Although most Americans view jury duty as a burden, the nation’s founders believed so strongly that the citizen jury was an indispensable part of democracy that they devoted two constitutional amendments to guaranteeing the right to a jury trial in both criminal and civil cases. Today, federal law forbids lawyers from making a peremptory challenge—which does not require a reason—to strike a potential juror on the basis of race, color, religion, sex, national origin or economic status in federal court. 

A case now before the Ninth Circuit Court of Appeals in California may decide whether sexual orientation will be added to that list, but regardless of that decision, Congress is considering legislation as well.

The issue arose during a 2011 antitrust trial between two drug companies (SmithKline Beecham and Abbott Labs) fighting over the anti-HIV medication Norvir when a lawyer for Abbott used a peremptory strike to eliminate an apparently gay man (who said of his “partner” that “he’s retired,” and “he doesn’t have to work”) from the jury pool.

Although trial judge Claudia Wilken of Oakland was unsure of the applicable law, she offered Abbott attorney Jeffrey I. Weinberger a chance to state a non-discriminatory reason for his peremptory strike. Under controlling Supreme Court precedent, the reason does not have to be “persuasive, or even plausible,” but Weinberger declined.

Now the Ninth Circuit must decide if federal law bars peremptory challenges based on sexual orientation, but while a ruling against such challenges would have a powerful symbolic impact, it would probably have little actual effect because it is so easy for an attorney to offer a neutral-sounding reason.

The same would be true of the Jury ACCESS Act, a measure to bar peremptory challenges of LGBT people that the Senate Appropriations Committee approved on Thursday.

Sen. Jeanne Shaheen (D-New Hampshire), who introduced the bill in January, said “Discrimination based on sexual orientation or gender identity simply has no place in the United States. The judicial process should represent our nation’s principles of inclusion and acceptance, and eliminating the discriminatory exclusion of LGBT jurors is a necessary step to meeting that goal.”

-Matt Bewig

To Learn More:

Court to Decide if Lawyers Can Block Gays From Juries (by Adam Liptak, New York Times)

Senate Panel Approves LGBT Juror Non-Discrimination Measure (by Chris Johnson, Washington Blade)