My former AINN colleague Andy Birkey has an article that was republished at the Huffington Post about the fact that it’s perfectly legal to dismiss someone from serving on a jury solely because they’re gay. He writes:
In 2005, a federal court upheld Lewis’ removal, observing that “no federal law” prevents attorneys from removing “cross-dressers or transvestites” from juries.
Lewis’ experience is not unique. Federal courts have consistently declined to prohibit attorneys from openly discriminating against LGBT people during jury selection. And as recently as last year, the U.S. Department of Justice told a panel of judges that it “takes no position” on whether the case law that prohibits attorneys from removing jurors based on race or sex should be extended to cover sexual orientation.
While California has since banned jury discrimination based on sexual orientation, most other states have not.
There’s a bill in Minnesota, where Andy lives, that would fix that if passed. But the problem goes far beyond that:
In the 1986 case of Batson v. Kentucky — and in a series of cases that elaborated on it — the U.S. Supreme Court ruled that jurors could not be dismissed solely because of their race.
Attorneys have two tools to create a jury. They can remove a juror for cause if the juror has an obvious bias such as being related to the defendant or expressing an opinion that makes clear he or she cannot fairly consider the facts.
Attorneys also have a limited number of peremptory strikes, which they can use to remove jurors who don’t have an obvious bias. In most cases, the attorney doesn’t have to state a reason, but if race is the motivation, it’s a violation of Batson.
Under the Batson test, if a defense attorney makes a plausible showing that the prosecutor is dismissing jurors based on their race, the prosecutor must then state race-neutral reasons for the peremptory strikes. The judge then determines whether the jurors were improperly excluded. (It works the other way, as well; prosecutors can object to the defense’s peremptory challenges by arguing they were based on race.)
The Supreme Court has extended Batson to cover discrimination based on sex, but it has never outlawed peremptory strikes based on sexual orientation or gender identity.
But in reality, even the prohibitions on discrimination on the basis of race and sex are virtually meaningless. After Batson, the courts have consistently narrowed its application. Any absurd excuse for a race- or sex-neutral basis is accepted, no matter how transparently absurd it might be. So I’m not holding my breath waiting for them to enforce anything like equality on sexual orientation.