[JURIST] A unanimous three-judge panel for the US Court of Appeals for the Ninth Circuit [official website] on Tuesday held [opinion, PDF] that, pursuant to the equal protection clause, sexual orientation is not a permissible basis upon which to exclude jurors during the federal “voir dire,” or jury selection, process. SmithKline Beecham filed suit against Abbott Laboratories in federal court alleging, among other things, violations of a licensing agreement and various antitrust laws related to HIV medication transactions. During voir dire, Abbot used its first preemptory strike against “the only self-identified gay member of the venire.” The jury returned a verdict partly in favor of Abbot, and SmithKline demanded a new trial on grounds that Abbot’s preemptory strike was discriminatory. On appeal, Judge Stephen Reinhardt ordered a new trial, concluding:

Jury service is one of the most important responsibilities of an American citizen. For most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process. It gives gay and lesbian individuals a means of articulating their values and a voice in resolving controversies that affect their lives as well as the lives of all others. To allow peremptory strikes because of assumptions based on sexual orientation is to revoke this civic responsibility, demeaning the dignity of the individual and threatening the impartiality of the judicial system …. Permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation …. Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate … stereotypes. The Constitution cannot countenance state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.

The court applied “heightened scrutiny” to legal distinctions based upon sexual orientation, thereby adding another voice to a growing circuit court split on the issue. The decision has led some to posit [NYT report] that the US Supreme Court now has greater incentive to resolve the issue should it arise.

Discrimination based on sexual orientation and gender identity has recently been a controversial issue in the US. In November a judge for the US District Court for the District of New Jersey upheld [JURIST report] a New Jersey law banning the use of sexual orientation conversion therapy. Also in November the US Senate approved a bill [JURIST report] outlawing workplace discrimination against gay, bisexual and transgender Americans. The Employment Non-Discrimination Act (ENDA) outlaws workplace discrimination on the basis of sexual orientation or gender identity. In October the Missouri Supreme Court rejected the claim [JURIST report] of a deceased state highway patrol trooper’s same-sex partner that the state’s survivor benefits statute violated his equal protection rights under the Missouri Constitution by denying him benefits based on his sexual orientation.