As Gay Marriage Unfolds There is an Issue Simmering in San Francisco: Bias in Jury Selection
With the legal war over same-sex marriage continuing to unfold in courts around the country, a San Francisco federal appeals court is about to tackle another simmering gay rights issue -- whether gays and lesbians can be excluded from juries simply because of their sexual orientation.
Abbott Laboratories and rival pharmaceutical giant SmithKline Beecham triggered the conflict two years ago, when Abbott's attorneys bumped a prospective gay juror from a blockbuster San Francisco antitrust trial between the two companies. SmithKline's legal team cried foul, suggesting Abbott wanted to remove a gay juror from a trial focused on allegations the company dramatically jacked up the price of a crucial HIV treatment drug, a corporate move that sparked a furor in the gay community.
While Abbott denies any such motives, the maneuver sparked a major showdown over the unresolved question of whether a pivotal U.S. Supreme Court decision barring the exclusion of jurors based on race applies to gays and lesbians. And the case has underscored what gay advocates have known for years -- that same-sex marriage is only part of the legal drama in courts around the country over the extent of legal protections based on sexual orientation.
The 9th U.S. Circuit Court of Appeals on Wednesday will hear arguments in the Abbott v. SmithKline case, which legal experts say could reach the Supreme Court.
"It is symbolic," Vikram Amar, a UC Davis law professor, said of the gay juror issue. "But it's a very important symbol."
On the surface, the case is about two companies trying to get a retrial as a result of the jury's mixed verdict in their antitrust battle, which centered on licensing agreements and pricing for an Abbott drug called Norvir. But the issue of how the legal system should treat prospective jurors who are openly gay is the main event.
In fact, the three-judge 9th Circuit panel hearing the appeal recently asked the companies to address how the Supreme Court's ruling in June striking down the federal ban on same-sex marriage benefits -- and the legal standard used in the case -- applies to the gay juror arguments.
Lawyers for Abbott and SmithKline did not respond to requests for comment.
But in court papers, they took very different positions on whether sexual orientation should affect the common pretrial practice of removing, or challenging, jurors. In what is known as the Batson decision, the Supreme Court in 1986 outlawed such maneuvers based on race in criminal trials and later extended those protections in civil cases.
In the San Francisco trial, Abbott removed a potential juror during jury selection after he discussed the employment history of his male partner. Abbott denies removing the juror because he was gay, but nevertheless maintains the Supreme Court decision does not apply.
"Existing precedent would foreclose extending Batson to sexual orientation," Abbott's lawyers wrote in their briefs, adding that the 9th Circuit does not even need to address the issue in the case.
SmithKline, however, argues that the time has come for the courts to include sexual orientation in jury selection protections. Twelve civil rights groups have joined the company in the case, arguing that the Supreme Court's reasoning in the federal gay marriage case backs SmithKline's position.
"Batson and subsequent Supreme Court decisions make clear that all persons, when granted the opportunity to serve on a jury, have the right not to be excluded based on stereotypical presumptions that reflect and reinforce historical patterns of discrimination," SmithKline wrote in its 9th Circuit brief.
Gay rights advocates say that equal treatment in jury service is akin to seeking the same rights in the military, voting and marriage. And they say the trend is moving in that direction -- Attorney General Eric Holder last year barred all federal prosecutors from using challenges based on sexual orientation in criminal trials, taking the position in a Justice Department memo that Batson applies.
"For a court to conclude it's fine for someone to be excluded from jury service because someone didn't want a gay person on the jury would send a bad message," said Jon Davidson, legal director of Lambda Legal.
The three 9th Circuit judges hearing the case are among the court's most liberal: Judges Stephen Reinhardt, Marsha Berzon and Mary Schroeder. It is the latest in a long line of 9th Circuit cases dealing with the intersection of legal rights and sexual orientation, notably the court's decision last year invalidating Proposition 8, California's gay marriage ban.
Legal experts following the Abbott case say the 9th Circuit's interest in how the Supreme Court's federal gay marriage ruling applies suggests that, while the issue is unlikely to arise frequently in civil trials, they consider the corporate conflict a chance to address the broader question of sexual orientation and jury selection.
"They recognize the whole area of sexual orientation law is still evolving," Amar said.
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him atTwitter.com/hmintz.
ONLINE
Read the arguments about excluding jurors because of their sexual orientation atwww.mercurynews.com/crime-courts. On Wednesday morning, watch for tweets from legal affairs writer Howard Mintz -- @hmintz -- on the arguments before the 9th Circuit Court of Appeals
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