Criminal defendants are entitled to representative juries. At least theoretically, juries are supposed to reflect a cross-section of the community. (Many issues, including employers failing to pay for jury-duty time off, reduce this “requirement” to theory.)
Defendants also have a right to a jury selection process that's fair and free from discrimination. Well, at least certain kinds of discrimination.
In selecting juries, lawyers have a certain number of peremptory challenges, which they can use to dismiss potential jurors without explaining why. These challenges obviously create an opportunity for discrimination—without a lawyer giving a reason for a particular juror challenge, it's extremely tough to prove intent.
To the extent litigants can prove it, deliberate exclusion of social groups like racial minorities and women violates the 14th Amendment’s equal protection guarantee. But, even after the Supreme Court's Defense of Marriage Act (DOMA) decision, prosecutors and other lawyers can apparently use sexual orientation to dismiss prospective jurors in some parts of the country.
United States v. Windsor, decided in June, invalidated the portion of DOMA barring the federal government from recognizing legally performed same-sex marriages. The case effectively acknowledged that unequal treatment of gay and lesbian people is wrong—but not entirely wrong: It left intact state freedom to deny gay matrimony.
The Supreme Court’s tepid endorsement of sexual orientation equality leaves room for uncertainty in many areas of law, including jury selection.
Back in 2000, a California appellate court held that discriminatory exclusion of lesbian and gay potential jurors is unconstitutional. (People v. Garcia, 77 Cal.App.4th 1269 (2000).) The U.S. Ninth Circuit Court of Appeals, a court with jurisdiction over federal cases that arise in California and other states, has assumed (but not decided) as much. But the Eighth Circuit, which presides over states like Minnesota, Missouri, and Nebraska, has expressed "serious doubt" as to this conclusion. (United States v. Ehrmann, 421 F.3d 774 (8th Cir. 2005).)
A recent civil lawsuit (involving pharmaceutical companies and HIV drug pricing) has raised the issue again—but this time with Windsor on the books. On appeal before a panel of Ninth Circuit judges, one of the companies claims that the other excused a potential juror because that juror was gay. (GlaxoSmithKline PLC v. Abbott Laboratories, 11-17357 (9th Cir. 2013).) The case gives the Ninth Circuit its chance to decide whether the Constitution prohibits sexual orientation discrimination in jury selection.
There's reason for optimism, as the Ninth Circuit is known for its allegedly left-leaning ways and has hinted as to its view on this subject. But even if that court outlaws this form of bigotry, the law in the states and in other federal courts won’t change. Only the U.S. Supreme Court can resolve this issue once and for all.
I say it's about time.