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Appeals Court: Gays, Lesbians Can’t Be Barred From Juries Based on Identity

| January 21, 2014
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A three-judge panel of the 9th U.S. Circuit Court of Appeals has ruled that prospective jurors may not be excluded from juries solely on the basis of their sexual orientation.

The unanimous ruling (embedded below) comes in a 2011 lawsuit brought by SmithKline Beecham against Abbott Laboratories that related to a licensing agreement and pricing of HIV medications. During jury selection, attorneys for Abbott used their first peremptory challenge to strike a self-identified gay member from the jury pool. SmithKline Beecham lost the case and appealed, citing in part the exclusion of the gay juror.

The Los Angeles Times gives a concise history of the main issue here — whether the jury-service rights extended to certain minority groups and women ought to apply to prospective LGBT jurors as well:

The Supreme Court barred removing jurors based on race in 1986 and later extended the prohibition to gender. In California, a law signed in 2000 prevents juror strikes based on sexual orientation in state courts. Attorneys can generally get around the prohibitions by simply giving a nondiscriminatory reason.

And, from its ruling today, here’s the court’s brief recounting of government discrimination against gay and lesbian Americans:

Gays and lesbians have been systematically excluded from most institutions of self-governance. Even our prior cases that rejected heightened scrutiny to classifications on the basis of sexual orientation have acknowledged that gay and lesbian individuals have experienced significant discrimination. In the first half of the twentieth century, public attention was preoccupied with homosexual “infiltration” of the federal government. Gays and lesbians were dismissed from civilian employment in the federal government at a rate of sixty per month. Discrimination in employment was not limited to the federal government; local and state governments also excluded homosexuals, and professional licensing boards often revoked licenses on account of homosexuality. In 1985, the Supreme Court denied certiorari in a case in which a woman had been fired from her job as a guidance counselor in a public school because of her sexuality. Indeed, gays and lesbians were thought to be so contrary to our conception of citizenship that they were made inadmissible under a provision of our immigration laws that required the Immigration and Naturalization Service (INS) to exclude individuals “afflicted with psychopathic personality.” It was not until 1990 that the INS ceased to interpret that category as including gays and lesbians. It is only recently that gay men and women gained the right to be open about their sexuality in the course of their military service. As one scholar put it, throughout the twentieth century, gays and lesbians were the “anticitizen.”

Strikes (from jury service) 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.

Here’s the latest write-through on the story from the Associated Press:

By Lisa Leff
Associated Press

A federal appeals court in San Francisco ruled Tuesday that potential jurors may not be removed from a trial during jury selection solely because of sexual orientation, extending to gays and lesbians a civil right that the U.S. Supreme Court has previously promised only women and racial minorities.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals held that striking someone from a jury pool because he or she is gay constitutes unlawful discrimination. Its 39-page decision came in an antitrust and contract dispute between two rival drug companies over the price of a popular AIDS drug.

A lawyer for Abbott Laboratories used one of his allotted peremptory challenges to remove a potential juror who had referred to a male partner and having friends with AIDS during questioning. The jury that was eventually seated mostly ruled in favor of Abbott.

Because the gay juror was taken off the case without justification, the 9th Circuit reversed the 2011 verdict and ordered a new trial.

“Permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation,” Judge Stephen Reinhardt wrote for the panel. “Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.”

The U.S. Supreme Court prohibits lawyers from removing jurors based only on their race and gender and requires them to provide a neutral reason why they are eliminating someone if an opposing lawyer questions the move. But the high court has never ruled on whether those protections apply to sexual orientation.

The case arose from a lawsuit SmithKline Beecham filed in 2007 after Abbott hiked the price of Norvir, a drug that SmithKline used in its AIDS cocktail under a licensing agreement. Both during jury selection and in its argument before the 9th Circuit, SmithKline argued the unnamed juror was taken off the jury because of the widespread negative publicity that the price hike received in the gay community.

Abbott denied the allegation and said it had several reasons to remove the potential juror, which included his having a friend dying of AIDS.

Here’s today’s 9th U.S. Circuit Court of Appeals ruling:

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Category: Law and Justice, News

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About the Author ()

Dan Brekke has worked in media ever since Nixon's first term, when newspapers were still using hot type. He had moved on to online news by the time Bill Clinton met Monica Lewinsky. He's been at KQED since 2007, is an enthusiastic practitioner of radio and online journalism and will talk to you about absolutely anything. Reach Dan Brekke at dbrekke@kqed.org.

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