The California Supreme Court has acknowledged that removal of jurors based on race, ethnicity or gender is prohibited but they have yet to be presented with a case specifically on point with respect to sexual orientation.
There is a case on the 9th Circuit involving Smith Kline and Abbott, two pharmaceutical companies involving anti-trust issues over an HIV drug. Whether or not this case is something the California Supreme Court will hear is dependent upon how other circuits in the U.S. deal with this issue, says retired Superior Court Judge of Santa Clara, California, Eugene Hyman. If another court disagrees, it sets up the potential for the Supreme Court to accept the case in order for there to be consistency among all of the circuits in the U.S., he adds.
In this case, the Smith Kline lawyer told the 9th circuit that Abbott's position on the issue is offensive and that the Equal Protection Clause bars preemptive challenges to disqualify gays and lesbians for jury service, says Hyman. He says that the reason this becomes a concern for on of the parties is because the underlying case had some issues potentially with respect to HIV meds. If someone who was gay or lesbian that sat on the jury, the jury might be prejudiced against that company because of the negative publicity associated with the case.
The issue that comes up, Hyman says, is that it's more likely you'll be able to recognize someone based on race, ethnicity or gender than sexual orientation without directly questioning them. You can't ask a juror directly what their religion is but you can do so indirectly by asking what groups they belong to, Hyman says as an example.
Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.