Published September 18, 2013
| The Wall Street Journal
A federal appeals court in San Francisco will consider Wednesday whether a constitutional ban on excluding someone from a jury due to race or gender should extend to sexual orientation.
Currently, a lawyer can strike someone from a jury for nearly any reason, according to the Supreme Court, so long as it isn't tied to the person's sex or race.
The oral arguments Wednesday—at the Ninth U.S. Circuit Court of Appeals —follow two major high-court rulings on gay marriage, largely hailed as wins for gay-rights proponents.
"The ability to serve on a jury is a vital aspect of U.S. citizenship," said Erwin Chemerinksy, a constitutional-law scholar and the dean of the University of California, Irvine School of Law. "Just as it's wrong to strike a juror on the basis of race and gender, so too is it wrong for a court to discriminate on grounds of sexual orientation."
Others, however, note that gays and lesbians haven't suffered the degree of discrimination blacks and women experienced in regard to jury service. Laws banning blacks from serving existed in many states before the Civil War, and many states banned women from serving for much of the last century, said Thaddeus Hoffmeister, an expert on the jury system and a University of Dayton law professor.
"The legal books said 'we will discriminate' " in regard to women and African-Americans, said Mr. Hoffmeister. With gays and lesbians, he said, "it's a different ballgame."
The current issue stems from a fight between drug firms GlaxoSmithKline PLC and Abbott Laboratories. In 2007, GSK sued Abbott, alleging it improperly raised the price of one HIV drug, Norvir, to help boost sales of another, Kaletra. GSK said the move, which angered gays, cost it hundreds of millions of dollars in market share.
In 2011, a jury largely ruled for Abbott, granting GSK only about $3.5 million. GSK appealed, saying that prior to trial, Abbott lawyers struck a juror after he revealed himself as gay, and that Abbott failed to give a nondiscriminatory reason for the dismissal.