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).

When using peremptory challenges in a civil case, is it OK to strike a juror because he or she is butt ugly?

Say you are involved in an antitrust suit representing a defendant drug manufacturer. The plaintiff is another drug manufacturer. The antitrust dispute is about a drug used to fight AIDS. After voir dire, and during jury selection, the lawyer for the defendant moves to strike juror 10 using a peremptory challenge. Plaintiff’s counsel objects and claims that juror 10 is likely a homosexual based upon how that prospective juror answered certain questions regarding marital status during voir dire. Plaintiff’s counsel claims that a Batson challenge is appropriate even though the motivation to strike a juror simply because of the juror’s sexual orientation has never been ruled out-of-bounds by the Supreme Court.  No neutral explanation is given by defense counsel.

To make the hypothetical better, assume that defense counsel asserts that “my client simply doesn’t want gay people on the jury” and “my client’s desire is not founded upon anything having to do with how the drug is used” and “I don’t have to give any rational explanation in support of my client’s position.”  The judge agrees with defense counsel, refuses to reverse the strike, and the matter is appealed (to the Ninth Circuit) after an adverse jury verdict.  Who wins?  Why?

Again, let’s change the facts but only slightly. The drug is a face cream with a powerful antioxidant that conditions the skin. The juror is terribly ugly. No other facts change. How do you rule, and why?


PS  For a description of the real case, see ADAM LIPTAK, Court to Decide if Lawyers Can Block Gays From Juries, New York Times (July 29, 2013).  Thanks to How Appealing (July 29, 2013).

Photo Credit:  L. Marie's photostream per Creative Commons license.

Photo Credit: L. Marie’s photostream per Creative Commons license.

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