Jurors and Sexual Orientation

Lawyers can't dismiss prospective jurors for discriminatory reasons, at least when it comes to race and gender. But even after the Supreme Court's decisions on same-sex marriage, it’s not as clear whether they can exclude because of sexual orientation.

Criminal defendants have a right to a trial by a jury that comes from a representative cross-section of the community. The idea is that particularized segments of society shouldn’t be left to decide guilt, innocence, and the application of our laws. Rather, society as a whole—or at least depictive samples of it—should make these determinations. In addition, defendants are entitled to jury selection that is fair and nondiscriminatory.

How Lawyers Excuse Potential Jurors

When selecting a jury for a criminal trial, prosecutors and defense attorneys have an unlimited number of “cause” challenges, meaning that they can eliminate jurors (upon the judge’s agreement) who aren’t qualified, able, or fit to serve. A lawyer trying to remove a juror for “cause” must give a reason to believe the juror won’t be able to reach a fair verdict.

The prosecution and defense also have a limited number of peremptory challenges, which they can use to reject potential jurors without explanation. Lawyers use these challenges on prospective jurors who might be qualified to serve, but who seem predisposed to favor the other side.

No Place for Discrimination

Of course, the liberty that lawyers have to reject jurors opens the door for discrimination. And discrimination is the one impermissible basis for dismissing a potential juror: Courts have held that deliberate exclusion of particular members of society—such as racial minorities and women—violates the 14th Amendment (providing that all people are to receive equal protection of the law).

(To learn about claims of discrimination in jury selection and how lawyers litigate them, see Discrimination in Jury Selection.)

But What About Sexual Orientation?

The Supreme Court’s 2013 decision in United States v. Windsor  (No. 12-307) invalidated a central element of the Defense of Marriage Act (DOMA), forcing the federal government to honor same-sex marriages that are legalized in individual states. Then, in 2015, the Court held in  Obergefell v. Hodges (No. 14-556) that same-sex couples have an equal right to marry. But these decisions left several questions unanswered, including whether lawyers can discriminate against potential jurors because of sexual orientation.

In 2005, a federal appeals court expressed “serious doubt” that sexual orientation is an impermissible basis for excluding a prospective juror. (United States v. Ehrmann, 421 F.3d 774 (8th Cir. 2005).) Some courts disagree—for example, a California appellate court held that discriminatory exclusion of lesbian and gay potential jurors is unconstitutional. (People v. Garcia, 77 Cal.App.4th 1269 (2000).) (The California court based its decision on both the California Constitution and the federal Constitution.)

The issue arose yet again—this time after Windsor—in a civil lawsuit involving antitrust litigation between pharmaceutical companies over HIV drug pricing. (SmithKline Beecham Corp. v. Abbott Laboratories, 11-17357 (9th Cir. 2013).) The Ninth Circuit Court of Appeals  found it unconstitutional for a lawyer to dismiss a prospective juror because of the latter's sexual orientation.

Then, in early 2014, Attorney General Eric Holder reiterated the Department of Justice's position that  juror challenges based on sexual orientation  are unconstitutional.  

Regardless of DOJ policy and the Ninth Circuit’s decision (each federal circuit court’s rulings apply only to the courts within its territory), the issue won’t be finally settled until the Supreme Court takes it up.

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