Another Overlooked Struggle for Equality: Discrimination Against LGBT Jurors

by Jeremy Leaming

Putting aside the North Carolina vote embracing discrimination against lesbians and gay men, the struggle for marriage equality has seen more victories of late than defeats. Today, for example, Maryland’s highest court, the Court of Appeals, ruled that same-sex marriages recognized in other states, such as New York or Connecticut, will be lawfully recognized in Maryland. The case is Port v. Virginia Anne Cowan. The Maryland legislature earlier this year also passed a same-sex marriage law.

But marriage equality, while an important component to equality, is hardly the pinnacle. As Andy Birkey notes for us in an extensive piece for The American Independent, it is still legal for public officials in the vast majority of states to exclude members of the LGBT community from jury service.

The Constitution, Birkey notes, says criminal defendants are entitled to an “impartial jury,” and the U.S. Supreme Court has determined that jurors cannot be excluded because of gender or race. Sexual orientation and gender identity, however, remain open to discrimination.

“Federal courts,” he writes, “have consistently declined to prohibit attorneys from openly discriminating against LGBT people during jury selection. And as recently as last year, the U.S. Department of Justice told a panel of judges that it ‘takes no position’ on whether the case law that prohibits attorneys from removing jurors based on race or sex should be extended to cover sexual orientation.”

Only a few states have taken action to prevent government officials from yanking prospective jurors because of beliefs they are gay or transgender. California is the exception. When former Calif. Gov. Gray Davis enacted a law barring such discrimination, he said “No Californian should be deprived of the opportunity to share in our system of justices simply because they are gay or lesbian.”

Other states, but hardly enough, are considering similar measures.

But as with the fight for marriage equality, the efforts to bar government from excluding members of the LGBT community from jury service face opposition from the usual suspects, such as religious right outfits. Birkey notes that the so-called Committee of Moral Concerns opposed the Calif. measure, saying, in part, that gays “are a politically charged, activist minority fighting to advance a dangerous, radical sexual lifestyle.”      

So while advancements for marriage quality are worthy of celebration, including President Obama’s recent eloquent backing, it will not lull proponents of equality into believing prejudices, bigotry, hatred of the LGBT community have been overcome.