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Ninth Circuit: Can't strike jurors for being gay


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I was studying for the bar exam and came across the rule that a party can't use any of its three preemptory juror strikes (3 per side), to get rid of jurors it thinks would not rule in its favor, if the party is striking the juror based on the juror's race or gender (e.g. can't use strikes so that there's an all-white jury on a lynching case). The court can also strike a juror for cause, i.e. bias, regardless of race or gender, but some other facts must then come into play.

But then I wondered, what about striking gay jurors? Is that possible? I looked it up, and apparently, a case in the 1980s ensured the right of LGBT individuals to serve on a jury (can't uniformly bar all of them). But, they can still be preemptively struck, even if it's solely because of a juror's sexual orientation and there is no other cause. That is, except in the Ninth Circuit.

The Ninth Circuit said either side can't just strike jurors for being gay due to a case involving GlaxoSmithKline and HIV medicine, where GSK tried to remove all of the openly gay jurors, with no other cause. However, other circuits and precedent say that if the classification of the person falls under rational basis (the lowest) level of legal scrutiny, like disability or income, or, in some areas, sexual orientation, the person can be struck from the jury solely on that basis. (Rational basis makes it easy to discriminate, since it allows for treating people differently based on their difference if there is a government interest of any kind, and "any rational basis" connecting that interest and the differential treatment). So, in any other circuit (which is most states, as the US has many circuits, each covering a few to several states), you can get booted off a jury for being gay.

I am pretty incensed, to say the least. On the other hand, in order for the Ninth Circuit to say "you can't strike jurors just because they're gay", it had to say that sexual orientation comes under intermediate scrutiny, at least. This makes discrimination more difficult, because then in order to treat different people differently, one needs to show an important government interest by means that are substantially related to that interest.

This higher standard here is super-important, because all Supreme Court LGBT rights cases so far have been decided on rational basis, as well as all the ones in lower courts. If that higher standard got applied in other courts, it would give LGBT people so much more protection, since it would tighten the standards/justifications for treating them differently.

Marriage equality, so far, has won on rational basis, but I can see application of intermediate scrutiny in other areas.

Sorry if this is kind of dense legalese, but I thought it was interesting: so in my own state, one of the parties could boot me off a jury for my orientation (and they could permissibly do this for all gay jurors and allies, and for instance leave a homophobic jury to try a hate crime). I hope other courts follow the Ninth Circuit example!

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