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Can being gay get you out of jury duty?

In the middle of marriage equality’s ascendance to inevitability, it’s often forgotten that relationship rights are only the start of gay people’s full integration into American society. Just beyond the marriage gates lies a slew of thorny issues involving religious liberty, freedom of speech, medical discrimination, and other complicated quandaries.

The latest legal Gordian knot arises out of—where else?—California and poses a seemingly straightforward question: Can potential jurors be excluded from a jury simply because they’re gay? Abbott Laboratories certainly believes so: During a monumental antitrust trial, the pharmaceutical company’s attorneys allegedly dismissed a prospective gay juror on account of his sexual orientation. According to Abbott’s legal adversaries, the company was concerned that the gay juror would be inherently prejudiced against Abbott, which had been accused of artificially inflating the cost of a vital HIV drug. Predictably, Abbott denied that its motivations were related to orientation. However, they’re now arguing to the 9th Circuit Court of Appeals that sexual orientation was a perfectly acceptable reason to strike a potential juror.

Supreme Court precedent suggests otherwise—but it’s not a slam-dunk either way. In a landmark 1986 case called Batson v. Kentucky, the high court held that attorneys couldn’t dismiss jurors on the sole basis of their race. Justice Lewis Powell opened the Batson opinion with the fairly obvious point that a black defendant is denied equal protection when tried before a jury from which black people have been intentionally excluded. Intriguingly, though, Powell’s rationale then ran in two directions: It wasn’t just defendants who were harmed by racism in jury selection, he suggested, but also jurors themselves, who were entitled to serve on a jury, regardless of their race.

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