Court to Decide if Lawyers Can Block Gays From Juries

By ADAM LIPTAK

WASHINGTON — Last month’s Supreme Court rulings on same-sex marriage were major gay rights victories. But countless questions about the legal rights of gay men and lesbians remain.

Here’s one: May gays be excluded from juries on account of their sexual orientation? The federal appeals court in California will soon decide the issue, which turns out to be surprisingly knotty.

It arose at the 2011 trial of an antitrust fight between two giant drug companies. After a potential juror appeared to reveal that he was gay, a lawyer for Abbott Laboratories used a peremptory strike — one that does not require a reason — to eliminate him from the jury pool.

An opposing lawyer objected, saying the juror “is or appears to be, could be, homosexual.”

That mattered, the lawyer said, because “the litigation involves AIDS medications” and “the incidence of AIDS in the homosexual community is well known, particularly gay men.”

In legal terms, the lawyer had just tried to raise a Batson challenge, named after a 1986 Supreme Court decision, Batson v. Kentucky. That decision recognized an exception to the general rule that peremptory challenges are completely discretionary. Race, the court said, cannot be the reason.

Eight years later, the court said that gender cannot be the reason, either. But it has never addressed sexual orientation.

At the antitrust trial, in SmithKline Beecham Corporation v. Abbott Laboratories, things quickly got confusing, with the judge uncertain about the law and the Abbott Laboratories lawyer missing an opportunity to protect his client.

“I don’t know that, number one, Batson applies in civil,” said Judge Claudia Wilken of Federal District Court in Oakland, Calif. But Batson does apply in both civil litigations and criminal prosecutions.

“Number two,” she went on, now on firmer ground, “whether Batson ever applies to sexual orientation.”

“Number three,” she said, “there is no way for us to know who is gay and who isn’t here, unless someone happens to say something.”

Nonetheless, she offered the Abbott Laboratories lawyer, Jeffrey I. Weinberger, a chance to offer a neutral reason for his peremptory strike. “Or if you don’t want to,” she said, “you can stand on my first three reasons.”

Mr. Weinberger took the judge up on her offer. “I will stand on the first three at this point,” he said, adding of the juror: “I have no idea whether he is gay or not.”

Declining to give a reason was probably a tactical error. It takes very little to respond to a Batson objection. Almost anything will do.

The reason does not have to be, the Supreme Court has said, “persuasive, or even plausible.” One reason the court found sufficient: a prosecutor said he did not care for a potential juror’s “long curly hair” and “mustache and a goatee-type beard.”

Mr. Weinberger did not lack other explanations for striking the seemingly gay potential juror. He could have cited the juror’s work as a computer technician at the same federal appeals court that will decide whether his exclusion was proper, the United States Court of Appeals for the Ninth Circuit. Or that the juror had been close to someone who had H.I.V.

But what Mr. Weinberger did say, that he had no idea whether the juror was gay, ran counter to what the juror had said. The juror, a man, said of “my partner” that “he’s retired,” that “he doesn’t have to work” and that “he just has studied economics and does investments.”

This juror’s sexual orientation seems tolerably clear. But that will not always be the case without intrusive questioning. Abbott Laboratories told the Ninth Circuit that allowing challenges based on sexual orientation “would present formidable practical problems.”

That sounds right. But California law has barred peremptory challenges based on sexual orientation in state courts for more than a decade, and the system seems to work.

Excluding gay men and lesbians from jury service, a state appeals court explained, “would send an intolerable message.” At the same time, the court said, potential jurors should not be questioned about their sexual orientations.

“If it comes out somehow,” Judge William W. Bedsworth wrote for the court, “the parties will doubtless factor it into their jury selection process, just as they factor in occupation, education, body language and whether the juror resembles their stupid Uncle Cletus.”

A ruling that gay people may not be excluded from juries in federal court would be a powerful symbolic step. But it would probably have little practical effect given how easy it is for a lawyer to offer a neutral-sounding reason.

Meaningful changes to the jury selection process would require the solution proposed by Justice Thurgood Marshall in a concurrence in Batson itself.

“The decision today will not end the racial discrimination that peremptories inject into the jury selection process,” Justice Marshall wrote. “That goal can be accomplished only by eliminating peremptory challenges entirely.”

Doing away with peremptory challenges would still allow lawyers to object to potential jurors for cause. But lawyers would have to persuade a judge that the potential juror would not be able to weigh the evidence in a case fairly and impartially.

In a 2005 concurrence, Justice Stephen G. Breyer appeared to endorse Justice Marshall’s view, saying that “peremptory challenges seem increasingly anomalous in our judicial system.” He noted that England had eliminated peremptory challenges but “continues to administer fair trials based largely on random jury selection.”

“I believe it necessary,” Justice Breyer wrote, “to reconsider Batson’s test and the peremptory challenge system as a whole.”