Court to decide whether gays can be bumped from federal juries

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SAN FRANCISCO -- An appeals court will consider Wednesday whether gays and lesbians may be struck from federal jury pools because of their sexual orientation.

The issue before the U.S. 9th Circuit Court of Appeal arose in an antitrust dispute two years ago between two drug makers, Abbott Laboratories and SmithKline Beecham.

An attorney for Abbott used a peremptory challenge to bump a man who had spoken of his “partner.” Peremptory challenges do not require an explanation.


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 an HIV drug. An Abbott attorney denied removing the man because of his perceived sexual orientation. The trial judge permitted the removal.

The jury rejected most of SmithKline’s claims and decided that Abbott should pay only $3.5 million, a fraction of the damages SmithKline had sought. SmithKline has asked the 9th Circuit to overturn the verdict and grant a new trial based on the removal of the gay panelist.

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 rulings in gay marriage cases, have urged the 9th Circuit to bar juror strikes based on sexual orientation.

Three liberal 9th Circuit judges — Stephen Reinhardt, Marsha Berzon and Mary Schroeder — will decide the issue. They asked the lawyers to address the effect of the Supreme Court ruling in June that struck down a portion of the Defense of Marriage Act. That ruling required the federal government to give same-sex married couples the same benefits as heterosexual married couples.

The outcome of the 9th Circuit case will only affect federal juries. California has long prohibited litigants in state court from striking panelists on the basis of sexual orientation.



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