The Exclusion of a Juror Based Upon Sexual Orientation Is Not Allowed


Trial by jury was established by King John of England when the monarch affixed his royal seal to the Magna Carta in the year 1215. In part, the historic document advanced the proposition that a subject of the Crown involved in a court dispute would be judged by a jury of “his peers”. This lofty principle was later adopted by our new nation following the American Revolution. Thus, being “tried by a jury of one’s peers” is so time-honored as to be etched into the fabric of American jurisprudence even to this day.

But for a litigant to be judged by “his peers”, it is imperative that the legal process that governs jury selection not be tainted by a discriminatory practice. Enter Batson v. Kentucky a seminal case decided in 1986 by the Supreme Court of the United States setting aside a criminal conviction of an African American defendant when the court concluded that African American jurors were systematically challenged and excused (for no apparent reason) by the prosecution thus leaving a jury of predominately white citizens to sit in judgment of the accused. In essence, the Supreme Court held that those jurors of color who were excused, were in fact deprived of their constitutional rights to be an integral part of the nation’s jury process, an unacceptable result the high court had to correct.

Interestingly enough, three years after the Batson decision, Finz & Finz, P.C., firm was involved in a trial in which I was assigned to represent an African American who sustained a severe injury through the claimed negligence of a large office building owner. During the jury selection process, the defendant’s attorney challenged and excused each African American juror in exercising the three peremptory challenges he was allotted by the rules. I immediately sought a ruling from the judge (not present during jury selection) citing the Batson decision as precedent. After holding a preliminary hearing, the court sustained my objection; admonished and threatened defendant’s attorney with sanctions, disbanded the jury and directed that a new one be drawn. The case thereafter proceeded to trial with a balanced jury that returned a substantial verdict on behalf of our client. Indeed, it was the first time in the history of New York State in which the Batson rule had been applied to a civil case, and ground-breaking enough to have been the lead story on the front page of the New York Law Journal the next day.

With that as a backdrop, we now proceed to a decision just handed down on Jan 21, 2014 in which the United States Court of Appeals for the Ninth Circuit in San Francisco held the Batson rule would be applied where the defendant’s attorney in a pharmaceutical AIDS case used a peremptory challenge to excuse a gay juror from the panel. Judge Stephen Reinhardt, writing the opinion for the Ninth Circuit, found that the attorney’s use of a peremptory challenge was based upon the “sexual orientation” of the juror, stating further that, “this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals”, would not be allowed by the court.

It will be interesting to follow this decision as it evolves through the state and federal courts, and whether the United States Supreme Court will ultimately address the issue. And as always, Finz & Finz, P.C., being at the cutting edge of the law, will keep our clients and readers informed through other related articles published in our website.

  • About the Author
  • Latest Posts

Finz & Finz, P.C. is a New York and Long Island personal injury law firm based out of Mineola, NY. It was founded in 1984 and is highly rated, with many honors and awards of excellence.