In the middle of marriage equality’s ascendance to inevitability, it’s often forgotten that relationship rights are only the start of gay people’s full integration into American society. Just beyond the marriage gates lies a slew of thorny issues involving religious liberty, freedom of speech, medical discrimination, and other complicated quandaries.
The latest legal Gordian knot arises out of—where else?—California and poses a seemingly straightforward question: Can potential jurors be excluded from a jury simply because they’re gay? Abbott Laboratories certainly believes so: During a monumental antitrust trial, the pharmaceutical company’s attorneys allegedly dismissed a prospective gay juror on account of his sexual orientation. According to Abbott’s legal adversaries, the company was concerned that the gay juror would be inherently prejudiced against Abbott, which had been accused of artificially inflating the cost of a vital HIV drug. Predictably, Abbott denied that its motivations were related to orientation. However, they’re now arguing to the 9th Circuit Court of Appeals that sexual orientation was a perfectly acceptable reason to strike a potential juror.
Supreme Court precedent suggests otherwise—but it’s not a slam-dunk either way. In a landmark 1986 case called Batson v. Kentucky, the high court held that attorneys couldn’t dismiss jurors on the sole basis of their race. Justice Lewis Powell opened the Batson opinion with the fairly obvious point that a black defendant is denied equal protection when tried before a jury from which black people have been intentionally excluded. Intriguingly, though, Powell’s rationale then ran in two directions: It wasn’t just defendants who were harmed by racism in jury selection, he suggested, but also jurors themselves, who were entitled to serve on a jury, regardless of their race.
In 1996, the court extended that principle to women, adding a new component to the mix: the invidious idiocy of stereotypes. The case, J.E.B. v. Alabama, hinged not only on protection of individual jurors or defendants, but also on a broader notion of procedural fairness. Writing for the court, Justice Harry Blackmun argued that gender stereotypes, “rooted in and reflective of historical prejudice,” have “wreaked injustice” in far too many “spheres of our country’s public life” already. Let the jury box, at the very least, stand as a defense against such pernicious preconceptions.
Those strong words would seem to set the stage for one more logical extension of the Batson holding, this time to sexual orientation. But there’s a hitch: Despite his much-noted affinity for gay rights, Justice Anthony Kennedy has never actually declared gays to be a protected class, deserving of the heightened standards of protection provided to women and blacks. And until he does, gays will still linger in legal limbo, not quite afforded the full range of equal protection rights that other minorities enjoy.
Should “historical prejudice” against gays be rejected as it has been against women, then? Do gays have a right to make it past voir dire, and do defendants have a right to a gay voice being raised during jury deliberations? No amount of precedential exegesis will reveal the definitive answer. The California Supreme Court has ruled in favor of gay jurors; the 8th Circuit Court of Appeals has ruled against them. And however the 9th Circuit rules now, it seems exceedingly likely that the case will wind up on the Supreme Court’s docket before DOMA is even cold in the ground.