Can Jurors be Dismissed for Being Gay?

Can a prospective juror be booted from case for being gay? That's the question that many observers have been asking since the multibillion dollar case between two pharmaceutical companies, Smithkline Beecham Corp. v. Abbott Laboratories, went before San Francisco's 9th U.S. Circuit Court of Appeals.

Of course, it's a little more complicated than that. According to the Associated Press, the case is about whether Abbott Laboratories broke antitrust law by raising the price of its AIDS drug Norvir by 400 percent.

Surprisingly, the really interesting question has turned out to be whether Abbott's legal team dismissed a potential juror because of his sexual orientation, and if so, if this should be allowed. For its part, Abbott says it nixed “Juror B” for reasons that had nothing to do with sexual orientation: “Juror B” was the only potential juror who knew about the AIDS treatment in question and the only prospective juror who had lost a friend to AIDS, also he worked for the courts.

Normally, lawyers from both sides are allowed "peremptory challenges," whereby they can dismiss prospective jurors without legal justification. However, since 1986 ( Batson v. Kentucky ) it has been unconstitutional to dismiss a juror on the grounds of race or (since 1994) gender. If they believe such a prejudicial dismissal has been made, opposing lawyers can challenge the validity of the trial in what is called a “Batson Challenge” (that is, a challenge to a peremptory challenge — if that isn't legalese enough for you!).

While protecting gays from being dismissed from the jury pool might be a significant symbolic step, there are practical hurdles. First, the courts don't want to create a situation where potential jurors are being questioned about their sexual orientation. Second, in a system where a juror can be dismissed for having a funny mustache or haircut, what self-respecting lawyer would come out and say he is dismissing a juror because of race, gender, or sexual orientation (even if it were the true).

For precisely this reason, many people have argued that peremptory challenges should be done away with altogether. In a concurrence in the original Batson case Justice Thurgood Marshall wrote that the Batson Challenge would not end the discrimination allowed by peremptory challenges. “That goal can be accomplished only by eliminating peremptory challenges entirely.”

However, it's unlikely that the peremptory challenge will be done away with anytime soon (though England got rid of them and their legal system is still intact). In the meantime, Smithkline Beecham Corp. v. Abbott Laboratories has become the latest front in the fight for gay rights. "The discrimination at issue here is particularly harmful,” commented LBGT rights organization Lambda Legal about the case. “It reinforces historical invidious discrimination within the court system and undermines the integrity of the judicial system.''