Court appears wary of removing jurors over sexual orientation

SAN FRANCISCO — A federal appeals court appeared troubled Wednesday by the removal of gay and lesbian prospective jurors on the basis of their sexual orientation.

During a hearing, a three-judge panel of the U.S. 9th Circuit Court of Appeals considered the issue in the context of an appeal from a jury verdict reached in a dispute between two drug makers, Abbott Laboratories and SmithKline Beecham.

An attorney for Abbott used a peremptory challenge during a 2011 trial to dismiss a man who had spoken of his male partner during voir dire questioning.

SmithKline objected to the strike, charging that Abbott did not want gays on a jury that was deciding whether the company improperly raised the price of an HIV drug. The Abbott attorney denied removing the man because of his sexual orientation and insisted he did not know whether the prospective juror was gay.

Judge Stephen Reinhardt said during Wednesday’s hearing that the Abbott lawyer must have known the prospective juror was gay “unless he isn’t very bright.”

Although the judges did not clearly indicate how they would rule, they suggested that Supreme Court rulings have given sexual orientation some form of heightened constitutional protection. They also seemed disturbed that the Abbott lawyer had not provided the trial court with a neutral reason for striking the man from the jury pool.

The Supreme Court has barred the removal of prospective jurors because of their race or gender, but has never extended the prohibition to sexual orientation.

Thirteen civil rights groups, citing the Supreme Court’s June ruling on same-sex marriage, have urged the 9th Circuit to bar juror strikes based on sexual orientation. The 9th Circuit could rule at any time, but such cases generally take months to decide.

California law already prohibits the removal of jurors based on sexual orientation in state court.

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