Received a pesky jury summons? Already tried that thing where you tell them you’re a lawyer and hope that they reject you out of hand? Have you considered being gay or learning to act gay?
Quick back story: In an antitrust lawsuit, enormous pharmaceutical company, Abbott Laboratories, sued other enormous pharmaceutical company, GlaxoSmithKline, over the sale of an HIV drug. During jury selection, an attorney for Abbott used a peremptory strike. GSK objected, raising a Batson-style challenge and arguing, with maximum flailing, that the juror appeared to be gay and that was the impermissible reason for the strike:
According to Abbott’s brief, GSK attorneys objected in vain to the gay man’s removal before the trial, and when the judge asked how they knew he was gay, they pointed to his mannerisms, his residence in West Hollywood and his previous work as a freelance screenwriter.
In a further comedy of errors, the trial judge didn’t seem to know if Batson applies in civil cases (it does) and the lawyer for Abbott didn’t take the judge up on her offer to come up with a neutral reason why he’d struck the juror. It’s not surprising this ended up in the appellate court, with the parties being ordered to brief the issue of what level of scrutiny is appropriate for gay jurors in light of the recent Supreme Court DOMA case.
So, simple solution, chock full of justice, right? Just extend the full benefits of equal protection laws to gays in terms of a protected class analysis and then you prevent discrimination, ban peremptory strikes based on sexual orientation, and allow for Batson challenges when it appears that being gay was the reason for the strike. Easy!
Except not all that easy. Being gay isn’t quite like being a person of color or being female. The lawyer isn’t generally going to spot the gay people across a crowded room during voir dire, but she likely can tell race and gender at a glance. (Yes, there’s some exceptions to this, but I’m painting with a broad brush here). So, in order to extend the Batson protections in this arena, you’ve got to somehow learn which people are gay so you can make sure not to strike them impermissibly or, if you’re on the other side, challenge the strike effectively. Do you quiz them slyly during voir dire, hoping they’ll slip up and mention a same-sex partner? Do you ask them about their bedroom habits? Do you ask who they dated in college? Do you go the route of the GSK attorney above and just hope you pile up enough stereotypical cultural signifiers so that you can just conclude someone is gay? The flip side, of course, isn’t much more attractive, as your only option is to say that absolutely jurors should be struck for being gay, or seeming gay, which requires what many will perceive as some un-delightfully retrograde thinking.
Richard George Kopf, who blogs about life as a federal trial judge over at Hercules and the Umpire, did an interesting thought experiment in relation to this case where he wondered if it was appropriate to use a peremptory strike of a juror if that juror is ugly and your client doesn’t want ugly people on the jury or the case is somehow related to physical beauty. Allowing attorneys to raise Batson challenges for strikes of (perceived) GLBTQ jurors seems to open the door to challenging peremptory strikes on any number of bases that don’t relate to protected classes at all.
There’s an interesting discussion in the comments over at Hercules and the Umpire as to whether a possible solution to this problem, rather than expanding the protected class definition, is to simply get rid of peremptory challenges altogether. I’ll come clean and say I’ve done nearly no trial work and therefore have not had to engage in the string-theory-level math that’s required to get through voir dire end up with the jury you’d like best. I’m curious to hear what solutions trial attorneys might propose to resolve these sorts of conundrums.