Jury Selection Sexual Orientation
In 1986, the United States Supreme Court decided Batson v. Kentucky (1986) 476 U.S. 79 [106 S. Ct. 1712, 90 L. Ed. 2d 69], holding that the equal protection clause of the United States Constitution prohibits jury selection based upon racial stereotyping.
Eight years later, it decided J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S. 127 [114 S. Ct. 1419, 128 L. Ed. 2d 89], extending the rationale of Batson to gender discrimination.
To date, those are the only two classifications the Supreme Court has recognized as prohibited bases for exclusion of jurors under the equal protection clause.
It has not yet dealt with an equal protection challenge which did not involve the "strict" or "heightened" scrutiny applied to raceand gender-based classifications of all sorts (see Reed v. Reed (1971) 404 U.S. 71 [92 S. Ct. 251, 30 L. Ed. 2d 225]; Personnel Administrator of Mass. v. Feeney (1979) 442 U.S. 256 [99 S. Ct. 2282, 60 L. Ed. 2d 870]), so it has not yet been established whether such scrutiny is a sine qua non of Batson error or merely a common characteristic.
Other courts have struggled with classifications as diverse as religion, age, socio-economic status, union membership and obesity--with varying degrees of success.
But in this case we have reached territory which, 13 years after Batson and more than two decades after its California predecessor ( People v. Wheeler, supra, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583 P.2d 748), is still terra incognita: sexual orientation.
"Trial courts confronted with the question of whether jurors may be asked their sexual orientations during voir dire have not responded consistently.
Moreover, no appellate court has ruled on this question or on the constitutional treatment of challenges for cause or peremptory challenges to exclude prospective jurors based on sexual orientation.
These issues remain unresolved at a point when an increasing number of cases involving sexual orientation reach juries, and the number of such cases will continue to grow." (Lynd, Juror Sexual Orientation: the Fair Cross-Section Requirement, Privacy, Challenges for Cause, and Peremptories (1998) 46 UCLA L.Rev. 231, 235.)