhardt’s ruling in the Glaxo Smith Kline PLC v. Abbott Laboratories case was handed down on Tuesday. Judge Reinhardt based his decision on the Supreme Court’s 1986 ruling in Batson v. Kentucky, while interpreting the case broadly to include one’s sexual orientation along with race (gender was included in a 1994 ruling by the Supreme Court), and partly on U.S. v. Windsor, rejecting the federal Defense of Marriage Act, which tried bar the government from recognizing same-sex marriages.
“Windsor’s reasoning reinforces the constitutional urgency of ensuring that individuals are not excluded from our most fundamental institutions because of their sexual orientation,” wrote Judge Reinhardt.
Both parties in a case have the opportunity and right to “challenge” or “strike” potential jurors from the jury pool. This process, called Voir Dir, happens just before trial. The attorneys on both sides begin asking questions of each juror to ensure the potential jurors will be impartial in deciding the case. Both sides are only given a certain number of “strikes”.
The attorney who removed “Juror B” failed to sufficiently question “Juror B’s” ability to be impartial in deciding the case at hand. Reinhardt stated that the attorney “failed to question him meaningfully about his impartiality or potential biases…Voir dire reveals the strike was not based on a concern about actual bias, [but on] a discriminatory assumption that Juror B could not impartially evaluate the case because of his sexual orientation.” He gave no reason why he struck “Juror B” from the panel, only stating that he had no idea he was gay. Judge Reinhardt said [this explanation] “was demonstrably untrue,” because the male Juror expressed having a male partner during questioning.
This issue will likely need to be decided by the Supreme Court, because there is a conflict between the circuits. “In 2005, by contrast, the United States Court of Appeals for the Eighth Circuit, in St. Louis, said, ‘We doubt Batson and its progeny extend constitutional protection to the sexual orientations’ of potential jurors.” stated Adam Liptak of the New York Times.
Patrick Donovan is a Massachusetts lawyer.