All eyes are on California’s Ninth Circuit Court of Appeals, which is tasked with deciding whether sexual orientation can be used peremptorily to exclude potential jurors in federal court. The Recorder, a California legal publication, reports that the appellate court has appointed a panel to decide the issue, which will likely have broad implications in courts around the country.
As explained in a New York Times article last month, at the center of this debate is SmithKline Beecham v. Abbott Laboratories, which involves two large pharmaceutical companies locked in an antitrust battle over a commonly used HIV medication. When a lawyer representing Abbott used a peremptory strike to remove a potential juror from the jury pool, the SmithKline lawyer objected that the Abbott lawyer was doing so because the potential juror was gay. Though none of the questions in SmithKline’s voir dire focused on sexual orientation, the prospective juror voluntarily referenced his male partner in answering some of the questions.
Since peremptory strikes are those that can be used without cause, Abbott’s lawyer could have explained his strike in a multitude of inoffensive ways, so long as his strike did not involve race or gender. The race and gender distinction is known as the Batson challenge, in reference to the 1986 U.S. Supreme Court decision in Batson v. Kentucky that peremptory challenges during voir dire cannot be made on the basis of race. The Batson challenge was later expanded to include gender as well.
The question of whether Batson should address sexual orientation in addition to race and gender as exclusions to the peremptory-strike rule is more complicated than either of the other two exclusions. For one, it is not always obvious whether someone is gay, and second, questions designed to pull out this information would likely be unacceptable to all. Still, many, including myself, would agree that Batson should be expanded to include sexual orientation.
Typically, trial lawyers can get around a Batson challenge by simply finding a more innocuous reason to excuse a potential juror, even if the real reason for wanting a juror excluded does involve race or gender – or sexual orientation. Since peremptory strikes are otherwise discretionary, a trial lawyer can simply claim as an excuse the potential juror’s body language, wardrobe choice or a job-related bias, as in, “Your Honor, I believe Mr. Smith’s job might render him biased against the defendant in this case.”
That in SmithKline, the attorney confronted the issue of sexual orientation head-on – whether intentional or not -- now forces the courts to confront the issue as well. Stay tuned.