American Independent, 6/27/2012 [Archive]

Discrimination Against LGBT Jurors Remains Legal

Discrimination Against LGBT Jurors Remains Legal

By Andy Birkey, The American Independent

"Shocking." That's how California Judge Joan Weber described the actions of prosecutors who had dismissed a gay juror from the recent civil disobedience trial of several same-sex marriage advocates.

The incident was the latest example of potential jurors being removed from trials on the basis of their sexual orientation or gender identity.

Because California is one of the few states where such discrimination is illegal, Weber dismissed the entire jury panel. But in most state and federal courts, it's legal to remove jurors simply because they are gay, lesbian, bisexual, or transgender.

Attorneys have two tools to create a jury. They can remove a juror for cause if the juror has an obvious bias. Attorneys are also given a limited number of peremptory strikes, which they can use to remove jurors who have no obvious bias.

Generally, attorneys don't have to state a reason for a peremptory strike. But in the 1986 case of Batson v. Kentucky, the U.S. Supreme Court ruled that jurors could not be dismissed solely because of their race. Federal courts have extended Batson to cover other characteristics -- such as sex -- but have declined to include sexual orientation or gender identity.

In a 2005 appeal of the criminal convictions of two gay men from Minnesota, a defense attorney argued that a gay man was wrongfully dismissed from the jury. The 8th Circuit Court of Appeals ruled that the defense had failed to show discrimination had occurred and that even if it had, the prosecution's actions likely weren't illegal. "[W]e seriously doubt Batson and its progeny extend federal constitutional protection to a venire panel member's sexual orientation," wrote the court.

That same year, a separate federal court upheld a transgender juror's removal, observing that "no federal law" prevents attorneys from removing "cross-dressers or transvestites" from juries. (At trial, the prosecutor had explained that "transsexuals or transvestites ... are more liberal-minded thinking people, tend to associate more with the defendants.")

And in 2008, a Massachusetts court upheld a prosecutor's removal of a juror based on the juror's "transgendered appearance."

Even under the Obama administration, the Justice Department has declined to urge judges to bar discrimination against LGBT jurors.

In a case decided last year, a gay defendant challenged the dismissal of a potential juror who had indicated that she had a former "domestic partner." Federal prosecutors argued that sexual orientation was not the cause for her dismissal but nonetheless suggested reasons the court should be "reluctant" to extend Batson to sexual orientation.

During oral arguments, 9th Circuit Judge Marsha Berzon brought up the Obama administration's recently adopted position that stronger legal protections — known as "heightened scrutiny" — should be applied to sexual orientation. Berzon suggested that this shift might make courts more likely to decide that sexual orientation should be covered under Batson. "What," asked Judge Berzon, "is the government's ultimate position" on the matter?

"I'm going to frustrate you, your honor," responded Assistant U.S. Attorney Mark Yohalem, "because the government's ultimate position is that it takes no position on that."

The court declined to decide whether removing jurors based on sexual orientation is legal.

Steve Rothman, a Democratic congressman from New Jersey, is looking to change that. In May, he introduced a bill that would prohibit jury discrimination in federal trials on the basis of gender identity or sexual orientation.

But Rothman's bill may not become law anytime soon. A spokesperson for Texas Republican Lamar Smith, chair of the House Judiciary Committee — where the bill currently awaits a hearing — said that Smith has "no plans to move the bill at this time."

Similar legislation was introduced this year on the state level in Minnesota.

"This affects people's lives," says Scott Dibble, the state senator who introduced the bill. "LGBT people provide important perspectives in terms of jury duty."

Discrimination in jury service, argues Dibble, "flies in the face of the values that all Americans share."


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This column has been edited by the author. Representations of fact and opinions are solely those of the author.

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