Can You Strike Potential Jurors Because of Their Sexual Orientation?

The law gives parties the right to strike a limited number prospective jurors from serving on a particular jury without demonstrating "cause, but that right is limited by case law designed to prohibit discrimination.  Should a party’s right to peremptorily challenge a juror because of his or her sexual orientation be added to the list?

The issue will be addressed in the Ninth Circuit Court of Appeals in the case of Smithkline Beecham Corp. v. Abbott Laboratories, which is being argued in September 2013.  The issue arose in an antitrust case involving HIV medications.  A lawyer for one of the companies sought to strike a juror because the would-be juror was “or appears to be, could be, homosexual.” 

This blog post from Verdict has a nice summary of the issue.  Here is link to all of the briefs in the Smithkline Beecham Corp. v. Abbott Laboratories case.

The leading case on the issue of raising an objection to an adverse party’s use of a preemptory challenge for an improper reason is Batson v. Kentucky, 476 U.S. 79 (1986).   The leading Tennessee civil case on point is Zakour v. U.T. Medical Group, Inc., 215 S.W.3d 763 (Tenn. 2007). 

Under Tennessee case law, here is the analysis that a trial judge must use when a Batson challenge is made:

After the complaining party makes a prima facie showing of discrimination, the burden shifts to the opposing party to offer a neutral explanation for challenging the jurors.  The reasons given ‘need not rise to the level justifying exercise of a challenge for cause,’ the Supreme Court stated.  In fact, ‘[t]he second step of this process does not demand an explanation that is persuasive, or even plausible.’ Rather, the trial  court is instructed to look at the ‘facial validity’ of the reason given for challenging the juror. ‘Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’  Thus, a prosecutor’s assertion that he struck a juror because the juror had long, unkempt hair, a mustache, and a goatee was deemed a race-neutral reason for exercising a peremptory challenge. However, a lawyer cannot rebut the complaining party’s prima facie case of discrimination by denying a discriminatory motive or affirming the lawyer’s good faith. The Supreme Court stated that the opposing party ‘must articulate a neutral explanation related to the particular case being tried.’ That explanation must be a ‘clear and reasonably specific’ explanation of [the lawyer’s] ‘legitimate reasons’ for exercising the challenges.

Id. at 767-68 (citations omitted).

The recent SCOTUS decisions on the rights of gay citizens opens a multitude of legal issues including, quite predictably, whether one’s sexually can form the basis for a peremptory challenge.  Regardless of the outcome, the SCOTUS will get the opportunity to hear this case.