By Adam Liptak | The New York Times
Last month’s Supreme Court rulings on same-sex marriage were major gay rights victories. But countless questions about the legal rights of gay men and lesbians remain.
Here’s one: May gays be excluded from juries on account of their sexual orientation? The federal appeals court in California will soon decide the issue, which turns out to be surprisingly knotty.
It arose at the 2011 trial of an antitrust fight between two giant drug companies. After a potential juror appeared to reveal that he was gay, a lawyer for Abbott Laboratories used a peremptory strike — one that does not require a reason — to eliminate him from the jury pool.
An opposing lawyer objected, saying the juror “is or appears to be, could be, homosexual.”
That mattered, the lawyer said, because “the litigation involves AIDS medications” and “the incidence of AIDS in the homosexual community is well known, particularly gay men.”
In legal terms, the lawyer had just tried to raise a Batson challenge, named after a 1986 Supreme Court decision, Batson v. Kentucky. That decision recognized an exception to the general rule that peremptory challenges are completely discretionary. Race, the court said, cannot be the reason.
