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Federal appeals court: Jurors may not be removed based on sexual orientation

Tuesday, January 21, 2014

Updated: 4:15 p.m. PST

SAN FRANCISCO — A federal appeals court ruled Tuesday that potential jurors may not be removed from a trial during jury selection solely because of sexual orientation, extending to gays and lesbians a civil right that the U.S. Supreme Court has previously promised only women and racial minorities.

JuryA unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals held that striking someone from a jury pool because he or she is gay constitutes unlawful discrimination.

Its 39-page decision came in an antitrust and contract dispute between two rival drug companies over the price of a popular AIDS drug.

A lawyer for Abbott Laboratories used one of his allotted preemptory challenges to remove a potential juror who had referred to a male partner and having friends with AIDS during questioning. The jury that was eventually seated mostly ruled in favor of Abbott.

Because the gay juror was taken off the case without justification, the 9th Ci rcuit reversed the 2011 verdict and ordered a new trial.

“Permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation,” Judge Stephen Reinhardt wrote for the panel. “Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.”

The U.S. Supreme Court prohibits lawyers from removing jurors based only on their race and gender and requires them to provide a neutral reason why they are eliminating someone if an opposing lawyer questions the move. But the high court has never ruled on whether those protections apply to sexual orientation.

However, the 9th Circuit panel cited the Supreme Court’s decision last June that struck down part of the federal law that prevented the government from recognizing same-sex marriages as the basis for its finding that booting people off juries just because they are gay is unconstitutional. The Supreme Court’s recent opinion “refuses to tolerate the imposition of a second-class status on gays and lesbians,” Reinhardt said.

Abbott has spun off its drug-research activities into a new company called AbbVie that now has responsibility for the litigation. AbbVie spokeswoman Adelle Infante said the company is reviewing Tuesday’s opinion and evaluating its options, which could include asking the Supreme Court if the 9th Circuit properly interpreted its ruling.

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, applauded Tuesday’s decision, saying that jury participation is a critical element of full citizenship.

“Excluding jurors based on their sexual orientation and gender identity denies countless individuals a jury of their peers,” Kemnitz said.

The case arose from a lawsuit SmithKline Beecham filed in 2007 after Abbott hiked the price of Norvir, a drug that SmithKline used in its AIDS cocktail under a licensing agreement.

Both during jury selection and in its argument before the 9th Circuit Court, SmithKline argued the unnamed juror was taken off the jury because of the widespread negative publicity that the price hike received in the gay community.

Abbott denied the allegation and said it had several reasons to remove the potential juror, which included his having a friend dying of AIDS.

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34 more reader comments:

  1. Hey that’s okay he probably didn’t want to serve it anyways lol. They did him a favor.

    Posted on Tuesday, January 21, 2014 at 7:30pm
  2. why

    Posted on Tuesday, January 21, 2014 at 7:30pm
  3. Why the hell would that even come up in selecting someone for a jury?

    Posted on Tuesday, January 21, 2014 at 7:43pm
  4. can people stop judging others and worry about themselves?!?

    Posted on Tuesday, January 21, 2014 at 8:00pm
  5. If they did that they might be found wanting.

    Replied on Wednesday, January 22, 2014 at 11:11am
  6. How sad that this had to be determined.

    Posted on Tuesday, January 21, 2014 at 8:01pm
  7. Does this extend to trans* people as well?

    Posted on Tuesday, January 21, 2014 at 8:01pm
  8. Guess I’ll need a new excuse to avoid jury duty…

    Posted on Tuesday, January 21, 2014 at 8:02pm
  9. My mom has said shes a "breastfeeding mother" for the last 30 years

    Replied on Wednesday, January 22, 2014 at 6:14am
  10. As long as idiots and bigots find some group to discriminate against, we’ll need the higher courts to tell them we all have equal rights.

    Posted on Tuesday, January 21, 2014 at 8:04pm
  11. Now I have to think of ANOTHER excuse not to do jury duty??

    Posted on Tuesday, January 21, 2014 at 8:13pm
  12. I dont see an issue with this. They ask if you have anyone involved in fields or with things related to what is being tried. This is for an AIDs drug, they ask do you know anyone who is a doctor or a nurse, or has been diagnosed with AIDs. They answered yes, my partner, or something like that, and were asked to be removed due to bias having someone close to them with AIDs. We need to sometimes give people the benefit of the doubt

    Posted on Tuesday, January 21, 2014 at 8:14pm
  13. #equality #forward

    Posted on Tuesday, January 21, 2014 at 8:15pm
  14. What if we turned this case around and say the men&women are just getting gays and lesibians in trouble for nothing? This why that Men and Women gets away from serving jail time by selling sex on Facebook. The Men and Women as marry couples should not have the right to get married.

    Posted on Tuesday, January 21, 2014 at 8:24pm
  15. This story is actually far larger than it’s being represented: this has HUGE implications for marriage equality and equality for LGBT people in general including workplace and renting. Once sexual orientation is determined to be under heightened scrutiny, they can no longer discriminate against us as a protected class. THIS IS A VERY BIG DEAL.

    Posted on Tuesday, January 21, 2014 at 8:31pm
  16. another step toward being fully human and American!

    Posted on Tuesday, January 21, 2014 at 8:58pm
  17. It doesn’t matter. If they want you out, you’re out. They don’t have to give a reason

    Posted on Tuesday, January 21, 2014 at 9:01pm
  18. Yes!

    Posted on Tuesday, January 21, 2014 at 9:06pm
  19. I second that James Roberts-Martin…

    Posted on Tuesday, January 21, 2014 at 9:15pm
  20. Its really sad that people will judge others and not worry about the law and other things that are more harmful in soceity… Sexuality does not make them any less or more of a jury or person… Its stupid how some prejudice people can make it so ugly and mean…

    Posted on Tuesday, January 21, 2014 at 9:17pm
  21. Lawyers that pull this shit need to be disbarred.

    Posted on Tuesday, January 21, 2014 at 9:21pm
  22. Another victory!

    Posted on Tuesday, January 21, 2014 at 9:37pm
  23. This whole time I could have gotten out of jury duty by telling them I’m gay? Doh! Wish I would have known sooner. :P

    Posted on Tuesday, January 21, 2014 at 10:15pm
  24. Wow, that’s a surprise to me that anyone would even consider that a factor.

    Posted on Tuesday, January 21, 2014 at 10:37pm
  25. I didn’t know this was a part of our ‘agenda’!

    Posted on Tuesday, January 21, 2014 at 11:05pm
  26. Like Ellen DeGeneres said: Can’t we just judge people by the kind of car they drive? LOL

    Posted on Tuesday, January 21, 2014 at 11:47pm
  27. It al depends on the trial & what’s involved. If it were a rape trial, I’d be taken off because I’ve been raped & have a biased opinion on wanting to castrate men who rape.

    Posted on Wednesday, January 22, 2014 at 12:11am
  28. As it should be.

    Posted on Wednesday, January 22, 2014 at 3:36am
  29. UMC.
    Undeniably Moronic Christians.

    Posted on Wednesday, January 22, 2014 at 8:26am
  30. I’m still going to wear my “Legalize Gay” T-shirt the next time I’m called for jury duty. It’s worked like a charm in keeping me from being selected–and, despite this ruling, I’m guessing it still will. :)

    Posted on Wednesday, January 22, 2014 at 10:41am
  31. Douglas Merilatt lol you’re a mess.

    Posted on Wednesday, January 22, 2014 at 11:19am
  32. But But But….I don’t wanna be on the jury!

    Posted on Wednesday, January 22, 2014 at 1:10pm
  33. Jay this was likely your last out.

    Posted on Wednesday, January 22, 2014 at 3:37pm