Gay Jurors and the Law of Unintended Consequences

When I was in law school, one of my criminal law professors pointed out that most of landmark constitutional criminal procedure cases involved bad people who did bad things, but some key component of the procedural protections required got omitted or went awry. In other words, we owe many of our major freedoms to bad people and the police or prosecutors or judges who mismanaged their trip through the criminal justice system. Sometimes, cases start out about one thing and end up about something else — something momentous and unexpected —entirely. That’s what happened in GlaxoSmithKline v. Abbott Laboratories, a case winding its way through the Ninth Circuit.

About six months ago, I first wrote about GKS v. Abbott Labs, which started as a bog-standard fight between two enormous pharmaceutical companies over licensing and fees for an HIV drug. It accidentally devolved into a sexual orientation equal protection case when an attorney for Abbott used a peremptory challenge to strike a gay man from the jury pool. GSK raised a Batson challenge, which the district court denied with what I noted at the time was maximum flailing.

A four-week trial ensued and resulted in a complicated holding that we don’t care about even a little bit right now. Everyone appealed everything, because that is what you do when millions of dollars are at stake. On appeal, the Ninth Circuit asked both sides to brief the issue of whether the Supreme Court’s decision in the DOMA case, United States v. Windsor, compelled a decision that equal protection prohibited discrimination based on sexual orientation during jury selection. In a perfect pileup of unintended consequences, the Ninth Circuit has now held that Windsor — in which the Supreme Court went out of its way to refuse to address whether heightened scrutiny applied — prohibits discrimination based on sexual orientation in jury selection. All this because one enormous company got mad at another enormous company over trade practices.

I like to imagine what it must be like for the poor business litigation guys stuck with this case. You’re the attorney for Abbott, and you indulge a passing whim and try to toss a juror because you’re afraid his being gay might pose a problem for your HIV drug. Were you likely operating from some nefarious anti-gay bias? Probably not. Were you intending to get your client embroiled in multi-year (the case went to trial back in February 2011) landmark litigation over the equal rights of gays and lesbians? Definitely not.

There’s no doubt the poor soul from GSK feels the same way. What started as a Hail Mary Batson challenge turned into the hill you chose to die on, lawsuit-wise. However, GSK definitely came out on top in this tortured procedural mess, the kind of case that you make law students brief so they can trace the path of motions and cross motions and supplementary briefings and amicus filings and on and on and on. Because Abbott’s strike of the juror was discrimnatory and because the trial judge upheld it, GSK gets a new trial — a chance to relive the halcyon days of February 2011 all over again. Except, of course, that Abbott has now filed a request for an extension to file a request for a rehearing en banc, which GSK, of course, opposes. And around we go again.

Meanwhile, the Ninth Circuit went from hearing a routine-if-very-expensive bit of business-on-business fighting to needing to make a landmark human rights decision. Maybe the court doesn’t even want to, but then the Windsor case gets decided while all this mess is pending, and now the Ninth Circuit is stuck trying to figure out what the Supremes meant in a case where the Supremes were very cautious not to say much of anything. I mean, it wasn’t Bush v. Gore, carrying an explicit (and laughable, and unfollowed) prohibition against applying that case to anything else ever again, but it was close. Oh, and the Ninth Circuit was not shy about pointing that out:

Windsor, of course, did not expressly announce the level of scrutiny it applied to the equal protection claim at issue in that case, but an express declaration is not necessary. […] Just as Lawrence [v. Kansas] omitted any explicit declaration of its level of scrutiny with respect to due process claims regarding sexual orientation, so does Windsor fail to declare what level of scrutiny it applies with respect to such equal protection claims. Nevertheless, we have been told how to resolve the question. Witt, 527 F.3d at 816. When the Supreme Court has refrained from identifying its method of analysis, we have analyzed the Supreme Court precedent “by considering what the Court actually did, rather than by dissecting isolated pieces of text.”

Was there the slightest hint of an acerbic tone there, or am I projecting?

Once the Ninth Circuit decided heightened scrutiny was necessary, there was really never going to be any doubt about how this would come out. If you can strike people based on sexual orientation, the court reasoned, you have three harms. First, you may prejudice a party in the trial. Next, you send the message to the struck individual and everyone else that the judicial system treats gays and lesbians differently and that by virtue of being gay, some people can’t be trusted to reason fairly. Finally, you deprive gays and lesbians from fully participating in democracy and helping the wheels of justice go round and round.

I head-nodded my way through the whole opinion with happiness, because there is no question that it is a significant victory for gay rights, as the Ninth Circuit in no way limited its overall assessment of the appropriate level of scrutiny to the jury context alone. That said, my concerns remain. How do you decide a juror is gay enough that his or her rights need to be protected in this context? Does someone have to explicitly come out by referring to their same-sex partner (which was the case here), or will some other information suffice?

You are probably not surprised to learn that the Ninth Circuit punted on this part of the problem and will leave it to lower courts — the ones actually stuck dealing with juries — to figure out how on earth to ensure gay and lesbian jurors are not unfairly struck from a jury while not accidentally requiring those same jurors to out themselves. The Ninth Circuit basically said “well, California does it already at the state level and courts already have procedures to protect juror privacy.” Okay then. Glad that’s cleared up.

I’m not being entirely fair. The court did note that a Batson challenge cannot come into play unless a juror’s sexual orientation is first established voluntarily and on the record. That solves part of the problem, in that you know you can’t raise a Batson challenge unless the struck juror is obviously and voluntarily out. Great. But how do you solve the flip side of that, which is that it still ends up being OK to strike a juror who just seems really gay as long as he or she doesn’t come out? That can’t be what the court intends, and yet I can’t see a way around the dilemma that doesn’t involve interrogating jurors about their sexual preferences.

The Ninth Circuit was able to sidestep the issue here since the juror in question referred to his same-sex partner voluntarily, but things might not be so easy for the next trial court — or trial attorney — when this issue arises.

I’m not suggesting the court should have done something differently, but we are all kidding ourselves if we think this settles the matter. And let’s not even get into what happens if this goes all the way up to the Supreme Court on the scrutiny issue. I could be writing about this case forever.

Featured image: “Side view of a empty jury box in the courthouse” from Shutterstock.


  1. Avatar Razuzu says:

    I don’t really see the issue – surely what this says is that you can’t make a peremptory challenge to toss a juror based on their sexuality, regardless of whether they’re actually gay or not, never mind out or not. Whether the challenging attorney has video footage of the guy marrying his husband on stage at the Grammys, or just “thinks he looks a little bit gay”, it’s not grounds for a challenge. Find another ground to toss him.

    Equally, the decision doesn’t mean that as long as I’m gay, I’m somehow invulnerable to being struck off a jury; just that I can’t be tossed *because* of my sexuality, that my sexuality doesn’t come into play when the arguments are being made, that it’s now a non-factor. Regardless of whether or not I’m openly gay, I can be thrown off a jury for a thousand reasons, none of which has anything to do with me being gay.

    • Avatar Paul Spitz says:

      It may seem obvious and yesterday’s news, but it really isn’t. Gay rights is perhaps the last area where discrimination is still possible and legal in many places. It’s still illegal in most states for gays to settle down together in wedded unhappiness just like straight people. The issue of the federal government or a state government recognizing the rights of gays to spousal benefits in states where gay marriage is still illegal, is still being hashed out. In Texas, married gay National Guard members seeking ID cards and other benefits reflecting their married status have to go to a National Guard base on federal property; National Guard bases on state property refuse to recognize their status.

  2. Avatar Attorney75 says:

    Prior article – “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”

  3. Avatar David White says:

    Sexuality is a behavioral matter. Therefore no behavior should matter.

    Plus, we can all just declare ourselves gay and really confuse everything.

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