Gallet Dreyer & Berkey, LLP | Sexual Orientation and Juror Selection
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Sexual Orientation and Juror Selection

06/07/2014 | Summer 2014 Newsletter
Criminal defendants have a constitutional right to a fair and impartial jury of their peers, and a key to ensuring that a defendant receives such a jury is to make certain that the adversary is not eliminating an entire class of potential jurors. Currently, there is an important legal battle brewing with regard to the elimination of jurors based on their membership in one such class: sexual orientation.

During jury selection, a party is permitted to eliminate potential jurors either for bias, defined as an inability to judge the case impartially based on answers to questions asked during juror interviews, or through the exercise of a peremptory challenge. Each side gets a limited number of peremptory challenges, which may be exercised to strike a potential juror without having to provide a reason.

In 1984, the Supreme Court, in Batson v. Kentucky, deemed it an unconstitutional violation of a party’s right to due process of law guaranteed in the 14th Amendment to the U.S. Constitution to use a peremptory challenge to eliminate a potential juror based on their race. In 1994, in J.E.B. v. Alabama, the Supreme Court extended that doctrine to abrogate the use of peremptory challenges based solely on gender. To date, race and gender are the only classes entitled to such protection.

In January 2014, the federal Court of Appeals for the Ninth Circuit (which governs seven Western States, including California) ruled that it was similarly unconstitutional to strike a potential juror solely based on their sexual orientation. The court wrote, “Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.” This decision runs in direct conflict with a prior decision of the federal Court of Appeals for the Eighth Circuit (which governs six Midwestern States) which found that it was not a constitutional violation of due process to eliminate potential jurors based solely on their sexual orientation. The Second Circuit Court of Appeals (which governs New York) has not yet ruled on this issue.

It is the job of the Supreme Court of the United States to rule on constitutional questions, and resolve such divisions between federal appellate courts. We expect to see a case raising the issue of sexual orientation and jury selection on the Supreme Court’s docket in the very near future.

About the author: Adam M. Felsenstein is an associate at Gallet Dreyer & Berkey, LLP. His practice focuses on civil and criminal litigation matters, including trial work in the state and federal courts. Mr. Felsenstein can be reached at