While the Supreme Court’s recent rulings on same-sex marriage were a significant victory for the LGBT community, discrimination still exists in the courtroom. The United States Court of Appeals for the Ninth Circuit is currently considering whether lawyers should be able to use peremptory challenges to exclude jurors based on sexual orientation.
Peremptory challenges are part of the jury section process. Attorneys are permitted to exclude a potential juror without the need for any reason or explanation. In Batson v. Kentucky, the U.S. Supreme Court held that the Equal Protection Clause of the U.S. Constitution prohibited the use of peremptory challenges to exclude prospective jurors based on their race. The precedent has been expanded to include gender, ethnicity and any other classification that warrants heightened judicial scrutiny.
The question before the Ninth Circuit is whether sexual orientation should also fall under this category. While many states, including California, have laws prohibiting peremptory challenges based on sexual orientation, the federal issue has yet to be definitely decided.
The case involves an antitrust dispute between two pharmaceutical companies. SmithKline Beecham Corp. claims that Abbott Laboratories unfairly priced its HIV medication, Norvir. During jury selection, an attorney for Abbott Laboratories used a peremptory challenge to remove a juror. The other side objected, arguing that the juror “is or appears to be, could be, homosexual.” The issue was relevant, the lawyer explained, because “the litigation involves AIDS medications” and “the incidence of AIDS in the homosexual community is well known, particularly gay men.”
The Ninth Circuit must now determine whether the attorney raised a valid Batson challenge. In an amicus brief, Lambda Legal and 11 other public interest groups argue that peremptory challenges based on sexual orientation violate the constitutional guarantee of equal protection. They further argue that allowing peremptory strikes based on a prospective juror’s sexual orientation would “serve only to perpetuate discrimination against lesbians and gay men.”