Judge Weighs Discrimination Against Gay Jurors

Can attorneys exclude gay jurors just because of their sexual orientation?

BY Michelle Garcia

September 18 2013 1:59 PM ET

A federal court will consider whether it is unconstitutional to throw a person off a jury on the basis of sexual orientation, just as it is on the basis of race or gender.

The case is based on the jury selection for a lawsuit between two pharmaceutical companies, GlaxoSmithKline and Abbott Laboratories, which both produce drugs for people with HIV. GSK sued Abbott in 2007 for raising the price of Norvir to boost the price of another drug, Kaletra, allegedly to hurt competitors. Gay and HIV activists expressed concern over the rising drug costs. The jury ruled in Abbott's favor, but GSK appealed and said Abbott's attorneys struck a juror from the trial after he said he was gay. GSK claims Abbott did not provide a nondiscriminatory reason for releasing the juror, and argues that two prior Supreme Court cases prove Abbott was in the wrong.

"The ability to serve on a jury is a vital aspect of U.S. citizenship," University of California, Irvine, School of Law dean Erwin Chemerinsky told The Wall Street Journal. "Just as it's wrong to strike a juror on the basis of race and gender, so too is it wrong for a court to discriminate on grounds of sexual orientation."

The 1986 and 1994 Supreme Court cases that GSK cites struck down laws that  existed in many states that barred women and people of color from juries solely on the basis of gender or race. GSK says that recent victories for gay people in Edie Windsor's successful challenge to the federal government over the so-called Defense of Marriage Act proves that LGBT jurors should also be considered among the protected classes.

"Windsor compels the conclusion that if the Equal Protection Clause offers any meaningful protection to gays and lesbians, the Clause must guarantee them the right and duty to participate in our country’s jury process," GSK's legal team argued, the The Huffington Post reports. "Batson [v. Kentucky] prohibits striking jurors based on classifications that have historically perpetuated discrimination against minority groups."

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