Are gay jurors members of a suspect class?

A little over a month ago, I posted a piece entitled: When using peremptory challenges in a civil case, is it OK to strike a juror because he or she is butt ugly?  That post generated some interesting discussion. The case that served as the center piece for my post was pending in the Ninth Circuit and involved a peremptory strike of a supposedly gay juror in a civil case about a drug used to treat HIV.

A really good article on the Ninth Circuit case now appears in a piece entitled: Exclusion of Gay Juror Tees Up ‘Suspect Class’ Question.  The article is well worth reading.


PS.  Once again, thanks to How Appealing (August 11, 2013).

7 responses

  1. Daniel,

    But what if a trial lawyer doesn’t agree with you? Should the lawyer be able to exercise a peremptory strike because of the lawyer’s belief that a gay person is not likely to be sympathetic to the lawyer’s client? (For example, think of a gay person and a case about the efficacy of a certain a drug for the treatment of HIV.)

    All the best.


  2. I realize this is a bit off-topic (and likely a distinctly minority opinion), but I would first take a step back and question whether lawyers should even be permitted to discharge a juror for any reason other than cause, defined roughly as a reasonable likelihood that the individual in question is unable/unwilling to follow the court’s instructions or discharge their duty fairly and impartially. In my opinion, while parties are entitled to a fair and impartial jury, they are not entitled to any particular fair and impartial jury. To put it a little differently, parties are entitled to a fair and impartial jury, but not necessarily a jury that is “sympathetic to the lawyer’s client.”

    If a lawyer cannot articulate a plausible argument that a particular juror should be discharged for cause, then the individual should be permitted to serve. To use the judge’s example, if a lawyer believes that a gay person cannot be fair or impartial or will not follow the court’s instructions, let the lawyer (through questioning of the juror or by other competent evidence) articulate an argument that such is the case. Otherwise, we are, in my opinion, simply permitting lawyers to employ their prejudices as a means to compensate for their professional shortcomings. Lawyers should not be permitted to “stack the deck” through the use of peremptory challenges, but instead should be compelled to better develop their skills so that they can persuade a jury of fair and impartial people as to the correctness of their position.

  3. Noob,

    Among many legal types, you will find agreement with your argument that lawyers should be limited to “for cause” strikes only. Indeed, that position (“for cause” only strikes) is championed by some really good legal thinkers. Thanks for taking the time to write.

    All the best.


  4. If a lawyer cannot articulate a plausible argument that a particular juror should be discharged….

    In general, I agree with this. However. There’s also the need to move the proceedings along, and some arguments are much harder to articulate than others, a problem potentiated by an uncooperative potential juror.

    There’s also the empirical case that a hard rule that has no exceptions is a terrible rule that creates more problems than it solves.

    A limited number of peremptory challenges–the present situation–makes a fine Gordian Knot solution to the matter without letting either side load the final jury.

    Eric Hines

  5. Peremptory challenges represent a nod to the art of a jury trial — the notion that persuading a jury requires a number of skills, including some (like intuition about a juror) that are both difficult to teach and difficult to explain.

    Having said that, lawyers far more experienced that me have commented that an attorney who can’t think of a plausible (race or orientation neutral) reason for exercising a peremptory challenge probably doesn’t have the quick-thinking necessary to succeed in front of that jury anyway.

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