California Appeals Court Considers Whether Gays Qualify to Be On A “Jury of One’s Peers”

Wednesday morning, the 9th U.S. Circuit Court of Appeals heard arguments in a case that could spur one of the next big gay rights questions to reach the Supreme Court: whether sexual orientation is grounds for juror dismissal.

What started in 2011 as an antitrust case between two pharmaceutical companies, Abbott Laboratories and GlaxoSmithKline, may now hinge on whether judges believe Abbott violated the rights of a gay man who was excluded from the jury after mentioning his same-sex partner.

But not you, Juror B. You're gay.

But not you, Juror B. You’re gay.

GlaxoSmithKline alleges the man was dismissed because of the gay community’s negative response to the original case, which accused Abbott of raising (by a staggering 400 percent) the price of an HIV treatment drug called Norvir in an effort to damage competitors. Hiking up Norvir’s price meant reducing access to the drug, which was used to boost the effectiveness of other treatments.

The original case found largely in favor of Abbott, which at first denied dismissing the juror because he was gay and now says that it was a perfectly valid reason to do so. Both companies hope for a retrial, given the mixed nature of the initial ruling.

Mercury News reported Wednesday evening that the court seemed in favor of granting the appeal, although the Associated Press report noted mixed opinions among the court’s three judges.

What some have viewed as a snazzy get-out-of-jury-duty-free card is actually a confusing and contested legal practice. Courts have ruled both for and against excluding gay jurors, while some have argued that the 1986 U.S. Supreme Court decision barring race as grounds for juror dismissal should also extend to sexual orientation. It’s not entirely clear what the Supreme Court would do if this case reached its halls, but Slate has a solid rundown of the history of court cases regarding jury selection and protected classes.

The reason this is important goes beyond Abbott and beyond this juror. Although jury duty is something many of us tend to regard as an inconvenience, it also represents a rare opportunity for an individual citizen to uphold justice, and to use their own life experience and the way it informs their knowledge of what “justice” looks like to shape America in a small way. As such, there’s always been resistance to the idea of marginalized people exercising this kind of power and participation, which explains America’s long history of all-white and frequently all-male juries. The public conversation about the jury of George Zimmerman’s trial speaks powerfully to the degree that many juries are still noticeably homogenous, and the ways in which that has real-world effects on the justice system.

This issue also draws from larger cultural debates about what an “impartial,” “normal” or “neutral” person looks like, and whether having any kind of identity marker besides those that are usually normalized into invisibility makes you inherently biased (the controversy over Sonia Sotomayor’s appointment to the Supreme Court is a good example). Juries are supposed to be composed of “peers;” questions about whether marginalized people belong on juries get to fundamental questions of equality and humanity, and whether the majority culture really considers marginalized groups its “peers.” The debate over gay jurors is more than just a debate about one more instance of discrimination against gay people in a specific space; it’s about whether gay people should be allowed full access to the rights of American citizenship, about whether their identity means an inherent bias that keeps them from being able to weigh in on things meaningfully, and as the Abbott case illustrates, whether they should be allowed a legal voice on issues that affect them.

It should go without saying that being gay, like being a woman or being black, does not make you a Certain Kind of Person except one that is gay or a woman or black. The fact is that being straight, cis, white, or male does not make you more “impartial.” So while Abbott Laboratories and their lawyers may have had a case if their potential gay juror had, say, had HIV or been an activist for better HIV/AIDS treatment, merely having heard of the pharmaceutical company and being a gay man does not mean that “Juror B” was predisposed against it. Let’s hope the federal appeals court follows the California Supreme Court’s example and treats gay potential jurors like actual human beings.

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Kaitlyn lives in New York, which is the simplest answer you're going to get if you ask her where she's from. She went to journalism school and is arguably making the most of her degree as a writer and copy editor. She utilizes her monthly cable bill by watching more competitive cooking shows than should be allowed.

Kaitlyn has written 69 articles for us.


  1. A lot of the issue comes down to how the law considers homosexuality (or other non-heterosexual identities). Is it an immutable characteristic, like race, which deserves the highest levels of protection? Or can the government discriminate based on sexual identity if they have a pretty good reason? (Fun fact: gender is not considered as immutable as race, which seems like it would actually be a really progressive thing except it mostly was decided so that women could still be discriminated against, thanks a bunch SCOTUS).

    Anyway, thanks for writing about this! It’s going to be interesting to see the outcome.

  2. Interesting. I think I’ve gotten out of jury duty more or less permanently by never registering to vote, but just in case they call me, I’ll keep this in mind, hee. ^_^

    • Howdy! You should really register to vote:

      While registering does put you in the pool for jury duty, so do things like paying taxes and getting a driver’s license. Being over 18 and a responsible adult, registering to vote isn’t going to make you more likely to be selected for jury duty.

      And one of the benefits of voting is that you can vote for representatives and Presidents who nominate openly gay judges for Federal courts ( and select Supreme Court Justices who fight for us (

      ‘Murica, f*ck yeah!

      • Howdy back at ya! ^_^

        I do realize that courts build lists of potential juror from other sources (that’s what’s I meant when I said ‘more or less’), but, personally speaking, I’d prefer not to draw more attention to myself than necessary with regards to that. Plus, it would be a pain in the spleen, since I have work and transportation issues, neither of which I’d want to experience difficulty with because I have to spend my day idling away in a courtroom.

        As for the rest, I don’t mean this mean at all, but my feelings on politics are ‘Meh’ at best. I see that you linked a story about gay marriage in California, and I appreciate the thought, but I don’t live in California, and I’m never going to get married. Additionally, I doubt that the President or any politician for that matter cares about what I think or my problems, especially since I’m not a gazillionaire who can give them lots of money.

        Finally, as for my representative, according to Wikipedia, my representative has, in the elections I would have been old enough to vote in, won with an average of 76.3% of the vote ( ), so unless I missed it and they made a law saying that my vote is somehow worth 100,000 votes, there’s no real outcome change there, regardless of whether or not I voted.

        Phew, sorry for rambling. I’m just speaking for me, of course, and I’m not trying to dictate how others should do things.

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