Equal Treatment

Lawsuit Tests Whether Jurors Can Be Dismissed Just For Being Gay

Can a lawyer dismiss a potential juror just because he’s gay? That’s the legal issue that a federal court will be grappling with. While the problem may seem a little lawyerly, the symbolism is not. At question is whether sexual orientation carries the same legal weight as race and gender

The case involves a dispute between two drug companies, Abbott and GlaxoSmithKline, over antitrust concerns. GSK claimed that Abbott jacked up the price of one of its HIV drugs, Norvir, in order to preserve the sales growth of a different HIV drug, Kaletra. During jury selection, GSK claims, Abbott dismissed one potential juror because he is gay and therefore would be unhappy with Abbott because of its pricing strategy. Abbott denies that claim. (The final verdict in the trial was mixed: GSK won a modest $3.4 million instead of the $571 million it was seeking.)

The 9th U.S. Circuit Court of Appeals will take up the dispute on Wednesday. At issue is whether a Supreme Court ruling barring juror dismissals based solely on race and gender extend to sexual orientation as well, particularly given the reasoning the Supreme Court used in striking down the Defense of Marriage Act. Abbott argues against including sexual orientation, while GSK argues for extending it.

“For a court to conclude it’s fine for someone to be excluded from jury service because someone didn’t want a gay person on the jury would send a bad message,” Jon Davidson, legal director of Lambda Legal, told the San Jose Mercury News. 

No matter how the case ends up, it’s likely to be appealed and may end up before the Supreme Court.